Doubt III: On the mode of proceeding by inquisition

INQUISITION is the third mode of proceeding, distinct from accusation and denunciation, while the two former are often exercised separately; often also they are, as it were, the handmaids of the latter, since they follow it in order better to inquire into the crime: That this mode of proceeding is lawful no one skilled in canon law doubts, since various texts there plainly intimate it, as C. qualiter et quando 2. de accusat. C. inquisit. eodem, as P. Elizzus has it, tract. 2. de modo proced. quaest. 1. num. 3., where he also gathers the authors. The reason is public security, upon which the Judge has undertaken the burden of providing, which he cannot discharge unless he also inquire into offenses; and when an end is enjoined upon anyone, the means of attaining that end are commanded to him.

FURTHERMORE, it falls to the Judge by a stronger right to inquire than to the Plaintiff to act; for that concerns more the substance of the judgment; but the laws command the Plaintiff to put forward an action, as P. Elizzus has it, tract. 2. ubi supra; and he proves it in tract. 1. quaest. 10. num. 14.

Whether however it is lawful also by civil law or by custom in the secular court is disputed before the same Elizzus num. 4.; see him.

From these, Inquisition is defined as a certain lawful investigation, which the Judge carries out ex officio, inquiring into some crimes, or into some offender laboring under the infamy of a crime, intending primarily his amendment. Thus Iodoc in pract. crim. tit. de Inquis. cap. 8., Clar. §. fin. quaest. 3., Farinac. quaest. 1. num. 3., Rodriquez Tract. de Ordinario, cap. 2.; and it is plain from C. qualiter, et quando, 2. de accusat.

INQUISITION, moreover, is twofold. The first is general, in which, the offender being uncertain, it is generally inquired, who committed the offense? Particular is that which is done specially against some person.

A GENERAL, or most general, inquisition, of which in C. perniciosa, de off. Ord. and C. Trident. sess. 7. cap. 7. et sess. 24. cap. 3., can be made in Visitations without preceding infamy, according to cap. Romana, §. sane, de censibus in 6. and C. Trident. cap. 8. et 20. de reform. sess. 7.; and Bonac. notes this, citing others, de praeceptis decal. disp. 10. quaest. 2. p. 5., Fagundez in octavum Praeceptum decal. lib. 8. cap. 46. num. 7., where he says it is the common view of the Doctors, except Alciato cap. 1. de off. ordin. num. 5.

IN this inquisition, however, one cannot inquire about Peter or Titius; or whether he committed such or such an offense, but only, who offended in such a matter, or in such. Thus Rodriquez tract. de ord. iudic. cap. 2., Sayrus l. 12. cap. 10. num. 19., Angel. v. Inquis. §. 1., Sylvest. ibi, quaest. 4., Sotus l. 1. de Iust. quaest. 6. art. 5. concl. 5. et relect. de reg. secreto, quaest. 6. membr. 2., Salon. 2. 2. quaest. 69. art. 12. controv. 6., Aragon. and Bannes ibidem., Navar. Man. Lat. cap. 18. num. 38., Valentia disp. 5. quaest. 14. p. 1., Tanner. disp. 4. quaest. 4. num. 74. It is gathered expressly from C. qualiter, et quando, dist. 2. and C. cum oporteat. And C. Inquisitionis, de accusat. and C. Heli, de simonia, and C. Deus omnipotens, dist. 2. quaest. 1.

IT IS PROVED by these authorities in Fagundez num. 9., many from St. Bonaventure, from that Genesis 18., where the Lord awaited the cry of the Pentapolitans, and soon says: I will go down and see whether the cry that comes to me has been fulfilled in deed.

IT IS PROVED secondly by St. Bonaventure ad 16. Lucae, that parable of the steward who was defamed, because he had wasted the goods; for he is not called to singular examination before a clamorous defamation. For this reason, because he neglected his reputation, he merited to be called to question by severe inquisition.

IT IS PROVED thirdly by St. Bonaventure in Diaeta, tit. 10. cap. 3.; for the Lord did not proceed to the inquisition of fratricide against Cain until he heard the voice of his brother's blood crying out and invoking the justice of God. The Pontiff relies on this testimony in the said cap. qualiter, et quando.

