Palladium theologicum, Tomus quintus: De virtutibus

What the punishments of voluntary Homicide are.

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.

What the punishments of the Canons imposed upon Homicides are.

Since it is a nefarious crime unjustly to take away the life of a man, at all times various punishments have been established by laws against homicides, many of which, commemorated in the Seraphic Doctor Bonaventure, I shall here set forth.

From the Council of Elvira it is found cited by Martin of Braga cap. 78.: If anyone shall have committed homicide willingly, let him ever lie at the doors of the Catholic Church, and receive communion at the end of his life; but if he shall have committed homicide not willingly, but by some accident, the first canon ordered him to do penance seven years, the second canon enjoined five: Thus relates the Holy Doctor in the Confessionale, cap. 3. part 13.

He also found part fourteen, from dist. 4.: Who, heedless out of regard for discipline, kills by striking, let him be deposed, extra de homicid. presbyterorum. And it speaks of priests.

From the Council of Lerida dist. 50. it is enjoined that Clerics, in a besieged city, where there was no necessity, killing an assailant, be deprived for two years both of office and of the communion of the Body of Christ, meanwhile assigned to fastings, prayers, vigils, and almsgiving, and finally be restored to communion; yet so that they be not promoted to the former offices. But if there were an unavoidable necessity of fighting, it would be imputed to them in nothing, dist. 50. Quia te, which, it says, is true as to sin, but as to caution it is a good thing to regret it, as extra de homicidio, cap. 2. in the Roman Penitential.

He who kills a brigand, where he could have seized him without killing, for forty days shall not enter the Church, and clothed in a hair garment, from the foods and drinks which are interdicted, and from bed, and sword, and riding, he shall abstain for those days aforesaid. But on the third and fifth feria, and on the Sabbath, let him use some kind of legumes, herbs, fruits, and little fish with moderate beer, temperately.

If a Priest has done the same, let him not be deposed; nevertheless, as long as he lives, let him do penance.

PART fifteen relates the penance of a matricide can. 33. quaest. 2. from Pope Nicholas. For one year, barred from entering the Church, he shall lie at its doors, praying. After a year he may enter the Church, but not communicate. Three years completed, let him be admitted to communion, but let him not offer the oblations until after the course of seven more years. In all these years let him abstain from meat, nor let him presume to drink wine, except on feast days and Sundays, and from Easter until Pentecost; and wherever he wishes to go, let him be conveyed by no vehicle. Let him fast until vespers three days in the week. If before the course of three years he draws near to death, let him be given the Viaticum. More mildly, however, it commands that things be done, if he show signs of great penitence.

PART sixteen relates the tearful letter of Pope Stephen V to Astulphus the wife-slayer, upon whom he imposes entrance into a monastery under the rigid discipline of the monks. But if he wish to do his penance in the world, it imposes most severe penances: perpetual abstinence from flesh, and wine, and cider; fasting on bread and water; and let him live in vigils and prayers: See him, and in this manner let you wither away.¹

PART seventeen sets forth the penances due to a parricide and a filicide, whom Alexander III condemns to perpetual penance, most severe, within the precincts of the Monastery.

PART forty-one relates the penance enjoined on him who killed a priest, which is of 12 years, extra de poenit. et remiss. from the C. Moguntin, and moreover, once convicted, let him lack marriage and the belt of knighthood until death.

But CAPITULUM five of the Confessionale part. 37. sets forth the irregularities and depositions due to Cleric homicides.

He who shall have committed homicide without just cause, is not dispensed with in this. If the cause be of justice, he is not dispensed with in this either, so that he might be promoted; but if he has been promoted, in those orders themselves he can be dispensed with by the Pope, dist. 51. l. 1. Aliquantos. Otherwise, if he shall have committed homicide spontaneously, let him be deposed without hope of recovery and dispensation, dist. 50. Clerici. And C. si quis viduam. If by avoidable necessity, similarly he cannot ascend to the higher orders, but in the orders received he can be dispensed with, although it is not easily dispensed, even by the Pope; if by unavoidable necessity, the counsel is given that a homicide not minister, even in the orders received, dist. 50. De his clericis; yet he is not deposed, but is tolerated in his order by law without dispensation, according to the Letter and Raymundus, extra de homic. cap. 2. and according to Bernardus in the apparatus, upon that chapter extra, Cod. sicut dignum. If he has killed by accident with fault and negligence, he shall cease in perpetuity from the order received, dist. 50. Hi qui arborem, and extra eod. Presbyterum. Yet the Bishop can dispense in the minor orders, and in the subdiaconate already received, extra eod. continebatur. If he be a Deacon or Priest, it belongs to the Pope, that in those orders he either minister or be promoted to them, as in the said C. continetur, and C. Later praesentium. According to Raymundus, however, the Bishop cannot dispense, dist. 50. Miror, which some understand indiscriminately both of the voluntary and of the casual; others, of the voluntary homicide. This is Raymundus. If without fault and negligence, he will be able to minister in the order received, and be promoted to the greater orders, extra eod. Litteris significastis, cap. Dilectus, cap. ex litteris. And some say that he need not be dispensed by them, as appears in the said chapters. But it is safer and more secure that at least the Bishop dispense him by them, dist. 50. Clerico. This the Holy Bonaventure relates.

From what has been said above, you have that it is false, in the time of D. Bonaventure and D. Thomas, that one who kills with the moderamen of blameless self-defense was irregular, as Valentia thinks, quaest. 8. punct. 4., which he thinks is gathered from D. Thomas, quaest. 64. art. 4. ad 3. Sylvester v. homicid. 1. quaest. 9. dict. 4. Matulius l. 1. de irregularitate, cap. 48. num. 9., who cite the chapter de his clericis, 1. dist. 50.*

TRULY D. Bonaventure asserts the opposite above, and so held the Gloss on cap. si quis viduam, v. Defensionis, and on C. sicut dignum, same title.

But that chapter De his clericis gives only counsel, as the Holy Bonaventure notes; the law nevertheless neither deposes nor commands, as Raymundus expounds, and it is found extra de homicid. cap. 2. and according to Bernardus on C. Extra, same place, sicut dignum, and Fagundez also notes it, l. 5. cap. 3. num. 3.*

FINALLY the Council of Elvira can. 50. decrees: If any woman, set afire by fury and zeal, shall have beaten her maidservant with whips, so that within the third day she expire with torment, since it is uncertain whether she killed her willingly or by accident: if willingly, after 7 years; if by accident, after the times of years, lawful penance having been performed, it has pleased that she be admitted to communion. But if within the appointed times she shall have fallen ill, let her receive communion. Thus relates the Holy Bonaventure in the Confessionale cap. 3. part 13.