Prosecutors and accusers

THERE are other persons connected with the administration of justice besides judges and lawyers, and they have special moral obligations of their own. A word must be said about the moral duties of prosecutors, defendants, and witnesses. By canon law the accusation of delinquents in an ecclesiastical criminal trial is reserved to the Promotor of Justice, but as a general rule anyone who has full use of his senses may prosecute according to English law. Nobody should undertake a prosecution when greater evil than good would follow from it, or when there is not moral certainty as to the guilt of the accused. Otherwise it may be done for the sake of the public good, and there may be an obligation to do it, as when one’s office compels one to undertake the task, or the defence of the innocent or the public good require it, or a precept of obedience command it. Thus by ecclesiastical law heretics and priests guilty of solicitation in the sacred tribunal are to be denounced to the Ordinary.

(St. Thomas, II-II, q. 68; St. Alphonsus, Theologia Moralis, book IV, nn. 234-254; Homo Apostolicus, tract 13, nn. 73-78.)

I. Judicial Accusation. 1. Judicial accusation is the denunciation of someone's crime to a competent judge, for the sake of public vindication, with the burden of proving the crime. It is said:

a) The denunciation of a crime; and thus the accuser is distinguished from the actor or petitioner, who moves a lawsuit against another in a civil matter. The one who is accused, or against whom a lawsuit is moved in a civil matter, is called the defendant.

b) With the burden of proving the crime; and thus the accuser is distinguished from the denunciator, and accusation from denunciation; for the latter does not carry with it the burden of proving (St. Alphonsus IV, 235).

2. Judicial accusation for the most part belongs to those officials to whom this has been committed by law; primarily indeed to those who are customarily called the public ministry (St. Alphonsus IV, 236). To whom besides them it has been committed, see in the law of one's country.

II. Denunciation. 1. Denunciation is the denunciation of a crime to officials deputed for this, without the burden of proving it.

2. The following are bound to denunciation:

a) By office, those who have been expressly deputed to this by law, and generally all who, while carrying out a public office, detect some delict in the exercise of their office.

b) By precept of law, in many kingdoms even private persons who perhaps have been witnesses of certain graver crimes are obliged.

c) By natural law, everyone is obliged who knows some crime whose denunciation is necessary for the common good or for averting grave harm from a private person (St. Alphonsus IV, 236).

3. From the obligation of denouncing, if indeed there is question of the common good, a private cause does not excuse; otherwise, a proportionately grave cause excuses. A graver cause is required for those who are bound by office than for those who are bound only by law or by natural right. The principal causes are notable harm to be feared for oneself or one's own from the denunciation, and connection with the delinquent himself. Finally, an entrusted secret not only excuses from the obligation, but even prohibits one from denouncing someone. Except if, from omitted denunciation, grave harm threatens either the common good - in which case there is an obligation not to preserve the secret - or the one accepting the secret (St. Alphonsus IV, 236); if from omitted denunciation grave harm threatens a third person, the things said on p. 720 hold.

4. One who has falsely denounced (or accused) is bound, if he was gravely culpable, to restitution of the damages that followed. Besides, he is obliged to retraction, even with equal harm to himself, but not with much greater harm. If he was not gravely culpable, he is not bound to restore damages; nevertheless he ought to retract the testimony, if this can be done conveniently enough (n. 994).

What is an accuser? What is a denouncer? How many kinds of denunciation are there? - An accuser is said to be one who in criminal causes reports a crime to the judge, and from him demands vindication on account of the common good, and at the same time undertakes the obligation of proving the crime objected. But in civil causes, he who as the injured party compels the adversary to the judge is not called accuser, but plaintiff. An accuser differs from a denouncer, who reports a crime to a superior or judge, and nevertheless does not undergo the obligation of proving it.

Denunciation is twofold: one juridical, another evangelical. The former is a report made to a superior as to a judge, so that, once the case has been known, he may proceed from judgment; and its scope is the punishment of the delinquent and the good of others, especially the common good, which redounds from the punishment of the wicked, and also the good of the denouncer himself. The latter is a report made to a superior as to a father; and its scope is not punishment, but the amendment of the neighbor, or the good of the one denounced, through the paternal admonition of the superior intervening, from which, on account of his authority, a more certain amendment is hoped for. When denunciation is made to a Superior as to a father, he cannot himself proceed as judge.

Juridical denunciation can be made judicially, the due forms having been observed, and extrajudicially, by simply manifesting the matter to the superior and committing to his prudence what ought to be done. It pertains to the same virtue to which the vindication of the judge belongs, namely to legal justice.

L. 235; S. Th. 2. 2. q. 68. a. 1, 2 c. ad 3; s. q. 62. a. 3 ad 6; Quodl. 1, a. 16; Quodl. 11, a. 13.

Who are prohibited from accusing? - From natural law, regularly speaking, infamous persons, stained by greater crimes, are prohibited from accusing; for their testimony can be of no authority. Enemies; because accusation is reasonably presumed to proceed from an affection of vengeance. Children against parents, a wife against a husband; for this is repugnant to piety, unless it concerns imminent common damage, or one's own or another's damage which cannot otherwise be avoided. These also are repelled from bearing testimony. L. 236.

