Doubt II: On the mode of proceeding by accusation

AN ACCUSATION is the bringing of some crime to public vindication, with the lawful subscription intervening. Thus the Doctors commonly hold, as Clarus testifies, quaest. 12. Lessius T. 1. l. 2. cap. 30. Azor. l. 13. cap. 19. Filliuc. Tom. 2. tract. 40. cap. 7. num. 201. Roder. de ord. iud. cap. 5. Fagundez on the eighth precept of the Decalogue, cap. 47. P. Eliz. tract. 1. quaest. 12.

VERY MANY are those who are barred from accusing by the common law, whom Clarus reports, quaest. 14. and St. Antoninus 3. p. tit. 9. cap. 8. §. 2. Bouër. in direct. p. 2. cap. 17. Farin. quaest. 12. among whom I have also noted some who are likewise forbidden to denounce. Excluded are criminals, apostates from the faith, heretics or those suspected of heresy, pagans and Jews, who cannot accuse Christians (cap. non potest and cap. pagani, 2. quaest. 7.), and calumniators (C. similiter 3. quaest. 5.).

LIKEWISE litigants are readily excluded, by the said C. similiter. Likewise enemies, and those recently reconciled, cap. accusatores 3. quaest. 5. Likewise the kinsmen of enemies, and their friends and household servants cap. accusatoribus 3. quaest. 5. Likewise an accomplice in the crime, minors, those under twenty years of age, a soldier, and a woman, and those who are barred from giving testimony. Likewise one who is in mortal sin by canon law. See Clarus quaest. 14. reporting others as well. And the Gloss on C. si legitimas, de accusat., where he enumerates them thus:

A woman, a ward, one denounced, one caught in crime. One suspected of gain, a corrupt man, a soothsayer, One infamous, a slave, a poor man, with a soldier, a Prince, A freedman, a comrade against his comrade, nor the enemies' kin, No cleric may bring an accusation against the Church.

TRULY the accuser is a hated figure, and is presumed to act not from charity but from spite, according to the Gloss on cap. decreto, 2. quaest. 6. and the text in C. Si omnes, 6. quaest. 1.; and hence an accusation is called an offensive intention, C. si quis Episcopus, 2. quaest. 7., which can scarcely be exercised without fault, according to the same Gloss, and after it Foller. in praxi, crim. can. 4. num. 9.

Hear St. Gregory l. 6. Moral. cap. 13. quoted by St. Bonaventure in Phar. l. 3. cap. 3.: While the envious cannot accuse the good they see, blinded by malice they seek out for accusation the evil they do not see. Yet he can also be an executor of justice, C. illud 23. quaest. 4.

But the Judge ought to weigh deeply that saying of St. Isidore in the Synonyms, cap. 16.: First prove, and so judge. For not the one who is accused, but the one who is convicted, is guilty. St. Bonaventure sets this forth deeply in the place cited from the Pharetra.

The Accusator is bound first to the things I said of the denunciator, and further he is bound to write everything and subscribe his name, under penalty of talion if he does not prove the crime, as Bartolus and Aretinus declare, and Clarus follows, quaest. 12. P. Eliz. num. 9.

Although by civil law this penalty is not observed, as Clarus notes, yet he says it is observed by canon law. Cardinal Alexander agrees, in C. libellorum near the end, 2. quaest. 8. So in the chapter qualiter et quando, 2. de accusat.

Once the accusation has been presented, he is bound not to conceal the true crimes, as St. Thomas notes, 2. 2. q. 68. art. 3. Sotus de teg. secreto, membr. 2. quaest. 5. col. 6. Navarr. in Manuali, cap. 25. num. 3.

At the request of the party, the accuser is bound to take the oath of calumny. Farin. quaest. 16. num. 28. citing Doctors on Leg. 2. Cod. de fin. instrum.; and Bartolus testifies to the common observance of Italy in Lege 1. num. 6. Cod. de iuram. calum., and Clarus holds it, §. fin. quaest. 18., citing many.

THREE things must be guarded against in an accusation: Calumnia, Praevaricatio, and Tergiversatio (calumny, prevarication, and tergiversation), as Fagundez notes, l. 8. cap. 47. num. 11.

