§ 3. Concerning The Defendant

2309. • A DEFENDANT (called from the thing or from guilt) is he who is called into law and against whom action is taken in judgment. - In a civil judgment he is also called the defender, and in criminal matters the accused. - But for discerning what is lawful for the defendant, and what is not lawful, whether in confession of the crime, or in defense of his cause, or finally in declining the penalty inflicted upon him, the following things are valid:

Principles. I. The defendant is held TO CONFESS THE TRUTH and TO REVEAL the associates of the crime TO THE JUDGE ALONE, when he legitimately and juridically interrogates. - Thus commonly with St. Alphonsus.¹²

We say 1. when legitimately and juridically interrogating; otherwise, according to St. Thomas,¹³ the accused is not held to respond; "but he can elude the judge, either by ambiguous words, or even by denying with some restriction, and in a good sense, so that a lie be absent." The reason is, because the judge does not have authority, except when he interrogates legitimately and juridically (cf. n. 1182). But now: - 1) he does not interrogate legitimately unless he has jurisdiction over the matter or over the person; - 2) he does not interrogate juridically, unless half-full proof has preceded, or unless infamy exists, or another manifest indication of the crime. - Indeed, in a criminal cause, if the defendant reasonably doubts whether he is interrogated legitimately, he is not held to respond. "The reason is, because he himself possesses life and reputation; whence, in doubt, he has the right of preserving it, until the legitimate interrogation is established."¹⁴ Yet someone could be held from charity, namely on account of the utility of the neighbor, to respond.

We say 2. he is held to confess the truth; for the judge legitimately interrogating has the right of demanding the truth from the defendant: therefore it is repugnant that there should be at the same time in the defendant a right of denying it. - Hence, Benedict XIV in the Constitution Paterna charitas issued in the year 1749 teaches that absolution is generally to be denied to defendants who keep back the truth; because it pertains to the common good that guilty persons be known and punished; especially if the penalty which is feared is ecclesiastical, because this is medicinal. - But whether the defendant is held to confess his offense with fear of death, or of another most grave penalty? It is sharply DISPUTED. Suarez, Lugo, and others deny; because the law would then be too hard, and as if impossible for human weakness, unless it is necessary for averting common damage, e.g. by revelation of the associates of rebellion. St. Alphonsus indeed does not reprove this opinion; but he considers the opposite opinion more probable, at least because of the authority of St. Thomas, Sanchez, Lessius, the Salmanticenses, etc., and because the judge has the right of knowing the truth whenever he interrogates legitimately. In practice, if the defendant does not believe himself obligated, and no fruit can prudently be hoped from admonition, he is to be left in his good faith.¹⁵

We say 3. he is held to reveal associates; namely, if there would be against them indications, or testimonies, or infamy. Otherwise, he is not held nor can he reveal them, because in occult matters they retain the right to their own reputation. But if the offense is of the excepted ones, as heresy, conspiracy, etc., he is held, even when not interrogated, to reveal them, as is clear from what was said concerning denouncement (n. 2306).¹⁶

It is helpful TO NOTE: - 1) After sentence has been passed, the defendant is not held to confess the crime which before he unjustly denied; because once the judgment is finished, the precept of the judge no longer urges. Except if the defendant by his denial has inflicted damage on the judge, which he ought to repair. - 2) Before sentence it is not necessary that he be interrogated again; because the precept of the judge perseveres, which he is still held to obey.¹⁷

2310. • II. It is never lawful for a defendant or accused man, even if innocent, FOR HIS OWN DEFENSE, to impose a false crime upon another. This is clear from the 44th proposition condemned by Innocent XI (cf. n. 1196). - Yet he can licitly, for his own defense, set against the accuser or witnesses a true but occult crime, provided that this is absolutely necessary, and that otherwise he himself would suffer grave damage, although through the revelation greater damage may come to the accuser or witness; for no one is held, with his own grave damage, to preserve the reputation of his neighbor (cf. n. 1198). - Likewise, if the defendant had indeed committed the crime, but so occultly that it cannot be proved, he can licitly set calumny against the accuser; because by law he is presumed to calumniate who accuses a defendant of a completely occult crime.¹⁸

