The accused

The defendant in a criminal trial is not himself subjected to examination according to English law, unless he offers himself voluntarily to give evidence, and then he may be examined like a witness. In canon law the accused is examined, and the question arises whether he is bound to tell the truth. According to Canon 1743: “ The parties are bound to answer the judge when he interrogates them legitimately, and to tell the truth unless there is question of a crime committed by themselves.”

The defendant may in self-defence make known the secret crime of a witness against him, if it really conduces to his defence; but of course he may never impute false crimes to anybody. A criminal may not defend himself against lawful arrest, for that would be to resist lawful authority, but he is not compelled to deliver himself up to justice, and it is not a sin to escape from justice if he can do so without violence, The law prescribes that he shall be kept in durance, not that he shall voluntarily remain in custody. A criminal lawfully condemned to death is not obliged to save his life by escape or other means if he can do so; he should submit to the execution of the sentence passed upon him, and may do so meritoriously.

(St. Thomas, II-II, q. 69; St. Alphonsus, Theologia Moralis, book IV, nn. 272-290; Homo Apostolicus, tract 13, nn. 82-87.)

The discussion is only about the accused in criminal matters.

I. The accused, according to present-day law,¹ is not bound to confess the crime. Therefore, even if he is questioned about it by the judge, he can answer, with a broad mental restriction, that he did not commit it, understanding: in such a way that I am bound to confess it. Likewise, using the same restriction, he can deny those things which could harm him, i.e. could lead to proof of the crime, provided he does not inflict injury on others. Nor is an oath now demanded from the accused; and if it were demanded, he could confirm by oath the broad mental restriction used by him, or to be used in the course of the trial. The things said do not prevent the accused, if the common good requires it, from being able and obliged to betray his associates (St. Alphonsus IV, 278).

According to ancient law, these things held: The accused, legitimately questioned, is bound to confess the truth; for it belongs "to the debt of justice that someone obey his superior in those matters to which the right of prelation extends. But the judge ... is superior with respect to the one who is judged; and therefore from debt the accused is bound to set forth to the judge the truth which he demands from him according to the form of law" (St. Thomas, II-II, q. 69, a. 1; St. Alphonsus IV, 274). Moreover, in order that he be legitimately questioned, at least probable indications of the crime must have preceded. The accused is excused: 1° if the judge "indeed questions the accused juridically, but only from a false presumption of delict" (St. Alphonsus IV, 273), as if someone is questioned about a homicide which he committed because of just defense of himself; 2° quite probably, if otherwise a most grave penalty threatens him (St. Alphonsus IV, 274).

¹ Cf. Staatslexikon, word Strafprocess, V, 604.

II. The accused can break the force of testimonies brought forth against him by disclosing the crimes of the witnesses, provided the revelation of the crimes is both necessary and efficacious for his defense. But "to oppose a false crime to a witness or accuser for defending one's own cause is always unlawful and a grave fault" (St. Alphonsus IV, 277).

III. The accused can decline the penalty as follows:

1. If he is innocent, he can flee both before and after sentence; he can also resist positively, for example by driving away the officers, frightening them, wrenching himself from their hands, indeed even by going further. The reason is that in the case the execution of the sentence involves an unjust aggression. Nevertheless, accidentally, positive resistance, especially graver resistance, is for the most part unlawful, because commonly it is not only useless, but also causes greater evils and gives occasion for scandal (St. Thomas, II-II, q. 69, a. 4; St. Alphonsus IV, 279).

2. If he is guilty, he can flee: 1° before he has been condemned; 2° after he has been condemned, if prison has been assigned not for punishment but for custody - that is, until the execution of the sentence. "The reason: because the sentence does not condemn the accused to not fleeing, but only to not resisting the ministers when they execute the sentence" (St. Alphonsus IV, 280, question 2; St. Thomas, II-II, q. 69, a. 4, ad 2). "But if prison has already by the sentence been assigned as a punishment, even perpetually, then one must deny that it is lawful for the accused to flee from prison; because in the execution of a just sentence the accused is certainly bound to obey ... Some except, however, if in prison necessities for sustenance are not given to him ..., or if the prison were excessively grievous, because it seems beyond human strength that someone should be obliged not to free himself, when he can do so without force and resistance, from a very hard penalty" (St. Alphonsus, loc. cit.; cf. St. Thomas, II-II, q. 69, a. 4, ad 2).

Besides, one who can flee can also remove impediments which stand in the way of flight, for example by breaking the prison. But if damage comes to the guards from this, that can be permitted. He can also deceive the guard by artifice, or make him drunk or put him to sleep when he is not paying attention. But he cannot corrupt him if he has been justly condemned, since there would be formal cooperation in the guard's sin (St. Alphonsus IV, 282).

IV. The accused, as is clear, is not bound per se by an unjust sentence, whether because of a neglected order of law or because of the intrinsic character of the cause. Accidentally, commonly it must be observed, namely lest public order be disturbed and scandals arise (St. Alphonsus IV, 215).

In doubt concerning the justice of the sentence, it is to be presumed just; nevertheless it is lawful to appeal to a higher tribunal.

Note. With respect to ecclesiastical law, observe these things:

1° The accused, legitimately summoned, ought to respond (can. 1646); to respond, i.e. as juridical interpretation has it, is to present himself before the judge.

2° The accused is not bound to confess his own crime, according to these things: Parties are bound to respond to a judge legitimately questioning them and to confess the truth, unless there is question of a delict committed by themselves (can. 1743, § 1).

