Palladium theologicum, Tomus quintus: De virtutibus

The Accused (Reus).

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

On the leading of the Accused to the Tribunal.

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

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

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

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

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

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

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

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

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

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

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

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

Whether the Accused is bound to confess a crime semiplenely proved.

A semiplene proof is the testimony of one witness above every exception, as all confess. The Gloss on C. in omni, where it cites many laws.

Nor does a denunciator suffice, because no one is a competent witness in his own cause, L. Nullus ff. de testibus. But what Sotus observes from Matth. 18., where the one correcting is bidden to take with him one or two, and it is added: That in the mouth of two or three witnesses, etc., is not pressing; for there the mere salvation of the corrected one is intended: If he hear thee, thou shalt gain thy brother; and in these subtleties even Less. has been deceived, l. 2. cap. 30., and Fagundez, in octavum Praeceptum, l. 8. cap. 39. num. 14.

The first opinion is that not only a semiplene proof suffices, but even something less, such as indications, or at least presuppositions, or even suspicions. So Bess. tit. de exam. reorum, num. 6. and Carthar. in praxi interrog. Reorum, l. 1. cap. 2. But Clarus, quaest. 20., says that grave indications suffice for examining a person reputed as an Accused. They will assert the same thing much more strongly, saying that indications which do not amount to a semiplene proof suffice not only for questioning but even for torturing the accused.

GLOSS on Leg. cum probatio, ff. de probat; which there Bald. and Salicet. followed, and with them held it Albertus, Alex., Angel., Aymo Blan., Bossius, Castrensis, and Corneus, who testifies of the common view, also Conrad., Gomez, Mascard., and very many others, whom Farinac. quaest. 36. num. 218. reports; but in this matter of torture he does not follow them, as is clear at num. 224.

To this first opinion Caiet. 2. 2. quaest. 69. art. 2. seems to lend favor, and D. Thomas himself there, while they say that in a process by denunciation or accusation fame suffices for questioning the accused. And yet in criminal matters fame does not prove semiplenely, according to Decianus, Bertran., Saccum, Clarus quaest. 21., Baldus, Bero, Butrium, Abb., Felinus, Imola; and so Blancus, Bonacos., Crass., Duen. testify of the common view, whom Farinac. quaest. 47. num. 59. follows, where, citing several others, he brings forward a decision of the Roman Rota in corroboration, before Rebufferio decis. 82. p. 1. The same at last Nauar. murmurs, in Rubr. de iud. numero 25.

THE SECOND opinion, acclaimed with great applause, is that a semiplene proof suffices for questioning the Accused, that is, one given by the deposition of a single ocular witness above every exception, or by indications of equal force. That the Jurists, the Theologians, and all the Summists concur in this, and triumph without controversy, Philippus de Bictis de Reo, quaest. 80. loudly proclaims; and Tanner. disp. 4. quaest. 4. num. 72. says it is common in criminal matters not excepted.

THIS is the opinion of D. Thom., 2. 2. quaest. 69. art. 1., and of all the Thomists. So Caietanus, Salonius, Bannes, Aragon. there; Alphonsus de Vega in Summa T. 2. cap. 89. casu 1.; Ledes. in Summa, tomo 2. tract. 8. cap. 24. concl. 2.; Turrian. 2. 2 t. 2. disp. 50. dub. 2.; Pistigian. in pract. crimin. p. 1. cap. 7.; Sotus de iust. l. 5. quaest. 6. art. 2.; Corduba in qq. l. 1. quaest. 43. dub. 3.; Azor p. 3. l. 13. cap. 25. quaestio 5.; Sayrus in Clau. reg. l. 12. cap. 16.; Valentia T. 3. disp. 5. quaest. 13. punct. 1.; Sylvest. v. accusatio, quaest. 13. et v. confessio delicti, quaest. 1.; Navar. in Man. cap. 18. num. 57. et cap. 25. num. 36. et C. inter verba, dist. 21. quaest. 3. concl. 6. corol. 50.; Tolet. l. 5. Instruct. Sacerd. cap. 58.; Tabiena et Sà v. Testis.; Gabr. dist. 15. quaest. 6. art. 2.; Henricus quodl. 1. quaest. 33.; Palud. dist. 19. quaest. 4.; Couar. qq. pract. quaest. 6.; Gomezius t. 2. cap. 12., cited by Sayrus, loc. cit.; and Lessius, to be cited below; and Sylvester in 2. 2. quaest. 69. art. 4. upholds it; Homob. tract. de stat. p. 2. cap. 4.; Miranda in l. ordin. Iudic. t. 2. quaest. 19. art. 8.; Aldret. de Relig. discipl. l. 1. tom. 1. num. 5. et l. 1. cap. 4. num. 8. et 24.; Cruz in Direct. p. 1. praecep. 8. art. 3. dub. 8. conclus. 2.; Clarus quaest. 20.; Graff. l. 3. decis. cap. 7.

