Question I: On the bringing of the accused to the tribunal

First there is need of a valid citation of the Accused, as we have already intimated; otherwise the case will be built upon sand. So the celebrated §. fin. quaest. 31. Gloss on Leg. si accusatoribus, Cod. de accusat.; and it is the common view, as Bossius reports, de citationibus, num. 13.

But there must be against him sufficient proofs, as I shall say below, in order that he may be lawfully cited; otherwise the summoning of the Accused will be unjust, and a mortal sin, as D. Bonav. notes, in speculo animae, cap. 2., and he hints, in apolog. Fratr. Min. quaest. 2.

Now the Scacc. 8., Guaz as cited by Bictus, quaest. 95., and Menochius, de praesumpt. l. 1. quaest. 88. num. 21., say that one witness is a sufficient lawful indication, likewise the complaint of a wounded man in the article of death, the flight of the Accused together with certain other indications; such that such indications are greater than a simple presumption, and less than a semi-full proof. So P. Elizeus, where above num. 3.

But if a Judge were to condemn someone not cited, the sentence would be invalid, as all say, because this is of natural law, as I said above; and hence it cannot be omitted even by the Prince. But if he condemned one not cited, he would sin mortally, as D. Bonav. teaches, in speculo animae, cap. 2., whom the Arretin. follow, in pract. crim. cap. 1. de Reis, Bouer. p. 2. cap. 34., Nauar. in Man. cap. 25. num. 13.

Now, if flight is feared, the Accused is wont to be imprisoned. There are three kinds of prisons: the first for custody; the second for torture; the third for punishment, as P. Elizeus has it, tract. 7. quaest. 2. num. 1.

The prison for custody must be humane; for inhumane prisons are censured by Bossius, tit. de carcere.

When it is for custody, it must be set forth in the acts, so that he does not thereby incur the legal infamy that follows upon the prison of punishment, as Bouer. notes, cap. 34. Nor indeed should a Religious be imprisoned for every crime, or lightly, because his prejudice is irreparable, as Baldus notes, whom Felin. follows, in C. cum super, de re iudic.; otherwise the Judge will sin mortally, as D. Bonau. teaches, in speculo animae, cap. 2., and he will be bound to restitution, as Nauar. says, in rubr. de iud. num. 83.; whose doctrine, as noteworthy, our Fathers mark, in modo nostro procedendi, cap. 2. in secundo substantiali; although they might have better alleged this as the doctrine of D. Bonaventura.

Therefore the Judge must first have certainty of the body of the crime, and grave indications must precede; otherwise, if the person be honest, it will be a mortal sin, and he will be compelled to restitution; if a Clerk, excommunication will follow, as the Doctors commonly teach, cited by Clarus, quaest. 28., Farinac. quaest. 27. num. 74., and Ioan. Andreas, in C. si clericus, de sent. excom. in 6.

This applies much more to Religious, for whom arrest carries a smell of infamy, as Bouer. notes, p. 2. cap. 34.

That one imprisoned cannot justly escape, the following teach: Clarus, quaest. 21., and very many cited by Couar., l. 1. variarum resol. cap. 2., and Angelus, v. fugere; and thus Barthol., Felinus, and Bossius say that one who flees sins mortally.

But in truth that to flee from prison is not a sin, very many teach, cited by Azor., p. 3. l. 13. cap. 14., and Diana, p. 3. tract. Miscell. 5. resol. 102., saying that one condemned to death can break out of prison; and this is the common opinion, which I maintained in my Tract. de Legibus. And I say the same with Diana, Bonacina, Tanner, and others, even of one condemned to prison for a time: yet a Religious lawfully detained ought to take care lest in fleeing he fall into Apostasy, as Rodriquez admonishes, T. 2. qq. Regul. quaest. 23. art. 6., and Bictus, quaest. 79.

From which indeed it follows that the breaker of a prison is not to be held as one confessing, as very many teach with Farinac., quaest. 30. a num. 20. ad 21.; and Bertaz says this opinion, there, is common. See Bictus, quaest. 79. de Reo.