VIII. On Defendants

What is a defendant? - A defendant is so called from the thing owed: in civil matters, from the thing which is sought and owed, commonly called the one sued; in criminal matters, from the penalty to be paid, commonly called the accused, who has committed a crime. He, moreover, is the one who is summoned into court. As the plaintiff, by offering a petition, sets forth the matter which he seeks, so the defendant responds to him; and, once a negative response has been given by the defendant with the intention of litigating, the suit is said to be joined. If the defendant exhibits contumacy, the suit is held to be joined without any response from him. And then the judge hears the witnesses and proofs. The acts of the defendant by which he excludes the action are called exceptions.

Is the defendant bound to confess his crime? - The judge is bound to manifest to the defendant the state of the cause, and what the indications are, how the delict is proved, etc., so that it may be clear to the defendant whether he is legitimately interrogated, because otherwise the defendant is not bound to respond and to despoil himself of honor or other goods which he possesses in good faith. L. 273; S. Th. 2. 2. q. 69, a. 2; Quodl. 5, a. 16. The defendant, if he is not interrogated legitimately, is not bound to confess his crime, but can elude the judge either by ambiguous words, or even by denying, with some restriction and in a good sense, so that lying may be absent. The reason is that then the judge does not have the right of interrogating, or of imposing an obligation on the defendant. But otherwise, if he is interrogated legitimately, and therefore in an inquisitorial process under Roman Law, provided that the delict has been proved at least half-fully, and the accused knows this from the procedural records. L. 272; S. Th. 2. 2. q. 69, a. 1. Hence defendants ordinarily are not held at present to manifest their crime, because interrogations are made before juridical proof. Moreover according to modern Codes no one juridically can be compelled to bear testimony against himself in a matter of crime. Hence an oath is not tendered to the defendant. Moreover that certainly ought not be done in the accusatory process which is observed at present, with the public magistrate accusing. And although the crime has been sufficiently proved, as long as the jurors have not delivered sentence, the defendant can always hope that his denial of the crime will have force upon the mind of the jurors.

Nor is he bound if he doubts whether the judge legitimately interrogates; because he is not bound to obey with grave damage to himself, unless it is established that the superior can command. The reason is that the defendant possesses his life and reputation; whence in doubt he has a right to preserve it, until it is established concerning the legitimate interrogation. L. 273. Cf. 67; Decrees, de Confessis.

Note: That response, "I am not guilty," is not a lie; for by the consent of all it signifies that the defendant is unwilling to confess the crime. L. l. 3, n. 156.

Is the defendant bound to confess his crime to a judge legitimately interrogating, with fear of a great penalty? - S. Th. 2. 2. q. 69, a. 1 ad 2 affirms this, which opinion S. Alphonsus calls the more common and more probable. But the opinion is sufficiently probable which "denies that the defendant is bound to reveal his crime.... It is otherwise in causes in which there is question of an ecclesiastical penalty, which is medicinal." L. 274; l. 4, n. 156. Except also, provided grave public damage or another's private damage is not imminent from the silence. L. 274. Here it must be observed that damage of the republic, if there is question of danger of undergoing death, must be understood not as any sort whatever, but as the greatest. For, as Lugo says, "human law only very rarely and on account of the greatest damage of the republic can bind a subject with danger of life; but in the present case that danger is most certain."

The reason of this second opinion is that he is compelled to confess neither by natural law, nor can he be compelled by human law to betray himself and, as it were, hand a sword to the adversary by which he may be killed, since in the case he is not obligated to a heroic act, although from another source he may be legitimately interrogated. Nor in fact is such a law present today. The reason of the former opinion, on the contrary, is "because when someone according to the order of law is interrogated by a judge, he does not betray himself, but is betrayed by another, while the necessity of responding is imposed upon him by him whom he is bound to obey." S. Th. l. c. According to the order of law; whence it is clear that this opinion proceeds according to Roman Law, by which the defendant was interrogated after indications of the crime had been given which constituted half-full proof, and then he was bound to respond by confessing the crime. Cf. 67.