In doubt the condition of the possessor is better. C. 6 de Praescript. This axiom in the external forum, both ecclesiastical and civil, has been received as a certain rule of judgments. For it is to be presumed that he who possesses a thing possesses it by right, unless the contrary is clear. The same certainly has force in the internal forum of conscience. For certain and legitimate possession produces moral certainty concerning the dominion of the thing, L. 1. 1. n. 35, l. 4. 210, l. 6. n. 905. 927; and the reason is that, given human customs, no one is, morally speaking, negligent; indeed on the contrary all are diligent and very diligent in guarding their own things. Moreover, where one does not proceed from a false supposition, the right of the external and internal forum is the same; for each forum is founded on the principles of natural justice and equity. Hence theologians commonly admit the aforesaid rule for the forum of conscience. L. 1. 1. n. 26. Now some say that this axiom has force only in the matter of justice. "Yet I," says S. Alph. l. c., "do not know how it can be denied in all matters." And this certainly is by far the more common and truer opinion. The reason for this extension also to other matters, with due proportion, is the same as in the matter of justice. For no one can justly be despoiled without sufficient reason of a good which is his own. But man naturally, and therefore certainly and altogether legitimately, possesses his liberty, which certainly is some good and right of his own. Therefore this good also pertains to justice, and he who unjustly either takes it away or weakens it violates justice. Without injustice a free man cannot be subjected to servitude. But there can be no doubt that in doubtful laws liberty is always in prior possession of itself. For upon whom is law imposed except a free man? Whence it is that what is licit is not whatever the law permits, but what the law does not prohibit, L. 28. § 2 Ex quib. caus. maior., and therefore this prohibition must be manifestly proved, C. 23 de Verb. signif. - Suarez tr. 3. d. 12. s. 5. n. 8; Lugo De Iust. et Iur. d. 17. n. 87, d. 23. n. 110. In doubt: that is, in negative doubt, and the reason of the axiom is then clear, because possession stands for the possessor, and therefore moral certainty; for the petitioner no prudent reason is had. Cf. Lugo De Iust. et Iur. 23. n. 110. But in positive doubt, or probability, if probability is present on each side, so that on one side possession and probability of right stand, and on the other only equal or almost equal contrary probability of right, the condition of the possessor is again better, as is clear of itself. But if on one side indeed possession stands, but on the other contrary probability of right; or on one side possession and at the same time probability of right, and on the other far greater contrary probability of right, then certainly the condition of the possessor is not better, but doubtful. Indeed the first opinion holds that the judge is bound to adjudge the thing to the plaintiff, because the right of possession prevails in an equal cause, but not in a less probable cause. For Rule 65 of the Law in the Sixth has it thus: "In equal fault, or cause, the condition of the possessor is stronger"; and in L. 128 ff. de div. Reg. Iuris it is said: "In an equal cause the possessor ought to be held stronger." But the second opinion holds that the condition of the possessor is still better, and that the judge cannot despoil him of possession. The reason is that "it is certain that legitimate possession gives to each a certain right of retaining the thing, until the right of another is not established, as they say most commonly... a certain right, which cannot be overcome except by the certain right of another through certain convincing reasons." For possession is defined: the right of insisting in a thing not prohibited to be possessed. L. 1. 1. n. 36; Ithur. Cas. 1. n. 2. Cf. L. 1. 3. n. 547. 562. 711, etc.

Therefore the possession about which the present saying speaks is certain and legitimate possession. It is called certain, that is, that the fact of possession is certain; legitimate, that is, begun and continued in good faith, and likewise begun and continued by a just title, at least apparent, or at least thought to exist, or presumed, such as, for example, donation, purchase, inheritance, and similar things, through which ownership of some thing is usually acquired. Therefore if possession is doubtful, or begun with doubtful faith, or by a doubtful title, it by itself does not exhibit to the possessor a special prerogative and presumption against which no contrary probability has force. L. 1. 1. n. 36. 47, l. 4. n. 210.

Probability of right, which can be only on one side or on each side, is the probability of a real just title, or of one actually existing, from which true and real dominion and ownership of the thing arise. For for legitimate possession, about which the axiom speaks, it suffices that the just title at least appears, because, for example, a donation or purchase intervened from him who was thought to be owner, although he was not; or at least was thought to exist, because the action signified by the title is thought to have intervened, although it did not intervene, as happens when someone thinks that the thing was given to him or bought by him, and nevertheless this was not done; or at least presumed, because, for example, because of length of time in peaceful possession or other circumstances, it is prudently thought that some title intervened, although the possessor cannot allege any determinate one. Therefore this probability of right, as is clear, is altogether outside possession itself, which only gives the right of insisting in the thing, or of holding it, although perhaps its dominion and ownership does not belong to you, since a just title was not really present. Now the probability of a real just title, or of one actually existing, can be in two ways: 1. Probability of the justice of the title for beginning or continuing possession and ownership of the thing, for example, a testament lacking legal formalities. 2. Probability of the reality or existence of a just title for the same effect, for example, of donation, when it is also probable that the thing was taken by theft. The former probability is called of right; the latter is called of fact. Where this latter is treated, "when the fact is not plainly proved, it is not probable that the accused can be condemned, since laws never permit the accused to be condemned unless the crime or debt is fully proved; but it is not proved fully and sufficiently for a sentence when, although two or three witnesses testify, nevertheless other witnesses testify the contrary; for through these the testimony of the former is destroyed or diminished, and therefore the sufficient proof required for full proof and condemnation does not remain." Lugo De Iust. et Iure d. 16. n. 100. Cf. also d. 23. n. 100, d. 16. n. 34. 96. 99.

Is it lawful by public authority to kill the guilty? - It is lawful by public authority either to imprison, or to beat, or to mutilate in some member, or even to kill malefactors, according to the various gravity of offenses. The reason is that this is a necessary means for procuring the common good of the whole society. Indeed, for preserving society itself; which indeed cannot be obtained except by these penalties, and often not except by the death of wicked men. Therefore God must be said to have conferred the power without which society could not stand. "Every singular person is compared to the whole community as a part to the whole. And therefore, if some man is dangerous to the community and corruptive of it because of some sin, he is laudably and wholesomely killed, so that the common good may be preserved... he is deprived of a member because of some lesser faults." S. Th. 2. 2, q. 64, a. 2; q. 65, a. 1. And by the same reason it is lawful to beat him and imprison him because of the abuse of the free use of his members to the harm of the community. S. Th. 2, q. 65, aa. 2, 3. This is also clear from the practice of every legislation, from Sacred Scripture, and from the universal consent of all. Lugo d. 10, n. 64; Struggl 34; Ithur. Cas. 40, nn. 11-12; S. Th. 2. 2, q. 64, aa. 2, 3; q. 65, aa. 1, 3; q. 66, a. 6 ad 2, a. 8; q. 67, a. 3; q. 108, aa. 3, 4; L. 375; E. M.

Resolutions: A superior is not bound to restitution if he distributes the offices of society to those less worthy, because he does not violate the strict right of the more worthy person, nor of the community, which cannot demand anything else except that the unworthy be kept away from offices. But it is otherwise if in a competition the superior preferred the less worthy to the more worthy, because in a competition, speaking of itself, a pact intervenes, from which strict right belongs to the more worthy person. A superior who distributes merely honorific dignities, whether to the less worthy or even to the unworthy, is not bound to restitution, because he deprived no one of his right, although he sinned because of acceptance of persons. One guilty of damage is not held if he denies his crime lest goods be extorted from him; nor is he held who carries out prohibited merchandise against the command of the laws, although from this their price increases. L. 547; l. 4, n. 107; St. Thomas, 2. 2, q. 63.

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.

What is to be said about public sinners? Ecclesiastical burial is not to be denied to the guilty who are punished with death, if they have given signs of repentance; but they are to be buried without solemnity. The same must be said of prostitutes who die in a public brothel, and who have satisfied public scandal and have confessed their sins. Ecclesiastical burial can be given to them, with the pomps and solemnities of exequies nevertheless avoided, Holy Office, September 19, 1877. Nor is it to be denied to actors and comedians, provided they have not refused the sacraments; for this is prohibited by no law. Those who have not satisfied the precept of Easter Communion or annual confession today are not deprived of ecclesiastical burial, unless after an edict proposed, which is no longer customarily proposed, and after the Ordinary has been consulted.

