Subdoubt I: On sodomy

THIS unspeakable vice is named from the miserable Pentapolis, and it designates carnal copulation of the same sex.

THEY ASK first: whether it is Sodomy when a man is coupled with a woman in a perverse vessel.

THE FIRST opinion asserts that it is: so Julius Clar. lib. 5. sentent. §. sodomia, Decius in leg. si qua mulier, Cod. de secundis nuptiis, Sanchez lib. 10. de matrim. dub. 4. and St. Thomas art. 5.

THE SECOND opinion, the common one, teaches that it is not properly Sodomy; so broadly the Saintly Doctor seems to take it in the Compend. Theol. lib. 3. cap. 21. Yet this is certain, that all those copulations against nature enumerated above, whether with a male or with a female, suffice for divorce. It is not however reserved. So Diana part. 2. tract. 1. miscel. resol. 29.

In which sense the name of fornication is understood in Matth. 19. because they divide the flesh which God has joined together. So St. Jerome understands it ad 19. Matth. and it is reported in cap. dixit Dominus 32. quaest. 1. And this sentence and reason they commonly follow with St. Bonaventure in 4. dist. 31. quaest. 1. ad 5. St. Thomas ibi quaest. unic. art. 1. ad 4. whom Sanchez reports lib. 10. de matrimon. disp. 4. num. 3. Fagundez in 6. praecep. lib. 6. capite 9. num. 8.

HENCE also the copula of a woman with a woman, or of a female with a man in perverse ways, or with a beast, are sodomies improperly: yet it would be a reserved case, if a woman should emit seed in that vessel, not so if in the natural vessel. See Diana part. 7. tract. 12. resol. 13.

THE PUNISHMENTS of sodomy are death in both accomplices leg. cum vir nubit in foeminam, Cod. de adulter. ad leg. Iuliam, there armari iura gladio ultori, and in the text in Authent. Ut non luxurietur cont. naturam, §. propterea. But if the emission, or commingling, is in the hands, or the like, he is not condemned by this punishment, as they commonly teach, in Fagundez num. 9. But if, the copula having been completed, he emits seed outside, he is still to be killed, as Farinacius says quaest. 148. Cremation is imposed on the dead by the municipal laws.

MINORS are indeed bound, with a reservation of non-carnal crimes, as homicide, blasphemy, but not of carnal ones, since these they ordinarily do not complete cap. 1. de delict. puer. and this even if he suffers it from one of age, as Bassaeus says num. 21. v. Luxur. See Diana part. 7. tract. 12. resol. 13.

THEIR GOODS are also confiscated, but it is not received by custom. So Farinacius quaest. 148. Sodomites are also intestable. See Farinacius q. 148. Baiardus addit. ad Iul. Clar. §. sodomia.

It is a crime of the mixed forum, and it can be punished by censures even in a layman.

BUT a CLERIC convicted is deprived of his benefice, deposed, and thrust into a monastery, according to the text. cap. de clerici, de excess. Prael. Indeed they teach that he can even be degraded and handed over to death and to flames: Vivianus opinione 727. Menoch. de arbitr. qq. quaest. 286. Bermon. de publico concubinatu, rubric. de sodomia, num. 29.

THEY DOUBT whether he is suspended by that very fact. The Legists of both laws commonly assert it, in Fagundez num. 17.

THE OPPOSITE, however, is truer. So the Lateran Council extra de excess. Praelat. says: let them be cast down from the clergy, as St. Bonaventure reports in Confess. cap. 3. particula 5. nor is he suspended by the new law of Pius V., but the sentence of a judge is required beforehand; for only the punishment of excommunication carries with it its own execution of the crime, so that it is incurred by that very fact without any declaring sentence of the crime or of the fact; but the remaining punishments require a sentence. So Suarez Tom. 5. de cens. disp. 30. sect. 1. Hieron. Gabriel confil. 196. et confil. 187. Sylvestet V. affasinos, Fagundez in 5. praecep. Decal. cap. 2. num. 9. et in 6. praecep. lib. 6. cap. 9. num. 18.

NOTE truly that the Decree of Pius V. does not include any sodomite whatever, but one who exercises it habitually, as they note: Navar. sum. cap. 27. num. 249. Rodriquez qq. Regul. lib. 1. quaest. 29. art. 12. argumento, §. Illud, ff. de aedilitio edict. by which text Bartol. in prooem. Panormit. in cap. 1. de iudic. say that neither a merchant, nor an artisan, nor a harpist is called such who strikes or trades once or twice, but frequency is required, so that he be held such by common opinion; and Navarrus says that in this sense it was explained to him by the Datary, in the name of the Supreme Pontiff. Wherefore Farinacius departs num. 30. saying that one can be handed over for a single fall, etc. Where note that another Bull had been published before by Pius V. in the year 1566, in which he does not put exercentes, but perpetrantes; but I observe that it is a frequentative word, which Fagundez does not notice n. 20. Then I say that in the year 1568 another was published saying exercentes, which tempers the preceding one.

NEVERTHELESS the opinion of Farinacius is also probable, because the word exercising signifies to commit in the first act, according to the text. Item leg. Iulia de adult. et Instit. tit. de public. iudic. Then because the Bishop of Septimacensis tract. de discept. cap. 33. says that the same Pius V. understood it thus, as he received from his own utterance.