IT IS PROVED fourthly by St. Bonaventure ad 3. Ioan., from the act of Christ, who tolerated Judas as long as he could hope for his amendment; and because the crime was still secret, he corrected him so as if between himself alone; for none of the disciples understood. The Pontiff determines the same, C. si quis potestatem 23. quaest. 4., where it is said: It is not for a judge to condemn without an accuser, as neither did Christ cast off Judas.

HENCE, although a Judge may know of an offense of his subject, of which there is no public judgment, nor clamorous intimation, or scattered rumor; but it is still altogether hidden; and he even knows that three or four witnesses know of it; he cannot inquire into it specially by the way of particular inquisition in order to punish him. Thus Innocent III declares expressly, C. Inquisitionis de accusat. §. Tertia dubitatio ibi: It does not suffice for inquiring specially against someone not defamed, even if two or three sworn witnesses, even greater by exception, assert that they saw the man commit that offense; and this is the practice of the whole world, as Farinac. testifies, quaest. 9., and others cited by him. For an accuser is necessarily required to punish anyone, or clamorous intimation, and such indications as take the place of an accuser and virtually accuse, as the Fiscal and the promoter of justice, who is bound ex officio to accuse, and who even in conscience cannot accuse unless what he can prove, and unless sufficient indications precede. This truth Cajetan hands down, 2. 2. quaest. 69. art. 1. et 2., Sotus relect. de teg. secr. membr. 2. quaest. 6., Navar. in C. inter verba, 11. quaest. 3. concl. 6. coroll. 48. num. 579., Salon. 2. 2. quaest. 69. art. 2. controv. 6., Aragon. quaest. 67. art. 3., Valentia disput. 5. quaest. 14. p. 1., Sayrus l. 12. cap. 10. num. 200., Rodriquez de ord. iud. cap. 3. num. 4., Fagundez l. 8. cap. 46. num. 10., Tanner. loc. cit.

BUT if a general inquisition is made into crimes, a particular one cannot be made about Peter or Paul, unless they labor under infamy, as Cajetan teaches, 2. 2. quaest. 69. art. 1. et 2., Sayrus l. 12. cap. 10. num. 22., Salon. 2. 2. quaest. 69. art. 2. controv. 7., Sotus de seg. secr. membr. 2. quaest. 6., Palud. 4. dist. 19., Adrian. quodl. 11., Aragon. ibi disp. 2., Ioannes ibi disp. 10., Valentia, and Tanner. with Rodriguez above.

It is proved, because one is presumed good while he does not labor under infamy; and therefore a grave injury is inflicted upon him by inquiring whether he is a wrongdoer.

And the same follows, if some crime has been perpetrated, and Peter does not labor under infamy, one cannot inquire in particular whether he is the perpetrator. Thus the Doctors cited; suppose, for instance, that the corpse of the slain lies in the road. And this alone the Doctors cited wish, Cajet. and Adrian., as cited by Diana p. 1. tract. 13. resol. 63. Sotus alone refuses it. Yet one may inquire in genus: Who committed it? and hunt for indications; for example, who passed through there at that time? whether armed? whether in haste and fleeing? and from those indications proceed to the person who has begun to be defamed. Thus the Doctors commonly, Rodriq. num. 5., Sayrus num. 21., Sotus de teg. secr. membr. 2. quaest. 6., Nauarrus C. inter verba, concl. 6. correl. 46. num. 214., Corduba Summa, quaest. 64. p. 1., Petrus Nauar. l. 1. de restit. cap. 4. num. 154., Aragon. loc. cit., Fagundez num. 18., Malderus 2. 2. Tract. 6. cap. 1. disp. 119., Villalob. Tom. 2. tract. 14. diff. 7., Valentia, and Diana loc. cit., Bannes 2. 2. quaest. 70. art. 1. disp 2., Sà under the word Iudiciales actus §. de modo procedendi, Salonius controv. 7., Tabiena, v. Inquisitio, §. 8.; and of this opinion was also St. Thomas, as Sylvester reports, v. corrept. quaest. 8. St. Bonaventure seems to think the same, serm. 3. in decem praecepta, where he teaches that this is to be observed as to substance, in the purgation which was made by oath by the nearer population, when a corpse was found whose killer was unknown, after inquiry had been made about the killer and he had not been found.