Likewise it is not to be denied to impenitent sinners if the priest alone was witness of impenitence of this kind, in order to avoid scandals. Hence the priest, doubtful about the dispositions of the dying person, should speak to him without witnesses and induce him to confession, provided public scandal is not to be repaired. E.M.

1. Barbantius, a priest of most unimpaired reputation, visiting on a certain occasion Armanda, a married woman of excellent reputation, sinned with her. By a fortuitous chance Melchior, a man of corrupt morals, saw them; he immediately reported the matter to Armanda’s husband, and then testified to the same in court, with great scandal of the city.

It is asked: What as to the Case?

R. Fr. Gury raises the question: Is a witness held to reveal an altogether occult crime? and he responds, n. 19: “More probably in the negative by Common Law, if the witness is wholly certain that the crime is known to himself alone; because for condemning the accused two witnesses are necessarily required. Hence the axiom: one witness, no witness. But otherwise one must speak according to French Law, or another similar law, by which one witness can suffice for the condemnation of the accused, and nothing else is required from the jurors except that they assert that they have an intimate conviction of the fact, without their needing to prove their sentence.”

But from the fact that the jurors are not held to prove their sentence, and that it suffices that they have an intimate conviction of the fact, it does not follow that a witness is held, or even is able, to reveal an altogether occult crime. Indeed rather the contrary follows. For jurors do not pronounce their sentence independently of the trial, but after they have been present in court for the whole discussion of the case and the examination of witnesses; whence the crime is already supposed by that very fact to be publicized, at least half-proven, or certainly at least producing great suspicion of itself, and indeed from knowledge of facts already public in themselves. Wherefore from the sentence of jurors, to be pronounced according to intimate conviction, nothing indeed is drawn for that resolution, but rather the contrary. Nor indeed does that other thing prove anything better, namely that by more recent Law one witness suffices; for one thing is that one witness can make full proof even in court, another thing, altogether diverse, that therefore a witness can also reveal an altogether occult crime. There is no necessity for such an interpretation, which, since of itself it is not consonant with Natural Law, consequently is not to be asserted without a manifest declaration of the law itself. Cf. I. M. 70. And in the proposed case and in similar ones, the very grave disadvantages of this opinion easily appear.

Therefore it does not seem that Melchior is held, indeed even that he can, reveal that most occult crime either to the husband of Armanda, with so great harm and infamy of Armanda herself and of Barbantius; or even to the judge, with so great public scandal. Nor indeed in the Case is there question of a crime impending and to be avoided, and to be prevented in the future; for, as is clear from the exposition of the Case, that offense was committed wholly in passing, nor is there any indication of future danger, which otherwise would have to be met by other means altogether honorable and useful.

2. “Alexius promises by oath to Marcus that he will never manifest to anyone either the homicide which, while he saw and was not seen, Marcus had secretly perpetrated, or the theft which, an agreement having been made concerning the keeping of secrecy, Marcus had confided to his ear.

It is asked: Can Alexius, summoned by the judge, give testimony?

R. A promise supervening upon knowledge of a secret known from elsewhere does not oblige to secrecy in those cases in which, the promise being excluded, one would be obliged to manifest the secret. The matter becomes clear by an example. You have caught Peter in the very act of crime. The public report of the crime having spread, or half-proof of the crime already having been had, the judge calls you and legitimately asks what is known to you concerning an offense of this sort. There is no doubt that you ought to affirm that it is established concerning that offense, and you would sin gravely if you denied it. Therefore the very same thing will be of right, even if you promised, indeed even swore, that you would keep that offense secret forever; indeed even if you swore that you would not betray it even to the judge, because a promise, even one confirmed by oath, cannot bind anyone to anything illicit; but it is illicit not to obey a judge legitimately asking; therefore, the promise notwithstanding, rashly fortified by oath, you must manifest the offense, in order that you may obey. Certainly faith even sworn, supervening upon knowledge already had of a thing, cannot prevent either the judge from examining witnesses about the offense, or witnesses from deposing about the offense before the judge legitimately examining them, and by privative right, especially since this obligation of deposing arises as soon as knowledge of the offense is had....

Since these things are so, you see that our Alexius, who, with the religion of an oath interposed, had promised Marcus in the species of the Case that he would never manifest to anyone the homicide which Marcus himself had perpetrated while Alexius was watching, could not so bind himself that, when legitimately summoned by the judge, he ought or could conceal the homicide.... And apply this manner of speaking to the case also in which Marcus had called Alexius as a companion of the homicide, pledge of secrecy having been given and accepted with an oath; because a secret of this sort is not properly committed, but would be contained within the mere bounds of a promise, since Alexius himself had received knowledge of the matter not from communication made to him by Marcus, but from the fact with his own eyes....

A secret is then truly said to be committed when we cannot obtain secret knowledge of the thing from elsewhere than from the free manifestation of the thing which another makes to us, depositing the thing in our trust, so to speak, under this inviolable law, that, deposited forever in the chest of the heart, pressed under deep silence, it be guarded; by which law the obligation of secrecy increases to such a degree that not even in cases in which otherwise you would be bound ought you or can you manifest it, unless the manifestation is for avoiding some harm of the commonwealth, or even of some private person, as the Angelic Master teaches, 2.2, q. 70, a. 1, ad 2....

Now since the theft of which there is question in the species of the Case does not pertain to that kind of things which, as soon as they have come to our knowledge, we are immediately held to manifest: for I suppose that it pertains neither to the harm of the commonwealth nor to the harm of anyone else, if it is retained occult (the matter will so happen if you suppose, for example, that a horse taken by theft has perished, and that Marcus is unable to pay, or that he has been induced by the counsel of Alexius to restore the horse); it follows from the unshaken principle of St. Thomas that Alexius, asked by the judge whether he knows anything about the theft of Marcus, can and ought freely to answer that he knows nothing about it; lest, if he affirms that he knows, he break the faith which by natural law he is compelled to keep intact and safe toward Marcus.” Ithur., Cas. 37, nn. 8–11.

Thus indeed, if there is question of a theft committed in passing by some person and with the circumstances set forth. But, practically speaking, in the proposed Case the matter would have to be weighed seriously; since there is question of Marcus as at once a homicide and a thief. Wherefore it may well be that Marcus is a thief by profession, and is disposed to continue thefts with danger also of another homicide; and in such a case, notwithstanding the committed secret, since at least a most grave harm to private persons impending in the future is verified, he would absolutely have to be denounced to the judge, which otherwise the same Ithur. then affirms in the following numbers. Cf. n. 32.

Besides, in the proposed Case, since Alexius has already been summoned by the judge, and the judge asks him both about the homicide and about the theft, it seems that in truth both crimes of Marcus, not only the homicide but also the theft, have already been spread by public report. Moreover the same Ithur. afterwards, n. 24, gives these warnings as regards theft committed to another under the law of secrecy: “But I speak of a secret which can be guarded without sin, and which cannot be disclosed without injury to natural right; and in cases of this sort of urgent necessity I persist in stoutly defending that one ought to conduct himself with the judge just as if he did not know what he does indeed know, but under that inviolable law of the committed secret, that he himself knows it, but no one besides him.” Moreover when the matter is spread abroad and publicly known, it has already ceased to be secret; and therefore an obligation of secrecy can no longer be given; for since that obligation is an obligation toward a secret, it perseveres only so long as the thing remains secret or occult. — Cf. I. M. v. 1, n. 1536 seqq.