From Canon Law clerics are barred from the office of accuser in secular judgment, especially in a case of blood. Except, however, if they accuse the defendant for this end, that they may guard against their own damage, or that it may be repaired to them; then a cleric and religious can accuse the malefactor even before a lay judge. This is lawful not only in one's own case, but also in the case of one's own church, or of relatives to the fourth degree, or even of domestics. Likewise, if common evil or the evil of others cannot otherwise be impeded, they must denounce the delict, even if it is worthy of death. Nevertheless, to avoid danger of irregularity, the cleric and religious must first make protestation before the judge that he does not act unto vengeance, nor unto penalty of blood, but rather for the defense only of himself or his own and for the triumph of justice. If this protestation is omitted, even through inculpable forgetfulness, irregularity is still incurred; because forgetfulness excuses from fault, not from this irregularity, which was introduced by reason of gentleness. C. Praelatis 2 de Hom. in the Sixth; L. 1. 7, n. 468.

Laymen cannot accuse clerics, unless the cleric is a dissipator of the goods of the church, or a heretic, simoniac, sacrilegious person, etc.; or unless the layman prosecutes his own case, or the case of his own, or if damages are to be inflicted on others in the future in such a way that they cannot otherwise be impeded. Likewise clerics cannot accuse religious, who can be accused only by religious of the same Order. L. 238; l. 7, n. 468. Non-tolerated heretics and excommunicated persons cannot be accusers with respect to the faithful. L. 238. "Children are commonly prohibited from accusing parents, subjects prelates, servants masters, likewise public sinners, as is gathered from various Decrees.... Yet all these can denounce when the crime is pernicious to the republic.... For one's own injury anyone can accuse. Moreover, as regards this, an injury is reputed one's own which pertains to himself or to his own." Lugo d. 38, n. 7, 10. Decretals de Accusationib.; S. Th. 2. 2. q. 68. a. 1 ad 1, 2; q. 70. a. 1 ad 3, a. 3.

From Roman Law, wards, those below puberty, women, magistrates, infamous persons, those closely joined, that is, children with respect to parents, brothers with respect to brothers, a wife with respect to her husband and conversely, are prohibited from accusing. L. 1 ff. de Accusationibus et inscriptionibus. "It is not permitted to a woman to make anyone a defendant in public judgment." L. 1 de Accus. et Inscript.

From C. I. penal procedure 41, 42, 98, 422 ff., denunciation of a crime can be made by anyone to the General Procurator, the royal Procurator, or another official of judicial police. But the accusation in judgment is sustained by the General Procurator. The same is had from C. G. criminal procedure 22, 29, 30, 271, 284, 315.

When is someone bound to accuse or denounce? - He is bound to accuse or denounce, whether judicially or at least extrajudicially, even without fraternal correction having been sent beforehand: 1. When it concerns avoiding common damage. But crimes against the common good are heresy, rebellion, falsification of coinage, homicides and thefts committed by assassins or highway robbers, subornation of votes in elections to public chairs, offices of magistrates, etc., the sin of a religious bringing damage to religion, etc. "If the crime," says the Angelic Doctor, 2. 2. q. 68. a. 1 c., "has been such that it turns to the detriment of the republic, a man is bound to accusation, provided that he can prove it sufficiently, which pertains to the office of an accuser; for instance, when someone's sin turns to the bodily or spiritual corruption of the multitude." Lugo d. 38, n. 2, 14; L. 236.

2. If grave damage is imminent to an innocent person. For charity obliges us to impede the damage of the neighbor. But by hypothesis this can be done either by accusing or by denouncing. Therefore there will be a grave obligation of making accusation, or at least denunciation. Eccl. 4, 9; L. 236.

Note "nevertheless, that there is not always an obligation of impeding the damage of an innocent person through denunciation of him who inflicts the damage, if this latter person would have to suffer equal damage, because since he is a neighbor, there is no source from which an obligation arises to damage him so in favor of the other; not always, for there is an obligation if the innocent person is very joined to you, for example, if he is your father or your son, or if it would redound to common damage, or if the damager of himself ought to undergo that damage to free the innocent person." La-Croix l. 2, n. 2, n. 219.

3. If someone receives a stipend for this from the republic or from private masters, as do fiscals, or guards of houses or fields, superintendents of customs, etc.; and they are held even with grave inconvenience to themselves. For they are obliged from quasi-contract and from justice, not from mere charity.

Otherwise they are bound to restitution of the damages which come to the republic or masters because of the omission of accusation or denunciation. L. 236. Indeed more than this, these are often held even from office to seize the guilty and hand them over, once seized, to the magistrate to be punished. But whether these are also bound to restore the value of the penalty or fine, if they do not denounce, some from St. Alphonsus 237 "affirm very probably... because, by omitting denunciation, to which they were held by reason of office, they are the cause that the treasury or master does not exact the penalty to which he had a right. But others deny this sufficiently probably... because penal law does not intend that the treasury or masters be enriched by fines, but that they themselves be preserved unharmed, and that transgressors be punished. But indirectly and accidentally the law furnishes a right that fines be exacted from it, but after sentence; for before it neither the treasury nor masters have any right to the penalty. Hence, although fiscals by not denouncing sin against legal justice, nevertheless they do not sin against commutative justice with respect to the fine; and therefore they are bound only to repair the damage of revenues which merchants ought to have paid." Cf. 15.

4. "Someone is sometimes bound to denounce, indeed even to accuse, a delinquent, if this is necessary for avoiding or repairing the damage of his own family, which otherwise would remain dishonored, or destitute of support." L. 237. For this is owed not only from charity but from piety.