BUT this has been introduced by custom, that in such a case one proceeds without an accuser; yet a custom, lawfully prescribed, can take away or limit positive law, C. ult. de consuetudine, et Leg. de quibus, ff. de Legibus; and Innocent says this is observed in the whole world in C. Bona memoriae, and the Canonists in C. Inquisitionis, and Diana p. 2. Tract. 15. resol. 63., where he cites many.

Yet neither will the accused be bound at once to betray himself; for, although the Judge has the right of interrogating witnesses, he does not yet have the right of interrogating the accused, whether he is the one, except after it has been sufficiently proved, as I shall say in the following question.

But if only one knows the Offender, he is not bound to betray him, as Sayrus notes, l. 12. cap. 10. num. 26., Fagundez num. 20.; then, however, they say he is bound to confess, when there are several who know the crime.

I add, that if someone is defamed of one crime and not of another, one may inquire only about that of which there is infamy.

BUT here it is necessary to explain what it is to be defamed of some crime, or clamorously defamed. Infamy is the frequent voice of good and honest men, which renders a man suspect of such a crime. It is said, the voice of good men, to exclude rumor even among the wicked. It is said, of such a crime, so that it is implied that one cannot inquire about another. Thus Cajet. 2. 2. quaest. 69. art. 1., Sotus l. de iust. quaest. 6. art. 2., Sayrus l. 12. cap. 10. num. 12. Whence Sotus rightly inveighs against magicians or soothsayers, who by diabolical art inquire into the crimes of others, and he sharply reproaches those judges who, from their utterances, inquire into something in particular against anyone. The same the Pontiffs gravely rebuke in St. Bonaventure, in confessionali, cap. 3. particula 37. et 38.; and against proceeding with such, he notes ex dist. 26. quaest. 5. Non oportet, si quis Episcopus.

THIS infamy, however, Beia says, casu 32., with the experts of both laws, must be proved by at least two witnesses, who depose that they heard it so publicly, or that it is so said everywhere, as Lessius also says, cap. 29. dub. 16.

The other conditions required for proving fame Delrius recounts, l. 5. sect. 5., citing many jurists who say they never saw a process in which fame was proved by statute.

The Doctors, however, labor in assigning a necessary number of men for proving infamy; the Canonists in C. Inquisitionis, de accusat. teach that the number of ten is necessary. See Tannerus, saying from the common view num. 76. that the greater part of the people or parish is required.

Truly nothing is defined by law, as Sotus notes, l. 3. de Iustitia, quaest. 6. art. 2. concl. 6. et relect. de teg. secr. membr. 2. quaest. 6. disp. 3., Sayrus l. 12. cap. 10. num. 13., Salon. 2. 2. quaest. 69. art. 2. controv. 1., Fagundez l. 8. cap. 46. num. 26. Thus it is left to the judgment of the prudent man. Clamorous intimation is the voice of the people, or public rumor among many about such a crime outside of court, as Baffaeus says, v. Indicium publ. num. 4.

As to the indications, or circumstances, they must gravely indicate the fact, as St. Thomas notes, quaest. 69. art. 2., Cajetan, and Salon. there, Sotus l. 5. de Iustitia, quaest. 6. art. 2., Valentia disp. 5. quaest. 13. p. 2., Sayrus l. 12. cap. 10. num. 13.; such as, if one is found naked in bed with a naked woman, they gravely indicate the crime of fornication. If someone is caught with a drawn, bloodstained sword beside the slain, and the like, they indicate homicide.

Now if one begins to name someone as guilty of an offense, that naming will open the way to inquiring specially against the one named, that is, to taking against him other informations: Thus Farinac. quaest. 1. num. 49., Innocent. above, who says the whole world observes this by custom, Bart. in Leg. 2. §. si publico, num. 9. ff. de adult., Baldus in Leg. edita Cod. de eden. and others cited by Clatus, §. fin. quaest. 5., Aretin. in C. cum oportet, num. 44. de accusat. and Nauar. rubric. de Iudice, post numerum 88., where he says the opinion of Innocent has been received in theory and practice: Thus also Tannet num. 79., Lessius cap. 89. disp. 15. numero 124.

