Palladium theologicum, Tomus quintus: De virtutibus

On the JUDGE.

This Disputation is entangled with various difficulties; for the ingenuity of men, resourceful in their own defense, has devised various ways by which justice, if it does not favor them, may at least not harm them. The chief interpreter and minister of this is the Judge; of whose judgments the justice and injustice the Angelic Doctor treats, in quaestione 67 and the following. There are also other persons intervening in judgments, as the Accuser, the Defendant, the Witness, and the Advocate, each of whom requires a separate disputation; briefly, however, I shall dispatch myself with these, since not long ago our Father Elizeus ab Oriano wrote most eruditively an entire treatise on this matter ex professo, to whom I refer students of criminal causes and forensic practice as most worthily to be read.

Whether power is necessary in a JUDGE.

A JUDGE is one who declares the Law, and for his part many things are required, among which Authority holds the chief place.

It is MOST CERTAIN, by the consensus of all, that it is necessary for a Judge to have power to judge.

THIS the S. Doctor proves in many ways everywhere; first, in the Confessionale, cap. 1. particula 5. et 6. and Deuter. 16., where the formula for instituting Judges is given, to whom power is also given. He has these things more clearly at Sap. 6. and part. 2. Ecclesiasticae Hierarchiae.

The S. Doctor often shows the same thing by that passage Rom. 13. Let every soul be subject to the higher powers, that is, to those who are set over us on high, as he explains in 2. dist. 44. quaest. penult. and part. 2. de Eccles. Hierarchia, cap. 3.

MORE BROADLY the S. Doctor shows this on 6. Sapientiae, on those words: Hear therefore, ye kings, and understand: learn, ye that are judges of the ends of the earth: because power is given you by the Lord, and strength by the most High, who will examine your works: because, being ministers of his kingdom, you have not judged rightly. The same in the chapter At si Clerici, it is said: a sentence pronounced by one who is not its Judge does not bind. And in the chapter Ut animarum, de constit. in 6. it is said: Outside his territory, obedience is not owed to one declaring law with impunity, and S. Gregory, lib. 11 of the Register, as is reported in the chapter Scriptum est 6. quaest. 3.: It is written in the Law, Deuter. 23.: When passing through another's field, you shall not send in a sickle; for you cannot, nor ought you, to send the sickle of judgment into that harvest which is seen to be committed to another. By these means S. Bonaventure proves it in the Confessionale, cap. 4. part. 1. and in 4 dist. 19. art. 3. quaest. 1.

The reason is taken from D. Bonaventure in 4. dist. 17. part. 3. quaest. 2. and in the Confessionale, loco cit., because to judge is to bind and to compel according to the laws unto sentence; but no one can bind anyone and compel him to the observance of the law unless he have coercive power. Therefore Callixtus the Pope says, 9. quaest. 2. cap. 1, as quoted by D. Bonaventure, loco cit.: Such judgment has no force, for the sentence of no other judge will bind but his own. Therefore the Pontiff is able to judge all (the S. Doctor says in 4. loco cit.), because there is given to him coercive power of binding and loosing, Matth. 16. By the same argument D. Thomas and the other Theologians after them make use; and most recently our Eliseus rests upon this single reason, tract. 4. quaest. 1. num. 4., where he infers that a Judge has only as much of coercive power as he decreed of Jurisdiction; which he understands of the ordinary Judge only.

It is PROVED secondly by D. Bonaventure, 4. dist. 19. art. 3. quaest. 1., by many Arguments from can. 16. quaest. 1. and 9. quaest. 2. and from the General Canon, extra de poenitent. et remiss.

Then, because the order of the Church is that one have one immediate or ordained superior. Therefore one cannot have two Bishops, two Patriarchs, etc.; for the Church is as an army well ordered.

THIRDLY, because it would follow that the true superior could have commanded this, and the false one command the contrary.

IT MUST BE OBSERVED, however, with D. Bonaventure in the places alleged, and D. Thomas here, whom follow Valencia disput. 5. quaest. 11. puncto 1. with Gabriel in 4. dist. 15. quaest. 6. art. 1. not. 1., Soto L. 5. de Iust. quaest. 4. art. 1., Bassaeo V. Iudex, num. 2., Lessius lib. 2. cap. 29. dub. 6., Tolet. lib. 5. cap. 56., Bonac. tract. 1. disput. 20. quaest. 2. punct. 1., Sayro lib. 12. cap. 7. num. 3., Tannero disp. 4. quaest. 1. dub. 1. num. 24. and others, that competent power is fourfold.

THE FIRST is ordinary power, whether it be Ecclesiastical or secular, and it is that which belongs to someone by reason of dignity or office, and it sometimes happens by Birth, sometimes by Conferral, as P. Eliseus has it, loco cit. num. 7. Thus the Pope has ordinary spiritual power over all the faithful, and a Bishop over those subject to him.

THE SECOND is delegated power, and it is that which belongs to someone by commission or delegation from some superior judge. Such is the power of a Praetor sent by the King.

But he who obtains Jurisdiction by Delegation, if it be universally for many causes, can subdelegate for one cause or another, or even for several which are reckoned as one particular cause, unless it be otherwise expressed in the Delegatory letters, or unless the person was chosen for singular industry, with a clause, Commissi, denoting that very thing; but if he be sent for the decision of one cause, and because of the industry required in that matter, very many deny that he can subdelegate; for the whole cause, but not for some particular part of the cause, as for the examination of some witness. So Eliseus, ubi supra num. 20., where he adds that the delegation lasts until it be revoked, or at least expire with the death of the delegator, the cause remaining intact; otherwise if it have been juridically begun in one act or another. So also Dictus, quoted by him, quaest. 2.

THE THIRD is arbitrary power, which is had by the election and deputation of the litigating parties. Here, however, there is a twofold kind: one elected to settle a dispute amicably; and this one is not bound to judge observing the order of law, but by his own judgment, the equity of natural law being preserved. The other, who is elected, that he may judge according to law. And indeed these judges receive power from the parties; and they can pronounce a sentence firm by the law of nations and unappealable, from which, if either party protests, he sins mortally, and can be compelled by the Prince, as Soto notes, Lib. 3. de Iust. quaest. 4. art. 6. et L. 5. quaest. 4. art. 1., Sayrus Lib. 12. cap. 8. num. 4. and others commonly.

This kind of power is indicated in the chapter Placuit, quoted by D. Bonaventure loco cit., where it is said that he who has once elected another as his Pastor is bound to be subject to him; which Canon also includes the fourth kind of power, which is called by accessory right, such as that which a Judge or Prince has by reason of a crime, or by reason of a person then dwelling in his territory; for individual superiors have, and judges have, their own territories and boundaries within which they can pronounce judgment concerning all coming from such a place; but outside those places it is not permitted them to judge, which the S. Doctor proves in the Confessionale, in the place adduced, from the chapter Ut animarum, de constitut. in 6., where it is said: Outside the territory of those who declare law, obedience is not owed with impunity; and dist. 9. quaest. 2.: Let no one presume to judge the parishioner of another; and de poenit. dist. 6. cap. fin., where Urban II says: Whoever shall attempt to act against these statutes shall lie open to the peril of his rank. And the S. Doctor adds, that it avails nothing to say that the contrary is done all day long, because those who transgress these Canons sin most gravely.

He is held by this statute by reason of a committed debt in another's territory, cap. 1. de Raptoribus, et Leg. Alterius, ff. de Accusationibus.

So also can one be summoned by reason of domicile in that place, cap. final. de foro compet., on which matter the Gloss treats in summa 3. quaest. 6.

SIMILAR is the case which is the fifth mode of jurisdiction, by reason of an injury inflicted upon the subject of another Prince. For if the superior of the injurer be unwilling to punish the guilty party, the injured Prince will be able to afflict him with penalties, as Lessius teaches, Lib. 2. cap. 29. de Iudice, dub. 6., Filliucius Tomo 2. tract. 40. cap. 6. num. 155., Fagundez L. 8. num. 12. on the eighth Precept, after D. Bonaventure in 4. dist. 19. art. 3. quaest. 1. corpore.

From these we have that secular Judges cannot judge Ecclesiastical persons or things, as is had in dist. 19. and in the Decretals, Tit. de immunitate Ecclesiae, and the chapter saeculares, de foro compet. in 6. and from the Council of Constantinople sess. 8. and the Council of Trent sess. 25. de reform. cap. 20., where the Sacred Canons and all the general Councils are renewed, and the Apostolic sanctions in favor of Ecclesiastical persons and the liberty of the Church. And in law, to which the Authentica belongs: That clerics be summoned before their own judges, collat. 6.

All these things the S. Doctor touches in 2. dist. 25. part. 1. dub. 1., while he says that judgment implies an act of reason regulated according to the rules of truth, that is, of the supernal law. Whence he is called Judge whose it is to judge a cause according to the laws. But he is called Arbiter who has to terminate a cause at the mere nod of his own will.

The laws, however, do not permit a secular [judge] to judge Ecclesiastics. Of which Constantine the Great exhibited a famous example: since, as Ruffinus narrates, L. 10. hist. cap. 2., when he had received at the Council of Nicaea many libelli from some Bishops against other Bishops, that he might proceed against them, the most pious Emperor committed all those libelli, sealed, to the fire, saying: God has constituted you Priests, and has given you power of judging even over us, and therefore we are rightly judged by you, but you cannot be judged by men (namely by laymen).

Indeed, it is repugnant to divine law that Ecclesiastics, or even seculars in spiritual matters, be subjected to the princes of the world: for He constituted the Apostles alone, and their successors, but not Princes or Kings, as the governors of the Church, the masters of the faith, and the judges of spiritual causes, as S. Bonaventure loved to say in the places cited, and in 4. dist. 17. part. 3. art. 1. quaest. 1.

FOR since in the Church militant there are two swords, the chapter Dilecto, de sent. excom. in 6., which signify the twofold power, Ecclesiastical and secular, the chapter solitae de maior. et obed. and the chapter ad verum, dist. 99., these two powers are so distinct from each other that the one ought not usurp the jurisdiction of the other; that is, neither ought the Church to vindicate to itself secular authority in temporal matters which in no way pertain to the good government of the Church and the salvation of souls, nor on the other hand ought secular power to judge of spiritual matters, or of Ecclesiastical persons, except in the cases permitted to it.

ALTHOUGH, however, as Bernard says in his book De consideratione, it [the Church] has also the temporal sword — which he proves by that passage of Luke 22: Behold, here are two swords, and the Lord says: it is enough — yet the spiritual sword is to be drawn by the hand of the Church, because it is directly in her hand; the temporal truly only indirectly, as S. Bonaventure teaches in 4. dist. 37. dub. 4. on the text, and as S. Thomas also has it, Lib. 1 de Regimine Principum cap. 14. and Lib. 3. cap. 13. and 15., Bellarmine Lib. 5 de potestate Pontificis, Panormitanus on the chapter Novit. num. 21. and seq. de Iudiciis. It [the Church] has also power over mixed cases, as in causes of usury, sacrilege, oath, and marriage, arg. the chapter cum sit, and the Gloss, ubi V. Malefactores, de foro compet. But the secular [power] has the temporal sword directly. Whence D. Bernard, Lib. 4 de consideratione, to Eugenius, quoted by D. Bonaventure, on those words, Luke 22: Behold, two swords, says: If the material sword in no way pertained to you, when the Apostles said, behold, here are two swords, the Lord would not have answered: it is enough; but: too much. Both therefore are the Church's, both the spiritual and the material. But this one indeed is for the Church, and that one is to be drawn by the Church; the one by the hand of the priest, the other by the hand of the soldier, yet truly at the nod of the priest and the command of the Emperor.