2311. • III. It is not lawful for the defendant, even if unjustly condemned, TO REPEL FORCE BY FORCE, e.g. by killing, wounding, etc.; as is clear from the 18th proposition condemned by Alexander VII. - Nor can he licitly corrupt the keeper of the prison with money, since this is intrinsically evil (cf. n. 518). - But one unjustly condemned can positively resist, so that he may snatch himself from the hands of the attendants, provided that from this there does not arise public scandal and grave disturbance. He can similarly, by breaking doors, lawfully flee, even if the keeper of the prison is going to suffer damage from this; for he uses his own right, and consequently the damage which he does not directly intend is not imputed to him.¹⁹

But for him not yet condemned, or already justly condemned to death, or to the galleys, it is not lawful to resist. He can indeed flee from prison, where he is detained in custody; but he is by no means held to this. - But if prison (not very hard) has already been assigned to him as punishment, he can no longer flee; because the sentence justly passed against him obliges in conscience. Thus commonly.¹

On these things LET IT BE NOTED: - 1. When it is lawful for the defendant to flee, others also (ministers of justice, however, excepted) can supply those things which help or hasten flight, e.g. files, ropes, or other instruments, provided that no damage will come to the republic from this, for example, if the defendant were the head of robbers. - But it is lawful for no one to break into prisons in order to free the condemned: for this is conceded to the defendant from the right of preserving life; but for others it is ruled by the common good, namely lest all security of the prison perish (cf. n. 519).

2. Let the confessor prudently ADMONISH the defendant that he can neither benefit him nor harm him; for, this admonition being omitted, the defendant, led by hope or fear, will try to prove himself innocent. And although his innocence becomes known from confession, nevertheless let the confessor not commit himself to intercede for him before the judge; both because his testimony would not make faith, and because the seal of confession would be broken indirectly, in relation to those for whom the same intercession would not be made, and also because of many other inconveniences² (cf. n. 2300, and n. 1546, qu. 2, concerning Communion).

2312. • Questions. QUAER. 1. What is lawful for the defendant in a CIVIL cause?

Resp. The defendant, or defender, has the civil action brought against him by the petitioner, either as certainly just, or as certainly unjust, or as doubtful. - In the first case, he ought without delay to satisfy the petitioner, nor can he begin a lawsuit without being held concerning all damages that will come about. In the second case, he can defend his cause by all means and arts not illicit, as a defendant in criminal matters (n. 2310). - In the third case, he can, as long as the doubt persists, licitly contend; unless charity toward himself and the neighbor, and the counsel of the prudent, advise a transaction, namely lest expenses be multiplied beyond measure (cf. n. 944-947 and n. 1160).

QUAER. 2. Whether it is lawful to interpose an APPEAL?

Resp. 1. Neg., in a civil cause certainly unjust, or certainly less probable; because if a new judge judged for the defendant according to the less probable opinion, he would certainly act unjustly (from n. 2301, rule 4). - "But what if it is doubtful whether the superior judge will justly pass sentence for the defendant? In such a case, it is probable that the defendant can appeal, even in a civil cause; because, since the minds of men are diverse, perhaps the opinion which appeared less probable to the lower judge will appear more probable to the superior; and the defendant, since he already has a probable right for himself, can licitly try this, not without a just cause. And this seems to be the practice of all who appeal." Thus St. Alphonsus.³

Resp. 2. If there is question of a criminal and capital cause, the defendant can appeal, even if he has a less probable right, as is clear from what was said n. 2300. He will also be able to do this, although the first sentence has been just according to the things alleged, in the case in which he has found new reasons for himself, so that the opposite can still be proved.⁴