Question V: What are the punishments of voluntary homicide

ATROCIOUS is the crime of parricide, which among the Romans, l. poenis ff. ad l. Pompeiam de parricid., was punished with such a penalty, as the Holy Doctor relates, cap. 3. of the Confessionale, part 17. Parricides, well scourged with bloody rods, were sewn into a fresh hide together with a dog, a viper, a cock, and a monkey, and thrown into the sea or into a river, if these were near; if far off, they were exposed to wild beasts. Parricide, however, is committed only against a father, mother, grandfather, or grandmother, nor does the Holy Doctor will anything else. Whence the title, which is De his qui filios occidunt, includes rather the killers of a father; for the killers of sons are also called parricides; yet not in the strict sense, but of Fillicide. Whence the Egyptians, having transfixed the parricide with sharp reeds and penetrated him with the tiniest wounds, rolled him over thorns, and finally, fire applied, burned him in the thickets, the people looking on; the filicide, bound to a stake, they forced for three days to gaze upon his son's corpse before him. These indeed most unspeakable crimes are so called by Azorius in summa, Menochius de arbitr. qq. l. 2. case 356.

At this time those horrible punishments have been changed into the ultimate penalty, with harsher discretionary punishments added at the judge's discretion. Thus the Doctors observe, cited by Fagundez.

AS TO the execrable homicides indeed of the Person of the Supreme Pontiff, the Most Eminent Cardinals, and Bishops, I shall defer to 3. p. Tract. de Censuris.

THE ORDINARY punishments of Homicide established by law are enumerated by D. Bonaventure in the Diaeta, tit. 3. cap. 4. where he says: Threefold is the punishment of homicides, namely exile, the gibbet, and the impediment of irregularity. For homicides go into exile; but when they can be caught, they are hanged.

THEREFORE in the civil law the punishment fixed in advance for a homicide is death. It is clear from l. 3. §. Patiatur, C. de Episcop. audientia. And l. Cornelia, de public. praedic. And l. poenis. §. Qui alias personas, ff. de parricid. But notorious brigands it kills by hanging, l. capita, §. Famosos, ff. de poenis.

THE SAME the Holy Doctor shows in the Bibliotheca pauperum, cap. 85. and on Luke 15, from the Divine law, Genesis 9: Whosoever shall shed man's blood, his blood shall be shed. And cap. 4. Cain is mulcted by God with punishments graver than death, even though written Laws against homicides did not yet exist.

AND Genesis 27. Rebecca pronounced the sentence of death against her son Esau, if he should kill Jacob, as already decreed by God: I shall be bereaved of both my sons, because a homicide (says the Holy Doctor) ought to be reckoned as one already slain; that he might show this punishment of death to be so just that not even the chief men are exempted from it, as Julius Clarus warns l. 5. sent. §. de homicidio, num. 28. Covarruvias l. 2. variar. cap. 9. Angelus on Law 3. §. Legis, ff. ad Legem Corneliam de sicaris. Afflictus p. 1. Constitution. regn. rubr. 13. Ludovicus of Lucca decis. 62. Therefore also Christ decrees Matthew 26.: All who take the sword shall perish with the sword, as the Holy Doctor observes sermon 6. on the ten commandments, and with him Fagundez l. 5. c. first, num. 6. And Apoc. 13. He that shall kill by the sword must be killed by the sword. Levit. 24. Whosoever shall strike and kill a man, shall die the death. And soon after: If anyone kill his neighbor by craft, thou shalt pluck him from my altar, that he may die. Therefore the Holy Doctor observes in the Bibliotheca, loc. cit. that Joab, the commander of the armies, otherwise faithful and joined to Solomon by blood, on account of homicide, by the decree of the holy King David, was punished with death by Solomon, as I said above, who commanded him to be killed even beside the altar, though unwilling to be dragged from it, that he might show that not even the chief men, illustrious in nobility, are to be spared. Therefore Christ threatens Princes with ruins and slaughters, Luke 11. That all the just blood may come upon you, as the Holy Doctor discourses on Luke 11.

Nor do l. 1. ff. ad legem Corneliam de sicaris. and l. 3. §. Legis Cornel. stand in the way, in which nobles for homicide are condemned not to the punishment of death, but to deportation into exile and the proscription of goods. And thus assert Salicetus on l. Is qui cum telo, col. Final, Angelus consil. 14. Montaleone in his practice, fol. 210. num. 535.