3. Albert having died without necessary heirs, two of his nephews were claiming the whole inheritance. But behold Laelius produces a holograph testament, by which the whole inheritance of Albert is to be divided between himself and his brother Narcissus. Hence a suit arises between Laelius and the nephews of Albert, who assert that the testament is false. Narcissus, knowing that his brother had in truth made a false testament, approaches a confessor, asking from him whether he can deny it in court, since he has been cited in it and, an oath having been interposed, he is compelled to tell the truth; but once it is manifested, there is grave danger that his brother, and perhaps even he himself, will be condemned to most grave penalties besides the public infamy which certainly will result from it.

It is asked: What as to the Case?

R. The Case certainly, practically, is not without grave difficulty. But since there is question of a civil case and not of a criminal case, although this latter may afterwards take place; since there is question of grave harm to the neighbor impending and to be inflicted, and of an offense to be consummated, Narcissus certainly cannot deny the truth and affirm falsity, especially with an oath interposed. Wherefore, that he may free himself from grave difficulty of fact, let him persuade his brother to compose the matter amicably with the nephews of Albert, asking them to be willing to desist from the prosecution of the case before the tribunal, and by yielding the whole inheritance at once to those to whom it belongs, under any specious pretext, lest he defame himself.

4. Tiburtius, a public robber of the roads, who committed many thefts and homicides, was condemned to prison for thirty years. Mauritius, his intimate friend, persuades him to flight; indeed he supplies to him a file and a chisel, so that he can break the bars of the window and leap out of it into the public road, where Mauritius, with a gun, observing by night the outcome of the matter, is ready to defend Tiburtius against the guards of the prison. The matter succeeded altogether well, and the two friends wander free through the Roman Campagna.

It is asked: What as to the Case?

R. That it is licit for the accused to flee, if he obtains a good opportunity, is admitted almost commonly. For all penalties are in fact established by law and decreed by the judge in such a way that they are to be inflicted by ministers of justice. Wherefore an accused person cannot be condemned who, the right of another remaining uninjured, withdraws himself, provided however that he does not employ violence and does not disturb public order. Moreover, although in the case there is no question of the penalty of death, nevertheless there is question of a most grave penalty. Since no one is understood willingly to suffer a penalty of this sort, the accused sins not only not by fleeing, but even by breaking the prison and by using deceit and moderate force, by which he may consult for himself, without a lie and without grave harm to others. Wherefore as regards Tiburtius, speaking of itself, he does not seem to be disturbed for fleeing from prison and therefore breaking the bars of the window.

Nevertheless, the same does not seem to be said of Mauritius persuading flight and supplying the instruments necessary for it. If there were question of another accused person, Mauritius also would not have to be disturbed, from the general doctrine that, if flight is licit for the accused, consequently it is licit for others to advise him to do what is licit for him, and to furnish assistance to one using his own right. But since in the Case there is question of a public robber of the roads, whose flight will certainly be pernicious to the public good, it is certainly not licit for Mauritius to persuade flight, and much less to supply the instruments for it. But what Mauritius does, namely that with a gun in the public road he observes the outcome of the matter, ready to defend Tiburtius against the guards of the prison, is wholly illicit, since neither is it licit for Tiburtius himself to inflict violence upon the legitimate ministers of justice, and to kill or wound them. St. Alphonsus, l. 4, nn. 281–283.

24. • 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.

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:

25. 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.

26. • 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.

I. On the Witness. The obligation of testifying, on account of sufficient private or public necessity, is from charity, whose debt is urged by legitimate citation.

But he who appears is held from justice to say nothing false which is harmful to a party. But when an oath has been taken, he is now forbidden by religion to lie, and he must tell the whole truth to one legitimately questioning him concerning the cause which is being treated. As to telling the whole truth, this promissory oath admits smallness of matter. Cf. what was said at n. 193.

An oath which is furnished to an incompetent judge can be regarded either as fictitious, or, if it was true, it will not oblige except to manifesting those things which can be narrated to such a judge.

Nor should the following be said even to a legitimate judge: a) those things concerning which he questions illicitly or not legitimately, i. e. without the order of law being observed; b) those things which are known under committed secrecy or by injury, with the exceptions saved which limit the obligation of secrecy (cf. nn. 698 and 699); c) those things which would be too damaging to the witness or to his own; indeed, the damage of a third party which would clearly outweigh the utility of the testimony seems to suffice that you conceal the matter: the judge is not presumed to wish that you reveal these things; d) facts in which another has not sinned, if the interrogation is concerning a delict.

If at some time you must confirm by oath the legitimate response "I do not know," by which you merely declined a response, you are judged to confirm that true thing itself which signifies: "I do not wish to respond." Or if that sense is too hidden, the oath will lack an object, i. e. it will confirm nothing.

Revocation of false testimony is governed by common principles. To aid sincerity, laws sometimes establish that false testimony is not consummated except after the final words by which the witness declares that he perseveres in what he has asserted.

To free an innocent man, you will have to appear of your own accord: not, however, if another, even one guilty, would thence be condemned to an excessive penalty. The principles concerning the obligation of charity must be applied.

On the accused in criminal judgment. 1. On confession of the delict. Now by no civil law is the accused held to confess the delict.

Must the same be said in canon law? Noldin, II, n. 733, thinks that the distinction still comes into use which, before the Code, was made between lesser delicts, which one legitimately questioned had to confess, and greater delicts, which one, with attention to grave penalties, would not confess without heroic virtue. But he uses an argument of no value. For he adduces the words of canon 1646: "the accused, legitimately convened, must respond"; but in that canon the word respondere is taken in a juridical signification, which is the same as if you should say: "one legitimately convened must present himself before the judge." But in a criminal judgment the Code so orders the process that it in no way mentions an obligation of confession; and for one accused who confesses, it wills per se that judicial correction be substituted for criminal judgment (c. 1947).

But if the accused can conceal the delict, neither are the words which he uses for concealment to be held as lies. For from the circumstances themselves they appear not to have been uttered seriously.

But where, either from defect of competence or from violated law, legitimate interrogation is lacking, it is manifest that those arts are much more lawful.

2. On action against witnesses. Whether they are voluntary or compelled, it is lawful for the accused to defend himself against witnesses, even by revealing a fact whence their reputation is injured, provided there is an equal proportion between the damage thus actively permitted and the hoped-for utility of the revelation. The accused must abstain from calumnies. Yet if the witness himself was lying, or is questioned in a non-legitimate judgment, that defense seems to oppose truth, but not justice.

