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Johannes de Legnano's Sarcophagus
Bologna, Museo civico medioevo
Johannes de Legnano (� 1383), De bello

Discussion of Moderamen (Moderatio) inculpatae tutelae

Reading: Pennington, The Formation of the Jurisprudence of the Feudal Oath of Fealty
How may force be repelled with force within the limits of justifiable defense moderamen inculpatae tutelae)? And the text answers this by saying that it is allowed within the limits of justifiable defense. What are the limits of justifiable defense, and what is required therein; But the meaning of these words is ambiguous; what are the conditions required for these limits? The jurists agree that they are those which equal the violence inflicted, in quality of arms, and in length of time.

Also there must be equivalence in the violent act itself, lest, by exceeding, it be regarded as revenge; but this is a doubtful point.

Whether a poor and feeble man may defend himself with a sword against a strong and vigorous man who strikes him only with the fist? And in the first place suppose a strong and vigorous man strikes me with his fist, and I am a poor fellow who cannot stand up to him with the fist. May I defend myself with a sword?  It seems that I may, because equality is always to be regarded;
Cod. de fruc. et lit. expen., the last law; ff. de arbitr. l.Si cum dies. Sextus de reg. iuris, In iudiciis. On the other hand, if a man tries to rob me by violence, and I, being no match for him in strength of body, strike him with a sword, that would be compensation of his body for injury to property, which ought not to be; Cod. de sacrosanct. ecclesiis, the last law.

Jacobus de Arena draws a distinction. One wishes to repel either violence to the person, or violence to property. In the first case I may use arms and any means whatsoever, if matters cannot otherwise be set right;
Cod. de appell. l. Si quis. For if I may kill a thief when I do not recognize him, or when I cannot get a judge to help me as to the stolen goods; ff. Ad legem Corneliam de sicariis, l. Furem,  much  more may I kill a man when that is the only way of saving my person.

In the second case, of violence to property, either the violence done may be redressed by resorting to law, in which case I may not defend my property in any way I like, but only with certain arms, and not with acts, because I ought not to strike a person in defense of a thing, even when the thing cannot be saved in any other way, provided the wrong is capable of being redressed by law.
But if it is not, then I may defend my property in any way whatsoever, even by killing the assailant; ff. Ad legem Corneliam de sicariis l. Furem. And in this sense is understood C. vnde vi l.i. (Cod 8.4.1); and ff. De vi et vi arm. l. iii. � Eum igitur. Understand, therefore, the phrase "the limits of justifiable defense" in this sense. (moderamen inculpatae tutelae) to repel any violence exercised for the purpose of depriving him of possession, if he holds it under a title which is not defective.
Whether one who has a right to defend property, and defends it within the limits of justifiable defense (moderamen inculpatae tutelae), escapes the penalty of irregularity, if he kills or wounds another?

The third question is whether, if a man, in repelling force with force in defense of his own property, happens to kill or wound the assailant, he escapes the penalty of irregularity. And I suppose him to act within the limits of justifiable defense; otherwise the question would not arise. And it seems that he does escape it. For one who is defending his person escapes that penalty; Clemen. de homicidio, Si furiosus. Therefore the conclusion applies to the defense of property. For the laws which allow force to be repelled with force do not distinguish between person and property, but allow it in either case; Cod. Vnde vi l.i (Cod. 8.4.1) and ff. De vi et vi arm. l.i. � Vim vi and ff. Ad legem Aquiliam, l. Scientiam, � Qui cum aliter. Opposed to this is the passage in Clemen. de homicidio, Si furiosus, quoted above. For the text there speaks strictly of the killing or wounding of one who is a killer. And I think this view is true, for the following reason: For a man commits irregularity by killing or wounding, even without a guilty intention, as appears in the case of a judge; Dist. li. Qui in aliquo, even by killing accidentally, as is noted in Dist. l. De his, and de homicid. Sicut dignum� and ne cler. vel monach. Sententiam, and de raptoribus, In archiepiscopatu. Anyone, therefore, who kills in any manner whatsoever, becomes irregular, except in the cases excepted by law. So when the case of defense is excepted, the exception must be understood strictly and in a limited sense; for the law makes an exception only when the law is anomalous, and so the exception is to be strictly understood; Sext. de reg. iur. Quae a iure.

Justinian's Codex Book 8 title 4 lex 1 (Title Under vi, Recte possidenti)

1.The Emperors Diocletian and Maximian, and the Csesars, to Theodorus.

A person lawfully in possession has the right (recte) to use a moderate degree of force (moderamen inculpatae tutelae) to repel any violence exerted for the purpose of depriving him of possession, if he holds it under a title which is not defective.
Published on the fifteenth of theKalendsof December, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.
Recte possidenti ad defendendam possessionem quam sine vitio tenebat, inculpatae tutelae moderatione illatam vim propulsare licet.

Clementine Constitutions


Clemens V. in concilio Viennensi.

If an insane person or infant mutilates or kills a sleeping person, they do not incur irregulatity.  We think the same applies to someone who kills or mutilates an invader, when he cannot otherwise avoid death.

Si furiosus, aut infans seu dormiens hominem mutilet vel occidat: nullam ex hoc irregularitatem incurrit. Et idem de illo censemus. qui, mortem aliter vitare non valens, suum occidit vel mutilat invasorem.