5. There is an obligation of denouncing from the precept or edicts of prelates and superiors. Not only ecclesiastical prelates, but also secular Princes can command under various penalties that those who know such and such a delict manifest it at once. And thus Pontifical Constitutions command denunciation of heretics, or of those suspected of heresy; of those soliciting in Confession, or asking the name of an accomplice, with absolution denied unless it is revealed; of hidden leaders of sects; of superiors of lay Institutes, or religious superioresses, daring to induce religious or nuns or sisters to the opening of their own conscience; of those violating the oath prescribed by the Motu Proprio Sacrorum Antistitum and unwilling to sign the formula of the same oath; of those injuring or terrifying those who denounce to the Holy Office; of Bishops absent from their dioceses; of impediments of marriages and sacred orders; of pernicious books. Yet where heresies rampage with impunity, this obligation of denouncing heretics is not very urgent, unless the destruction of others were feared and could be impeded by denunciation. L. 1. 6, n. 993; l. 7, n. 214-217; Lugo d. 38, n. 17 ff.; Lehmkuhl, 8th ed., v. 1, n. 812.

Without fraternal correction having been sent beforehand, namely unless perhaps someone firmly judged that by a secret admonition immediately he could impede evils of this kind. S. Th. 2. 2. q. 33. a. 7. Indeed, by the Lord's precept concerning admonition to be sent beforehand, the question is chiefly of a sin which harms only the delinquent, or has been committed against us, not of sins to the detriment of the community, or to be punished in judgment for preserving justice. S. Th. 4, d. 10, a. 3, q. 1 ad 4; Sanchez, Cons. Mor., l. 6, c. 2, dub. 14. But no admonition need be sent beforehand whenever it is prudently feared that the defendant, having been warned, may sin more secretly and with greater destruction of the civil or Christian republic. C. I. penal procedure 98, 101, 162, 172, 179, 286, 288; C. G. criminal procedure 29, 30, 317, 321.

When is someone not bound to accuse or denounce? - You are not bound, even with the precept of a superior posited, to accuse or denounce a crime: 1. If the delinquent has been amended, without danger of relapsing, and full satisfaction has been made to the injured party, nor is any danger imminent to others, nor is the crime notorious. The reason is that the infamy of the neighbor would follow without cause. L. 239, 244; Lugo d. 38, n. 23; S. Th. Quodl. 4, a. 12; Quodl. 11, a. 13.

2. If you know the crime under a natural secret committed to you, as counselor, advocate, physician, etc.; unless nevertheless he who committed the secret should unjustly vex an innocent person or the republic and be unwilling to desist. L. 239, 248; S. Th. 2. 2. q. 70. a. 1 ad 2; q. 68. a. ad 3; Quodl. 1, a. 15.

3. If from it grave danger to your life, honor, and goods is imminent, unless the crime redounds to common damage to be averted. The reason is that neither charity nor a positive precept obliges with so great an inconvenience. L. 236, 239, 248; Lugo d. 14, n. 117; d. 38, n. 36; Sanchez, Cons. Mor., l. 6, c. 2, d. 22, n. 2.

4. If you would also be compelled to prove and could not. "But if the sin has not been such that it redounds into the multitude, or even if he cannot adduce sufficient proof, he is not held to attempting accusation; because no one is held to that which he cannot complete in the due manner." S. Th. 2. 2. q. 68. a. 1 c.; L. 239.

5. If the delict is altogether hidden, and does not turn in any way to the common damage, or to the private damage of anyone, but harms only the delinquent; for his right to reputation would be injured. L. 248; S. Th. Quodl. 1, a. 16; Quodl. 4, a. 12. Likewise if the criminal action has been prescribed. Cf. Enchir. Mor., 4th ed., p. 172.

6. "It must be said that a man ought not proceed to accusation unless concerning a matter altogether certain to himself, in which ignorance of fact has no place." S. Th. q. 18, a. 3 ad 1.

7. Whenever the delinquents are sufficiently known to the superior and no fruit is hoped for from denunciation, denunciation can licitly be omitted. The reason is that no one is bound to do a useless thing. Likewise denunciation can be omitted when the delict is indeed against the common good, yet not so gravely harmful that it obliges to accusing; when an injury was brought upon you or your own, which you are not bound to prosecute. Lugo, de Iust. et Iur., d. 38, n. 5; Sanchez, Cons. Mor., l. 6, c. 2, d. 17, n. 2; S. Th. q. 3 de Virtute, a. 2 ad 7. But no one is bound to denounce himself, since this obligation is had by no law; nor the companions of his crime, since this would be the same as denouncing himself. But if someone is legitimately interrogated by the judge concerning a crime, he is bound to denounce both himself and his associates. L. 254, 238; C. I. penal procedure 288-290.

8. But someone can licitly accuse and denounce whenever some delict is public, although by reason of itself it brings damage neither to society nor to another private person, but harms only the delinquent. The reason is that in such a case no right of the delinquent to his own reputation is injured, and denunciation in itself is always useful for the common good by reason of the scandal which is present in that publicity of the delict. And, if "scandal of many arises, now the sin harms not only him, but many." Wherefore the superior can then command that that sin be manifested; and with a just precept of the superior intervening, someone not only can but also must disclose the crime and obey the superior. S. Th. Quodl. 4, a. 12. Someone can also denounce a hidden delict already committed, if it would probably be foreseen that the delinquent would bring damage to others, or that his crime would soon become public. And therefore it is lawful to denounce a thief, murderer, etc., even if his delict is hidden. S. Th. ibid. The same must be said if denunciation is necessary so that you may recover your thing, although you can yield your right. C. I. penal procedure 288-290; S. Th. 2. 2. q. 33. a. 7; Roncaglia tr. 6, q. 4 de Eleemos. spirit., rule in practice, observation III; L. 245; l. 6, n. 1000.