Yet in three cases he admonishes that a secular Judge can judge a Cleric, Tanner, disp. 4. q. 4. n. 29.

THE FIRST is, if a degraded cleric be handed over to the secular arm. The second, by the consent of the Bishop in a merely civil cause. The third, probably, by the title of reconvention, so that if a cleric cited a layman before a secular judge, he himself in turn can be reconvened, yet not criminally, as Carbo teaches, quaest. 51. de restitut., Lessius cap. 19. dub. 6., Tanner loco cit. And if the opposite, with Panormitanus, I praise it the more.

But conversely widows and wards can drag their guilty parties to the Ecclesiastical Judge, as Couarruvias teaches, in epit. 4. part. 2. §. 12, on the word Iudiciales; Tanner num. 31.; Salon quaest. 60. art. 4.; Clarus in his Praxis, quaest. 30., according to the chapter Inter alia, de Immun. eccles. and other Canons 17. quaest. 4.

From what has been said I bring forward that one who judges without any of the said powers sins mortally. So D. Bonaventure above; Azor, 3. part. lib. 23. cap. 15.; Lessius lib. 2. cap. 29. dub. 6. num. 51.; Bonacina tract. 1. disp. 10. quaest. 2. punct. 1.; our Bassaeus V. Iudex 5.

It is PROVED, because he inflicts injury both on the parties, by unjustly subjecting them to himself, and on the superior, by usurping his authority.

HERE he is bound to restore whatever damage emerges from judgments [given] against justice.

NOTE, however, that if the Judge of the damaging party does not do justice, this one can be judged by the judge of the injured party proportionally: if a secular, by a secular; if an Ecclesiastic, by a similar one.

Whether a JUDGE ought to follow the truth, and therefore be wise.

In the Treatise on Justice disput. 20. quaest. 7. I showed that Judges ought to be jurists and learned men. I showed the same in several places in this treatise disput. 1.; wherefore P. Eliseus says that they sin from a threefold defect, tract. 1. quaest. 11. num. 17., namely from a defect of rectitude, of power, and of prudence.

For they ought to conduct the causes of fortunes and of the lives of men prudently, not rashly, which the S. Doctor proves of judges even of conscience in the Confessionale, cap. 1. particula 5., by that passage Deuter. 17: If thou perceive that there be among you a hard and doubtful matter in judgment, etc., thou shalt come to the priests of the Levitical race, and to the judge who shall be in those days: and thou shalt ask of them, who shall judge for thee, the truth of the judgment. This authority Sayrus urges, lib. 12. cap. 8.

Now there is a twofold truth: one of the thing, another of conscience. And indeed Conscience is as it is thought to be; the truth of the thing is as it stands on the side of the thing itself. And that the truth may be obtained, and conscience be right, the Judge ought to be learned in Jurisprudence; for he ought to pronounce sentence according to the dispositions of the common law, arg. cap. 1. de sent. et re iudic. in 6. He ought to be learned in the municipal laws, which often detract from the common law.

But if the cause to be decided is not had expressly in the laws, he ought to weigh probable opinions and conduct himself as I said in prima 2. tract. 2. disput. 17. Thus acting he will be safe even from the Sindicatus, Felinus cap. 1. de constitut. num. 54., Sayrus lib. 12. cap. 9. Otherwise, if ignorant, he is in an evil state, nor can he be absolved unless he resign, Reginaldus lib. 25. num. 657., Nauar. lib. 2. cap. 25. num. 12. For rightly does D. August. lib. 9. de civit. cap. 6. say: The ignorance of the judge often becomes the calamity of the innocent. Therefore he is bound to restore the damages of the injured party, the expenses, etc.

He requires not exquisite, but competent knowledge, arg. the chapter cum nobis olim, de elect. It is indeed conceded that he may take an Assessor because of a defect of knowledge, at the expense of both parties, the chapter statutum, §. Assessorem de rescript. in 6. If he has erred, he is bound to admonish the injured party, that he provide for himself, as the Doctors say in the chapter Praeterea, de test. cogendis. So Caietan. 2. 2. quaest. 70. art. 4., Lugo de just. disp. 37. sect. 1., Bassaeus V. Iud. 11.

It is DISPUTED here: whether one who knows someone to be innocent can condemn him, if he be guilty on the evidence alleged. On this I treated in quaest. 12. of the preceding disp.

They have also discussed whether he is bound to judge according to the words of the law; or rather to use Epieikeia. And indeed, as regards the natural laws which are comprehended in the Decalogue, it is not permitted, because they are indispensable, as I showed in the Tract. de Legibus, disp. 3. quaest. 7. The reason is, because the just in these laws arises from the very nature of things.

AS regards other positive [laws], the Judge is bound to judge according to the laws of superiors, because the Judge does not judge the law, but the matter according to the law, as is commonly said by all with D. Bonaventure in 1, dist. 3. part. 1. art. 1. quaest. 1. ad 4, and D. Augustine de vera relig. cap. 31., whom follow D. Thomas 2. 2. quaest. 60. art. 5., Salon. and Aragon. there, Sotus de Iust. Lib. 3. quaest. 4. art. 5., Valencia disp. 5. quaest. 4. puncto 2., Sayrus Lib. 12. cap. 9. num. 3. The reason of D. Bonaventure, upon which all rest, is, because to judge something, so as to approve or reprove it, denotes a pre-authority over it: but a Judge of this kind is subject to those laws which superiors have enacted: whence against a Judge nullity can be opposed if he has omitted these laws, Canons, or statutes in judging. So P. Eliseus tract. 2. quaest. 4. num. 16.

AS regards laws enacted by himself, enough has been done in the Tract. de Legibus, disp. 5. quaest. 14., where I showed that the Legislator cannot dispense in his own laws without a cause; for although before he was free to enact those Laws, nevertheless after they have been published for the common good, he is bound to keep them unimpaired.

INDEED, if, the words of the law being preserved, there would follow by reason of place, person, etc. some injustice, then they ought to judge according to Epieikeia. So D. Thom. 2. 2. quaest. 60. art. 5. ad 2., Salon. and Aragon. there, Sotus L. 3. quaest. 4. art. 3., Sayrus num. 4., and others.

The REASON is, because Law is the rule and the explication of the just; but the judge is the guardian of Justice. It is confirmed, because a law, if it is unjust by reason of some circumstance, is no longer a law, nor a rule able to direct our actions, but a corruption, as D. Th. says most excellently in prima secundae, quaest. 96. art. 4., just as a clock, which does not agree with the motion of the Sun, is not a clock, but a disturbance of the hours.

From the very name of Judge also it is evident that he ought to pronounce sentences according to the laws; for he is called Judge whose it is to terminate a cause according to the laws, as D. Bonaventure says in 2. dist. 25. part. 1. dub. 1. litt., or from declaring law (ius dicendo), as I admonished above from P. Eliseus ab Oriano, and as Becanus says, tract. 3. miscell. fol. 340., Fagundez num. 1. cap. 18.

Fagundez truly notes, L. 8. cap. 18., that which he says Alensis noted, part. 3. quaest. 40. memb. 4., and Gabriel, 4. dist. 15. quaest. 6. not. 3.: in sacred page, Deuter. 1., this judgment is called the Judgment of God; for the judge bears the place of God; whence he ought to be conformed to God in three things: in Power or jurisdiction; in Truth, and in Goodness. Power consists in authority and superiority; the Truth of the Judge in discretion; Goodness in rectitude of soul. Whence in Deuter. 16. it is said: Thou shalt appoint judges and masters in all thy gates: behold authority. That they may judge the people with just judgment: behold the judgment of truth. And they shall not decline to either side: behold rectitude of soul. These things, however, the S. Doctor resolves more broadly in the places adduced, in the Tract. de Prudentia, and in this Treatise, disp. 3., especially part. 2. de Ecclesiastica Hierarchia, cap. 2., and on cap. 6. of Sapientiae.

From the defect of an incompressible power women are excluded; whence Deuter. 1. says: Give men from among you. And cap. 18: Provide men;¹ and because it was said to her in Genes.: Thou shalt be under the power of the husband. From which chapter servants also are excluded, whom Peter exhorts, prima, c. 1.: be ye subject.

Because of a defect of judgment of discretion the deaf, the mute, the mentally deranged, the furious, and minors are rejected, as the Seraphic Doctor shows at length in the places adduced.

Because of a defect of probity heretics, the infamous, the excommunicate, and others probably suspect are rejected, as enemies or blood relations of the actor.

Whether the acts of a JUDGE who has not a true title, but only a putative one, are valid, in such a way that he himself does not even sin.

The FIRST opinion teaches that the acts and deeds done by such a Judge or Parish priest are invalid.

The COMMON, however, and true opinion is that they are valid. So Lessius Tom. 1. lib. 2. cap. 29. dub. 8. num. 65., Filliucius Tomo 2. tract. 40. cap. 6. num. 162., Sanchez Lib. 3. de matrim. disp. 22. num. 5., Tanner disp. 4. quaest. 4. num. 21., Fagundez on the eighth precept of the decal. Lib. 8. cap. 19. num. 5. and 8., where he cites others, and so it was decided in both laws.

As regards D. Bonaventure, I think he stands for this opinion, for in 4. dist. 17. part. 3. dub. 4., assigning the cases in which confession must be repeated, he lays down four. The first is, when the case is reserved and must be remitted to the superior having jurisdiction; and he seems to intimate that this happens only when an inferior, knowing, absolves, since he is bound to remit to the superior.

From which it is deduced that one going in good faith, and confessing a reserved sin only to him who thinks he has jurisdiction, and therefore is not bound to remit to the superior, is validly absolved. That the Seraphic Doctor thus thought is evident from disp. 19. art. 3. quaest. 1., which he proves on foundation 2, and 9. quaest. 2., where the nullity of the deeds is declared only against that case.

It is PROVED first from the Leg. Barbarius, ff. de officio Praetoris, where the case occurred that this Barbarius, a slave elsewhere, was assumed to the Praetorship at Rome, although slaves were incapable of this by reason of their servitude; and nevertheless his acts were ratified by the Roman senate, lest confusions arise; and the same case is defined in general, because it can be removed by that Prince who laid down the incapacity.

The same is had in the Roman Synod, 3. quaest. 7. cap. 1., and it is reported in the chapter infamis, V. verumtamen 3. quaest. 7., there: If a slave, while he was thought free, gave sentence by delegation; although he was afterwards forced back into servitude, the sentence pronounced by him holds the firmness of a res judicata.

The REASON is, because otherwise innumerable confusions would arise in the Republic, if all decrees and all decisions etc. were to be rescinded.

