Question II: Whether the accused is bound to confess a crime half-proven

A semiplene proof is the testimony of one witness above every exception, as all confess. The Gloss on C. in omni, where it cites many laws.

Nor does a denunciator suffice, because no one is a competent witness in his own cause, L. Nullus ff. de testibus. But what Sotus observes from Matth. 18., where the one correcting is bidden to take with him one or two, and it is added: That in the mouth of two or three witnesses, etc., is not pressing; for there the mere salvation of the corrected one is intended: If he hear thee, thou shalt gain thy brother; and in these subtleties even Less. has been deceived, l. 2. cap. 30., and Fagundez, in octavum Praeceptum, l. 8. cap. 39. num. 14.

The first opinion is that not only a semiplene proof suffices, but even something less, such as indications, or at least presuppositions, or even suspicions. So Bess. tit. de exam. reorum, num. 6. and Carthar. in praxi interrog. Reorum, l. 1. cap. 2. But Clarus, quaest. 20., says that grave indications suffice for examining a person reputed as an Accused. They will assert the same thing much more strongly, saying that indications which do not amount to a semiplene proof suffice not only for questioning but even for torturing the accused.

GLOSS on Leg. cum probatio, ff. de probat; which there Bald. and Salicet. followed, and with them held it Albertus, Alex., Angel., Aymo Blan., Bossius, Castrensis, and Corneus, who testifies of the common view, also Conrad., Gomez, Mascard., and very many others, whom Farinac. quaest. 36. num. 218. reports; but in this matter of torture he does not follow them, as is clear at num. 224.

To this first opinion Caiet. 2. 2. quaest. 69. art. 2. seems to lend favor, and D. Thomas himself there, while they say that in a process by denunciation or accusation fame suffices for questioning the accused. And yet in criminal matters fame does not prove semiplenely, according to Decianus, Bertran., Saccum, Clarus quaest. 21., Baldus, Bero, Butrium, Abb., Felinus, Imola; and so Blancus, Bonacos., Crass., Duen. testify of the common view, whom Farinac. quaest. 47. num. 59. follows, where, citing several others, he brings forward a decision of the Roman Rota in corroboration, before Rebufferio decis. 82. p. 1. The same at last Nauar. murmurs, in Rubr. de iud. numero 25.

THE SECOND opinion, acclaimed with great applause, is that a semiplene proof suffices for questioning the Accused, that is, one given by the deposition of a single ocular witness above every exception, or by indications of equal force. That the Jurists, the Theologians, and all the Summists concur in this, and triumph without controversy, Philippus de Bictis de Reo, quaest. 80. loudly proclaims; and Tanner. disp. 4. quaest. 4. num. 72. says it is common in criminal matters not excepted.

THIS is the opinion of D. Thom., 2. 2. quaest. 69. art. 1., and of all the Thomists. So Caietanus, Salonius, Bannes, Aragon. there; Alphonsus de Vega in Summa T. 2. cap. 89. casu 1.; Ledes. in Summa, tomo 2. tract. 8. cap. 24. concl. 2.; Turrian. 2. 2 t. 2. disp. 50. dub. 2.; Pistigian. in pract. crimin. p. 1. cap. 7.; Sotus de iust. l. 5. quaest. 6. art. 2.; Corduba in qq. l. 1. quaest. 43. dub. 3.; Azor p. 3. l. 13. cap. 25. quaestio 5.; Sayrus in Clau. reg. l. 12. cap. 16.; Valentia T. 3. disp. 5. quaest. 13. punct. 1.; Sylvest. v. accusatio, quaest. 13. et v. confessio delicti, quaest. 1.; Navar. in Man. cap. 18. num. 57. et cap. 25. num. 36. et C. inter verba, dist. 21. quaest. 3. concl. 6. corol. 50.; Tolet. l. 5. Instruct. Sacerd. cap. 58.; Tabiena et Sà v. Testis.; Gabr. dist. 15. quaest. 6. art. 2.; Henricus quodl. 1. quaest. 33.; Palud. dist. 19. quaest. 4.; Couar. qq. pract. quaest. 6.; Gomezius t. 2. cap. 12., cited by Sayrus, loc. cit.; and Lessius, to be cited below; and Sylvester in 2. 2. quaest. 69. art. 4. upholds it; Homob. tract. de stat. p. 2. cap. 4.; Miranda in l. ordin. Iudic. t. 2. quaest. 19. art. 8.; Aldret. de Relig. discipl. l. 1. tom. 1. num. 5. et l. 1. cap. 4. num. 8. et 24.; Cruz in Direct. p. 1. praecep. 8. art. 3. dub. 8. conclus. 2.; Clarus quaest. 20.; Graff. l. 3. decis. cap. 7.