Whether, if someone knows the sin of the neighbor, he sins mortally by reporting it at once to his prelate? - The Angelic Doctor, Quodl. 11, a. 13, says: "I say that in these matters one must distinguish concerning the conditions of the subject and of the prelate. For if I know that a brother will be corrected by me, then I ought not denounce this to the prelate. But if it seems that this will be done better through the prelate, and the prelate nevertheless is pious, discreet, and spiritual, not having rancor or hatred against that subject, then this can licitly be denounced to him; and then he does not tell the Church, because he does not tell it to him as prelate, but as to a person profiting toward the correction and amendment of the neighbor. But because, on account of the diverse conditions of prelates and subjects, a general judgment cannot be given in this, because sometimes the prelate is moved to hatred against the subject, or the subject would not bear well the words of the prelate, therefore this must be held as a rule, that in all these things charity must always be preserved, and what seems better and more expedient; and if he intends this, namely the amendment of the neighbor, and preserves the good of charity as much as he can, then by denouncing he does not sin; but if he denounces this to any person from malice, and so that the neighbor may be confounded or oppressed, then the one denouncing or accusing sins mortally.... It must be said that if someone immediately reports to the prelate, applying due circumstances and considering that it is more expedient, he does not act against the precept of the Gospel, because he does not tell this to the Church, but to a person profiting, as was said, and therefore he does not sin mortally." Suarez, de Carit., d. 8, s. 6, n. 7; Lugo d. 14, n. 117 ff.

63 bis. Whether a subject is bound to reveal to a commanding prelate the hidden crime of a brother? - "It must be said that sin can be hidden in two ways. In one way simply; namely in such a way that it has in no way come to the knowledge of many; and such a hidden sin harms only the one doing it. And therefore he who knows such a hidden sin of a brother ought to intend only this, that he procure the salvation of the sinning brother; whence the order of fraternal correction was instituted by the Lord, Matt. 18: that first someone correct a brother sinning secretly between himself and him alone; afterward he should bring two or three witnesses; and then at last, if he is not corrected, tell the Church. If a prelate commands against this order, that the hidden sin of a brother be told to him, he is not to be obeyed, and he himself sins by commanding, because one must obey God rather than men, Acts 2. But if the sin of the brother is not so hidden that it does not come to the knowledge of the multitude through some suspicions, whence scandal of many arises, now the sin harms not only him but many. And because the good of the multitude is preferred to the good of one, therefore the prelate ought to investigate the truth concerning the fact, so that the scandal of the multitude may cease either through the punishment of the sinner or through his excuse. And therefore in such a case he can command one knowing the crime of a brother to manifest it; and he to whom it is commanded is bound to obey the prelate. For thus, since the crime is not altogether hidden, it pertains to the judgment of the prelate; and in this case the Decretal speaks, but not in the first." Quodl. 4, a. 12. Cf. C. Accepimus 16 De Purgatione Canonica.

159. Notions. In a civil cause he who presses before the judge against another is called the actor (Kläger), but in a criminal cause the accuser (Ankläger). In the strict sense the accuser is distinguished from the denouncer, and accusation from denunciation. For accusation is usually defined: the delation of a defendant concerning a crime for public vindication, made by one who pledges that he will prove the crime. Therefore the end of accusation is the public vindication of crime for preserving the common good. The accuser is held strictly to prove the existence of the crime; otherwise the accused must be freed. In ancient Roman law, in modern laws, and in ecclesiastical law there are several requisites for legitimate formal accusation.²⁴³ Denunciation is the delation of a crime to a legitimate superior, so that he can investigate and punish; but it does not induce a strict obligation of proving. This denunciation indeed is either judicial, if it tends toward a delict to be punished, or evangelical, if a crime is denounced to the superior not as to a judge, but as to a father, for correcting the delinquent. - Therefore these are not to be confused: plaintiff, accuser, denouncer, or action, accusation, denunciation.

1. In more recent laws formal accusation is scarcely admitted except by persons destined for this from their office,²⁴⁴ e.g., by a procurator of public causes (commonly Staatsanwalt, procureur général), by guardians of forests, of customs, etc. But these persons are held to accuse, or at least judicially denounce, crimes found, unless there is question of certain matters of lighter moment. The reason is that they have been constituted for this end by legitimate superiors. Therefore officials of this kind sin if they neglect their offices; indeed they are held to reparation of damage if from the neglected accusation real damage has occurred either to the republic or to private men.

2. A private man is held to denounce crimes a) if this is prescribed by positive law, e.g., denunciation of one soliciting to shameful things on the occasion of confession; b) if the common good demands this, e.g., denunciation of counterfeiters of money; c) if there is question of grave damages to be averted from a private neighbor. - In other cases denunciation can indeed sometimes be done laudably, but it is not necessary. But a man is never held to denounce or defame himself.²⁴⁵

3. Judicial denunciation can be made from a reasonable cause, even if fraternal correction has not preceded, because this denunciation chiefly intends the punishment of the delinquent for preserving the common good. Evangelical denunciation also can often be made without fraternal correction having been previously given, namely, if the amendment of the delinquent is thus obtained more efficaciously, or if fraternal correction appears too difficult, as was said above, I, n. 602.

²⁴³ Cf. ibid. diss. 13, a. 1.

²⁴⁴ Code of Canon Law c. 1934.

²⁴⁵ Cf. below, on the defendant.

