Question III: Whether one who commands a homicide is to be burdened with the same guilt and punishment as the one who carries it out

THE FIRST opinion is that the punishment is not the same for both, just as neither is the guilt. Thus many, cited by Julius Clarus, book 5 of his Sentences, §. final, question 89.

THE SECOND opinion is assertive. Thus D. Bonaventure in the Bibliotheca pauperum, cap. 85, which he proves from the Scriptures, which impute to the one commanding that he killed, and that he is to be punished with the murderer's penalty. He is followed by Fatinacius t. 4. question 134. on consultations, cap. 2. number 93. Bartholomew on the book alone, ff. de iniuriis. And on the law Caetero, ff. de poenis, the Abbot on the chapter Nihil, number 9. on election. Jason on the authentic quaest. act. number 17. C. de Sacrosanctis Ecclesiis, Salzedo cap. 67. number 6. Curtius Junior consil. 237. Corra on the word, mandans homicid. Carretto in practice, fol. 331. after number 113. Julius Clarus §. final, question 89. Decius on l. 15. damnum, ff. de reg. iuris. The Abbot on C. Licet, number 3. on tithes. And C. Qui facit, de reg. iuris, l. 6.

I ADMIT however, that as to punishments the tenor of the laws must be observed, which often decree them against the one commanded, and often even against the one commanding. Thus many distinguish, cited by Fagundez on the 5th precept, book 5. cap. 1., with whom he himself agrees, positing by this distinction a middle opinion.

I ASSERT, with D. Bonaventure, that the one commanding a killing is to be mulcted with the same punishment as the one who killed.

IT IS PROVED by him from 1 Kings 22, where Saul commanded Doeg the Edomite to kill Abimelech, and the others to destroy unto extermination the inhabitants of Nobe. And Nobe, the city of the Priests, he smote with the edge of the sword, both men and women, children and sucklings: and he smote it by command. [1 Reg. 22:19]

SO Judges 9: the men of Sichem killed the seventy sons of Prince Gedeon, as Joathan cried out, their surviving brother: Hear me, ye men of Sichem: You have risen up against my father's house, and have killed his sons, seventy men, upon one stone. And yet it is said in the same place: Abimelech came into his father's house, and killed there his brothers, seventy men upon a stone. Thus the one who commands alone is here named the homicide, as the Holy Doctor notes.

THE SAME appears in 2 Kings 12, where David caused Urias to be killed, and yet he is said to have committed the murder. Thus says Nathan: Thou hast slain Urias the Hethite with the sword of the children of Ammon.

MANY other examples are adduced by the Holy Doctor in that place.

The reason is intimated by the Holy Doctor in the Mirror of the Soul, cap. 3. and 4., because sins which are placed against justice in inflicting harm have their malice, gravity, and demerit in this: that harm is brought in by the one commanding, who also introduces the executor; and he who does through another is held to do through himself, according to the rule of Law in 6.

THEN acting and consenting are punished with equal penalty, in cap. 1. where the Gloss, v. pari poena, de officio Iudicis delegati, and there commonly the Doctors. And in C. Notum, at the end, dist. 2. question 1. and C. Facientis, at the end, dist. 86. and cap. 1. de homicid. in 6.

WHEREFORE such a one commanding merits the punishment of death according to the rule of law, which holds that they make one cause with the actors or executors. And the Holy Doctor takes up this argument cap. 3. of the mirror of the soul. And he confirms it from cap. 1. of Romans, where D. Paul enumerates nearly all crimes; he especially adds homicides, full (he says) of murder: Who, when they had known the justice of God, did not understand; because they who do such things are worthy of death; and not only they that do them, but they also that consent to them that do them. And he speaks of eternal punishments, as Fagundez also saw, number 27; thus the Jurisperiti hold commonly, cited by Fagundez numbers 21. and 30. l. ad Legem, si quis non dicam, C. de Episcopo.

IT IS CERTAIN also that, the effect having followed, the one commanding is irregular, as the Holy Doctor shows in the Confessionale, cap. 5. part 40. who has given counsel, or command, or study, that a man be killed. Extra C. significasti enim, dist. 50. si quis viduam, de poenit. dist. 1. Periculose.

INDEED, if the one commanded is killed by him against whom he came to kill, the one commanding is guilty and incurs irregularity, as the Doctors teach commonly, Sayrus de censuris, l. 7. cap. 2. num. 12. Reginaldus t. 1. l. 30. tract. 2. cap. 11. sect. 1. num. 326. Tabiena v. irregularitas, 2. §. 12. and others cited by Diana.

THE OPPOSITE, however, as to this point, they hold probable: Diana Tract. 1. Miscell. resol. 17. Bonacina de censuris, disp. 7. quaest. 4. p. 7. num. 17. Henriquez l. 14. cap. 16. Avila de censuris, p. 7. disp. 6. sect. 2. dub. 5. Fagundez on the 5th Precept of the decalogue, book 5. cap. 5. num. 30., who nevertheless says the former is more probable.

HE ADMONISHES, however, with Diana, that even a Bishop can dispense in this case, because it is from casual homicide, according to the Council of Trent session 14. de reformatione, cap. 7.