Question IV: Whether one convicted of a crime can be questioned about hidden accomplices of whom there is no ill repute

They ASSERT: Bartol., in Leg. Repetita, ff. de quaest.; Iulius Clarus, l. 5. quaest. 21.; Palud., 4. dist. 19. art. 4. in fine,; Sylvester, verbo Inquisitio, quaest. 3.

The common and true opinion denies it (except heresy, lèse-majesté, treason against the fatherland, and the coining of false money.) So Caietanus, 1. 2. quaest. 69. art. 1.; Salon., ibi, controv. 8.; Aragon., ibi dub. 3.; Bannes, disp. 1.; Sotus, l. 5. de iustitia, quaest. 6. art. 2. concl. 5.; Navar., Summae Lat. cap. 18. num. 58. et in C. inter verba, 11. quaest. 3. concl. 6. corrolario 49. num. 584.; Baff., num. 7.; Tolet., l. 5. Summae cap. 58.; Sà, v. Iudicium, num. 15.; Angel., v. confessio delicti, §. 4.; Petrus Navar., l. 2. de restit. cap. 4. p. 2. disp. 5. num. 173.; and others, as is clear from in Leg. finali, Cod. de accusat. et Cod. repetita, ff. de quaest. And from Canon Law, C. Nemini 15. quaest. 3., there: Nemini (except for the crime of lèse-majesté) ought credit be given concerning another's crime on one's own confession: since confession of this, and of every matter, is perilous, and ought not to be admitted against anyone. And the same is had in Cod. Monasterium de confessis. But how it is perilous, the Emperor Severus teaches, Leg. 1. ff. de quaest. §. Divus Antoninus, because the accused can seize an occasion of avenging himself upon his enemies, or upon those whose help he sought and they refused, by making them partners of his crime.

This is indeed the opinion of D. Bonav.; for in 4. dist. 21. p. 2. art. 1. quaest. 3., where, though he speaks of sacramental confession, he nevertheless denies that the crimes of others can be uncovered, while we can reveal our own without those of others: and in dist. 19. dub. 5., speaking of the Judge, he implies that the same is to be said proportionally of him as of confession.

This opinion they maintain commonly, cited by Farinac., quaest. 43.; for according to the statutes of both laws one cannot be questioned about the associates of others, as D. Bonaventure also teaches, expounding that passage of Deuter. 24.

They except, however, the case where the crime is such that it cannot be done mortally without an associate, e. g. such a robbery.

Similarly in the falsification of a Scripture not pertaining to oneself, or in the examination of a false witness at the instances of others; for inquiry must be made at whose instance he deposed falsely. Similarly in a homicide who had no cause; for inquiry can be made of the one who ordered it, Farinac., quaest. 43. num. 91., citing others.

Bictus nevertheless concludes, quaest. 80. num. 36., that by custom it is observed that one convicted be questioned about his accomplices and abettors and favorers, as very many have it, cited by Guze, defensione 30. cap. 9., Gandinus Iacobus de Belvis, and Blanch., tract. de Inditiis, num. 374., and Vulpel. and Mascar., de prob. concl. 1311. vol. 3., who says it is thus observed in the general custom of Italy. And Baiard., who refers this to Clar., quaest. 21., says he has seen the same observed in whatsoever crime; and Cason. asserts this most recently, tract. de torm. cap. 16. num. 6., and Giacharius ad Clarum, who nevertheless says that at Milan this custom is not observed, but the common law, except in certain excepted cases; and he adds that, where there is no such custom, it is laudable to stand by the common law.

Bictus indeed admonishes, num. 38., the Judges to beware, even where this custom exists, of suggestion, or of naming any person, as Chart. and Ambrosin. also admonish, de modo formandi processus in foro, l. 6. cap. 4. num. 10., unless sufficient indications against that person are at hand; otherwise it would be a suggestion, and the Judge would sin gravely, and the process would be null of itself. Clar., quaest. 21., and Barac. on him, num. 28., citing Castrensis, and Fuller., teach that such a questioning would be suggestive; Farinacius also refers to others, quaest. 43. num. 132., who at num. 33. admonishes that in this case the indications must be all too manifest.

But in truth Sayrus proclaims this custom unjust, lib. 12. cap. 17. num. 9., because it is against the law of nature. So also Salon., 2. 2. quaest. 69. art. 2. controu. 8.; Caietanus there; Sotus, lib. 5. de Iustitia, quaest. 6. art. 2. concl. 5.; and others cited by Fagundez, in 8. praeceptum, l. 8. cap. 34. num. 13. They understand it, however, of private crimes, which do not require an accomplice, as simple homicide, theft, etc.; for in crimes that require an associate, as sodomy, adultery, highway robbery, one may question about the associates, and much more in the excepted cases against the Republic, as conspiracies, treasons, false coinings, etc., as I said.