CALUMNY is a false imputation made knowingly, and it binds the calumniator to the duty of restitution. He also is said to calumniate who knowingly accuses of a true but hidden crime, which cannot be proved in court, and in the same way he is bound to restitution of the damage; thus St. Thomas 2. 2. quaest. 68. art. 8., Sotus de teg. secr. in 2. quaest. 5. concl. 5., Sayrus cap. 15. on the eighth precept, num. 12., Roder. de ord. iud. cap. 6., Fagundez in the place cited.

PRAEVARICATION occurs in a twofold case. First, when the accuser secretly favors the Accused. Second, when he is silent and conceals true and greater crimes, setting out lesser ones in the libel.

This kind of prevarication can occur also in a Judge, namely by accepting false exceptions, testimonies, and instruments so as to free the accused, as St. Bonaventure notes in the Speculum animae, cap. 2. near the end; and beyond the sin he commits, he is bound also to restitution, because he acted against Justice and his office, seeking unjustly to oppress the accuser and to shield the accused.

It occurs also in Advocates, by showing to the adverse party the foundations of their client's case, or by not defending faithfully, or by opening to the adversaries the way to win the cause unjustly; all of which are iniquitous, against justice, as the Saintly Doctor teaches above, Sotus loc. cit. concl. 5., and Navarr. cap. 25. num. 10., Rodriquez num. 5., St. Thomas quaest. cit. art. 3. ad 2., Sayrus num. 14., Fagundez num. 13., who agree that they are bound to restitution.

TERGIVERSATION is, when without just cause he desists from the accusation, when he is bound to its prosecution for the common good.

CASES are nevertheless given in which he may desist. First, in crimes that do not conduce to the good of the Republic. Second, when he begins the case in good faith and soon sees his error. Third, on account of grave fear. Fourth, if he is repelled by the command of the Prince. See Sayrus lib. 12. at the end, Lessius l. 2. cap. 30. dub. 3. num. 15., Sotus loc. cit.

FAGUNDEZ num. 14, who at num. 16 raises the question: whether correction must always precede an accusation. And he answers negatively, if the offense can be proved, whether one intends vindication of one's own injury or the good of the Republic; and he says this is the common view of the Doctors, citing Lessius l. 1. cap. 30., Filliuc. tome 2. tract. 40. cap. 7. num. 103., the Gloss on C. licet, de simonia, 2. quaest. 8., Sylvester v. accusatio, quaest. 3., Cajetan 2. 2. quaest. 33. art. 7., Navarr. Summa Lat. cap. 18. num. 30., Driedo de libertate Christiana cap. 10., Roder. de ord. iudic. cap. 6., and others; and in this he distinguishes denunciation, which is directed to amendment, from accusation, which tends to the vindication of the crime for the public good. But Rodriquez loc. cit., citing Corduba, adds that one is bound to correction, if he hopes for amendment. Sotus adds, loc. cit. concl. 4., Durandus 4. dist. 19. The reason is, because the principal end ought to be the amendment of the Accused. But Fagundez himself persists: if the offense is public and can be proved, the Accused is in the case; because his own offense made it public. I certainly do not refuse this, when the offense is public, according to what I said in the first doubt.

NOTE that civil and canon law command Judges not to proceed in criminal causes without an accuser, C. si legitimus, de accusat. and Leg. Illicitus, ff. de officio Praesidis; and St. Thomas teaches this, 2. 2. quaest. 7. art. 3. in the body, Cajetan there, and other Thomists, Roderiq. de ordine iudic. cap. 5., Fagundez cap. 48. num. 3., and St. Bonaventure passim.

IT IS PROVED by the Saintly Doctor on John 8, where he observes that the judgment was truncated, because the accusers withdrew. Therefore Christ says: Where are they who accused you? No one has condemned you; nor will I condemn you. And he warns that the accusers withdrew because they were unfit to accuse, since they themselves were criminals.

IT IS PROVED secondly by the Saintly Doctor on John 5, in the words As I hear, so I judge, where he discourses at length, bringing in St. Gregory in Moral. cap. 14. on Job 29: The cause which I knew not, I searched out most diligently, where he says: Note concerning judgment, that we ought not to hasten to render an iniquitous sentence, that we judge not rashly without examination, that no evil report whatsoever should move us, that we believe not reports everywhere without proof, etc.

