Palladium theologicum, Tomus quintus: De virtutibus

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.