S. Th. II-II, q. 68-70.

640. The duties of the plaintiff and accuser. A plaintiff (demandeur; eischer, aanlegger) is one who in a civil cause calls another into judgment. He is held: 1. to seek just things; 2. to proceed according to the tracks of law; 3. to bring forward proofs. But if he seeks unjust things, or drags an innocent person into judgment without reason, he sins against commutative justice and is held to repair the damage thereby inflicted (q. 68, a. 4).

An accuser is one who in a criminal cause brings a crime to the judge and takes upon himself the burden of proving. By present-day law, only judicial denunciation belongs to private persons, by which an offense is brought to the judge or prosecutor, without the one denouncing taking upon himself the burden of proving; but true judicial accusation is now reserved to the royal prosecutor or prosecutor of the republic, or to the investigating judge, upon whom it is incumbent to make inquiry concerning crimes and offenses.¹

¹ Cf. Cod. instr. crim., § 2, arts. 11 and 275.

They are held to denounce crimes or offenses:

1. From justice, even commutative justice, those who by force of office or special pact have been constituted for this, such as public officials, guardians of fields, vineyards, or forests, etc.; hence, if the office of denouncing has been neglected, they are held to restitution of damage as negative cooperators (n. 316);

2. From legal justice, all citizens, even if civil law does not specifically prescribe this, when a crime turns to public damage and can be proved (q. 68, a. 1); moreover, that crime which positive law commands to be denounced from a just cause;²

² Cf. ibid., art. 30.

3. From charity, all are held to denounce a crime, whether a) about to be committed, from which grave damage threatens an innocent person and cannot otherwise be averted, or b) already committed, which cannot be kept silent without grave damage to another.

But that denunciation may be made licitly, the crime must be certain, or at least very likely; in which latter case it must be manifested not as certain but only as likely.

641. The duties and permissions of the accused. The accused is called one who is dragged into judgment and against whom action is taken.

A. In a civil cause, the defendant who knows the cause of the plaintiff to be certainly just cannot begin a lawsuit, but is held to satisfy the just petition of the plaintiff; if the matter is doubtful, he can defend his probable right.

Yet 1. the defendant who has been absolved in judgment is not excused from the obligation of paying the debt; because the injured party, even if he does not appeal from the sentence pronounced, is not judged in the forum of conscience to have renounced his right;

2. But if he obtained the sentence by unjust means, he is held besides to compensate the expenses of the lawsuit; but he is not held to this if the sentence was passed in his favor on account of defect of proof.

B. In a criminal cause: 1. the accused, considered in himself, is held to respond with truth to a judge legitimately questioning according to the order of law, unless perhaps it concerns graver penalties (q. 69, a. 1); but 2. by present-day law he is not held to confess a crime committed by himself, but can declare himself innocent;1 because, given this disposition of law, from the circumstances such a declaration signifies that he has not been judicially convicted of this crime; and 3. he always has the right of defending himself against accusers by licit means; hence he can also manifest hidden offenses of witnesses, if this is necessary for weakening the force of their testimony, because he is not held to preserve their reputation with grave inconvenience to himself; yet he cannot calumniously impose upon them a false crime (n. 429), nor a fortiori introduce false witnesses or kill an unjust judge:2 for evil things are not to be done that good things may come about (a. 2).

The accused is not held to concur actively in his own punishment; therefore:

a) Even if justly captured, he can flee, or escape from prison;

b) Indeed probably he can break prison, in order to preserve life or liberty;

c) Likewise if he has even been justly condemned, at least in order to evade death or harsh prison;

d) Therefore he can deceive and terrify guards and officers, but not inflict force upon them or corrupt them so that they fail in their office;

e) Yet an innocent person can, by giving money, induce guards not to obstruct his flight, and repel them or terrify them with arms, because he does not entice them to an act objectively evil; but it is not lawful to wound them gravely or kill them.

To an accused person licitly fleeing, others who are not guards by office can furnish counsel and help; but not by force or breaking of prison, nor if it would greatly harm a third party or the common good.

1. Thus also in the new canon law, at least universal law (can. 1743, § 1 and 1947).

2. Proposition 18 condemned by Alexander VII: "It is permitted to kill a false accuser, false witnesses, and even a judge, from whom an iniquitous sentence is certainly imminent, if in no other way can an innocent person avoid damage."

642. The duties of a witness. Witnesses are those who are legitimately called into judgment to bear testimony concerning the litigated matter; and they can be obliged to appear in judgment, or even to testify.

A. To appear, he is obligated: 1. who has been cited by legitimate authority, because legitimate authority commanding is to be obeyed. The obligation is grave, unless it concerns a matter of lighter moment, or the testimony is not necessary;

2. One not cited, whose testimony is necessary for averting grave damage to the republic or to an innocent third party: for although no one is held per se to offer himself spontaneously for testifying, nevertheless, on account of special circumstances someone is obligated, and indeed if the public good is at stake, even with grave inconvenience to himself; if the private good is at stake, regularly only without grave inconvenience (q. 70, a. 1).

B. To testify, he is obligated who is legitimately questioned by the judge with the order of law preserved; and indeed:

1. He is held under grave obligation to respond according to truth and conscience, unless he is excused by a legitimate cause (a. 1);

2. He can be excused from bearing testimony on account of a founded fear of a public or private evil very notable and proportionate; in which case he can conceal and be silent, indeed say that he does not know when the external circumstances sufficiently indicate that he is not held to speak, because then the manifest sense is: I do not know it for telling in judgment;

3. Yet he can never lie and give false testimony: for this is always a sin, and of itself grave, both against truth, and against religion if an oath has first been given according to custom, and against justice: commutative justice if damage is thereby inflicted upon another, and also legal justice if it is done in public judgment (a. 4).