GOD himself, to whom all things are naked and open, uses examinations in his judgments; as is plain in Joel 3: I will bring them into the valley of Josaphat, and I will plead with them. He repeats this in Matth. 25.

Whence it is read of the Lord in Genesis 18: I will go down and see whether the cry that comes to me has been fulfilled in deed. Then the Saintly Doctor continues the exposition of the same chapter thus: Second, it is figured that judgment ought to be just in its process. Whence he says: My judgment is just. And Deuteronomy 19: You shall appoint Judges and Masters, that they may judge with just judgment; for, as Tullius says in de off. l. 1., it belongs to a judge in causes to follow the truth, neither to defend the guilty nor to condemn the innocent: He who justifies the wicked, and he who condemns the just, both are alike abominable before God. Likewise it is here intimated that judgment ought to be orderly in sentencing. He has the same on chapter seven.

From these you also have those cases in which judges may proceed without an accuser by the way of inquisition.

THE FIRST is, if the Judge with others sees the crime being committed. The second, when there are public indications and clamorous fame. The third is, when a juridical denunciation precedes, to public vindication of the offenses, as is done in the tribunal of the Holy Inquisition; but it differs from an accusation, because he is not bound to prove. Here too it is intimated that in graver offenses, where there is no accuser, the Fiscal holds the place of the accuser; and he is bound to prove, and unless he can prove, the accuser sins, as Aragon says, 2. 2. quaest. 67. art. 3. at the end, Roder. de ord. iud. cap. 5. num. 3.

AS TO the obligation of accusing. First, he who sees some harm threatening the Republic, or even others who are innocent, and it cannot otherwise be prevented, is bound to accuse; he is bound from charity to denounce it to the Judge. Thus the Doctors commonly: St. Thomas 2. 2. quaest. 68. art. 1., Sotus loc. cit. quaest. 5., Sylvester v. Accusat. quaest. 2., Gomez Tom. 3. var. cap. 1. num. 9.; and it is proved by C. sicut dignum, §. illis etiam, de homicidio. Indeed in the external forum, one who knowingly conceals an offense about to be committed against the Prince or the Republic, and does not reveal it, is punished as an author of the offense, by Battol. in Leg. virum, ff. ad Leg. Pomp. de parric. and Leg. 1. §. occisorum, ff. ad Syllan., Salicetus in Leg. prima, Cod. ad legem Cornel. de sicar., Gomez loc. cit. num. 8.; and the French laws command this in the Kingdom of France.

YET he is not bound to accuse who cannot prove; for no one is bound to ward off another's evil at his own grave loss, which he incurs by accusing and not proving. Thus St. Thomas 2. 2. quaest. 68. in the place cited, and others in Fagundez cap. 49. num. 4.

BUT he sins only against charity who does not accuse when bound, unless he be an official of justice; for such a one sins against Justice, as Fagundez notes, num. 8.

THERE arises also a doubt, because kinsmen are admitted to demand just vindication of their own up to the fourth degree, as is more probable in Fagundez l. 8. cap. 48. num. 10., and it is gathered from Leg. petitionum, Cod. de advocat.: whether, when several kinsmen come together to accuse someone of some offense, all of them can be admitted by the Judge.

Motla asserts it in Emporio iuris, titulo de Legibus, quaest. 14. num. 9., and the Senate of Lisbon in the year 1616, as Melchior Phoebus reports, tit. 1. decis. decisione 9. num. 10.; and the reason is, because the right of vindicating the death of the deceased is in each of the heirs in the whole, not by part, Leg. portiones, ff. de his, quibus ut indign.

OTHERS deny it, but hold that the judge ought to choose one kinsman, nearer and more suitable, Leg. si plures, ff. de accusat. and Leg. si vero, §. haec autem, ff. de his qui occiderunt, vel effuderunt. And Gomez teaches, t. 3. variarum, tit. de delict. cap. 1. num. 35., Vincentius Franchus in 1. p. decis. 382., Fagundez l. 8. cap. 50.