Chapter — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Chapter V. On the Obligations of the Accuser and of the Accused
I. On the Accuser
- An accuser is said to be one who in criminal causes brings a crime before the judge, and asks from him vindication on account of the common good, and at the same time undertakes the obligation of proving the crime charged; but in civil causes, one who, as the injured party, compels an adversary to the judge, is called not accuser but plaintiff.
An accuser differs from a denouncer 1, who brings some crime before the superior or judge, and yet does not undergo the obligation of proving it. - St. Ligorius, n. 253.
1 ** Understand denunciation here not indeed as fraternal denunciation, whose aim is not punishment but the amendment of one’s neighbor, with the paternal admonition of the superior intervening, from which, because of his authority, amendment is hoped for more certainly; but juridical denunciation, whose aim, no otherwise than that of accusation, is the same as the aim of the judge in punishing, namely the common good, which redounds from the punishments of the wicked. Wherefore juridical denunciation seems to pertain to the same virtue to which the vindication of the judge pertains, namely to legal justice. See note to n. 518, vol. I.
According to Roman Law, all who are not specially prohibited by law can be accusers. But wards, the prepubescent, women, magistrates, the infamous, those closely joined, namely children with respect to parents and vice versa, brothers with respect to brothers, a wife with respect to her husband, and conversely, are prohibited. But by Canon Law there are excluded from the office of accuser 1º clerics in a secular judgment, especially in a cause of blood; 2º laymen with respect to clerics, unless the crime is monstrous, or tends to great harm of the Church; 3º heretics not tolerated, and excommunicated persons, with respect to the faithful. - St. Ligorius, n. 238.
Accusers according to the same Roman Law, if they are convicted of calumny, incur the penalty of retaliation, namely the penalty which they were seeking for the accused they themselves must undergo.
But by French law it is lawful for no private person to institute an accusation, but the whole office of accusing and of proving the crime is reserved only to the magistrate constituted for this, or to the general procurator of the Government. Hence it happens that it is also called the public ministry, because it undertakes and protects the interests of the community and of good morals against the accused.
II. On the Accused
The accused is said to be he who is accused in a trial, whether criminal or civil, whether he is guilty or innocent. Concerning the accused various doubts occur, especially about confession of the crime and flight. Hence:
- Questions. - QUESTION 1º. Is the accused, when questioned by the judge, bound to confess the truth?
Resp. 1º No, if he is not legitimately questioned; which happens when the judge is not legitimate, or when he does not observe judicial form, as if he questions without a previous accusation, etc.; they also add, when there is not at least half-full proof of the crime. Thus commonly. - St. Ligorius, n. 272.
Resp. 2º Yes, if the accused is legitimately questioned, because he must obey the just precept of the judge. Except, sufficiently probably, if there is question of undergoing a great penalty; because the law is not judged to impose upon the accused so arduous an obligation, which seems to exceed human strength, namely that he, by confession of the crime, should spontaneously commit himself to the certain risk of a very grave penalty, provided however that grave public damage is not imminent from his silence 2. St. Ligorius, n. 274, also says this opinion is sufficiently probable even intrinsically, although he calls the contrary more probable.
2 St. Alphonsus expresses this exception thus, after other doctors (Bk. 4, n. 274): “Unless common damage is imminent from the withholding of confession of the crime, for example of heresy, treason, etc.; for then the accused is bound to betray himself, or at least his associates, as much as is necessary to avert the common damage, even if death is imminent to him from the revelation of the associates, from whom he will become convicted in court.” Moreover, two things occur that must be noted. For 1º damage to the republic must be understood not as just any kind, but as very great. For as Lugo says (On Justice, disp. 40, n. 15), human law can oblige a subject with danger of life only very rarely and on account of very great damage to the republic; but in the present case that danger is most certain. 2º Since the reason of averting this damage equally obliges all who are conscious of the crime, even if they have not been called into court, and since a precept which brings certain danger of life presents the greatest difficulty, hence it is plain that some impunity is fittingly granted from time to time to the accused, so that from a fuller knowledge of crimes and delinquents provision can be made more suitably for the public good.
Add also the warning from St. Alphonsus (l.c.): “All agree, as is fitting, in saying that if the accused is in good faith, and it is known that he will be induced with difficulty to confess the crime when questioned by the judge, the confessor must leave him in his good faith.”
QUESTION 2º. Can an innocent accused person reveal the hidden crimes of the witnesses or of the accuser for his own defense?
Resp. Yes, provided 1º the crime is true; 2º the revelation is absolutely necessary for the defense of his innocence; 3º and he himself otherwise would suffer grave damage. - St. Ligorius, n. 277.
- QUESTION 3º. Is it lawful for an innocent accused person to flee or resist?
Resp. It is indeed lawful for him to flee and to snatch himself from the hands of the officers; but it is not lawful to repel force by force, by killing or wounding, because he would violate the rights of public power. - St. Ligorius, n. 279.
QUESTION 4º. Is it also lawful for an accused person who has truly committed a crime to flee?
Resp. Yes, if he has not yet been condemned by juridical sentence to the penalty; because no one is bound to pay the penalty before the sentence. Likewise if he has already been condemned to a very grave penalty, and prison has been assigned to him for custody until he is punished with the established penalty. - Thus commonly. - St. Ligorius, n. 280.
They more commonly deny, however, if prison has already been assigned by the sentence of the judge as the penalty. The reason is that the accused is bound to obey in the execution of a just sentence. Nevertheless several except the case if necessary things are not given to him, or if the prison is very hard, because the obligation of not freeing oneself from a very grave penalty seems to exceed human strength, when someone can accomplish this without force and resistance. - Thus St. Ligorius, ibid. 3.
3 ** St. Alphonsus adds in the same place: “Probably by Lugo, Sanchez, and Navarrus with the Salmanticenses, against Sayrus, those condemned to the galleys are excused if they flee from prison, and even from the galleys themselves, as Sanchez, Lugo, Lessius, etc., hold as the more probable.”
QUESTION 5º. Is it lawful for the accused to flee, even if from this the guard will suffer damage?
Resp. Yes, because he uses his own right and does injury to no one, unless charity nevertheless should counsel otherwise because of much graver damage to the guard. Yet it is not lawful for the accused to corrupt the guard with money, because since the obligation lies upon the guard not to let the accused go, he would cooperate in his sin.