3. On declining the penalty. It is lawful for the accused to decline the penalty by flight, even, if the utility is of sufficient moment, by breaking open or destroying the prison. In this matter he can be aided by friends, but not by public guards. He cannot resist them, nor corrupt them by money. He is not forbidden to deceive the same men craftily. The damage which they will suffer cannot be imputed from justice to the accused who is using his right; yet where proportion between his own utility and the guard's damage is lacking, charity will command that he abstain from the injurious action. Nor, according to the opinion of many, must he repair damage brought upon the building. Cf. Lehmkuhl, I, 979.

If the sentence was unjust, it will be lawful to corrupt the guard, forewarned concerning the injustice, or to buy his connivance by a price. If the sentence was only materially unjust, Lehmkuhl, I, 978, permits the accused only that resistance which he can employ without grave violation of others and with hope of escape. But if it is formally and sufficiently notoriously unjust, there will now be no scandal given through resistance. St. Thomas, 2, 2, q. 69, art. 4, says that that judgment is similar to the violence of robbers. Then, with attention always to the proportion of the evil of the penalty, the hope of success, and the damage of the others who will at least be materially unjust aggressors, it will be lawful to resist the ministers of justice themselves as robbers.

But it is not lawful to anticipate by killing a false accuser, false witnesses, or a judge from whom an unjust sentence certainly threatens. Cf. the already cited proposition 18 of Alexander VII (cf. n. 607).

I. 1. The virtue of truth or veracity inclines to the right use of signs by which man communicates with others or has commerce. Taking care that words are consonant with our mind, it procures the truth which is called moral. Insofar as it pursues equality and rectifies our conversation with others, it is a potential part of justice. Its office can in some cases be commanded by the very virtue of justice.

2. Sincerity, midway between distrustful dissimulation and indiscreet revelation of one's own affairs, impels man to a full but prudent manifestation of himself.

3. To these virtues there are opposed, by excess, indiscretion; by defect, lying. While dissimulation merely hides one's own person, simulation is lying by deeds. Hypocrisy means a peculiar simulation by which someone simulates himself as different from what he is.

II. Obligation of a witness in judgment. Charity urges the very obligation of testifying; justice forbids that anything false harmful to a party be said; the religion of a promissory oath besides obligates the witness, when legitimately questioned, to lay open the whole truth. Except, per se, those things which are known either by injury or under committed secrecy; those which are too damaging to the witness or to his own; indeed, according to the reasonable will of the judge, those things which would bring damage to a third party not at all compensated by the utility of the testimony; facts by which another has not sinned, if the interrogation is made concerning a delict.

III. By modern law, the accused is never bound to confess his crime or sin. Wherefore neither is his denial to be held as a lie, since, from the circumstances, it can be ambiguous and merely signify the will of not confessing.

He is permitted usefully to defend himself against witnesses, even by revealing their hidden vices, if proportionate utility is hoped from this.

He can decline the penalty by fleeing, but not by violently resisting ministers or corrupting them with money, unless he has wished to redeem himself from the vexation of an unjust sentence.

For the sake of clarity we distinguish the obligations of the accused before and after the sentence of the judge. Before the sentence of the judge the defendant a) is not held to confess the crime committed by himself; b) can defend himself by all just means.

163. 1. Confession of the defendant.²⁷⁴ The opinions of older authors in this matter are not always applicable today, since the judicial order of the Middle Ages differs very greatly from the discipline now in force, both ecclesiastical and civil. For in ancient times an accused person whose crime had been half-fully proved was held to confess the truth, and if he refused this, he was subjected to torture for extorting confession. This way of acting indeed is not repugnant to natural law and sometimes produced good effects. Nevertheless it must be confessed that not a few abuses also crept in from it. Today this torture has become antiquated among cultivated nations. It is never strictly exacted by modern civil laws that an accused defendant confess his crime. But in ecclesiastical law Benedict XIII already gravely commanded that an oath by no means be exacted from defendants, except however that they be examined as witnesses concerning others. "Otherwise an examination so constituted and all the acts are by that very fact null and void and lack every effect against the defendants."²⁷⁵ But if it is not lawful to impose an oath on defendants, it is a sign that the Church does not wish to compel the defendant that he himself confess the crime committed. Since these things are so, the principle placed by all the older theologians, "A defendant legitimately interrogated by the judge and with the order of law observed is held to confess the truth," is indeed true even today, but according to modern common law the judge now cannot under grave obligation oblige the defendant to confess his own delict.

Lehmkuhl²⁷⁶ writes on this matter: "I judge that there is never a grave obligation of confessing; nevertheless, that there is a venial sin of lying in persisting in denying a crime when no broad mental restriction can any longer be conceived." Noldin²⁷⁷ speaks still more absolutely: "The defendant is not held to confess the crime committed by himself; wherefore he must indeed abstain from lies, but to the interrogations of the judge he can respond with mental restriction; indeed the very denial of the crime in this case is not a lie, but a broad mental restriction, since he denies that he committed a crime which he is held to confess." This doctrine indeed is not contrary to St. Thomas teaching: "If [the defendant] is unwilling to confess the truth which he is held to say, or if he denies it mendaciously, he sins mortally."²⁷⁸ For the Angelic Doctor proves this opinion of his from the fact that the defendant in that case gravely wounds the obedience due to the legitimate superior commanding. This indeed was true at that time, both according to Roman law and according to ecclesiastical law. But today this is no longer true, neither according to civil laws nor according to ecclesiastical law (at least common law, and ordinarily speaking). For the Code of Canon Law c. 1743, § 1 establishes: "Parties are held to respond to the judge legitimately interrogating and to confess the truth, unless there is question of a delict committed by themselves."

But what if particular law, e.g., in some religious Institutes, still after the Code prescribes confession of a crime? A distinction must be made: If in such an Institute all statutes oblige not under fault, but under penalty only (which is more common), then even this confession of crime does not oblige under fault; but if in such an Institute certain statutes oblige under sin, then perhaps confession of crime can also be imposed under sin. In practice, however, ecclesiastical superiors can indeed admonish the accused person to confess freely the fault committed, because this confession is usually an act of virtue; but let them wholly beware lest they impose upon the accused person a grave precept of confessing his delicts. - A confessor accused on account of solicitation to shameful things, according to the Instruction of the Holy Office of Feb. 20, 1866,²⁷⁹ is held to confess the truth. For thus it is contained in that Instruction, n. 11: "These diligences having been completed, the defendant is brought into judgment, and before the judge... concerning the individual circumstances of each denunciation and examination, bound by the oath of telling the truth, he must respond." But since this Instruction does not have preceptive force but only directive force (because at its end the indicated norms are not commanded but recommended), it does not yet clearly appear that the confessor sins mortally if he refuses confession of the crime; and this all the more because the Code of Ecclesiastical Law c. 1744 simply and without limitation establishes: "The judge cannot tender to the accused an oath concerning the truth to be told in criminal causes."²⁸⁰ Thus, saving a better opinion.