Yet this opinion does not swallow up everyone, as our Bictus boasts; for Ioannes Valerius in diff. utriusque fori, diff. 49., Villalob. in Summa, tomo 2. tract 16. diff. 1. num. 10., Ioseph a S. Maria in Tribun. Relig. tract. 4. cap. 14. num. 5., Filliuc. tomo 2. tract. 40. num. 266. steadily maintain that a semiplene proof does not suffice for questioning the Accused; and, calling their own opinion the more probable, some on the opposing side imply this one to be probable: Less. de iust. l. 2. cap. 31. dub. 3. num. 18.; Navar. de rest. l. 2. cap. 4. num. 142.; Rodr. t. 2. qq. 19. art. 4.; Salzed. tract. crim. Piaz. cap. 128.; Malder. 2. 2. t. 6. cap. 3. sect. 3. Finally it is taught by Sancius, Select. disp. 43.; Petri. de relig. subd. l. 1. quaest. 1. cap. 16.; Octavian Spatarius in praxi crim. t. 9. cap. 7. et seq., saying ardently that it is practiced throughout the whole world in all courts, that by this right the Accused be permitted to use it short of a full proof, where a most grave punishment is imminent. Bassaeus v. Reus, num. 4., together with Reginald. t. 2. l. 24. cap. 3. sect. 3. and others, mildly follows him, whom Diana p. 1. tract. 15. resol. 27. praises, proclaiming that opinion most probable and safe in practice.

To all these I subscribe. Wherefore confessors ought not to force penitents to confess, if they have hope of escaping death, mutilation, the galleys, confiscation, or some grave disgrace, as Sà admonishes. But the more do I adhere to this opinion, since I see that it accords with the mind of the Seraphic Doctor, who even supplies an argument for this opinion.

He therefore says, in 4. dist. 17. p. 2. art. 1. quaest. 1. in corpore, that to confess one's sins to men is not dictated by nature, except in a general way, insofar as nature dictates that one must be reconciled to God by all the means instituted by the Divine majesty; and ad 4. he says that the accusation and disclosure of one's own sin for one's salvation is conformable to nature, if it be necessary by the institution of God, just as the disclosure of a wound, even in a shameful part, for the necessary remedy is conformable to nature; but that otherwise it is in accord with nature to blush and not disclose one's crime.

AND if it were for condemnation, it would be against nature; but by divine necessity it profits, that glory be given to God, according to that Iosue 7. Da gloriam Deo, confitere quid feceris (Give glory to God, confess what thou hast done), which he had also said, the foundation being 4. and in confessionali, cap. 1. particula 5. Now the confession which Josuë demanded from Achan was when the theft was already made known before the people by lots, a divine miracle revealing it. Therefore S. Bonavent. everywhere infers that, by Divine decree, that confession from Achan was established, required, and extorted; otherwise he would not have been bound. Wherefore the Clavis Regia ineptly brings forward this passage, that it may conclude that it is lawful absolutely to extort a confession from an accused person.

From these things is drawn a most valid reason, which the authors of our opinion extol in Diana. That which is against nature is not to be done, unless God establish honesty in it and command it; but to deliver oneself to death, or to grave loss of life, or indeed even of honor and possessions, is against nature; nor is God found to have commanded that we disclose our hidden sin, from which our ruin would flow: Ergo. Let them then find for themselves the law of God compelling to this, as it had to be found for sacramental confession of hidden sins (as D. Bonaventure says), and the more is it required, the graver this confession is.