Yet Philippus de Bictis notes, quaest. 11. primum testem, that the one who names the offender is held as a denunciator, with Deciano resp. 93. num. 125.; therefore, since the denunciator does not prove, and against Judges acting to the contrary Dettas exclaims, conf. 251. n. 103., and Guez follows, defens. 29. cap. 2. num. 18.

Bictis adds, that if someone, juridically interrogated, unduly reveals a hidden author, the judge may nevertheless proceed to a special inquisition against the one detected, according to Nauar. rubr. de ind. num. 87.; Franciscus Arretinus does not object, in pract. cap. 13., nor Less. de iustitia, et iure lib. 2. cap. 29. dub. 15., where against Sotus he holds that the judge not only may, but is bound to proceed; Thomas a Iesu and Lezana concur, tract. 1. cap. 27. num. 4. The reason is, because the Judge uses his own right, since the crime is already public, even though impiously detected; provided, however, that the informer is not the cause of that impiety.

Yet this opinion is false, as Bouerius notes in Direct. p. 2. cap. 4. v. 3., who with Soto, Navarro, and Sayrus judges it better, in the proposed case, to abstain from proceeding.

Hence I wish to examine the doctrine of Tannerus disp. 4. quaest. 4. num. 73. in the way of judicial denunciation; when no witness is produced, a general inquisition indeed can be instituted; but neither the Accused, nor others about the Accused, can be interrogated specifically, unless perhaps in place of an accusation there occur indications, or infamy, or something similar; but it is otherwise, he says, when one proceeds by the way of fraternal enunciation, for then, indeed, it suffices that the denouncer [act], and he brings in Valentia quaest. 13 p. 2., where he nevertheless says that regard must be had to the estimation owed to the brother.

This last doctrine is certainly to be moderated with this caution, because even in a paternal inquisition a stain can be brought upon the fame and good estimation of the one about whom the inquiry is made.

HE ADDS at num. 81. that the practice of judges is to be approved, who proceed from denunciation to seeking indications, so as thus to form the libel of inquisition; and he thinks Lessius holds that infamy precedes, which from the common teaching of the Theologians is necessary, and from the canons; but this with Navarro in rubr. de Indiciis, num. 66., I think is false. For what infamy precedes here? They fear perhaps lest crimes remain unpunished; but let them be punished by the proper means.

THIS indeed I affirm with Tannerus: that a Judge, on account of a denunciation made to him not as Judge but as a private person, cannot proceed to a special inquisition; otherwise the whole process is null by law, as Clarus quaest. 5. num. 4. and Less. dub. 15. n. 136. also teach; for it can tend only to a general inquisition, as Tannerus notes, num. 84., with Cajetan and Salonius.

THIS, as a crown, is to be gravely noted, and underlies every inquisition, namely the body of the crime, without whose notice the Judge cannot proceed. Thus all the Doctors exclaim, in Farinac. quaest. 2. num. 1. and Clarus §. fin. quaest. 4., who at quaest. 66. says: If the body of the crime is not established, the Accused cannot be condemned, even if he were convicted. Nay, neither can he be tortured, Leg. 1. §. Item illud, ff. ad Sillan. Nay, neither can the Accused be examined, as the Doctors say in Farinac. quaest. 2. Nor can he be seized, as Marsil. Bossius and others testify in the same Farinacius, among whom Bonacos attests it is of the common teaching of the Doctors; and if a Cleric is seized while the body of the crime is not established, the Judge is excommunicated, as Farinac. notes there after Ioan. Andr. and Cornerus, who attests it is common. Nor can one inquire specially against the Accused. Farinac. quaest. 7. per Leg. necessario, §. 1. ff. ad Sillan., and many other laws, citing Baldus, Angelus, Marsilius, Boss. and others, and he says it is common. Finally, unless the offense is established, the Judge ought neither to inquire generally nor proceed to any act. Thus Clar. quaest. 4., Bouër. p. 2. cap. 7. §. primo modo, who cites many Doctors.

