Question X: Whether, and how, the accused can defend himself

The ACCUSED, if he confesses the crime, will leave only slight means of defense for his cause; for in one who has confessed there are no parts for the Judge, except condemning, as Clarus notes, §. fin. quaest. 65. Farinacius quaest. 81. and others at these places.

SIMILARLY while he is convicted by two witnesses, who are contestes, as Farinac. notes, quaest. 63. num. 133. For two witnesses suffice in every cause for perfect proof, cap. in omni negotio, de testibus. But who are contestes I shall say in disp. 30.

THEREFORE the Accused can then be condemned just as if he had confessed, Leg. qui sententia, and there the Doctors Cod. de custodia reorum, cap. At si clerici. where all. See Farinac. quaest. 81.

YET by Canon law, on one convicted a lesser penalty is to be imposed, as the Doctors teach with Farinac. loco cit.

BUT the contestes ought to be sworn, and exempt from every exception, Leg. ubi numerus, ff. de testibus, cap. in omni negotio, on the same title.

The Accused is found convicted also by undoubted indicia Leg. 2. Cod. quorum appellatio. Likewise by an instrument made by mandate, or by the consent of the Accused. By these three modes he is convicted Leg. sciant cuncti, where Bal. and Sylvius in sum. Cod. de prob. and Farinacius quaest. 84.

BY the way of Notoriety also the Accused is convicted, as Boss. has, tit. de convictis, and tit. quomodo procedatur in crimine notorio. We speak, however, of a Notorious fact.

A fact is called notorious, moreover, when it has been committed before the whole people, or its greater part. So Cyn. whom Clar. follows in §. fin. quaest. 9. Farinac. quaest. 21. num 41. and others at his side.

MOREOVER, the Accused can legitimately defend himself in many ways.

The FIRST is by inducing the nullity of the process, whether by alleging a defect of jurisdiction, which is the foundation. Guaz. defens. 1. cap. 1. Bald. in Rubr. Cod. si a competente Iudice; For that is unjudged which is done by one not having the right of judging; Lib. 1. ff. haec autem, ff. quod quisque iuris.

BUT it lacks jurisdiction for many reasons, as Guaz. reports, defens. 1. cap. 21. and on the Judge suspect Laurentius a Benevento published an entire volume.

The SECOND is, if there be no constancy regarding the body of the crime, Guaz. defens. 4. Bouer. decis. 259.

The THIRD, if the Accused has not been legitimately cited, Guaz. defens. 10. Farinac. consil. 14.

The FOURTH, unless a copy of the process has been offered, Guaz. defens. 22. and 24. So Paul V. decreed in his Constitution for the Roman Curia.

There are many other modes by which the process is made null, from illegitimate testimony, series, etc.

SIMILARLY from the denial of the Accused, grave defenses are brought forth.

Therefore, when the Plaintiff, or the fisc, does not prove, and the Accused denies, the Accused is to be absolved, Clar. quaest. 62. Guaz. defensione 29.

Thus the best defense will be, if the Accused shows that what he did was done licitly, Clar. §. fin. quaest. 56. where Alexand. Iason, Decius, who says; the whole world follows this doctrine, and the fact is always to be interpreted in favor of the Accused, Guaz. defens. 29.

So also, if it is shown that the fact is not punishable, Guaz. defens. 2. even if it were otherwise punishable. But nearly all crimes are prescribed by a space of twenty years, Leg. Querela Cod. de falsis. Farinac. quaest. 10. Guaz. with others there, defens. 2.

For there are some crimes which are not prescribed, as the supposition of a birth, Farinac. quaest. 10. n. 29. Guaz. defens. 2. num. 2. Likewise not parricide, Farinac. num. 29. Guaz. num. 78. The same of the nefarious vice, Guaz. num. 29. and others there.

SIMILARLY neither the crime of lèse-majesté, heresy, assassination, false coinage, simony, abortion are ever prescribed, Guaz. num. 81. Farinac. num. 29. and 90.

There is also a good defense, if he proves that there were not present indicia sufficient for the inquisition. Clar. quaest. 20. Farinac. quaest. 1. For then there is no inquisition. See other matters in the said Tract. 8.

AS TO violent defenses of flight, breaking of prison, and the like, I have spoken in the Tract. de Legibus, disp. 5. quaest. 10. and in the Dispm. de Iudice here: and I shall speak in the following quaest.

For it is CERTAIN first, that one condemned from an iniquitous initiation of the cause, which the Judge had conducted without observing the order, can defend himself even with injury to the Judge; So D. Thom. 2. 2. quaest. 69. art. 4. Caietanus there, Sotus Lib. 5. de iust. quaest. 3. art. 4. Fagundez L. 8. cap. 32. num. 4.

But if he has been condemned through the error of the Judge, he cannot inflict violence on the Judge. So D. Thom. at the place cited. Sotus art. 5. Lessius Lib. 2. cap. 31. de Reo, et Advoc. disp. 4. num. 24. Filliucius tomo 2. tract. 40. in octavum praeceptum, cap. 9. num. 268. Innocent. in cap. Quia plerique, de Immunitate Ecclesiae. Fagundez at the place cited, num. 2.