Therefore it is certain from the common doctrine that one elected invalidly, but continuously tolerated, provided nothing required by divine law be lacking, and provided there be in those electing at least a colorable title, can validly exercise various acts of Jurisdiction. I said: provided nothing be lacking from divine law, etc., because if anyone be elected as Confessor who is not a Priest, his jurisdiction is null. So P. Eliseus tract. 10. quaest. 22. num. 15.

The same thinks Lessius, when even the people doubt about the revocation of the power, because the condition of the possessor is better; likewise Diana with others, part. 2. tract. 16. resol. 45., and part. 5. tract. 4., affirm that the acts of a Judge having power only in the estimation of the people still hold; which the same Lessius and Suarez say, 3. part. tom. 4. disp. 26. sect. 6. num. 7., of a judge whose Jurisdiction attaches only to a probable opinion, although such an opinion be in itself false; for the contrary opinion, however, more fight.

From these another question is almost defined: What is to be said of a Judge delegated only to one cause or another, and deciding everything. That such acts indeed do not hold, Innocent teaches, the chapter cum dilecta, num. 10. de rescript.; Ioannes Andreas there, num. 14.; Abb. num. 10.; Guido Pap. decis. 322.; Alex. cons. 77. num. 7. lib. 2.

The opposite opinion, however, is that of Sanchez Tom. 1. Lib. 3. de matrim. disp. 22. num. 16., Anton. the chapter cum dilecta, de rescript. num. 15., Abb. there, number 10., Imola num. 11., Filliucius num. 3., saying that it is the opinion of all. Decius on the chapter sciscitatus, de rescript. num. 38., Bartol. on the Leg. Barbarius, ff. de offic. Praetor. in the second reading, num. 13. and 18., Paludanus 4. dist. 17. quaest. 6. art. 1., Henriquez lib. 5. de poenitent. cap. 14., Fagundez on the eighth Precept, Lib. 8. cap. 19., and others cited by Sanchez.

It is proved from the said chapter infamis, where there is openly talk of a delegated Judge, and yet his sentence is sustained on account of the common error and utility, when he was not the true Judge.

It is proved secondly from the Law 1. Cod. de sentent. et interlocut., there: If an arbiter given by the magistrates, after he pronounced sentence, was in servitude. Thus the Gloss also expounds it, V. si arbiter.

Thirdly, because if a slave, who cannot be a witness, be employed in a testament, it is valid, as is evident from the Law 1. Cod. de testamento.

You will say. In an ordinary judge there concurs a common utility, not so in one delegated to one cause.

It is answered, that here too a common utility intervenes by reason of the office; for when a judge delegates to this one one cause, he constitutes him in a public office, Leg. 3. ff. de iurisdictione omnium iudicum. But the same thing proportionally in the case of the ordinary and the delegated [judge] the S. Doctor judges, 4. dist. 17. part. 3. quaest. 2.

Whether the PAPA can submit himself to the judgment of another.

It is certain that this has at times been done; for thus Leo IV, as recorded by D. Thom. 2. 2. quaest. 67. art. 1. ad 2., as we read in dist. 2. quaest. 7. c. Nos incompetenter, submitted himself spontaneously to the judgment of Louis the second Emperor, and of Charlemagne his great-grandson, in a certain cause, saying: Si iniuste aliquid egimus, cuncta volumus vestro emendare iudicio.

He adds, moreover, Valentia disp 5. quaest. 11. punct. 1., that in that case the Pontiff is bound to comply with him to whom he has spontaneously submitted himself, so that, if he does not obey, he sins.

In which sense Sayrus L. 12. cap. 8. num. 4. admits that the sentence of an arbiter chosen has the force of compelling the Pontiff, though not so perfectly that the Pontiff can be compelled to obey by penalty. This the S. Doctor asserts more strongly; otherwise he could excommunicate himself, which is absurd.

He superadds, Sayrus, following Valentia loco cit., Caietano 2. 2. quaest. 67. art. 1., Soto Lib. 5. de Iust. quaest. 4. art. 1., Aragon ad loco cit. D. Thom., Tanner. disp. 4. quaest. 4. num. 25., that the Pope can revoke the arbiter elected by himself for a cause, and although revoking him without cause he would sin, yet the revocation would stand, and his sentence would be null.

Far more certain, however, is it that the Pope can submit himself to another in the judgment of sacramental confession.

It is proved most powerfully by the S. Doctor, because the Pontiff is a man in via, a sharer in human infirmity, and can sin, and therefore is bound to take up the necessary means instituted by Christ, which is the Sacrament of Penance for actual mortal sins; and this the S. Doctor confirms from the Decretal of Gregory, de poenit. et remiss., where it is declared, and by this reason proved.

Against this assertion you will object first: The Pontiff cannot submit himself to another to be excommunicated or punished; as D. Bonavent. teach here, and D. Thom. 4. dist. 19. quaest. 1. art. 3., Richardus dist. 18. art. 5., Paludanus ibi, quaest. 2. Therefore neither can he submit himself to be judged.

The S. Doctor answers ad 3. first, that Excommunication and other penalties are against oneself, and therefore against the will of God, even though they be patiently endured on account of merit; wherefore no one can juridically decree penalties against himself, because they would be willing and violent. But that sentence concerning oneself be passed with the will of the Party, where the cause is doubtful, does not seem contrary to the rationale of the judicial fabric. Valentia uses this answer, Quod ad iudicia extra confessionem.

Yet with this answer the S. Doctor is not content, for in choosing an arbiter he assents voluntarily even to any just sentence against himself, if it be handed down; and therefore it would follow that no one can choose an arbiter who could define anything against himself.

He answers therefore secondly, that the reason is not the same in Excommunication and similar penalties as in an arbitrary judgment, whether of confession or of another kind necessary for salvation; For Excommunication and the other penalties, which are common among men, denote a common jurisdiction over a man, such as is in prelates; But the jurisdiction of confession denotes a mediation between God and man unto reconciliation. And because it is necessary for a man, however great, to submit to the Judgment of God; hence it is that the Pontiff can submit himself to another for Sacramental absolution; indeed even for other matters that touch conscience, such as restitutions and the like, and therefore he can in these submit himself to a man, not as Pope, but as one offending before God, or in doubt about it; But the penalties of excommunication and other human penalties presuppose Prelacy, which cannot be over the Pope, nor can he, remaining Pope, simply acknowledge anyone as prelate over himself, as I showed p. p. tract. 1. disp. 4. proaem. quaest. 8.

From this is clear the answer to the other argument they oppose; namely, whether the arbiter elected by the Pope is either equal to or superior to the Pope. If equal, he cannot judge him, because par in parem non habet imperium. Not superior: First, because the Pope is supreme. Second, because one cannot give authority above that which one is; for no one gives what he does not have. Therefore the Pope cannot make another superior in the power of the Pope.

Caietanus and Valentia answer that the Pope is inferior secundum quid, or in this respect.

But the S. Doctor persists, that he is not subject as Pope, but as a man, who has need to preserve equity in the judgment of God.

Now the Doctors concede this hereditary right, granted by Christ to Pontiffs, in accord with Matthew 17: Ergo liberi sunt filii: For Christ was not, even as man, subject to earthly power, although he subjected himself to it, as he protests to Pilate, Ioan. 19: Non haberes in me potestatem, nisi datum tibi esset desuper. This exemption was due to him by reason of the hypostatic union, as Valentia says disp 5. quaest. 11. puncto 1. Wherefore I do not see why he should make it hereditary in Pontiffs, since they are not hypostatically united to the Word.

It comes to them, therefore, from another source, namely from Divine Law, by which Christ constituted Pontiffs Fathers and Judges of the whole Church. Wherefore I judge that at that time he imposed upon them this dignity, Matth. 16., when Peter confessed Christ to be the Son of God, and God. And Ioan. 22., when he protested him to be beloved above all, as God.

Interim, however, they are accustomed here to ask also: Whether Christ, as man, would be Rex Regum, and therefore by this reason above the power of the Emperor, which Pilatus had delegated, and accordingly Christ submitted himself to him spontaneously, not only as exempt by reason of the hypostatic union, but also by reason of his monarchic dignity.

SOTUS Lib. 4. quaest. 5. art. 1., Caietanus loco cit., and Valentia deny that Christ subjected himself to Pilatus in this way, because he himself confesses: Regnum meum non est de hoc mundo.

BUT D. Bonavent., on Ioan. 19, professes that Pilatus usurped to himself the exercise of power against Christ, and had from above only the power of a Judge, not over Christ, who testified more than once that he was King, in accord with Psalm. 2: Ego autem constitutus sum Rex ab eo, etc.; and if he said: Regnum meum non est hinc; it is no obstacle, because, as the S. Doctor acutely observes, Christ did not say: My kingdom is not here, or not in this world, but: it is not of this world: it is not hence, because he did not hold royal power by the law of nations, but by natural divine law. Christ, therefore, was King, as I shall show 3. part. Tractatu 1. disp. 24. quaestione ultima.

Whether goodness is necessary for a IUDICI.

SOME of the SECTARIORS have dared to say that a Praelatum in mortal sin loses jurisdiction: which error I have often refuted, and it is condemned in the Council of Constance sess. 8. art. 15. et sess. 15. art. 3., and it is plain from Matth. 23: Reddite ergo quae sunt Caesaris, Caesari, even to the impious.

SOME say, however, that a Iudicem judging in mortal sin sins mortally; So Alens. 3. part. quaest. 40. memb. 3.

ON the other hand, as to Ecclesiastics, D. Thom. 4. dist. 19. quaest. 2. art. 2. quaest. 2., Paludanus ibi quaest. 3. art. 3., Sylvester V. correctio, quaest. 16. Hence that saying of Ioan. 8: Qui sine peccato est vestrum, primus in eam lapidem mittat, where the S. Doctor says: The law was written on stone on account of the hard of heart: now the Lord wrote on the ground, because he was seeking fruit. Let the law therefore be fulfilled, but should the adulteress be stoned by those who are to punish her? This is the voice of justice; let the sinner be punished, but not by sinners; and he alleges D. Augustinum tract. 33: Ad signandum ergo, quod legis praevaricatores non sunt digni ad iudicandum alios, ideo se sic inclinavit, et scripsit, as truly Anselmus says; Quantum est de ordine iustitiae non sunt digni punire, vel accusare, those who are in sin, especially when the sin is notorious, because then those judging and accusing give scandal.

WHEN, however, the sin is hidden, then the one judging or accusing sins, because he knows himself to be in sin and yet does not purge himself. And therefore such judges act perilously, thus judging when they know themselves to be in sin.

The OPPOSITE opinion, however, is that no Iudicem sins by judging in mortal sin. So D. Thom. 2. 2. quaest. 33. art. 5. et quaest. 60. art. 2., Caietanus, Salonius, Aragonius, and Bannes ibi, Sotus lib. 3. de Iust. quaest 4. part. 1., Petrus Nauar. lib. 2. de restit. cap. 4. part. 4. dub. 4. num. 455., Martin Nauar. in Rubric. de Iud. num. 42. Sayrus vero Lib. 12. cap. 13. makes certain distinctions. They speak, however, of external Judgment.

The same hold Valentia quaest. 4. puncto 2.; Tannerus vero disp. 4. quaest. 4. num. 16. distinguishes, alleging others, among whom also Alensem loco cit., as recorded by Sylvestrum, V. Iud. §. 12. So also Bassaeus V. Iudex, num. 12., Lugo de Iust. disp. 37. sect. 2., Sylvius 2. 2. quaest. 60. art. 2. et alii.