ALL the adversaries answer in droves that the Judge has from God the power of judging, as is said, Rom. 13. et Sap. 6. et Psalm. 2.; and therefore, since a matter not juridically presented cannot be judged, he can question, and the accused is bound to obey him as a superior; nor can it be that the Judge have the power of questioning and the Accused the power of keeping silent; otherwise there will be a war just on both sides. This is the Achilles of the adversaries. This venerable asylum.

Yet it is an unwarlike defense. For first I say that, since the sin is in the knowledge of one witness, it is not yet public but hidden, as is gathered from C. Inquisitionis, de accusat. Therefore the Accused is questioned against the law of nature.

FURTHER, it is not repugnant that there be a war just on both sides, just as it is lawful for the Judge to forbid a condemned man under the last punishments to flee, and the Accused can flee, as Pesantius notes, quaest. 77. quaest. unica, and the precept in such a case can be judged given for terrifying the Accused. So Sancius, Reginaldus, Lessius, and others in Diana. For no one is bound to furnish arms against himself for his own killing, or to deprive himself of his goods, or to throw himself into prison.

In the same way, however, they do who disclose their sin when it is not fully proved: and indeed, as long as there is hope of escaping, it is safest to keep this precept, which scarcely one in a thousand would wish to observe, because it is against the dictate of nature; but human precepts ought to be conformable to the law of nature, not above it or against its powers.

MOREOVER no one in criminal matters is bound, or can be compelled, to testify against his kinsmen, as is clear from Leg. 4. ff. de Testibus, when the truth can be had otherwise, as Lazarius Papiensis teaches, lib. de quaest. canon. sect. 3. quaest. 11., and Rodriquez, T. 1. Summae cap. 69., except in a cause of faith, or on account of the good of the Republic, or of the Prince. But who is more akin to me than I am to myself? Nor say that the law speaks of hidden crimes. For it is against it, otherwise there would be no benefit of the law toward kinsmen; for indeed even strangers cannot be compelled to disclose hidden crimes.

FOR these reasons, according to others also, the Accused is not bound at least to answer for the avoiding of a grave temporal punishment; nevertheless, if the questioning be for a spiritual punishment, such as irregularity, excommunication, or interdict, which are easily removed and are rather medicines than punishments, it is otherwise. For this they bring forward Abbas, in cap. cum super, de confess.; Angelus, v. confessio delicti; Sylvest., v. delicti confessio quaest. 1.; Armilla, ibi, quaest. 8.; Alcozer., Summae cap. 16. §. et reo; Lessius, l. 2. cap. 31. dub. 3. num. 16.; Filliuc., tract. 40. in octavum Praeceptum Decal. cap. 9. num. 266.; Sà, v. reus.; Petrus Navar., l. 2. de restit. cap. 4. num. 136. Also Navar. is cited, C. Inter verba, coroll. 64. num. 733.; Vega, Summae cas. l. 5. casu 603.

FINALLY Fagundez also judges it most probable, in octavum praeceptum Decal. l. 8. cap. 31. a num. 11., and Bictus does not reject it, quaest. 81. num. 21.; who adds, num. 25., that even one convicted can deny the external fact, if it be not criminal, as when he killed a man thinking it to be a wild beast. So also others with Diana, 3. p. Tract. 5. resol. 66.

The opposing arguments collapse in four words, saying that, even given that the Judge use his right to question, and the Accused use his right to save his life, etc., and hence a war can be waged and carried on justly on both sides by reason of probability; nevertheless the right of nature to preserve life is stricter than that of obeying the Judge, because the former is merely natural; the latter, however, is mixed with human law, or with power and human law compelling to confession.

But as to what they infer, that shortly the places will be filled with evildoers, as is gathered from C. cum dilecti, de accusat. et cap. 2. de confession. — I say that this follows per accidens, for the wicked are not to be extirpated for any reason whatsoever, but by the best right.

Much less, however, is the Accused bound — indeed even a witness — to confess, if there be doubt whether the inquiry is juridical. So commonly in Baffaeo.