Note: "The rule that the defendant is not bound to confess a hidden truth to a judge interrogating without half-full proof runs only in criminal causes, not in civil causes." L. l. 3, n. 388; S. Th. 2. 2. q. 69, a. 2; Quodl. 5, a. 16. A defendant interrogated by a judge can manifest the companions of his crime; because this, speaking in itself, is always expedient for the public good. And when he himself is bound to confess his crime, he is also bound to manifest the companions of the crime. And the defendant is bound to denounce accomplices, even if he is not interrogated, when there is question of a delict which demands that denunciation, even with grave damage to himself. Cf. Frassinetti, Comp., ed. 6, n. 304.

Must the defendant confess a crime after sentence has been passed, which before he unjustly denied? - Reply: Negatively, because, once the judgment is ended, the obligation of the defendant is ended. Indeed it is probable that he is not bound to this even before sentence, even if he is still in the power of the judge, until he is again interrogated. The reason is that legal justice obliges only when the judge interrogates, unless the judge prescribes a time for responding, namely if he commands, for example, that the defendant tell the truth within a month, and the month is still lasting. L. 274.

Nor, after sentence has been passed, is the defendant compelled to offer himself for paying the penalties, nor to cooperate of his own accord in executing it. For it is alien to natural equity that the same one be both defendant and avenger. And this would be altogether harsh and useful only for ensnaring souls.

Does he sin gravely who, to avoid grave torments, lies by imposing on himself a false crime, through which he is to be punished with death? - Reply: Probably it is not mortal. The reason is that no one is bound to preserve life with so great a torture, which may seem harsher than death itself. L. 274, 275.

Note: "If from that confession of a false crime grave damage follows to others, for example the good of the republic, or the reputation of religion or of a family would be notably harmed, or some would for that reason fall into heresy, any torments whatsoever would rather have to be endured." Nevertheless, if from that false confession of crime there would follow only the infamy of another, after the fact he would not be held "to retract himself for repairing another's infamy, by exposing himself again to sustaining those grave torments, because no one is bound to restore reputation with so much greater damage to himself." L. 276, 275.

Is it lawful, either for the plaintiff or for the defendant, to disclose hidden crimes of witnesses in order to weaken their credibility? And does he sin gravely if he imposes false crimes on them? - Reply to the first: Negatively, if this is useless for defense. The reason is that this can be lawful only from the right of defense. Affirmatively, if this is necessary and useful for defense and they testify falsely. The reason is that the right of defending one's own reputation prevails over the right of another's reputation.

If this is necessary and useful for defense, but they testify truly, some affirm, others deny. The reason for affirming is that each person has the right to show that the witnesses acting against him are less suitable; and the defendant can always hope for success before jurors. No one, moreover, is bound to preserve the reputation of the neighbor with grave damage to himself. S. Th. 2. q. 73, a. 2. The reason for denying is that the defendant would not be using a just defense, since the witness must bear testimony unless he is voluntary. Cf. Lugo d. 40, n. 23; Lessius l. 2, d. 31, c. 1. S. Alphonsus 272 affirms that it is lawful, "provided this is absolutely necessary for the defense of his innocence; likewise provided that otherwise the defendant is going to suffer not slight but grave damage, even if greater damage comes to the accuser or witness."

Reply to the second: Affirmatively, and this is established from proposition 44 condemned by Innocent XI. The reason is that to tell such lies in judgment is against the common good, since it is to pervert the whole order of justice; and therefore everyone must prefer that common good to private good, even to his own life. L. ib.; S. Th. 2. 2. q. 69, a. 2; Lugo d. 40, n. 26.

Can an innocent person under inquiry defend himself against those who wish to apprehend him? - The practical case can exist especially in a time of anarchy or tyranny, and it is commonly answered affirmatively, since it is a just defense of oneself, if the mandate of arrest is truly unjust, and consequently there is no danger of hallucination, and danger of scandal or public disturbance is absent.

And the same is commonly affirmed also after sentence has been passed, if the sentence is unjust either formally or, more truly, only materially, provided again that the injustice is manifest and the danger of hallucination and scandal is absent. For if the sentence is formally unjust, it is not a judgment; if materially, it is not justice, for justice is in the thing, not in appearance. In the first case the judge does not pronounce the sentence as judge, because he exceeds the limits of the mandate. In the other, innocence itself protects the condemned man.