I ASSERT first, with D. Bonavent., that a Iudicem in mortal and scandalous sin, in handing down a sentence, even a just one, sins mortally. So D. Bonau., D. Thom. art. cit., Caietanus, and all the others cited, among whom some say it is per accidens by reason of justice, which is interpreted as contempt.

The RATIO of D. Bonavent., used by the others, is that from it arises the scandal of others, and justice passes into contempt; but this happens especially when a Iudex is besmirched with the same crimes that he punishes in others.

I ASSERT second, that a Iudex in hidden mortal sin sins in some way. So judge among the Doctors, even of the second opinion, Caietanus, Sotus, Valentia, Martinus Nauarrus, and Sayrus, saying that he sins venially, because he does not exercise the act of justice from the inclination of justice. It is proved by the S. Doctor from 6. Sap., with those words of Rom. 2: In quo alium iudicas, te ipsum condemnas.

S. Bonavent. ADDS something further on account of the danger, because an impious man is easily corrupted into judging unjustly, especially by affections, gifts, etc.

On the external purity of the hands of a Iudex.

EXTERNAL purity, necessary for a Iudici, consists especially in the hands, arg. cap. statuum, §. Insuper de rescript. in 6.; and it is twofold: The first is to refrain from injuries, contumelies, etc. The second, from gifts.

AGAINST the first he sins by beating, Lex Nec magistratibus, ff. de iniuriis, and he is bound to compensation for the injury inflicted.

AGAINST the second he sins by extortions, Titul. de concussione. Concussion, however, as is gathered ex cap. Iubemus, et seq., is when someone threatens another unless he give or do this or that; or when he puts his sentence up for sale, which otherwise he would not give, or the contrary. Therefore he who by extorsion of money, through the fear of extortion, receives something, steals, and is bound to restitution; or if on account of money received he omits to proceed further, he incurs the crime of concussion Leg. 1. et 2. de concuss., and beyond the precept Levit. 6., where nothing extorted is commanded to be taken. This the S. Doctor pursues in speculo animae, cap. 2. ante medium.

The chiefest cleanliness of hands is from gifts, concerning which the S. Doctor, in the place just cited, says: §. quartus fructus rapinae est munerum acceptio.

I suppose, however, that Iudices and other Ministers of justice have just stipends from the Laws. Therefore if they receive anything further for exercising their office, they sin against justice, and are bound to restitution before the sentence of a judge, to be made to the party giving; after the sentence, however, to Superiors, or it is to be made to him to whom the sentence decrees. So S. Bonavent. loco citato, Molina tom. 1. de Iust. disp. 83., Covar. ad reg peccatum, part. 2. §. 3., Navar. summa lat. cap. 17. numero 23., Adrianus quodl. 10. art. 1. et in 4. quaest. 19., Gabriel in 4. dist. 15. quaest. 6. concl. 9., Lessius Lib. 2. cap. 14. dub. 9. num. 63., Caietanus 2. 2. quaest. 32. art. 7. This sin pertains to concussion and calumny, from D. Augustino, as related in cap. militare, dist. 23. quaest. 1., by whom Ioannes Baptista Lucae 3. admonished the soldiers ut abstinerent: Neminem concutiatis; contenti estote stipendiis vestris, as S. Bonavent. explains in comment.

Both Laws condemn these acceptances of gifts.

The Canonical law indeed, cap. statuimus, §. si quid, et §. insuper de rescript. lib. 6., where Iudices delegati are commanded to restore those things which beyond what is due to them and granted them by law they have received from the parties; and there it is said that the mere remission of him to whom this restitution is due does not suffice for the Iudex to be absolved from restitution. Panormitanus notes in cap. cum ab omni de rescript., and Molina disput. 84., Fagundez Lib. 8. cap. 16. numero 2., that this applies a fortiori to ordinary judges.

Of the common law also it is plain in Leg. Plebiscito, ff. de offic. Praesid. et Leg. solet, §. ult. ff. de off. Proconsulis; et Authentica: Ut Iudices sine quoquo suffragio fiant, §. Scriptura est exemplar, where, however, Xenia are not forbidden but granted, that is, little edible gifts, which are consumed within the space of two or three days; these the S. Doctor first calls Munera granted by law.

Navar. admonishes, however, opusc. de datis, et promiss. num. 47., Molina disp. 83., Fagundez num. 12., that if anyone asks of a judge some diligence beyond that to which he is bound, for instance that he make a journey; or requests a Tabellionem to write more diligently on parchment, etc., he may give something moderate.

It is proved by reason, because the Public gives them just stipends, as I suppose, on account of which he has obligated himself to those offices, and by the just law other things are forbidden him.

Many say, however, that a Iudex can receive something for handing down a sentence for one party, when, since there is probability on both sides, it is in his discretion to pass sentence for either. But I laugh at this; for it is not in the power of the judge, when the reasons on both sides remain equal, to give to one by taking away from the other, but this will be a flaccid acceptance of persons, as I taught in prima secundae, Tract. 2. disp. 17. de conscientia probabili, ad prop. 26. et hic disput. 25. quaest. 4.

They raise the question also: Whether a Iudex or tabellio can, under the title of mere liberality and friendship, receive gifts from litigants, or from him for whom he passed sentence; and whether they are bound to restitution.

Some suppose, however, considering the mere law of nature, that these gifts are not illicit, since anyone may give what is his own to whom he pleases. So Molina disp. 88., Lessius Lib. 2. cap. 14. num. 72., Fagundez cap. 27. num. 3.

Nor does it stand in the way (they say) that of Exodus 23: Non accipies munera; quia excaecant prudentes, et subvertunt verba iustorum. Because here it is only held that they can rightly be forbidden.

But D. Bonavent. locis allegatis refers these to rapine, and the S. Doctor gives the reason; for gifts naturally corrupt justice, which ought to be done from the motive of honesty, as a judgment constituted by God, for which reason it is called the judgment of God, 2. Paral. 19.

Then also, since a Iudex is bound, as Fagundez concedes, to do these things from honest stipends, he infers violence, and they are almost never given from friendship; and even if they were given under that title, they would still perilously tend to corrupting justice.

That these things are prohibited by the law of nature, the S. Doctor proves from Deuter. 16: Non accipies personam, nec munera; quia munera excaecant oculos sapientum, et mutant verba iustorum. Iuste quod iustum est persequeris: Behold, to justice belongs not receiving gifts; Wherefore by its nature he is bound to restitution. Very many hold this, even though they concede that gifts are forbidden only by positive law. Fagundez relates them Lib. 8. cap. 27. num. 7., Ioan. Medina de restit. quaest. 20., Bartholomaeus Medina de modo administrandi sacram. Poenit. fol. 226., Sotus lib. 4. quaest. 7. art. 1. de Iustitia, Gabriel 4. dist. 15. quaest. 6. concl. 4., Sylvester V. Iudex 1. num. 23. quaest. 8.; Lessius lib. 2. cap. 14. dub. 9. num. 72. inclines to it, Baldaeus V. Iud. 12., with Ghisler. de iud. cap. 6., Boverius in direct. cap. 3.

The ratio of this is, because the laws render judges incapable of taking dominion over these things. Wherefore it matters little whether we hold this corruption of Iudicum to be forbidden by the law of nature or by positive law, concerning which see more Juxta Decretum Alexandri VII. tomo 4. disp. 17. quaest. 10. ad proposit. 26.

Any Iudex whatsoever, excommunicated after the Extravagant of Martin V. and the Council of Constance, from which it was extracted, if he be a hidden excommunicate, judges validly and licitly.

Before these, however, some held that such a one sinned and acted invalidly. So the Glossa in §. verum tamen, in cap. infamis, 3. quaest. 7., Sylvester verbo excommunicatio 1. num. 6.

The opposite, however, they assert even before the Council of Constance: Suarez de censuris, disp. 14. sect. 1. num. 8., Sotus 4. dist. 22. quaest. 2. art. 1., Navar. summa, cap. 27. num. 21., Covar. in cap. Alma mater, part. 1. §. 11. num. 4., Richardus dist. 18. art. 7. quaest. 1., Paludanus quaest. 2. art. 3. et quaest. 4., Fagundez in octavum praeceptum Decal. lib. 8. cap. 28. num. 3.

But if he be a public excommunicate, formerly before the Council of Constance and the Extravagant of Martin V. Ad evitanda, all judges sinned by judging, were bound to restitution, and their acts were null. Today, however, after the Council of Constance and the Extravag., it is probable that a Iudex does not sin by force of the censure, and his acts are valid, unless he be to be avoided, namely, denounced by name, or a public striker of a cleric; so teach Lessius lib. 2. cap. 29. dub. 7., who adds another condition, unless he thrust himself spontaneously into judgment; Filliucius tomo 2. tract. 40. in octavum praeceptum Decal. cap. 6. num. 167., Navar. cap. 27. num. 7., Henriquez de excomm. cap. 7., Sotus in 4. dist. 22. quaest. 2. art. 1., Suarez de censuris, disp. 14. sect. 1. num. 13., Fagundez Lib. 8. cap. 28. num. 5., Bassaeus V. Iudex, num. 4.

THAT such an excommunicate to be avoided sins by judging, and that his acts are irritus, is proved, because he lacks jurisdiction, in accord with cap. ad probandum de sent. et re iudicat. cap. Audivimus, et cap. Miramur dist. 24. quaest. 1. et cap. Nos sanctorum, dist. 15. quaest. 6. And that this also holds of a secular judge they assert: Lessius lib. 2. cap. 19. num. 61., Tanner. disp. 4. quaest. 4. num. 20. iuxta cap. Exceptionem, de exceptionibus, et citato cap. Nos sanctorum.

They EXCEPT, however, if the judge migrates to another place, or is not held to be to be avoided in the place of his jurisdiction; Then his acts are said to be valid, although he sins by thrusting himself into judgment.

On the order to be observed by a IUDICE.

The S. Doctor places the fruits of INJUSTICE in speculo animae, cap. 2., toward the end: Iniustam sententiam, quae multos fructus reddit, qui sunt Iustitiae perversio, seu delatio ordinis, iuris mutatio, falsum testimonium, iniusta advocatio, litteratum abusio, quae omnia habent rationem mortalis, secundum quod cedunt in proximi nocumentum. These are the words of S. Bonaventura, from which you have that a Iudex is gravely bound to observe the order of the Law.

FIVE things, however, are required from a Iudice for the form of judgment necessary. The first is the substance of the sentence. The second, the mode of proceeding. The third, the safeguard of the judgment. The fourth is the quality and quantity of the penalty. The fifth, finally, is the execution.

As TO the first, he is bound to keep the laws, or, if these be obscure, to follow the opinions of the Doctors, in the ways indicated by me at the beginning of the disputation, quaest. 2. et prima secundae, tract. 2. disp. 17.

As TO the mode and order of proceeding, it is threefold. The first is by Denunciation, and it is when officials denounce. The second by Inquisition, when a Iudex proceeds to the inquisition of crimes, as is had in cap. Qualiter, et quando, dist. 2. de accusatore; et cap. licet Heli, de Simonia, where the authores commonly teach after D. Thom. 2. 2. quaest. 67. art. 3. that a Iudex cannot inquire without an Accusator, or without someone who functions in the right of an accuser. The third is by Accusation.