THE REASON of these things is, because where the Law disposes about some matter, that matter must first be established, Leg. Decime, ff. de testam. milit.; and he who wishes to prove a quality must first prove the substance in which that quality is founded, Gloss. in Leg. si arbiter, ff. de probat.

NOR must only the body of the crime be established, say a homicide; but also its qualities; and therefore the universal practice is that the Judge go, or send a notary, to visit the corpse of the slain, and reduce to the acts how many blows or wounds it has, by stabbing or cutting, and in what part of the body it has them, and the like. See Clarus quaest. 4., Farinacius quaest. 2.

THE corpse must also be recognized by witnesses, if possible. This, however, it does not compel, if the corpse is proved to have been burned or cast into the sea, as Baiard. says, quaest. 4. ad Clarum, citing very many. See Biotus quaest. 12.

AFTER the body of the crime has been established, the Judge is bound to pursue the cause diligently, and if he neglects it he can be punished, Clar. quaest. 4., Bursat. and Guaz. tract. ad defens. cap. 1. num. 22. defens. 4., Baiard. ad Clarum quaest. 66. num. 7.; and St. Bonaventure presses this gravely, in speculo animae, cap. 2. et in Apolog. Min. quaest. 2.

These things, however, are not understood in the general inquisition of Visitations, and in the syndicate of our Prelates.

LIKEWISE neither in offenses that leave no signs, as in fornication, nor in hidden offenses of difficult proof, as in theft, while it ends in breaking. Yet one cannot proceed to condemnation before the stolen thing has been found. Likewise neither in cases in which it is ambiguous whether an offense intervened, as in someone found suffocated in a well, killed by poison, etc.

BUT in these cases he must first inquire into the truth of the fact, and so, the crime detected, proceed further; otherwise, let the process be silent. Clar. quaest. 4., Farinac. quaest. 2. num. 29., whom see also at num. 30. On this matter see Clarus §. fin. quaest. 4. 55. 64. and 66., Farinac. quaest. 2., Guaz tract. ad defensam, defens. 4.

NOTE further that, although against ordinary persons fame suffices for instituting a cause, yet against Prelates and eminent persons clamorous intimation is required, and that the same fame has often come to the ears of the Judge, according to Card. Alex., who says the Doctors commonly hold thus, C. accusatoris, and Clar. quaest. 6. and 7. and Farinac. quaest. 9., where he warns that the fame must be proved in the process through witnesses, who must at least depose that they heard it so publicly, or that it is so said everywhere among the honest, Bald. Leg. litteras, num. 2. de praesumpt.; and thus it is observed passim, as Clarus testifies, quaest. 6.

BUT the Judge, being cautious, if he sees anyone's fame unjustly darkened, ought not to accept denunciations, as Bouerius warns, p. 2. cap. 4., with Soto de teg. secr. quaest. 2., Navarro C. inter verba, 11. quaest. 3., Sayro l. 2. cap. 9. num. 18.

IN more atrocious cases, however, one may proceed from grave indications without fame, as on heresy, he holds in C. Excommunicavimus, §. adiicimus, with all the Interpreters; and Farinac. notes it, quaest. 9. num 14., citing Bartolus, Bossius, Menochius, Felinus, who attests it is of the common view; and Clarus reports it, quaest. 6., and Decianus with others, concerning the crime of lèse-majesté and other enormous crimes. It is the common opinion of the Doctors in C. qualiter, et quando, de accusat., and Farinac. held it, above num. 15., with Gigante, Alciat., Cephalus, and Decianus.

IN these cases indeed the inquisition must be made upon the indications; these failing, since neither does fame precede, the inquisition would be null. Farinac. quaest. 1., where he cites innumerable ones. See him, differing in much.

HERE they ask lastly: whether the Judge can relax the punishment, on which St. Thomas, art. 4.

THE GENERAL RULE is, that it cannot be done to the prejudice of a party. See Valentia p. 4. and St. Bonav. ad 8. Ioan., in the sentence pronounced against the adulteress, where Christ the Judge absolves her.

HE SINS also unto death by absolving the Accused to the prejudice of the public good, giving the wicked occasion to sin more freely: Thus Molina tomo 4. tract. 3. disp. 48., Clau. Reg. l. 12. cap. 12. and others cited by Bassaeus, v. Indicium publ. num. 12.