Generally he is excused from bearing testimony:

a) Who knows the matter from a natural and committed secret; and indeed, if the secret is sacramental, of confession, it can never be violated; if otherwise, unless the common good demands it, or also, but more rarely, the greatest private good (a. 1, ad 2), as will be said where the virtue of truth is treated (n. 855);

b) Who came to knowledge of the matter unjustly, by force or fraud, for example, by unjustly opening another's letters;

c) Who certainly knows that the accused did not sin, although he materially committed the offense;

d) Who prudently fears from his testimony that the greatest damage will befall himself or his own, unless from the testimony denied something much greater would follow;

e) Who knows the fact only from witnesses of little trustworthiness: for then he is judged not to know.

Let it be noted that one who has brought forward false testimony is held to restitution for the damage thereby inflicted, because he positively cooperates in injustice;³ on the contrary, one who concealed or kept silent the truth which he ought to have confessed, and held himself negatively, is not held, unless, however, from commutative justice he had the office of denouncing, because then he is properly a negative cooperator.

³ Cf. Cod. poen., art. 215 sq.

A criminal DENUNCIATION is the manifestation and revelation of a crime, without any action, or accusation, by which the Denunciator denounces the crime of his neighbor to the superior Judge, or Prelate, as to a Judge, so that he may do ex officio what seems right to him according to law.

ACCUSATION, however, is the bringing of a charge with an action, in which it is asked of the Judge, and he is himself compelled to punish the guilty party. But denunciation differs from accusation in many ways.

FIRST, because a judicial Denunciator does not intend chiefly public vengeance and the punishment of the offense, but only his own interest, in which he was injured by the wrong: whereas the Accuser intends, first and per se, the public punishment of the offense for the public good.

It DIFFERS secondly, because the Denunciator is not bound to prove the crime by witnesses, whereas the Accuser is bound to prove it, according to Arret. §. fin. quaest. 7. et alios; but I think even the denunciant is bound to prove it by one witness, as others teach, excepting the cases of the Holy Inquisition.

It DIFFERS thirdly, in that on account of a denunciation the whole penalty of the law is not to be inflicted: on account of an accusation, however, the whole penalty is to be inflicted, if the crime be proved. So the Doctors commonly teach, in Fagundez lib. 8. cap. 45. et Saytum lib. 12. cap. 10. and this last difference is gathered from the cap. Inquisitionis, de accusat. see on these tom. 4. disp. 27. de conscient. quaest. 10. sect. 5.

THEREFORE, once the denunciation is presented, the Judge proceeds ex officio against the denounced, and so it is commonly observed in practice, as Pract. Papien. Boss. testifies tit. de denunc. Clato §. fin. quaest. 7. Philip of Bictis of Camerino in Praxi crimin. tract. 2. All of which (says Clarus,) must be understood both of the denunciation made by necessity of office, and of that made by anyone else whatsoever who can lawfully denounce.

But I PREMISE that some crimes are private, which tend to private harm: others public, which rush into public harm. Of the former kind are sins of gluttony, pride, private theft, and the like; of the latter kind are those that are against God, such as heresy, blasphemy, the overthrow of temples, or their burnings; or against the Church, such as violation of immunity, the injury of the majesty of a Prince, rebellions, treasons, public banditry, and the like.

Among Religious there are some things which can tend to scandal and contagion, such as notorious fornication, and the like. And these are counted among public crimes, which are also called "excepted", as Rodriguez numbers in ordine iudic. cap. 13. num. 6. Valerius de differ. utriusque fori, 2. inquisitio, diff. ultim. Miranda in ordin. iudic. quaest. 11. art. 2. Ximenez in declar. reg. cap. 10. quaest. 2. concl. 3. num. 17. Camerinensis num. 5. loco citato.

To these give their assent Suarez de Fide, Spe, et Charitate disp. 8. sect. 6. Sanchez Tom. 2. lib. 6. cap. 56. num. 50. Bonet. ibi, cap. 12.

In general, however, all crimes which the law declares are held as public, according to Bictus, such as homicide, are homicide, adultery, the crime of falsity, as appears in Lib. I. ff. de publ. iud. It is the common opinion of many Doctors, especially the Gloss on Rubr. 6. quaest. 1. Farinac. quaest. 49. Sotus on concealing a secret, memb. 2. quaest. 4. Rodriguez tom. 2. quaest. 5. art. 2. Miranda in ord. iud. quaest. 1. art. 2. The holy Doctor recalls many crimes of this kind in confessionali, cap. 9. and brings forward Canons imposing public penalties, plainly when they have been proclaimed.

Some assert that crimes of this kind can be denounced without previous fraternal correction.

D. Thom. 1. 2. quaest. 33. art. 7. is brought forward, and others whom Bouer. in Direct. part. 1. cap. 13. cites; Bisctus quaest. 15. The reason is, because the common good ought to be preferred to the particular good of the delinquent, and a public sin is not to be left without public punishment, as Rodriguez notes part. 2. quaest. 6. art. 4. after D. Bonavent. loco cit. Among these place Fornication, at least if it be not secret. See Diana part. 2. tract. 2. resol. 69.

And they say the same must be asserted of crimes which are to another's harm pending in the future, according to almost all the Doctors, in Bouerius ibidem, cap. 14.