On the manner of proceeding by Denunciation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ADD also the natural law of preserving the good name of another. I do not refuse that the satisfactions due for the injury can be exacted from the insolent one, and restitution of goods from the thief; but that zeal of justice is not Christian, to exact vengeance.

FURTHER, that distinction of Charity, and Justice is empty; for what is against Charity cannot be an act of justice, lest we should wish to stir up among the virtues an unjust offensive war; see what I related above de correptione fraterna.

But what Bictus says, that the authors of our opinion speak of evangelical denunciation, which correction precedes: Be it so. But if it is unjust to bring a charge, as to a Father, before correction; it is more unjust as to a Judge. Therefore Christ also speaks gradually: If he hear thee not, tell the Church, and if he hear not the Church, let him be to thee as a heathen, etc.

FURTHER we saw the authors speak of judicial denunciation, pertaining even to the Holy Office of the Inquisition, also in the gravest cases.

But what he miserably cites, that all sins are public, from cap. infamis, 6. quaest. 1. to compel all faults to the tribunals, is empty. For there the Gloss only says: There is also a certain canonical infamy, which is inflicted from any mortal sin, as here, and 32. quaest. 5. Indeed canonical Infamy is not to the point here; for even bigamists, and those defiled in body, are infamous according to the Canons. Therefore that is rather called a certain indecency which Bictus brings in beyond his purpose, to assert every sin to be public.

For truly 35. quaest. 5. cap. 21. where one leaving his wife, fornication excepted, is said to lose the testimony of generous dignity, or of fame, while he so remains separated, as the Gloss there says, or to bring in testimony among the other generous; is not to the point for inducing every sin to be public. For what did Christ wish to teach, saying: If he sin against thee?

HERE the author brings forward his own confrater Caspensis quaest. 16. and those related by Diana part. 7. tract. 3. resol. 44. Trullench. in Decal. Tom. 1. lib. 1. cap. 5. dub. 16. and others saying it is not necessary to premise previous correction to paternal denunciation, and he alleges S. Bonaventure, and S. Thomas in Caspensis, but undeservedly, as I showed in the Disputation on Charity, sect. 3. on fraternal correction, question 1. and 2. And Diana concludes thus: I judge both opinions probable, although I held the necessity of previous correction p. 3. tract. 2. resol. 37. and now I hold it. Truly I have already shown sufficiently that S. Bonaventure (whom Turrianus also opposes 2. 1. disput. 89. dub. 4.) stands for us.

¶ To the argument they press from Valentia, I say, Christ knew very well that sin is against someone. Therefore he says: If he sin against thee, that he might express that secret correction is a precept, even in the greatest offenses that can be inflicted against us, and much more in the others which are committed by a neighbor before our eyes.

But I do not see how they wish to change the divine law itself, and violate the right which a neighbor has from birth, by bringing to the public tribunal a secret lapse, which otherwise does not tend to public ruin. For that others be deterred from sin by this is not enough, for the order of the Gospel to be changed, or the law of nature to be overthrown, by making known the secrets of each one; so that no place at all remain for the order instituted by Christ, or rather declared by natural law.

Let Valentia teach that; let Suarez also teach it in his Religione, in which right is renounced. And if this can be done legitimately without difficulty, why do they press this so much, that they have their novices renounce their right of nature?

Why have Pontifical diplomas emanated, that this order may be sustained? Why so many volumes, that this rite, the renunciation being in place, may be defended against many?

¶ I add that if to bring a charge to the Prelate, as to a father, these things were instituted by Christ as necessary preludes; much more strictly before they be brought to public judgment — which bringing the adversaries did not see, saying that correction must be premised before evangelical denunciation; but not before judicial. Certainly greater harm is inflicted on fame, while the sin is brought to a tribunal. But if the bringing to the Prelate, as to a Father, were greater, one could use that denunciation, so that he might proceed to judgment, which the adversaries themselves shrink from, as Bictus confesses cap. 16. num. 6. citing Sotus, Suarez above, and Cardinal de Lugo de iust. tom. 2. disp. 37. sect. 7. num. 81. Dianam resol. 46. et 47. and others among these.

¶ I know some have said, while the crime is not wholly hidden, but can be proved in judgment, then charity, by which the cause has been begun, commands justice, that it begin the judicial process, if in such a way there were hope that the delinquent would be corrected. So Filliuc. tom. 2. tract. 28. cap. 8. num. 164. Sanchez l. 2. l. 6. dub. 11. num. 11. Trullench in decal. l. 1. cap. 5. dub. 16. num. 8. whom Bictus arrayed at his side, that he might show the firmness of his opinion.

But these men speak, when the amendment of the sinner could not be had with less harm to the sinner; for if there be hope of amendment through secret correction, they understand according to the Gospel that one is not to run to the tribunals; for then charity cannot command justice the defamation of a penitent sinner, unless his private penitence would leave the wounds open to the ruin of the Republic; because then charity, being ordered, is bound to provide for the common good.

¶ Therefore, if the sinner should spurn the correction, or you knew that from correction he would rather draw poison, you could omit fraternal correction, as D. Bonavent. also teaches ad 17. Lucae, where this is treated.

But if the crime were to the grave harm of the Republic, the Judge could use the knowledge which he has as a Father, and obligate one who knows, and paternally denounces, to denounce judicially, while no other way is at hand for warding off that public harm, or even the private harm of an innocent.

But if he will not denounce, the Judge will be able to create a fiscal, who will denounce, while he hopes that he will have proofs. So Bictus, citing Caspensis tom. 2. tract. 17. disp. 6. sect. 3. num. 35. Suarez de Relig. lib. 10. cap. 1. 2. et 12. Dianam resol. 46. et 47. who however adds that one cannot proceed to judgment in this case, except so far as is necessary for obtaining amendment.

But Sayrus admonishes l. 12. cap. 10. num. 7. that it rarely happens before a secular Judge that a transition is made from evangelical denunciation to judicial, for the reason that crimes are not brought before secular judges, except by accusation, or judicial denunciation. Likewise a secular Judge never receives crimes, except that he punish publicly, and in writing before a Notary; among Ecclesiastical Judges, however, this happens.

But all can denounce, certain conditions being posited.

The first is, that the denunciant not be infamous, as Baiard. ad Clarum §. fin. quaest. 7. num. 13. Iodocus in practic. crim. cap. 7. note.

Secondly, that he not be an enemy. So the Doctors cited. Therefore a judge sins lethally by not refusing the denunciation of an enemy. So Innocentius, and Hostiensis C. dudum, v. electionis de electione. Archid. in C. quaerendum, 2. quaest. 7. Felin. in cap. quae in Ecclesiarum num. 13. de constit. Menoch. de arbitr. iud. sem. 5. casu 481. where, from the Doctors cited here, he says the denunciant is to be recognized as bringing the charge from zeal of vengeance, from the quality of the person, fierceness of countenance, manner of denouncing, etc. Megala praxi crim. canonica, cap. 10. follows.

Thirdly, conspirators, and vile persons are repelled. So Barratd. Iodoc. above, and Bictus quaest. 17. num. 5.

Fourthly, one excommunicated by name is not admitted to denounce. So Caiet. 2. 2. quaest. 68. art. 2. Rodriquez tom. 2. qq. Regul. quaest. 6. art. 3.

Fifthly, a Religious is excluded from denouncing in a case of blood, unless a protestation be added. So Couar. in Clem. si furiosus, p. 2. §. 5. Rodriquez above, and it is the common teaching. But in other cases he is admitted, since he is admitted to the greater, namely to accuse. Nor does Clem. exiit §. proinde stand in the way, where accusation concerning the ownership of things, which are forbidden to them by force of profession, is interdicted. So Elizeus tract. 1. quaest. 13. num. 8.

Sixthly, a Layman is not admitted to denounce an Ecclesiastic, unless he pursue his own injury. It is the common opinion, Gloss. in summa 1. quaest. 7. and all admit it, as Foller. in pract. Crim. can. fol. 48. num. 45. says. Clar. §. fin. quaest. 14. verse propter reverentiam subscribes. He gives the reason, because Laymen are wont to be ill-disposed toward Ecclesiastics, whence they are presumed to be moved rather by hatred than by Zeal. And it is a common saying: Laymen are almost always hostile to clerics. C. Laïcos 2. quaest. 7. Which aversion is often also that of Clerics against Religious, as the holy Doctor relates quaest. 27. Super Regulam.

It is limited to excepted crimes, in which a Layman is admitted to denounce an Ecclesiastic, as the Gloss proves in cap. cum P. Manconella, de accusat. provided, however, he be of good fame, as the Gloss says ibi.

You will find more persons repelled from denouncing in the following doubt, where accusation is discussed.

But the Denunciation ought to contain the name of the denunciant, and of the Denounced, of the Judge, of the crime committed, of the place, and of the time. So Elizeus ubi supra num. 7. otherwise it would be invalid. So commonly in Clarus quaest. 10. verse Scias autem §. fin. And it ought to produce a witness, without which the Judge cannot examine in singular, unless in place of a witness indications, or infamy, or something similar occur, as Caiet. quaest. 69. art. 2. Valentia quaest. 13. punct. 2. Deltius l. 5. disq. sect. 1. Sà v. Iudiciales actus. Tanner. disp. 4. quaest. 4. num. 73. say, with D. Bonau. 4. dist. 13. quaest. 4. ad arg.

But the denunciation CAN either be presented in writing, as concerning accusation Bartol. and Card. and others hold, in Clarum quaest. 12. Or be merely verbal, and written by a Notary, as Salyc. holds in Leg. poen. Cod. de accusat. num. 2. according to the form of the Leg. Libellorum, ff. de accusat. and it can also be done by letters, as Abbas holds in C. Licet a beato, de accusat. Bettus in praxi tit. 7. cap. 5. Arretin. in praxi, cap. 9. num. 4.

The day of the date OUGHT also to be added, without which the complaint, or denunciation, would be invalid. So commonly in Clarus quaest. 10. cited, who however thinks it not necessary by the Lex Libellorum, ff. de accusat. where it is said: Neither the day, nor the hour, shall he unwillingly comprehend.

But the Judge OUGHT gravely weigh the denunciation, and inquire into the probity of the denunciant, as Innocentius admonishes de C. Nulli, de accusat. Oldrad. cons. 224. Clar. §. fin. quaest. 15.

Let him also WEIGH the person of the denounced, as Innocentius, Oldradus, and Clarus admonish; and if he be of most upright life, and of authority, let him not easily be admitted, lest the fame of a grave man perish, according to cap. si quis sunt, and C. quaerendum, 2. quaest. 7. and D. Thom. 2. 2. quaest. 68. art. 1. ad 2. Indeed against such men let the Judge receive not a denunciation, but only an accusation, which obliges the accuser to the penalty of talion, as is gathered from C. repellantur, de accusat. and as Speculat. de denunc. §. Hostiensis, titulo de iniquis, §. 2. Glossa in c. Cum contingat de rescript. teach.

