Question XI: Whether the accused can flee, and how, and when

The COMMON opinion of all the Doctors is that the Accused, once taken into custody and inquired against with death or mutilation, can licitly flee before the sentence. So D. Thom. 2. 2. q. 69. art. 4. ad 2. Lessius Lib. 2. cap. 31. dub. 5. num. 31. Filliucius tract. 40. in octavum praeceptum decal. cap. 9. num. 270. Couar. lib. 11. variarum, cap. 2. num. 7. Sotus lib. 5. de iustitia, quaest. 6. art. 4. Sà V. Reus, num. 9. Aragon. 2. 2. quaest. 69. art. 4. Vasquez prima secunda, disp. 174. Sylvest. et Angel. V. Fugere, Nauar. sum. Lat. cap. 17. num. 102. Driedo Lib. 2. de libertate Christiana, cap. 6. Maior 4. dist. 15. quaest. 22. Fagundez in 8. praeceptum, Lib. 8. cap. 33. Tannerus disp. 4. quaest. 4. dub. 6.

He cannot, however, injure the ministers of justice, by whom he is not injured contrary to justice, as Diana notes, part. 3. Tract. 5. resol. 102.

But when a sentence unjust has been laid down, he can flee even by injuring those resisting: for he uses his own right.

But there can be a QUESTION: whether one justly condemned to death, or to the loss of some member, or to infamy, or to the Galleys, or to perpetual imprisonment, can flee, and break the prisons.

The FIRST opinion is that of Henrici de Gandavo quodlib. 9. quaest. 25. Sylvester V. Accusatio. Couar. Lib. 1. variar. cap. 2. at Dianam, denying that such a one can flee by breaking the prison.

Yet the COMMON opinion is affirmative, as to flight. So D. Thom. 2. 2. quaest. 69. art. 4. with Caietanus there, Sotus at the place cited. Lessius num. 33. Filliucius at the place cited. Sà V. Reus. Sylvester V. Accusatio, num. 12. and at the place cited. Tabien. V. Carcer. Vasquez at the place cited. cap. 17. And commonly the Canonists on the Clementina Pastoralis de re iudicata; indeed Couar. Lib. 1. var. cap. 2. n. 11. adds that the Judge cannot punish this flight. The same Cruz teaches p. p. part. 8. art. 3. disput. 12. Villalob. tom. 2. tract. 16. diff. 11. num. 16. Sylvius 2. 2. quaest. 69. art. 4. quaestione 2. who cites Bannes, and Salonium. Azorium part. 3. lib. 13. cap. 24. Turrianus 2. 2. disp. 51. dub. 3. with others commonly, to whom Diana above, and Fagundez subscribe. All indeed agree concerning the penalty of death and mutilation.

It is PROVED from D. Thom. because no one can be compelled to something in which death follows close upon him, unless the reason of the public good demands it.

Many of these agree even concerning those condemned to prison, or perpetual exile, and servitude, or confinement to places pestilential in the air. So Lessius cap. 31. Fagundez, Salon. and others.

That he can even break the prison, Lessius, Filliucius, Nauar. Caietanus, Sotus, Salon, Sà, Vasquez above teach, and Driedo Lib. 2. de libertate Christ. cap. 6. Cruz, Villalobos, Sylvester above, and many say the same even if he has been condemned to prison for a time, Bonacina de Legibus, disp. 10. at Dianam, who subscribes with Tannerus 2. 2. disput. 4. quaest. 4. dub. 5. num. 103. and even if he has been condemned to the galleys.

From which I deduce also, against Valentia disp. 5. quaest. 13. puncto 4. Sotum, Toletum, and Gtaffium at Malderum,¹ 2. 2. Tract. 6. cap. 3. disp. 7. that instruments can be supplied to him for breaking the prison. So Maldetus, and Diana at the place cited. Villalobos, Caietanus, Vasquez, Lessius, Cruz, Sylv. Bannes, Salon. Azorius, and Turrianus above; Religious, however, must be cautioned, because fleeing they give scandals. ¹ Editor's note: the print reads 'et Gtaffium apud Malderum'; the surname is OCR/print-corrupt and cannot be resolved with certainty (perhaps 'Graffium'); kept as printed in the Latin, rendered here as 'Gtaffium'.

Sylvius ADDS that it makes no difference, even if others also flee. So also Villalob. at the place cited, and Reginaldus tract. 2. Lib. 24. cap. 7. sect. 7. num. 152. and others.

Nor will he be bound to make restitution of the damages that followed. So Diana, Cruz at the place cited. Tanacrus num. 104. Fagundez num. 15. in secundo responso, with Vasquez. The reason is, because one may assume the means necessary to a licit end.

Fagundez ADDS, with Filliucio, Angelo, Azorio, and Sayto, that it is licit to corrupt even the guards with money: But this does not please me, because the guards are bound by justice and a just oath to keep guard. Which argument Fagundez calls Achillean, who afterward too subtly says that it suffices to abstract by the intellect from inducing the guards.

He answers second, that the Accused are bound only out of Charity to avoid the sin of injustice of the guards, which they are not bound to avoid at so great an inconvenience to themselves. Therefore if, from the sole intention of procuring their liberty, not of inducing the guards to evil, they induce it, they do not sin.

Yet this answer is not good. For how can I directly induce the guards to open, and not intend to induce them to the act forbidden by oath?

Nor is it even licit to give them a sleeping potion to seize the keys, or to make them drunk, as Fagundez says num. 15. because this is mortal.

It is doubted, however, whether others can help these by filing the chains, iron, etc. All constantly deny it, at Fagundez num. 19. for this is gravely to violate the public custody to the detriment of the good of the Republic.

Nor is it the same concerning one who persuades, or supplies the iron; for he is a mere instrument, and has no other malice than that of the principal cause; But the breakers are the principal causes.