Another rule commonly accepted is that no offence is committed if the agent has done the act in consequence of the necessity of defending his own possession rather than with the purpose of disturbing the possession of others. The maxim "vim vi repellere licet" applies not only to the repelling of unjust aggression against the person. It extends also to the repelling of any unjust attack against the property when the defence is exercised within the proper limits, e.g., by forcibly retaking from the thief the thing which he has just stolen64. Roberti says: "Non converremmo giammai che meritasse pena la via di fatto del possessore legittimo la quale servirebbe di replica ad altre vie di fatto criminali"65. This rule must, of course, be understood subject to the express provision of our law concerning the legitimate defence of oneself or others. (Sections 337, 235 Criminal Code) B. Wrongful arrest and detention by private persons.
The more serious and common species of usurpation of public authority is the offence of wrongful arrest or detention. Section 85 lays down: "Whosoever without a lawful order from the competent authorities, and saving the cases where the law authorises private individuals to apprehend offenders, arrests, detains, or confines any person against his will, or provides a place for carrying out such arrest, detention or confinement, shall be punished with hard labour or with imprisonment from seven months to two years. But the Court may, in minor cases, award the punishment of imprisonment from one to three months or a fine (multa)”. This section was framed on Article 169 of the Neapolitan Code. It will be observed in the first place that the law does not, in contemplating the simple form of this crime, specify the purpose which may have actuated the offender in committing the illegal arrest, detention or imprisonment. The fact in itself is so odious that it calls for a punishment corresponding to the importance of the right violated, that is the liberty of the subject. Whatever may have been the motive of the offender, e.g., the enforcement of a claimed right or the taking of revenge, or whether any motive is made to appear at all, if the fact of the illegal arrest, detention or confinement is proved,
64
Maino, op. cit., Art. 235, para. 1189
65
Loc. cit., 314
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