As to the law, the Denunciator is bound to prove, as Clar. notes quaest. 7. by the text in Leg. Divus. And in Leg. ab accusatione, §. nunciatores, ff. ad Turpill. yet common practice does not admit this, as they say in Clarum, Mariam. Salic. and Cardin. Alex. but understand that fully. P. Eliz. tract. 1. quaest. 13. num. 25.

Therefore WHEN the denunciation is apt, the Judge ought to admit the denunciation, and meanwhile the denounced is unfit for dignities, C. Omnipotens Deus, de accusat.

ONCE the denunciation is admitted, the Judge is bound to inquire, otherwise he sins by neglecting justice, as the Doctors commonly hold, especially the Gloss in C. Excommunicamus, verse neglexerit, de haeret. Panormitanas in C. cum dilectus de accusat. D. Thom. 2. 2. q. 54. art. fin. D. Bonau. in speculo animae, cap. 2. toward the end, Bossius tit. de offic. corrup. Roder. t. 2. quaest. 39. art. 1. Let him take heed, however, lest he inquire before it be established concerning the body of the delict, as I shall say in doubt 3.

AN ACCUSATION is the bringing of some crime to public vindication, with the lawful subscription intervening. Thus the Doctors commonly hold, as Clarus testifies, quaest. 12. Lessius T. 1. l. 2. cap. 30. Azor. l. 13. cap. 19. Filliuc. Tom. 2. tract. 40. cap. 7. num. 201. Roder. de ord. iud. cap. 5. Fagundez on the eighth precept of the Decalogue, cap. 47. P. Eliz. tract. 1. quaest. 12.

VERY MANY are those who are barred from accusing by the common law, whom Clarus reports, quaest. 14. and St. Antoninus 3. p. tit. 9. cap. 8. §. 2. Bouër. in direct. p. 2. cap. 17. Farin. quaest. 12. among whom I have also noted some who are likewise forbidden to denounce. Excluded are criminals, apostates from the faith, heretics or those suspected of heresy, pagans and Jews, who cannot accuse Christians (cap. non potest and cap. pagani, 2. quaest. 7.), and calumniators (C. similiter 3. quaest. 5.).

LIKEWISE litigants are readily excluded, by the said C. similiter. Likewise enemies, and those recently reconciled, cap. accusatores 3. quaest. 5. Likewise the kinsmen of enemies, and their friends and household servants cap. accusatoribus 3. quaest. 5. Likewise an accomplice in the crime, minors, those under twenty years of age, a soldier, and a woman, and those who are barred from giving testimony. Likewise one who is in mortal sin by canon law. See Clarus quaest. 14. reporting others as well. And the Gloss on C. si legitimas, de accusat., where he enumerates them thus:

A woman, a ward, one denounced, one caught in crime. One suspected of gain, a corrupt man, a soothsayer, One infamous, a slave, a poor man, with a soldier, a Prince, A freedman, a comrade against his comrade, nor the enemies' kin, No cleric may bring an accusation against the Church.

TRULY the accuser is a hated figure, and is presumed to act not from charity but from spite, according to the Gloss on cap. decreto, 2. quaest. 6. and the text in C. Si omnes, 6. quaest. 1.; and hence an accusation is called an offensive intention, C. si quis Episcopus, 2. quaest. 7., which can scarcely be exercised without fault, according to the same Gloss, and after it Foller. in praxi, crim. can. 4. num. 9.

Hear St. Gregory l. 6. Moral. cap. 13. quoted by St. Bonaventure in Phar. l. 3. cap. 3.: While the envious cannot accuse the good they see, blinded by malice they seek out for accusation the evil they do not see. Yet he can also be an executor of justice, C. illud 23. quaest. 4.

But the Judge ought to weigh deeply that saying of St. Isidore in the Synonyms, cap. 16.: First prove, and so judge. For not the one who is accused, but the one who is convicted, is guilty. St. Bonaventure sets this forth deeply in the place cited from the Pharetra.

The Accusator is bound first to the things I said of the denunciator, and further he is bound to write everything and subscribe his name, under penalty of talion if he does not prove the crime, as Bartolus and Aretinus declare, and Clarus follows, quaest. 12. P. Eliz. num. 9.

Although by civil law this penalty is not observed, as Clarus notes, yet he says it is observed by canon law. Cardinal Alexander agrees, in C. libellorum near the end, 2. quaest. 8. So in the chapter qualiter et quando, 2. de accusat.

Once the accusation has been presented, he is bound not to conceal the true crimes, as St. Thomas notes, 2. 2. q. 68. art. 3. Sotus de teg. secreto, membr. 2. quaest. 5. col. 6. Navarr. in Manuali, cap. 25. num. 3.

At the request of the party, the accuser is bound to take the oath of calumny. Farin. quaest. 16. num. 28. citing Doctors on Leg. 2. Cod. de fin. instrum.; and Bartolus testifies to the common observance of Italy in Lege 1. num. 6. Cod. de iuram. calum., and Clarus holds it, §. fin. quaest. 18., citing many.

THREE things must be guarded against in an accusation: Calumnia, Praevaricatio, and Tergiversatio (calumny, prevarication, and tergiversation), as Fagundez notes, l. 8. cap. 47. num. 11.

CALUMNY is a false imputation made knowingly, and it binds the calumniator to the duty of restitution. He also is said to calumniate who knowingly accuses of a true but hidden crime, which cannot be proved in court, and in the same way he is bound to restitution of the damage; thus St. Thomas 2. 2. quaest. 68. art. 8., Sotus de teg. secr. in 2. quaest. 5. concl. 5., Sayrus cap. 15. on the eighth precept, num. 12., Roder. de ord. iud. cap. 6., Fagundez in the place cited.

PRAEVARICATION occurs in a twofold case. First, when the accuser secretly favors the Accused. Second, when he is silent and conceals true and greater crimes, setting out lesser ones in the libel.

This kind of prevarication can occur also in a Judge, namely by accepting false exceptions, testimonies, and instruments so as to free the accused, as St. Bonaventure notes in the Speculum animae, cap. 2. near the end; and beyond the sin he commits, he is bound also to restitution, because he acted against Justice and his office, seeking unjustly to oppress the accuser and to shield the accused.

It occurs also in Advocates, by showing to the adverse party the foundations of their client's case, or by not defending faithfully, or by opening to the adversaries the way to win the cause unjustly; all of which are iniquitous, against justice, as the Saintly Doctor teaches above, Sotus loc. cit. concl. 5., and Navarr. cap. 25. num. 10., Rodriquez num. 5., St. Thomas quaest. cit. art. 3. ad 2., Sayrus num. 14., Fagundez num. 13., who agree that they are bound to restitution.

TERGIVERSATION is, when without just cause he desists from the accusation, when he is bound to its prosecution for the common good.

CASES are nevertheless given in which he may desist. First, in crimes that do not conduce to the good of the Republic. Second, when he begins the case in good faith and soon sees his error. Third, on account of grave fear. Fourth, if he is repelled by the command of the Prince. See Sayrus lib. 12. at the end, Lessius l. 2. cap. 30. dub. 3. num. 15., Sotus loc. cit.

FAGUNDEZ num. 14, who at num. 16 raises the question: whether correction must always precede an accusation. And he answers negatively, if the offense can be proved, whether one intends vindication of one's own injury or the good of the Republic; and he says this is the common view of the Doctors, citing Lessius l. 1. cap. 30., Filliuc. tome 2. tract. 40. cap. 7. num. 103., the Gloss on C. licet, de simonia, 2. quaest. 8., Sylvester v. accusatio, quaest. 3., Cajetan 2. 2. quaest. 33. art. 7., Navarr. Summa Lat. cap. 18. num. 30., Driedo de libertate Christiana cap. 10., Roder. de ord. iudic. cap. 6., and others; and in this he distinguishes denunciation, which is directed to amendment, from accusation, which tends to the vindication of the crime for the public good. But Rodriquez loc. cit., citing Corduba, adds that one is bound to correction, if he hopes for amendment. Sotus adds, loc. cit. concl. 4., Durandus 4. dist. 19. The reason is, because the principal end ought to be the amendment of the Accused. But Fagundez himself persists: if the offense is public and can be proved, the Accused is in the case; because his own offense made it public. I certainly do not refuse this, when the offense is public, according to what I said in the first doubt.

NOTE that civil and canon law command Judges not to proceed in criminal causes without an accuser, C. si legitimus, de accusat. and Leg. Illicitus, ff. de officio Praesidis; and St. Thomas teaches this, 2. 2. quaest. 7. art. 3. in the body, Cajetan there, and other Thomists, Roderiq. de ordine iudic. cap. 5., Fagundez cap. 48. num. 3., and St. Bonaventure passim.

IT IS PROVED by the Saintly Doctor on John 8, where he observes that the judgment was truncated, because the accusers withdrew. Therefore Christ says: Where are they who accused you? No one has condemned you; nor will I condemn you. And he warns that the accusers withdrew because they were unfit to accuse, since they themselves were criminals.

IT IS PROVED secondly by the Saintly Doctor on John 5, in the words As I hear, so I judge, where he discourses at length, bringing in St. Gregory in Moral. cap. 14. on Job 29: The cause which I knew not, I searched out most diligently, where he says: Note concerning judgment, that we ought not to hasten to render an iniquitous sentence, that we judge not rashly without examination, that no evil report whatsoever should move us, that we believe not reports everywhere without proof, etc.

GOD himself, to whom all things are naked and open, uses examinations in his judgments; as is plain in Joel 3: I will bring them into the valley of Josaphat, and I will plead with them. He repeats this in Matth. 25.

Whence it is read of the Lord in Genesis 18: I will go down and see whether the cry that comes to me has been fulfilled in deed. Then the Saintly Doctor continues the exposition of the same chapter thus: Second, it is figured that judgment ought to be just in its process. Whence he says: My judgment is just. And Deuteronomy 19: You shall appoint Judges and Masters, that they may judge with just judgment; for, as Tullius says in de off. l. 1., it belongs to a judge in causes to follow the truth, neither to defend the guilty nor to condemn the innocent: He who justifies the wicked, and he who condemns the just, both are alike abominable before God. Likewise it is here intimated that judgment ought to be orderly in sentencing. He has the same on chapter seven.

From these you also have those cases in which judges may proceed without an accuser by the way of inquisition.

THE FIRST is, if the Judge with others sees the crime being committed. The second, when there are public indications and clamorous fame. The third is, when a juridical denunciation precedes, to public vindication of the offenses, as is done in the tribunal of the Holy Inquisition; but it differs from an accusation, because he is not bound to prove. Here too it is intimated that in graver offenses, where there is no accuser, the Fiscal holds the place of the accuser; and he is bound to prove, and unless he can prove, the accuser sins, as Aragon says, 2. 2. quaest. 67. art. 3. at the end, Roder. de ord. iud. cap. 5. num. 3.