Similarly they say the same of crimes public, or notorious, in another sense, in a city, college, etc. of which D. Bonavent. 4. dist. 13. quaest. 4. For secrets of this kind do not need correction. So teach Sotus de teg. secret. mem. 2. quaest. 5. Bannes 2. 2. quaest. 33. art. 8. dub. 6. Valentia 2. 2. disp. 3. quaest. 10. puncto 5. Miranda in ordine iud. quaest. 11. art 1. and others commonly, to whom Camerinus subscribes.

He extends these even to private crimes, that although hidden they can be denounced judicially, without previous correction, and he cites Sayrus lib. 12. cap. 10. Navar. in manu. cap. 18. num. 30. Adrianus in 4. de correp. fraterna, col. 17. Tranc. Aretinus in praxi, part. 2. cap. 9. art. 2.

Their reason is, because in such a denunciation, as also in an accusation, the amendment of the delinquent alone is not intended, but that the penalty due be imposed upon him, or the satisfaction due be shown to the injured party, as Reginaldus also notes tract. 2. lib. 25. cap. 32. Bonacina Tract. de Legibus, disp. 10. quaest. 2. puncto 5. and he refers to Diana p. p. tract. 4. resol. 2. where he cites many: Sanctarellus Tract. de haeres. cap. 9. Sanatius in select. disp. 11. num. 56. Bonac. tract. variar. disp. 6. part. 3. num. 9. Sylvius 2. 2. quaest. 33. art. 7. concl. 2. Villalob. sum. part. 2. tract. 4. diffic. 11. Suarez tract. de fide, disp. 20. sect. 4. num. 11. Azor. part. 1. l. 6. cap. 19. quaesito 9. Turtrianus 2. 2. tract. 1. disp. 58. dub. 3. Henriquez lib. 2. cap. 24. num. 10. in Glossa littera C. Simanca in Cathol. instit. titulo 19. numero 11.

Therefore they infer that no sin has fraternal correction to be premised to it, since they say all sins are public.

Yet the opposite opinion is true, which the holy Doctor defends in the places I cited, in the disputation on Charity, sect. 3. on Fraternal Correction. D. Thom. 2. 2. quaest. 35. art. 7. with all his disciples.

Sotus de Iust. lib. 5. quaest. 5. art. 1. Canus de locis Theol. lib. 12. cap. 9. Sylvester V. correptio, quaest. 5. Lopez Instruct. part. 4. cap. 54. Ledesma sum. tom. 1. tract. 4. cap. 4. concl. 24. diffic. 2. fol. mihi 134. Ioan. de Cruz in direct. part. 1. prac. 5. quaest. 2. dub. 5. concl. 2. who speaks of the one solicited in confession, which orders the solicitor to be denounced to the Lords Inquisitors. Zanardus in direct. confess. part. 2. prac. 1. c. 23. quaest. 13. and others. So taught Castrus de haeret punic. lib. 2. cap. 25. Tolet. Lib. 5. cap. 57. Lazarus Tract. de blasphemia, quaest. 12. num. 31. Homobon. tract. de cas. reser. part. 2. cap. 1. and de exam. Ecclesiae part. 2. tract. 9. cap. 13. quaest. 39. Angelus V. denunc. quaest. 2. Rosella V. Inquisitio, num 1.

Indeed Portel. in dubiis regul. v. correclio fraterna, num. 1. extends it even to the crime of heresy. Likewise Reginaldus in prax. tract. 2. lib. 24. cap. 3. sect. 6. numero 51. provided, however, it be firmly judged that he ought to be amended.

The Repertorium Inquisitorum adds, V. denunciator, Gundissalvus de haeret. quaest. 10. num. 10. Decianus tract. 1. lib. 5. cap. 30. And on the case of solicitation in confession Fagundez teaches it, de praec. Eccl. tract. 2. lib. 4. cap. 2. num. 31. where he says: Before the denunciation is made by the woman solicited in confession, fraternal correction must be premised, if there be hope of amendment, because the precept of correction is of natural and divine law; but the precept of this denunciation is human; hence it cannot prevail against the precept of natural law. But for fraternal correction to be judged profitable, it is not enough that it be done once and not profit; but it must be applied again and again, so long as amendment is hoped for on the judgment of a prudent man. So Fagundez, and recently Peirinus in Privil. Minim. tract. 2. constit. 4. of Gregory XV. §. 9. num. 26. and the constitut. of Paul V. §. 2. num. 26. Fagundez requires the same in 6. praec. Lib. 6. cap. 12. from D. Thom. 2. 2. quaest. 33. art. 3.

I add others who grant indeed that in the crime of formal heresy correction need not be premised; but in others, in those savoring of heresy, it must be premised. So Fagundez Tract. 2. lib. 6. cap. 4. num. 11. Mollesius in sum. tom. 1. tract. 7. cap. 24. num. 25. Ortiz. sum. cap. 21. num. 17. Homobon. de exam. Eccl. part. 1. tract. 7. cap. 6. quaest. 19. and from the Doctors cited in the second opinion.

On this matter, besides those cited, treat Aldreta de relig. discip. tuenda, lib. 1. cap. 5. §. 4. numero 28. Onuphrius opusc. de sigillo, serm. 2. quaest. 2. dubio 4. P. Eliz. tract. 1. quaest. 14.

Finally some, in Delrio tract. 3. disq. lib. 5. sect. 4. num. 6. say correction must be premised even if it be doubtful whether it would profit; which opinion he judges very equitable, though he himself, and deservedly, thinks the contrary.

You have very many authors in me loco citato de corrept. and in Bouerius in direct. part. 1. cap. 14.

Philip Biscetus num. 5. says these are to be understood thus: that the Gospel requires correction to be made prior to evangelical denunciation, but not to judicial.