But, with the order of law preserved, in the external forum, speaking in itself, the sentence must be observed; for as far as it pertains to the judge it is just, nor is it violated without contempt of public power. S. Th. 2. 2. q. 69, a. 4; S. Alph. 279, 281; Kenrick tr. 3, n. 112; Frassinetti, Comp., etc., ed. 6, note 98; D'Annibale ed. 3, p. 2, n. 601; Lugo d. 40, n. 38 ff.; cf. 81-83.

Is it lawful to kill false accusers and witnesses, and also the judge from whom an iniquitous sentence threatens, if there is no other way of avoiding the damage? - Reply: Negatively. This is proposition 18 condemned by Alexander VII. The reason for this condemned proposition is that it is too general. In it there is question of any iniquitous sentence whatever, which does not always bring damage which can deservedly be compared with the death of a false accuser, witness, or judge. Nor is a distinction made between injustice and injustice: because the person is innocent; because the legitimate process was not observed; or because of both. There is question of any judgment whatever, whether legitimate or usurped, in a time of tyranny, anarchy, etc. There is question of a sentence to be given, not one already given. Moreover discretion is left to each person to judge that there is no other means, and each person would pronounce law for himself. Hence on account of the danger of hallucination and on account of scandal, or on account of either one, it is never lawful to kill the aforesaid persons. Nor in the case would bloody defense be against an actual aggressor, against whom alone it is lawful, since there is in no way question of the actual execution of an unjust sentence. L. 279.

Can a defendant who has truly committed a delict flee from prison? - Reply: Affirmatively, if the defendant has not yet been condemned by sentence to the penalty, because no one before sentence is bound to pay the penalty; and because then he himself is not commanded to remain in prison, but the ministers are commanded to detain him in prison. Reply: Affirmatively, even if the defendant has already been condemned by sentence to death or another grave penalty, provided that prison has not been assigned to him as penalty, but for custody. "The reason is that the sentence does not condemn the defendant to not fleeing, but only to not resisting the ministers when they execute the sentence." L. 280. If prison has already been assigned as a penalty by sentence, Busembaum and others affirm it; and certainly the defendant is not so much condemned to remain there of his own accord as to be detained. S. Th. 2. 2. q. 69, a. 4 ad 2. More commonly, however, they deny that it is lawful for the defendant to flee from prison, even perpetual prison, because in the execution of a just sentence the defendant is indeed bound to obey. Yet many except the case if the penalty were very harsh, because it seems above human powers for someone to be bound not to free himself when he can do so without any force and resistance against the ministers of justice. L. 279-282.

Certainly, although the defendant is bound to undergo a just penalty, which the judge has justly decreed on account of the crime committed, and cannot decline it without sin, nevertheless all penalties are so established by law and decreed by the judge that they are to be inflicted by the ministers of justice. Therefore, with no force applied to them, and public order in no way disturbed, it is lawful for the defendant without sin to withdraw himself from the penalty.

You will resolve: "Regularly it is lawful for a defendant to flee, even if the prison guard is going to suffer grave damage from this, because he uses his own right and does injury to no one; unless however charity suggests otherwise because of the preponderating damage of the guard. Much more is it lawful to flee lest he be captured, or also to shake himself free from the minister apprehending him; but not to inflict force on him by wounding, striking, etc. It is also lawful, at least in the forum of conscience, to deceive the guards, by giving, for example, food and drink so that they may be put to sleep, or by procuring that they be absent; likewise to break chains and prisons, because when the end is lawful, the means also are lawful. And although other captives may slip away at the same time through the broken wall, he will not be held for the damage, because he is only its cause per accidens, since he uses his own right." L. 281-282; l. 2, n. 380; Struggl tr. 3, q. 2, n. 45. Yet it is not lawful for the defendant to corrupt the guard with money, because he would cooperate in his sin, namely in the betrayal of his office. L. 282.