2. Defense of the defendant. An accused defendant can defend himself by all just means. The reason is that the accused defendant, before the condemnatory sentence of the judge, is still considered innocent. Hence, necessity demanding, the accused can, e.g., narrate the hidden crimes of witnesses, if this is necessary for breaking their false testimony; he can interpose an appeal from the lower judge to the superior.²⁸¹ But it is by no means lawful to use unjust means, e.g., calumniously to impose false crimes upon others. This is plain from proposition 44 condemned by Innocent XI: "It is probable that he does not sin mortally who imposes a false crime on someone in order to defend his own justice and honor. And if this is not probable, scarcely any opinion will be probable in theology."²⁸² - He who is unjustly captured or condemned can defend himself, e.g., by taking flight even with breaking out of prison, by resisting guards, etc. The reason is that natural right permits each person to defend himself against unjust aggressors with the moderation of blameless defense. Nevertheless, in today's times positive resistance is often illicit, because it is not only useless but also harmful both to the accused himself and to the common good.²⁸³

²⁷⁴ Defendant in general is called he from whom a thing is sought in judgment, whether civil or criminal (cf. c. 10, X 5, 40). We are speaking of that defendant who is accused in criminal judgment; but the thing which is sought is the punishment of the accused.

²⁷⁵ Roman Council, a. 1725. The Code of Canon Law c. 1744 establishes the same.

²⁷⁶ Cas. consc. I, n. 502.

²⁷⁷ De praeceptis n. 732.

²⁷⁸ S. theol. 2, 2, q. 69, a. 1. Cajetan, the best interpreter of St. Thomas, notes on this place that there are three cases in which alone the defendant is held to confess the truth: 1. when infamy concerning some crime has preceded; 2. when manifest indications of the crime have appeared; 3. when half-full proof has preceded. But he limits these cases in such a way that a grave obligation of confessing the crime committed is rarely present. In today's practice the defendant can indeed sometimes be admonished by the confessor, but not compelled under penalty of absolution to be denied, to confession of the truth. You may see very many diverse opinions of authors on this question in Piat, Prael. iur. regul. II, 406 sqq.

²⁷⁹ Collect. de Prop. Fide n. 1282 (11).

²⁸⁰ Cf. ibid. c. 1830, § 3.

²⁸¹ In a criminal cause the defendant can almost always lawfully use the means of appeal; but in civil causes appeal requires solidly probable reasons. Cf. St. Alphonsus, Theol. mor. l. 4, n. 285; Banez, Comm. in 2, 2, q. 69, a. 3, concl. 3.

²⁸² Denz. n. 1194; cf. also S. theol. 2, 2, q. 69, a. 2.

²⁸³ The proposition 18 condemned by Alexander VII is to be noted: "It is lawful to kill a false accuser, false witnesses, and also the judge from whom an iniquitous sentence certainly threatens, if by another way the innocent person cannot avoid damage" (Denz. n. 1118). - This proposition indeed seems to have been condemned because by a killing of this kind the moderation of blameless defense is wounded.

164. 3. Penalties to be sustained by the defendant. After the sentence of the judge, a defendant justly condemned cannot positively resist custodians or guards. The reason is that then he would resist legitimate power and therefore, the Apostle bearing witness, he would acquire damnation for himself.²⁸⁴ Yet theologians commonly teach that even one justly condemned can flee from prison, or even break prison by force.²⁸⁵ But the reason is that the imposition of prison is a penal precept, which does not oblige with great inconvenience, and especially not to a heroic act, such as spontaneously remaining in prison, notwithstanding that there is a founded hope of escaping. - But is the defendant thus fleeing or breaking prison held to repair the damages which he has caused either to the treasury or to the custodians? Although certain authors deny it, the affirmative opinion seems truer, if nevertheless the fugitive truly brought notable damage, which rarely happens in our times. The reason is that although the fugitive did not commit theological fault by fleeing, nevertheless, with liberty recovered, he has become, as it were, richer, and therefore he is fittingly held to make good the damages which he caused by fleeing. But if the flight was vain, namely, because the fugitive was captured again, then he does not seem to be obliged to make good any damage, because then he will be punished more gravely and for a longer time in prison, and this penalty can be regarded as compensation of the damage caused.

Special prohibition being excluded, it is lawful for other private men not only to advise flight and prison-breaking to the defendant, but also to furnish him the necessary instruments. For this seems to be material cooperation in an act which is not intrinsically evil. But it would not be lawful directly to help one imprisoned to break prison, because this would be an unjust damaging of another's good, and besides because then public security would be endangered too greatly.²⁸⁶ A defendant detained in prison can also deceive the custodians so that flight becomes possible. Thus he can give them little gifts, administer intoxicating drink, etc., but he cannot directly corrupt them or induce them to other sins of neglected office.

Note. The doctrine explained above concerning penalties to be declined by the defendant, which is commonly proposed by older authors, today seems to have to be tempered somewhat on account of circumstances wholly changed. For in ancient times prisons were very harsh, and a captive who once escaped prison was with difficulty captured again. But today prisons are not usually so harsh, while escape is not only very difficult, but also sometimes joined with imminent danger of death or of another most grave inconvenience. Hence today flight from prison often is against right and necessary love of oneself, and therefore illicit.

²⁸⁴ Cf. Rom. 13, 2.

²⁸⁵ Cf. S. theol. 2, 2, q. 69, a. 4 ad 2.

²⁸⁶ Cf. St. Alphonsus, Theol. mor. l. 4, n. 283.

I. On the accuser.

1071. • He is called an accuser who in criminal causes brings a crime to the judge, and asks vindication from him on account of the common good, and at the same time undertakes the obligation of proving the objected crime: but in civil causes he who, as the injured party, compels the adversary to the judge, is not called accuser, but actor (plaintiff).

The accuser differs from the denouncer, who brings some crime to the Superior or judge for vindication, and nevertheless does not undergo the obligation of proving it. - Therefore denunciation is not understood here as fraternal, whose scope is not punishment but the amendment of the neighbor, with the paternal admonition of the Superior intervening, from which amendment is hoped more certainly on account of his authority, - but juridical. L. V. 235.

By our law the obligation of proving a denounced crime is incumbent only on the magistrate constituted for this, or the procurator of the State. But private persons also are held to denunciation from charity, and indeed under grave obligation and even with grave inconvenience, when it is a question of avoiding common and grave damage, or even, but not with grave inconvenience, if it is a question of averting grave damage from an innocent person.¹

II. On the accused.

An accused person (accused in a criminal cause, defendant in a civil) is called he who is accused in judgment either criminal or civil, whether he is guilty or innocent.

1072. Questions. - Query 1° Whether the accused, questioned by the judge, is held to confess the truth?

Resp. 1° Negatively by our positive law. "Nor shall" (any person) "be compelled in any criminal case to be a witness against himself."²

Resp. 2° Affirmatively by natural law, if this is necessary to avert common damage. Yet he must be left in good faith if fruit is scarcely hoped from the warning.