Or if anyone intends him to speak even of the judicial, it is not to be followed, he says; and he wants what was said to proceed, attention being given to Canon law, according to which all crimes are public, as the Gloss delivers in cap. infames, verse Fures, 6. quaest. 1. and so he says the Canonists teach, as Baldus testifies, and of the common opinion Hostiensis is witness, whom Ananias follows cap. statuimus, after number 19. de maledict. and Julius Clarus subscribes to all these lib. 5. §. 1. v. hac tamen. But since correction is not to be premised to public crimes, it follows that it is now to be premised to none.

But Camer. num. 6. adds that correction is not required by justice, but can be made, so that it be required by Charity, if the delinquent be hidden and of good fame, and amendment be hoped for, and he cites Aretinus after D. Thom. 2. 2. quaest. 68. art. 1.

He observes also that although he be amended by correction, yet he could lawfully be denounced, or accused according to Gregory of Valencia disput. 5. quaest. 12. puncto 1. verse dico tertio, and he says this to be the mind of D. Thomas. For, the good of the corrected man being had, the denunciator or accuser can still lawfully propose to himself the aim of punitive justice, that is, the common good, that others may abstain from crimes through fear of the penalty; and therefore denounce, or accuse, the man already amended. But these things are false even with regard to Religious, as they commonly teach with Diana part. 2. tract. 2. resol. 57.

AS TO solicitors indeed in confession, he teaches absolutely quaest. 122. quaest. 42. that correction is by no means to be premised, and he cites Henriquez, Paramus, Rodericus, Acugna, and Navar. in the places related, by Rodericus in compend. quaest. resol. resol. 13. and recalls very many others in Diana p. p. tract. 4. resol. 21. and part. 4. tract. 5. resol. 24.

HE EXTENDS IT, even if he be amended, and refers to Suarez de Fide disp. 40. sect. 6. num. 13. Sancius in select. disp. 11. num. 52. and others in Diana tract. 4. resol. 3. Indeed, even if the Priest repent immediately after the solicitation, he is to be denounced. He asserts Bonacina tract. var. disp. 6. punct. 3. num. 4. Sanctarellus de haeresi, cap. 9. and 44. dubio unico.

I CONFESS that I mingle tears, while I put forward my opinion.

FIRST indeed I do not refuse that sins looking to public ruin be warded off as contagious, most of all heresy, which is the worst pest, like a creeping cancer. Therefore very recently the decree of the most holy Lord Alexander VII rightly came forth, gravely enjoining the denunciation of those suspected of heresy, with no previous correction. And this is to be observed; as we saw tom. 4. disp. 17. de conscientia, quaest. 10. sect. 5. ad propositionem 5.

AS TO the sin of solicitation, I see it to be dangerous, as showing a cauterized conscience, while it abuses the holy Sacrament of salvation, to the damnation of himself, and of others, even penitents; and therefore I do not dare to defend those saying that correction is to be premised absolutely, or that amendment is easily to be believed.

IF, however, the solicitor be truly amended, I do not condemn the opinion of those saying he is not to be denounced, which Sotus lib. 3. quaest. 5. art. 5. teaches, Molfesius in summa, tom. 1. tract. 7. cap. 24. num. 21. Genuensis in praxi, cap. 18. num. 6. Naldus in summa, verbo Accusator. Victorellus in notis ad manuale, Navar. cap. 25. num. 33. Filliucius de casib. reservat. casu 2. num. 8. Zanardus in Direct. confess. part. 3. cap. 31. Rodericus Acugna Tract. de confessoribus sollicitantibus, quaest. 3. num. 15. and there Freitas num. 34. Megala p. p. lib. 1. cap. 5. num. 26. Portell. in his additions to the dub. regular. sollicitare fam. num. 18. Peirinus in Privil. Minimorum, tract. 2. constitut. 4. of Gregory XV. § 6. num. 31. But the decree of the Holy Inquisition is to be set before the opinion of these men.

There is certainly DIFFICULTY in knowing: Whether he be amended. Felinus in cap. testimonium de testibus asserts that sacramental Confession proves someone to be amended. Genuensis in praxi, cap. 18. num. 6. thinks amendment can be presumed, if such a one has obtained the Jubilee. Homobonus de exam. Eccl. part. 1. tract. 7. cap. 7. quaest. 33. Freitas in addit. ad tract. de confessor. sollicitantibus, quaest. 8. num. 32. Riccius part. 2. decis. 159. mem. 14. and others say that he who has lived well for three years is presumed amended.

But SOME teach that this is left to the judgment of a good man, who, the quality of the persons having been considered, will judge the whole matter with prudence and maturity, because it is arduous to know the correction of such persons; and so speaking, Freitas noted it even of heretics quaest. 18. num. 139.

Yet Fagundez tract. 2. lib. 6. cap. 4. num. 17. LIMITS this opinion, and others, with regard to the formal heretic, about whom we can always doubt whether he is truly amended. For heretics are very crafty, and like a contagion they spread their virus. Therefore suitably provision was made against these by Alexand. VII.

FOR THE REST I could never perceive those little subtleties of Camerinus, and Caspensis, keenly devised with Cydonian zeal, while they decree all sins to be public and free them from correction.

ASSUREDLY the Gospel ought to be of greater weight to any Christian than the little reasonings of these men: If thy brother sin against thee, etc. which is the order from Christ the Lord, precepted by divine law, as D. Bonaventure notes, D. Thomas, and innumerable others in Diana part. 3. Tractat. 2. resolut. 37. But among them the Gospel of correction is wholly banished.