AS TO the obligation of accusing. First, he who sees some harm threatening the Republic, or even others who are innocent, and it cannot otherwise be prevented, is bound to accuse; he is bound from charity to denounce it to the Judge. Thus the Doctors commonly: St. Thomas 2. 2. quaest. 68. art. 1., Sotus loc. cit. quaest. 5., Sylvester v. Accusat. quaest. 2., Gomez Tom. 3. var. cap. 1. num. 9.; and it is proved by C. sicut dignum, §. illis etiam, de homicidio. Indeed in the external forum, one who knowingly conceals an offense about to be committed against the Prince or the Republic, and does not reveal it, is punished as an author of the offense, by Battol. in Leg. virum, ff. ad Leg. Pomp. de parric. and Leg. 1. §. occisorum, ff. ad Syllan., Salicetus in Leg. prima, Cod. ad legem Cornel. de sicar., Gomez loc. cit. num. 8.; and the French laws command this in the Kingdom of France.

YET he is not bound to accuse who cannot prove; for no one is bound to ward off another's evil at his own grave loss, which he incurs by accusing and not proving. Thus St. Thomas 2. 2. quaest. 68. in the place cited, and others in Fagundez cap. 49. num. 4.

BUT he sins only against charity who does not accuse when bound, unless he be an official of justice; for such a one sins against Justice, as Fagundez notes, num. 8.

THERE arises also a doubt, because kinsmen are admitted to demand just vindication of their own up to the fourth degree, as is more probable in Fagundez l. 8. cap. 48. num. 10., and it is gathered from Leg. petitionum, Cod. de advocat.: whether, when several kinsmen come together to accuse someone of some offense, all of them can be admitted by the Judge.

Motla asserts it in Emporio iuris, titulo de Legibus, quaest. 14. num. 9., and the Senate of Lisbon in the year 1616, as Melchior Phoebus reports, tit. 1. decis. decisione 9. num. 10.; and the reason is, because the right of vindicating the death of the deceased is in each of the heirs in the whole, not by part, Leg. portiones, ff. de his, quibus ut indign.

OTHERS deny it, but hold that the judge ought to choose one kinsman, nearer and more suitable, Leg. si plures, ff. de accusat. and Leg. si vero, §. haec autem, ff. de his qui occiderunt, vel effuderunt. And Gomez teaches, t. 3. variarum, tit. de delict. cap. 1. num. 35., Vincentius Franchus in 1. p. decis. 382., Fagundez l. 8. cap. 50.

INQUISITION is the third mode of proceeding, distinct from accusation and denunciation, while the two former are often exercised separately; often also they are, as it were, the handmaids of the latter, since they follow it in order better to inquire into the crime: That this mode of proceeding is lawful no one skilled in canon law doubts, since various texts there plainly intimate it, as C. qualiter et quando 2. de accusat. C. inquisit. eodem, as P. Elizzus has it, tract. 2. de modo proced. quaest. 1. num. 3., where he also gathers the authors. The reason is public security, upon which the Judge has undertaken the burden of providing, which he cannot discharge unless he also inquire into offenses; and when an end is enjoined upon anyone, the means of attaining that end are commanded to him.

FURTHERMORE, it falls to the Judge by a stronger right to inquire than to the Plaintiff to act; for that concerns more the substance of the judgment; but the laws command the Plaintiff to put forward an action, as P. Elizzus has it, tract. 2. ubi supra; and he proves it in tract. 1. quaest. 10. num. 14.

Whether however it is lawful also by civil law or by custom in the secular court is disputed before the same Elizzus num. 4.; see him.

From these, Inquisition is defined as a certain lawful investigation, which the Judge carries out ex officio, inquiring into some crimes, or into some offender laboring under the infamy of a crime, intending primarily his amendment. Thus Iodoc in pract. crim. tit. de Inquis. cap. 8., Clar. §. fin. quaest. 3., Farinac. quaest. 1. num. 3., Rodriquez Tract. de Ordinario, cap. 2.; and it is plain from C. qualiter, et quando, 2. de accusat.

INQUISITION, moreover, is twofold. The first is general, in which, the offender being uncertain, it is generally inquired, who committed the offense? Particular is that which is done specially against some person.

A GENERAL, or most general, inquisition, of which in C. perniciosa, de off. Ord. and C. Trident. sess. 7. cap. 7. et sess. 24. cap. 3., can be made in Visitations without preceding infamy, according to cap. Romana, §. sane, de censibus in 6. and C. Trident. cap. 8. et 20. de reform. sess. 7.; and Bonac. notes this, citing others, de praeceptis decal. disp. 10. quaest. 2. p. 5., Fagundez in octavum Praeceptum decal. lib. 8. cap. 46. num. 7., where he says it is the common view of the Doctors, except Alciato cap. 1. de off. ordin. num. 5.

IN this inquisition, however, one cannot inquire about Peter or Titius; or whether he committed such or such an offense, but only, who offended in such a matter, or in such. Thus Rodriquez tract. de ord. iudic. cap. 2., Sayrus l. 12. cap. 10. num. 19., Angel. v. Inquis. §. 1., Sylvest. ibi, quaest. 4., Sotus l. 1. de Iust. quaest. 6. art. 5. concl. 5. et relect. de reg. secreto, quaest. 6. membr. 2., Salon. 2. 2. quaest. 69. art. 12. controv. 6., Aragon. and Bannes ibidem., Navar. Man. Lat. cap. 18. num. 38., Valentia disp. 5. quaest. 14. p. 1., Tanner. disp. 4. quaest. 4. num. 74. It is gathered expressly from C. qualiter, et quando, dist. 2. and C. cum oporteat. And C. Inquisitionis, de accusat. and C. Heli, de simonia, and C. Deus omnipotens, dist. 2. quaest. 1.

IT IS PROVED by these authorities in Fagundez num. 9., many from St. Bonaventure, from that Genesis 18., where the Lord awaited the cry of the Pentapolitans, and soon says: I will go down and see whether the cry that comes to me has been fulfilled in deed.

IT IS PROVED secondly by St. Bonaventure ad 16. Lucae, that parable of the steward who was defamed, because he had wasted the goods; for he is not called to singular examination before a clamorous defamation. For this reason, because he neglected his reputation, he merited to be called to question by severe inquisition.

IT IS PROVED thirdly by St. Bonaventure in Diaeta, tit. 10. cap. 3.; for the Lord did not proceed to the inquisition of fratricide against Cain until he heard the voice of his brother's blood crying out and invoking the justice of God. The Pontiff relies on this testimony in the said cap. qualiter, et quando.

IT IS PROVED fourthly by St. Bonaventure ad 3. Ioan., from the act of Christ, who tolerated Judas as long as he could hope for his amendment; and because the crime was still secret, he corrected him so as if between himself alone; for none of the disciples understood. The Pontiff determines the same, C. si quis potestatem 23. quaest. 4., where it is said: It is not for a judge to condemn without an accuser, as neither did Christ cast off Judas.

HENCE, although a Judge may know of an offense of his subject, of which there is no public judgment, nor clamorous intimation, or scattered rumor; but it is still altogether hidden; and he even knows that three or four witnesses know of it; he cannot inquire into it specially by the way of particular inquisition in order to punish him. Thus Innocent III declares expressly, C. Inquisitionis de accusat. §. Tertia dubitatio ibi: It does not suffice for inquiring specially against someone not defamed, even if two or three sworn witnesses, even greater by exception, assert that they saw the man commit that offense; and this is the practice of the whole world, as Farinac. testifies, quaest. 9., and others cited by him. For an accuser is necessarily required to punish anyone, or clamorous intimation, and such indications as take the place of an accuser and virtually accuse, as the Fiscal and the promoter of justice, who is bound ex officio to accuse, and who even in conscience cannot accuse unless what he can prove, and unless sufficient indications precede. This truth Cajetan hands down, 2. 2. quaest. 69. art. 1. et 2., Sotus relect. de teg. secr. membr. 2. quaest. 6., Navar. in C. inter verba, 11. quaest. 3. concl. 6. coroll. 48. num. 579., Salon. 2. 2. quaest. 69. art. 2. controv. 6., Aragon. quaest. 67. art. 3., Valentia disput. 5. quaest. 14. p. 1., Sayrus l. 12. cap. 10. num. 200., Rodriquez de ord. iud. cap. 3. num. 4., Fagundez l. 8. cap. 46. num. 10., Tanner. loc. cit.

BUT if a general inquisition is made into crimes, a particular one cannot be made about Peter or Paul, unless they labor under infamy, as Cajetan teaches, 2. 2. quaest. 69. art. 1. et 2., Sayrus l. 12. cap. 10. num. 22., Salon. 2. 2. quaest. 69. art. 2. controv. 7., Sotus de seg. secr. membr. 2. quaest. 6., Palud. 4. dist. 19., Adrian. quodl. 11., Aragon. ibi disp. 2., Ioannes ibi disp. 10., Valentia, and Tanner. with Rodriguez above.

It is proved, because one is presumed good while he does not labor under infamy; and therefore a grave injury is inflicted upon him by inquiring whether he is a wrongdoer.

And the same follows, if some crime has been perpetrated, and Peter does not labor under infamy, one cannot inquire in particular whether he is the perpetrator. Thus the Doctors cited; suppose, for instance, that the corpse of the slain lies in the road. And this alone the Doctors cited wish, Cajet. and Adrian., as cited by Diana p. 1. tract. 13. resol. 63. Sotus alone refuses it. Yet one may inquire in genus: Who committed it? and hunt for indications; for example, who passed through there at that time? whether armed? whether in haste and fleeing? and from those indications proceed to the person who has begun to be defamed. Thus the Doctors commonly, Rodriq. num. 5., Sayrus num. 21., Sotus de teg. secr. membr. 2. quaest. 6., Nauarrus C. inter verba, concl. 6. correl. 46. num. 214., Corduba Summa, quaest. 64. p. 1., Petrus Nauar. l. 1. de restit. cap. 4. num. 154., Aragon. loc. cit., Fagundez num. 18., Malderus 2. 2. Tract. 6. cap. 1. disp. 119., Villalob. Tom. 2. tract. 14. diff. 7., Valentia, and Diana loc. cit., Bannes 2. 2. quaest. 70. art. 1. disp 2., Sà under the word Iudiciales actus §. de modo procedendi, Salonius controv. 7., Tabiena, v. Inquisitio, §. 8.; and of this opinion was also St. Thomas, as Sylvester reports, v. corrept. quaest. 8. St. Bonaventure seems to think the same, serm. 3. in decem praecepta, where he teaches that this is to be observed as to substance, in the purgation which was made by oath by the nearer population, when a corpse was found whose killer was unknown, after inquiry had been made about the killer and he had not been found.

BUT this has been introduced by custom, that in such a case one proceeds without an accuser; yet a custom, lawfully prescribed, can take away or limit positive law, C. ult. de consuetudine, et Leg. de quibus, ff. de Legibus; and Innocent says this is observed in the whole world in C. Bona memoriae, and the Canonists in C. Inquisitionis, and Diana p. 2. Tract. 15. resol. 63., where he cites many.

Yet neither will the accused be bound at once to betray himself; for, although the Judge has the right of interrogating witnesses, he does not yet have the right of interrogating the accused, whether he is the one, except after it has been sufficiently proved, as I shall say in the following question.

But if only one knows the Offender, he is not bound to betray him, as Sayrus notes, l. 12. cap. 10. num. 26., Fagundez num. 20.; then, however, they say he is bound to confess, when there are several who know the crime.

I add, that if someone is defamed of one crime and not of another, one may inquire only about that of which there is infamy.

