Doubt V: Whether the wages of harlotry are to be restored

MANY, and not undistinguished, Doctors constantly cry out that a prostitute cannot accept a fee, and that, once accepted, it cannot be retained. So Angelus, Baldus, and Jason super §. Sed et quod meretrici, l. 4. Whence they infer that one who commits fornication is not held to give the fee. So also Durandus 3. dist. 39. quaest. 4. Medina Cod. de restit. quaest. 20. Comitoli resp. moral. lib. 3. quaest. 5. Johannes Valerius in differ. utriusque fori, verbo Promissio, diff. 8. and Diana judges it probable p. 1. tract. 16. resol. 40.

The opposite opinion is that of Ven. Bonaventure in 4. dist. 15. p. 2. art. 2. quaest. 1. ad 4. St. Thomas 2. 2. quaest. 32. art. 7. and Cajetan there, Alexander of Hales 4. p. quaest. 86. membr. 3. art. 6. §. 2. Richard 4. dist. 15. art. 5. quaest. 8. Sotus l. 4. de Iust. quaest. 7. art. 1. Covarruvias relect. cited above; Valencia disp. 5. quaest. 6. punct 5. Homob. in Exam. Eccles. p. 2. tract. 9. quaest. 14. Regii in resol. casu 8. Sayrius lib. 10. tract. 5. cap. 3. num. 34 Aragon. 2. 2. quaest. 32. art. 7. Azor. p. 2. lib. 4. cap. 21. quaestu. 2. Salonii 1. 2. quaest. 62. art. 5. controu. 4. Sylu 1. 2. 2. quaest. 32. art. 1. Corduba lib. 1. quaest. 52. art. 2. Tanner. disp. 4. dub. 10. num. 300. Malderi 2. 2. tract. 1. cap. 9. d. 7. Turriani 2. 2. Tom. 2. disp. 14. dub. 1. Villalob. tom. 2. tract. 11. diffic. 16. Rebell. p. 2. lib. 18. quaest. 1. Lopez p. 1. cap. 105. Lessii lib. 2. cap. 14. dub. 8. Dianae loc. cit. These say that a fee can be accepted from a prostitute. This is common to nearly all Theologians and Jurists, as Tannerus says.

IT IS PROVED ex l. 4. §. Sed et quod meretrici, ff. de condictis ob turpem causam, where Ulpian has it expressly.

IT IS PROVED secondly by the reason of Cajetan, Valencia, and others, which they proclaim subtle. First, for every act estimable by a price, a price can be accepted; but the act of a prostitute is such: Therefore. The major is proved, because it suffices to act upon the proper object of a virtue, and to bestow an action upon it, even if, by reason of a circumstance elsewhere, that act is opposed to some virtue distinct from Justice, as Eligius Bassaeus infers, verb. Restitutio, 4. num. 3.

It is, moreover, the proper object of Justice whatever thing is estimable by a price. The major is confirmed by an example; for a thing that is sold, in a forbidden time or place, is transferred by law: The minor is proved; for the act of a prostitute offers to a man the material of a certain natural delight: Therefore it is estimable by a price, no otherwise than the act of offering foods, etc., even for procuring drunkenness. That is the reason of Ven. Bonaventure, I may say.

YOU OBJECT first. If these things can rightly be accepted: Therefore they can also be offered to God. And yet Deuteronomy 23. we read: Thou shalt not offer the hire of a prostitute in the house of the Lord.

VALENCIA ANSWERS from Ven. Bonav. loc. cit. that the price of prostitution is not rejected because it be of another's, but on account of indecency, just as an offering from the price of a Dog was also rejected.

YOU OBJECT secondly the Laws, which assert generically that a fee cannot be accepted for a base thing, nor does a pact, or a claim concerning it avail, l. Generaliter, l. si flagitii, ff. de verb. oblig. l. Mercatem, C. de Condictio ob turpem causam. Et l. Iulius genitum §. si ob maleficium, ff. de pactis.

VALENCIA ANSWERS from Ven. Bonav. loc. cit. that the Laws are understood of actions which are against Justice, and are possessed in bad faith, such as deceptive pacts, pernicious to life; as those who expose prices to tormentors for torturing others. Such are usurious pacts, and others of this kind, in which dominion is not transferred upon the rendering, namely, of some thing estimable by a price, such as the offering of the body to luxury. Although that action is not estimable formally, as it is evil; yet it is estimated, as naturally delectable; and from this gather that in the Seraphic Doctor are held all the things that pertain to the decision of this matter, while he says that a translation of dominion of money takes place in prostitution. But the most pure Virgin blushed to say what a prostitute gives, but only says that that action is sufficient to transfer dominion, in which manner Casas also speaks disp. 8. sect. 1.

If, however, any arguments seem to prove that this fee is illicit; they prove it only as to baseness formally; or as to those not having dominion, such as wards.

But what I said about exposed prostitutes must be said also of private concubines, as to the internal forum, as Valencia notes, and Covarruvias loc. cit. Medina ad 5. Sotus lib. 4. quaest. 7. art. 1. and others. The reason is that brought forward above.

IN the external forum, indeed, a fee cannot be accepted for those hidden acts which, if they were known, are punished; and consequently not in the internal forum either, after the judge's sentence has been laid down. For no one can enjoy the benefit of the law on account of an act which by law is to be punished. So Covarruvias above, Valencia loc. cit. and it is commonly gathered. ex l. Mercalem, C. de condictio ob turpitud. et l. Lucius Titius; ff. de Iure fisci. See Bassaeus loc. cit. Syluius 2. 2. quaest. 62. art. 2. Fill. tract. 31. cap. 9. quaest. 9. et 10.

MOREOVER, concerning the hidden acts of other prostitutes, estimable by a price, which by law are not usually punished; Valencia says that each part is probable. But the price given by a Religious to a prostitute must be restored to the monastery, as Casas teaches, loc. cit. Vasquez cap. 7. dub. 3. and commonly, in Fagundez lib. 7. cap. 5. num. 33.

But before the act, nothing can be accepted, because he is held to abstain from the wicked work; therefore the contract must be rescinded, as Bassaeus says with others.