For I confess that by the ancient law of the Digest this is true: It is nevertheless not true according to the new Law of the younger Code. For the Law of the Digests has gone into disuse. Wherefore the punishment of death is owed to them also indispensably, as Afflictus warns loc. cit. Placa l. 1. delic. cap. 10. Fagundez num. 7. Indeed, the ancient Law has not been cast down, but rather, I would say, restored, which, as I showed from the divine law, had decreed death.

And so, from the common mouth of all the Doctors, the Punishment of death for a homicide is just, as Fagundez says, enumerating them num. 6.

As to the Ecclesiastical punishments established both for Clerics and for Laymen.

First indeed, as the Holy Doctor warns, in the Confessionale, cap. 3. num. 12., a Cleric who is a homicide is by canonical law deposed in perpetuity dist. 50. by the decree of John VIII. cap. miror, and is thrust into a monastery for seven years, or for five, not only if he commits it himself, but even if he commands it, counsels it, urges it, or assists it, C. sicut digni, § Clericos, extra de homicid. and there the Gloss, Bernardus Diaz in practice, cap 94. Placa in epist. delict. l. 1. cap. 11. Farinacius t. 4. quaest. 119. de homicid. tit. 14. num. 47. fol. 110. and others.

The reason of D. Bonaventure is found in the mirror of the soul, cap. 3. and in the other places related above in the questions; for homicide is committed not only by the hands, but also by deed, counsel, command, urging: Therefore all, since they are guilty of the same crime, as the Apostle says, Rom. 1., ought to be punished in the same manner.

Wherein note that, besides the perpetual deposition of the Cleric, he himself is thrust into prison, because in those cases in which the civil laws impose the punishment of death, the canonical laws, which do not inflict the punishment of blood, in place of death bring in the punishment of prison, or confinement in a monastery, for seven years, or five, or in perpetuity, according to the circumstances of the crime and the proof of it, as is the text in C. Nouimus, de verb. signif. and C. penult. toward the end, de haeret. and C. Quamvis, de poenit. in 6.

In Portugal Clerics are assigned to the galleys, or are carried off into exile to the parts of Brazil or Angola. Truly a fine counsel, that scandalous men of this kind be expelled the farther.

They ask, however: whether a Cleric holding a benefice, a voluntary homicide, is deprived of the benefice by that very fact, before the sentence of the judge.

The more probable opinion is that he can indeed be deprived of the benefice by a judge, and condemned to restore the fruits from the day the crime was consummated; yet he is not bound by that very fact to give up the benefice, and to cease taking the fruits.

This is the opinion of D. Bonaventure in the Confessionale, cap. 5. part. 37.; the Doctors follow him commonly at this time, whom the long roster reports, Fagundez l. 5. cap. 2. num. 4. Thus Suarez Tom. 5. in 3. p. disp. 40. sect. 2. Covarruvias in 4. Decret. p. 2. cap. 6. §. 8. Navarrus summa Latin, cap. 27. num. 249. Farinacius t. 4. quaest. 119. de homicid. tit. 14. Julius Clarus §. Homic. and others.

The reason of D. Bonaventure, which all use, is: No crime brings deprivation by that very fact, unless it is at least declared in law: But in Canonical law it is found nowhere. Indeed, on the contrary, in dist. 50. it is found: If he shall have committed homicide spontaneously, without hope of dispensation and of recovery, let him be deposed, C. Clerici. And C. si quis viduam. This, however, is a sign that they are not already deposed and deprived, as Fagundez and others argue shrewdly.

Because, even if the law were to say: let him be deprived by that very fact, the sentence of the judge must still be awaited, as I showed in the Tract. de legibus, disput. 5. quaest. 7. and as Sylvester warns v. assass. num. 4. Fagundez num. 6. Suarez T. 5. de censuris. disp. 40. sect. 2. num. 22.

The opposite opinion indeed, which more follow, rests on no law, as Fagundez notes.

From our opinion it follows that men of this kind can renounce the benefice before the sentence of the judge, as the Doctors assert commonly, cited by Fagundez number 16.

Many canons are related and declared by the Holy Doctor in the Confessionale, around the Ecclesiastical punishments of Homicides; which it is fitting to bring forward, although very many have fallen into disuse.