BUT here it is necessary to explain what it is to be defamed of some crime, or clamorously defamed. Infamy is the frequent voice of good and honest men, which renders a man suspect of such a crime. It is said, the voice of good men, to exclude rumor even among the wicked. It is said, of such a crime, so that it is implied that one cannot inquire about another. Thus Cajet. 2. 2. quaest. 69. art. 1., Sotus l. de iust. quaest. 6. art. 2., Sayrus l. 12. cap. 10. num. 12. Whence Sotus rightly inveighs against magicians or soothsayers, who by diabolical art inquire into the crimes of others, and he sharply reproaches those judges who, from their utterances, inquire into something in particular against anyone. The same the Pontiffs gravely rebuke in St. Bonaventure, in confessionali, cap. 3. particula 37. et 38.; and against proceeding with such, he notes ex dist. 26. quaest. 5. Non oportet, si quis Episcopus.

THIS infamy, however, Beia says, casu 32., with the experts of both laws, must be proved by at least two witnesses, who depose that they heard it so publicly, or that it is so said everywhere, as Lessius also says, cap. 29. dub. 16.

The other conditions required for proving fame Delrius recounts, l. 5. sect. 5., citing many jurists who say they never saw a process in which fame was proved by statute.

The Doctors, however, labor in assigning a necessary number of men for proving infamy; the Canonists in C. Inquisitionis, de accusat. teach that the number of ten is necessary. See Tannerus, saying from the common view num. 76. that the greater part of the people or parish is required.

Truly nothing is defined by law, as Sotus notes, l. 3. de Iustitia, quaest. 6. art. 2. concl. 6. et relect. de teg. secr. membr. 2. quaest. 6. disp. 3., Sayrus l. 12. cap. 10. num. 13., Salon. 2. 2. quaest. 69. art. 2. controv. 1., Fagundez l. 8. cap. 46. num. 26. Thus it is left to the judgment of the prudent man. Clamorous intimation is the voice of the people, or public rumor among many about such a crime outside of court, as Baffaeus says, v. Indicium publ. num. 4.

As to the indications, or circumstances, they must gravely indicate the fact, as St. Thomas notes, quaest. 69. art. 2., Cajetan, and Salon. there, Sotus l. 5. de Iustitia, quaest. 6. art. 2., Valentia disp. 5. quaest. 13. p. 2., Sayrus l. 12. cap. 10. num. 13.; such as, if one is found naked in bed with a naked woman, they gravely indicate the crime of fornication. If someone is caught with a drawn, bloodstained sword beside the slain, and the like, they indicate homicide.

Now if one begins to name someone as guilty of an offense, that naming will open the way to inquiring specially against the one named, that is, to taking against him other informations: Thus Farinac. quaest. 1. num. 49., Innocent. above, who says the whole world observes this by custom, Bart. in Leg. 2. §. si publico, num. 9. ff. de adult., Baldus in Leg. edita Cod. de eden. and others cited by Clatus, §. fin. quaest. 5., Aretin. in C. cum oportet, num. 44. de accusat. and Nauar. rubric. de Iudice, post numerum 88., where he says the opinion of Innocent has been received in theory and practice: Thus also Tannet num. 79., Lessius cap. 89. disp. 15. numero 124.

Yet Philippus de Bictis notes, quaest. 11. primum testem, that the one who names the offender is held as a denunciator, with Deciano resp. 93. num. 125.; therefore, since the denunciator does not prove, and against Judges acting to the contrary Dettas exclaims, conf. 251. n. 103., and Guez follows, defens. 29. cap. 2. num. 18.

Bictis adds, that if someone, juridically interrogated, unduly reveals a hidden author, the judge may nevertheless proceed to a special inquisition against the one detected, according to Nauar. rubr. de ind. num. 87.; Franciscus Arretinus does not object, in pract. cap. 13., nor Less. de iustitia, et iure lib. 2. cap. 29. dub. 15., where against Sotus he holds that the judge not only may, but is bound to proceed; Thomas a Iesu and Lezana concur, tract. 1. cap. 27. num. 4. The reason is, because the Judge uses his own right, since the crime is already public, even though impiously detected; provided, however, that the informer is not the cause of that impiety.

Yet this opinion is false, as Bouerius notes in Direct. p. 2. cap. 4. v. 3., who with Soto, Navarro, and Sayrus judges it better, in the proposed case, to abstain from proceeding.

Hence I wish to examine the doctrine of Tannerus disp. 4. quaest. 4. num. 73. in the way of judicial denunciation; when no witness is produced, a general inquisition indeed can be instituted; but neither the Accused, nor others about the Accused, can be interrogated specifically, unless perhaps in place of an accusation there occur indications, or infamy, or something similar; but it is otherwise, he says, when one proceeds by the way of fraternal enunciation, for then, indeed, it suffices that the denouncer [act], and he brings in Valentia quaest. 13 p. 2., where he nevertheless says that regard must be had to the estimation owed to the brother.

This last doctrine is certainly to be moderated with this caution, because even in a paternal inquisition a stain can be brought upon the fame and good estimation of the one about whom the inquiry is made.

HE ADDS at num. 81. that the practice of judges is to be approved, who proceed from denunciation to seeking indications, so as thus to form the libel of inquisition; and he thinks Lessius holds that infamy precedes, which from the common teaching of the Theologians is necessary, and from the canons; but this with Navarro in rubr. de Indiciis, num. 66., I think is false. For what infamy precedes here? They fear perhaps lest crimes remain unpunished; but let them be punished by the proper means.

THIS indeed I affirm with Tannerus: that a Judge, on account of a denunciation made to him not as Judge but as a private person, cannot proceed to a special inquisition; otherwise the whole process is null by law, as Clarus quaest. 5. num. 4. and Less. dub. 15. n. 136. also teach; for it can tend only to a general inquisition, as Tannerus notes, num. 84., with Cajetan and Salonius.

THIS, as a crown, is to be gravely noted, and underlies every inquisition, namely the body of the crime, without whose notice the Judge cannot proceed. Thus all the Doctors exclaim, in Farinac. quaest. 2. num. 1. and Clarus §. fin. quaest. 4., who at quaest. 66. says: If the body of the crime is not established, the Accused cannot be condemned, even if he were convicted. Nay, neither can he be tortured, Leg. 1. §. Item illud, ff. ad Sillan. Nay, neither can the Accused be examined, as the Doctors say in Farinac. quaest. 2. Nor can he be seized, as Marsil. Bossius and others testify in the same Farinacius, among whom Bonacos attests it is of the common teaching of the Doctors; and if a Cleric is seized while the body of the crime is not established, the Judge is excommunicated, as Farinac. notes there after Ioan. Andr. and Cornerus, who attests it is common. Nor can one inquire specially against the Accused. Farinac. quaest. 7. per Leg. necessario, §. 1. ff. ad Sillan., and many other laws, citing Baldus, Angelus, Marsilius, Boss. and others, and he says it is common. Finally, unless the offense is established, the Judge ought neither to inquire generally nor proceed to any act. Thus Clar. quaest. 4., Bouër. p. 2. cap. 7. §. primo modo, who cites many Doctors.

THE REASON of these things is, because where the Law disposes about some matter, that matter must first be established, Leg. Decime, ff. de testam. milit.; and he who wishes to prove a quality must first prove the substance in which that quality is founded, Gloss. in Leg. si arbiter, ff. de probat.

NOR must only the body of the crime be established, say a homicide; but also its qualities; and therefore the universal practice is that the Judge go, or send a notary, to visit the corpse of the slain, and reduce to the acts how many blows or wounds it has, by stabbing or cutting, and in what part of the body it has them, and the like. See Clarus quaest. 4., Farinacius quaest. 2.

THE corpse must also be recognized by witnesses, if possible. This, however, it does not compel, if the corpse is proved to have been burned or cast into the sea, as Baiard. says, quaest. 4. ad Clarum, citing very many. See Biotus quaest. 12.

AFTER the body of the crime has been established, the Judge is bound to pursue the cause diligently, and if he neglects it he can be punished, Clar. quaest. 4., Bursat. and Guaz. tract. ad defens. cap. 1. num. 22. defens. 4., Baiard. ad Clarum quaest. 66. num. 7.; and St. Bonaventure presses this gravely, in speculo animae, cap. 2. et in Apolog. Min. quaest. 2.

These things, however, are not understood in the general inquisition of Visitations, and in the syndicate of our Prelates.

LIKEWISE neither in offenses that leave no signs, as in fornication, nor in hidden offenses of difficult proof, as in theft, while it ends in breaking. Yet one cannot proceed to condemnation before the stolen thing has been found. Likewise neither in cases in which it is ambiguous whether an offense intervened, as in someone found suffocated in a well, killed by poison, etc.

BUT in these cases he must first inquire into the truth of the fact, and so, the crime detected, proceed further; otherwise, let the process be silent. Clar. quaest. 4., Farinac. quaest. 2. num. 29., whom see also at num. 30. On this matter see Clarus §. fin. quaest. 4. 55. 64. and 66., Farinac. quaest. 2., Guaz tract. ad defensam, defens. 4.

NOTE further that, although against ordinary persons fame suffices for instituting a cause, yet against Prelates and eminent persons clamorous intimation is required, and that the same fame has often come to the ears of the Judge, according to Card. Alex., who says the Doctors commonly hold thus, C. accusatoris, and Clar. quaest. 6. and 7. and Farinac. quaest. 9., where he warns that the fame must be proved in the process through witnesses, who must at least depose that they heard it so publicly, or that it is so said everywhere among the honest, Bald. Leg. litteras, num. 2. de praesumpt.; and thus it is observed passim, as Clarus testifies, quaest. 6.

BUT the Judge, being cautious, if he sees anyone's fame unjustly darkened, ought not to accept denunciations, as Bouerius warns, p. 2. cap. 4., with Soto de teg. secr. quaest. 2., Navarro C. inter verba, 11. quaest. 3., Sayro l. 2. cap. 9. num. 18.

IN more atrocious cases, however, one may proceed from grave indications without fame, as on heresy, he holds in C. Excommunicavimus, §. adiicimus, with all the Interpreters; and Farinac. notes it, quaest. 9. num 14., citing Bartolus, Bossius, Menochius, Felinus, who attests it is of the common view; and Clarus reports it, quaest. 6., and Decianus with others, concerning the crime of lèse-majesté and other enormous crimes. It is the common opinion of the Doctors in C. qualiter, et quando, de accusat., and Farinac. held it, above num. 15., with Gigante, Alciat., Cephalus, and Decianus.

IN these cases indeed the inquisition must be made upon the indications; these failing, since neither does fame precede, the inquisition would be null. Farinac. quaest. 1., where he cites innumerable ones. See him, differing in much.

HERE they ask lastly: whether the Judge can relax the punishment, on which St. Thomas, art. 4.

THE GENERAL RULE is, that it cannot be done to the prejudice of a party. See Valentia p. 4. and St. Bonav. ad 8. Ioan., in the sentence pronounced against the adulteress, where Christ the Judge absolves her.

HE SINS also unto death by absolving the Accused to the prejudice of the public good, giving the wicked occasion to sin more freely: Thus Molina tomo 4. tract. 3. disp. 48., Clau. Reg. l. 12. cap. 12. and others cited by Bassaeus, v. Indicium publ. num. 12.