Resp. 3° Affirmatively also, if it is a question of an ecclesiastical punishment, which namely is medicinal, provided he is legitimately questioned, i.e. by a legitimate judge, with the judicial form observed and the offense half-fully proved.⁴

Query 2° Whether the accused, although not legitimately questioned, if it is a question of an ecclesiastical punishment, at least from this cause must confess the crime, because otherwise he by whom he was accused or denounced could be held as a calumniator?

Resp. This certainly and altogether must be denied. The reason is that no sane person will hold the accused as falsely accused because the crime has not been confessed, and the accused not confessing who, other proofs failing, is absolved, is held not as innocent, but simply as not convicted. L. V. 277.

Query 3° Whether it is licit for the accused to appeal?

Resp. Distinguish. For either it is a question of a civil cause, or of a criminal. If of a civil, and this either certainly unjust or less probable, it is not licit, as is clear from the things said n. 60. II. 3°; otherwise, if it is doubtful whether the superior judge is justly going to render sentence for the accused, because since the minds of men are diverse, perhaps the opinion which the inferior judge judged less probable will appear more probable to the superior, and the accused can licitly try this.⁵ - If of a criminal cause, generally and practically speaking, among us it will almost always be licit; for 1° the right of an appeal properly so called in a criminal cause is not given here to the accused except by decree of the judge, which it is surely licit for the accused to ask by legitimate means. 2° St. Alphonsus teaches with the common opinion that the accused is not held to abstain from an appeal from a sentence, even an altogether just one, except in the case in which it is certain that the opposite cannot be proved; but in practice that certitude, when a new judgment has been granted, will scarcely ever be present, especially among us, since jurors are very easy in absolving. (q) p. 483.

Query 4° Whether an innocent accused person can reveal occult crimes of witnesses or of the accuser for his own defense?

Resp. Affirmatively, provided 1° the crime is true; 2° the revelation is absolutely necessary for his own defense; 3° otherwise he himself is going to suffer grave damage² (n. 517. III. IV.).

1073. • Query 5° Whether it is licit for an innocent accused person to flee or resist?

Resp. It is indeed licit for him to flee and to snatch himself from the hands of attendants; but it is not licit to repel force by force, by killing or wounding, because he would violate the rights of public power.³

Query 6° Whether it is licit also for an accused person who truly committed an offense to flee?

Resp. Affirmatively, if he has not yet been condemned by juridical sentence to the punishment; because no one is held to pay the punishment before sentence. Likewise if he has already been condemned to a most grave punishment, and prison has been assigned to him for custody until he is struck by the established punishment. - Thus commonly.⁴

But they more commonly deny if prison has already been assigned as punishment by the sentence of the judge. The reason is that the accused is held to obey in the execution of a just sentence. Yet many except if necessary things are not given to him, or if the prison is most harsh: because the obligation of not freeing oneself from a most grave punishment seems to exceed human strength when one can accomplish this without force and resistance.⁵

Query 7° Whether it is licit for the accused to flee, even if the guard is going to suffer damage from it?

Resp. Affirmatively, because he uses his right and does injury to no one, unless nevertheless charity suggests otherwise on account of damage to the guard much graver. Yet it is not licit for the accused to corrupt the guard with money, because, since an obligation is incumbent on the guard of not dismissing the accused, he would cooperate with this man's sin. L. V. 282.

Query 8° Whether it is licit for those who are not ministers of justice to help the accused, so that he can escape from prison?

Resp. Affirmatively, in the case in which this is licit for the accused, and provided 1° the flight of the accused, because, e.g., he is a highway robber or similar, is not pernicious to the Republic, and 2° from this, for example from a break-in, the security of the prison does not perish. The reason is that to help another toward an end licit to him cannot be illicit.²

Query 9° Whether it is licit for the accused to decline a MILDER punishment, for example a fine or a not long prison, to which he was justly condemned, BUT WHICH HAS NOT YET BEEN INFLICTED UPON HIM?

Resp. Kenrick:³ "I think all punishments are so established by law and decreed by the judge that they are to be inflicted by the ministers of justice; and therefore I do not dare to condemn him who, another's right being uninjured, withdraws himself" from punishment of this kind, "provided however he does not apply force and does not disturb public order."

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

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.

Those are called accused persons who are accused in judgment, whether criminal or civil, whether they are guilty or innocent. Various doubts occur concerning them, especially concerning confession of a crime and flight. Hence:

Question 1. Are accused persons questioned by a judge bound to confess the truth?

Resp. Negatively, if they are not legitimately questioned; namely when the judge is not legitimate, or when he does not observe the judicial form, as if he were to question without prior accusation, etc.; they also add, when there is not at least half-full proof of the crime. Whence it follows that accused persons among us ordinarily are not bound to manifest their crime, because the interrogations are made before juridical proof. Besides, according to the Constitution itself by which we are governed, no one can be compelled to give testimony against himself in a criminal case. Yet note that this is not the same as lying, for those words, "I am not guilty," signify by the consent of all that the accused does not wish to confess the crime. Cf. St. Alphonsus, n. 272 et seq. - Kenrick, tract. 8, n. 133. - Constit. of U. S. Amend., Art. V.

Question 2. Is it licit for an innocent accused person to flee or resist?

Resp. It is certainly licit for him to flee and to snatch himself from the hands of the officers; but it is not licit to repel force by force, by killing or wounding, because he would violate the rights of public power. - Cf. St. Alphonsus, n. 279.

Question 3. Is it licit even for an accused person who has truly committed a crime to flee?

Resp. Affirmatively, if he has not yet been condemned to punishment by juridical sentence, because no one before sentence is bound to pay the penalty. Likewise if he has already been condemned to a most grave penalty and prison has been assigned to him for custody until the established penalty is inflicted. But the Doctors more commonly deny, if prison has already been assigned for punishment by the sentence of the judge; because the accused is bound to obey in the execution of a just sentence. Nevertheless several except the case in which necessary things are not given to him, or if the prison is most harsh; because the obligation of not freeing oneself from a most grave penalty seems to exceed human powers when someone can accomplish this without force and resistance. - Cf. St. Alphonsus, nn. 280 et seq.

After setting forth this common doctrine, thus, so far as pertains to us, Kenrick continues: "I judge that all penalties are established by law and decreed by the judge in such a way that they are to be inflicted by the ministers of justice; and therefore I do not dare to condemn him who, without injury to another's right, withdraws himself, provided nevertheless that he does not employ force and does not disturb the public order." - Cf. Kenrick, n. 138.

III. An accused man is bound also to confess the truth when he is questioned by a judge concerning accomplices, because a superior lawfully commanding is to be obeyed. An accused man not juridically questioned is not bound to answer, yet he can never tell a lie. Mental reservations are inept for hindering a lie.