Is it lawful for others to advise flight to the defendant; to arrange it; to supply instruments by which the defendant himself may arrange it for himself, excepting guards, apparitors, etc.? - If this is going to be harmful to another, it is not lawful even to advise it; otherwise it is lawful to advise it, and to instruct the defendant with counsel, whenever it is lawful for him to take it up. To arrange it is altogether unlawful. Wherefore it is not lawful to break open a prison. For it is against the public order and quiet of things. There would be continual contention between citizens and the executors of public justice. To supply the things which are necessary so that the defendant himself may arrange it for himself is probable to S. Alphonsus 283, more probable to Lugo d. 40, n. 56. For that is licitly given by others which they licitly use. Struggl l. c. n. 46; Elbel de Legib. 311, 313; Kenrick tr. 8, n. 136; Frassinetti, Comp., ed. 6, n. 304. Cf. here 83.

Is a defendant justly condemned to death bound to flee from prison if he can? - The first opinion affirms it, because otherwise he seems to be a murderer of himself. The second opinion, far truer and to be held, denies it. The reason is that although the defendant cannot do an act immediately tending to death, and mutilate his own members, throw himself from the gallows, drink poison, etc., nevertheless mediate acts are lawful to him, such as to ascend the ladder of the gallows, to extend his neck to the gibbet, and thus to remain in prison, especially if he has a just end, that he may satisfy for the crime, that his punishment may serve others as an example. L. 281; Struggl l. c. n. 43.

What is an appeal; when must it be interposed; and is it always lawful to appeal to a superior judge? - Reply to the first: An appeal is a recourse from an inferior judge to a superior judge on account of a grievance inflicted or to be inflicted. It must be interposed within the time defined by the laws. Once an appeal has been interposed, the sentence that has been passed is suspended by the law itself.

Reply to the second: From C. I. civil procedure 585, C. G. civil procedure 443, the term of appeal is two months. If an appeal is not interposed within the established time, the sentence passes into a matter adjudged, nor can it any longer be impugned by appeals. A matter adjudged is accepted as truth. L. 207 D. de Reg. Iur.

From the proper Law of the S. R. Rota, Canon 33: "If a Rotal sentence is confirmatory of another sentence, whether Rotal or of another tribunal, it is held as a matter adjudged, against which no remedy is given except by a complaint of nullity, or by a petition for restitution in full, before the supreme tribunal of the Apostolic Signatura. If a double conforming sentence has not been had, from a Rotal sentence rendered by one turn, an appeal is given to the next following turn, according to canon 12, within the useful time of ten days from the notification of the sentence, according to the course of common law." A. A. S. v. 1, p. 29.

Reply to the third: Kenrick tr. 8, n. 135 affirms it, because the defendant can use every aid and support of the law by which he may escape, with truth preserved. But it is commonly denied if the defendant knows that the sentence is just and that the process has proceeded justly (it is lawful, however, to supplicate), because this would be to impose calumny on the judge. And how then will truth be able to be preserved? Hence one appealing unjustly is held for the damage. But if he thinks that the sentence is iniquitous, or that the process has proceeded unjustly, or if opinions are diverse, or new proofs are present, he can appeal. L. 285; S. Th. 2. 2. q. 69, a. 3. Cf. n. 14, 38; Lugo d. 37, n. 172 ff.; E. M. 8.

Note: It is expedient that the confessor not admit the defendant to sacramental Confession until after matters are clear in the profane forum; for he will scarcely be able to be compelled to confess all things because of the fear that he may either be denounced or be compelled to confess the same things to the judge. Beforehand, however, one must deal with contrition. L. 286.

Is a defendant absolved in judgment bound in conscience not only to restore the thing, but also to compensate the expenses of litigation? - Reply: Negatively as regards the expenses only, if apart from legitimate interrogation he is silent or denies, and therefore is absolved, although by being silent he sins against charity, and by denying against truth. The reason is that he is not absolved from his silence or denial, but from the defect of proofs. Affirmatively even as regards the expenses, if he is legitimately interrogated and is silent or denies, and therefore is absolved. The reason is that he uses an unjust means, to which he has no right, for his own defense. Negatively as regards the expenses only, if he acts altogether in good faith, and the judge according to what has been alleged and proved renders sentence in his favor. For he is not theologically a culpable cause of that damage. But by no means "will he be excused from the obligation of restoring (the thing), because the other party consented to the sentence and did not appeal; for all this is judged involuntary, nor is he presumed to have wished to renounce his right in the interior forum." Lugo d. 37, s. 15, n. 187. Cf. here 67, 72.