The accused is one who, charged with some matter, is lawfully brought before a Judge; wherefore the discussion concerning him, as the correlate of the Judge, is rightly undertaken next after the Judge. Whole volumes have been woven together on this subject by as many as have labored at forensic matters; therefore only those points in this matter that concern conscience will be briefly examined by us. Moreover, the first step by which the accused is led to the tribunal is the lawful citation, which is threefold. The first, to appear, is so necessary by the law of Nature that whatever is done by the Judge without it is approved by no law. The second is for making allegations. The third, for making a definition. Our Eliseus loudly proclaims that the two latter belong to positive law, following the common opinion of the Jurists, tract. 7. quaest. 1. num. 5. We shall begin with the first citation, from which the rest open out of themselves.

First there is need of a valid citation of the Accused, as we have already intimated; otherwise the case will be built upon sand. So the celebrated §. fin. quaest. 31. Gloss on Leg. si accusatoribus, Cod. de accusat.; and it is the common view, as Bossius reports, de citationibus, num. 13.

But there must be against him sufficient proofs, as I shall say below, in order that he may be lawfully cited; otherwise the summoning of the Accused will be unjust, and a mortal sin, as D. Bonav. notes, in speculo animae, cap. 2., and he hints, in apolog. Fratr. Min. quaest. 2.

Now the Scacc. 8., Guaz as cited by Bictus, quaest. 95., and Menochius, de praesumpt. l. 1. quaest. 88. num. 21., say that one witness is a sufficient lawful indication, likewise the complaint of a wounded man in the article of death, the flight of the Accused together with certain other indications; such that such indications are greater than a simple presumption, and less than a semi-full proof. So P. Elizeus, where above num. 3.

But if a Judge were to condemn someone not cited, the sentence would be invalid, as all say, because this is of natural law, as I said above; and hence it cannot be omitted even by the Prince. But if he condemned one not cited, he would sin mortally, as D. Bonav. teaches, in speculo animae, cap. 2., whom the Arretin. follow, in pract. crim. cap. 1. de Reis, Bouer. p. 2. cap. 34., Nauar. in Man. cap. 25. num. 13.

Now, if flight is feared, the Accused is wont to be imprisoned. There are three kinds of prisons: the first for custody; the second for torture; the third for punishment, as P. Elizeus has it, tract. 7. quaest. 2. num. 1.

The prison for custody must be humane; for inhumane prisons are censured by Bossius, tit. de carcere.

When it is for custody, it must be set forth in the acts, so that he does not thereby incur the legal infamy that follows upon the prison of punishment, as Bouer. notes, cap. 34. Nor indeed should a Religious be imprisoned for every crime, or lightly, because his prejudice is irreparable, as Baldus notes, whom Felin. follows, in C. cum super, de re iudic.; otherwise the Judge will sin mortally, as D. Bonau. teaches, in speculo animae, cap. 2., and he will be bound to restitution, as Nauar. says, in rubr. de iud. num. 83.; whose doctrine, as noteworthy, our Fathers mark, in modo nostro procedendi, cap. 2. in secundo substantiali; although they might have better alleged this as the doctrine of D. Bonaventura.

Therefore the Judge must first have certainty of the body of the crime, and grave indications must precede; otherwise, if the person be honest, it will be a mortal sin, and he will be compelled to restitution; if a Clerk, excommunication will follow, as the Doctors commonly teach, cited by Clarus, quaest. 28., Farinac. quaest. 27. num. 74., and Ioan. Andreas, in C. si clericus, de sent. excom. in 6.

This applies much more to Religious, for whom arrest carries a smell of infamy, as Bouer. notes, p. 2. cap. 34.

That one imprisoned cannot justly escape, the following teach: Clarus, quaest. 21., and very many cited by Couar., l. 1. variarum resol. cap. 2., and Angelus, v. fugere; and thus Barthol., Felinus, and Bossius say that one who flees sins mortally.

But in truth that to flee from prison is not a sin, very many teach, cited by Azor., p. 3. l. 13. cap. 14., and Diana, p. 3. tract. Miscell. 5. resol. 102., saying that one condemned to death can break out of prison; and this is the common opinion, which I maintained in my Tract. de Legibus. And I say the same with Diana, Bonacina, Tanner, and others, even of one condemned to prison for a time: yet a Religious lawfully detained ought to take care lest in fleeing he fall into Apostasy, as Rodriquez admonishes, T. 2. qq. Regul. quaest. 23. art. 6., and Bictus, quaest. 79.

From which indeed it follows that the breaker of a prison is not to be held as one confessing, as very many teach with Farinac., quaest. 30. a num. 20. ad 21.; and Bertaz says this opinion, there, is common. See Bictus, quaest. 79. de Reo.

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.

They AFFIRM: Tabiena, v. accusatio, num. 20. dub. ult.; D. Anton., 3. p. tit. 9. cap. 7. §. 3. v. Inquisitio, 1. quaestione 3.; Palud., 4. dist. 19. quaest. 4. in fine.

The SECOND denies that it is lawful, and indeed asserts that the Accused is not bound to answer such a questioning. So the Doctors commonly: D. Thom., 2. 2. quaest. 69. art. 2. et quaest. 8. art. 1., where he speaks of witnesses, "and much less will the Accused be bound." They follow Tolet., l. 5. summae, cap. 58.; Salon, 2. 2. quaest. 69. art. 2. cont. 8.; Aragon., ibidem, et; Bannes, disp. 1. concl. 3.; Navar., C. inter verba, 11. conclus. 6. quaest. 3. coroll. 51. num. 588.; Valentia, disp. 5. quaest. 23. punct. 2.; Petrus Navar., l. 2. de restit. cap. 5. p. 2. dub. 5. num. 170.; Caiet., 2. 2. quaest. 69. art. 2.; Soto, l. 5. de Iust. quaest. 6. concl. 5. et de reg. secr. membr. 2. quaest. 6. disp. 5.; Angelus, v. Inquisitio, §. 11.; Sayrus, l. 11. cap. 16.; Fagundez, l. 8. cap. 34. constit. 58. pro statu Ecclesiae, as Bictus reports, quaest. 80. num. 28. So also Baffaeus, v. Reus, num. 6.

Yet make an exception: if one defamed of one crime has another connected with it, or indications toward it; thus a woman defamed of adultery, if her husband is presently found slain, can be questioned about this. The Holy Doctor seems to prove this, in Confessionali cap. 2. part. 1., by that text of Deuter 24. Cum repetes a proximo tuo rem aliquam; quam debet tibi, non ingredieris domum eius (When thou shalt demand from thy neighbor any thing that he oweth thee, thou shalt not go into his house).

The opinion of Bruno pleases me, de indiciis, secunda parte, quaest. 5. num. 66.: that this is true when he is of that kind of evil fame, as a robber, a highwayman. Bictus subscribes, quaest. 80. num. 27.

They ASSERT: Bartol., in Leg. Repetita, ff. de quaest.; Iulius Clarus, l. 5. quaest. 21.; Palud., 4. dist. 19. art. 4. in fine,; Sylvester, verbo Inquisitio, quaest. 3.