Yet this opinion does not swallow up everyone, as our Bictus boasts; for Ioannes Valerius in diss. utriusque fori, diff. 49., Villalob. in Summa, tomo 2. tract 16. diff. 1. num. 10., Ioseph a S. Maria in Tribun. Relig. tract. 4. cap. 14. num. 5., Filliuc. tomo 2. tract. 40. num. 266. steadily maintain that a semiplene proof does not suffice for questioning the Accused; and, calling their own opinion the more probable, some on the opposing side imply this one to be probable: Less. de iust. l. 2. cap. 31. dub. 3. num. 18.; Navar. de rest. l. 2. cap. 4. num. 142.; Rodr. t. 2. qq. 19. art. 4.; Salzed. tract. crim. Piaz. cap. 128.; Malder. 2. 2. t. 6. cap. 3. sect. 3. Finally it is taught by Sancius, Select. disp. 43.; Petri. de relig. subd. l. 1. quaest. 1. cap. 16.; Octavian Spatarius in praxi crim. t. 9. cap. 7. et seq., saying ardently that it is practiced throughout the whole world in all courts, that by this right the Accused be permitted to use it short of a full proof, where a most grave punishment is imminent. Bassaeus v. Reus, num. 4., together with Reginald. t. 2. l. 24. cap. 3. sect. 3. and others, mildly follows him, whom Diana p. 1. tract. 15. resol. 27. praises, proclaiming that opinion most probable and safe in practice.

To all these I subscribe. Wherefore confessors ought not to force penitents to confess, if they have hope of escaping death, mutilation, the galleys, confiscation, or some grave disgrace, as Sà admonishes. But the more do I adhere to this opinion, since I see that it accords with the mind of the Seraphic Doctor, who even supplies an argument for this opinion.

He therefore says, in 4. dist. 17. p. 2. art. 1. quaest. 1. in corpore, that to confess one's sins to men is not dictated by nature, except in a general way, insofar as nature dictates that one must be reconciled to God by all the means instituted by the Divine majesty; and ad 4. he says that the accusation and disclosure of one's own sin for one's salvation is conformable to nature, if it be necessary by the institution of God, just as the disclosure of a wound, even in a shameful part, for the necessary remedy is conformable to nature; but that otherwise it is in accord with nature to blush and not disclose one's crime.

AND if it were for condemnation, it would be against nature; but by divine necessity it profits, that glory be given to God, according to that Iosue 7. Da gloriam Deo, confitere quid feceris (Give glory to God, confess what thou hast done), which he had also said, the foundation being 4. and in confessionali, cap. 1. particula 5. Now the confession which Josuë demanded from Achan was when the theft was already made known before the people by lots, a divine miracle revealing it. Therefore S. Bonavent. everywhere infers that, by Divine decree, that confession from Achan was established, required, and extorted; otherwise he would not have been bound. Wherefore the Clavis Regia ineptly brings forward this passage, that it may conclude that it is lawful absolutely to extort a confession from an accused person.

From these things is drawn a most valid reason, which the authors of our opinion extol in Diana. That which is against nature is not to be done, unless God establish honesty in it and command it; but to deliver oneself to death, or to grave loss of life, or indeed even of honor and possessions, is against nature; nor is God found to have commanded that we disclose our hidden sin, from which our ruin would flow: Ergo. Let them then find for themselves the law of God compelling to this, as it had to be found for sacramental confession of hidden sins (as D. Bonaventure says), and the more is it required, the graver this confession is.

ALL the adversaries answer in droves that the Judge has from God the power of judging, as is said, Rom. 13. et Sap. 6. et Psalm. 2.; and therefore, since a matter not juridically presented cannot be judged, he can question, and the accused is bound to obey him as a superior; nor can it be that the Judge have the power of questioning and the Accused the power of keeping silent; otherwise there will be a war just on both sides. This is the Achilles of the adversaries. This venerable asylum.

Yet it is an unwarlike defense. For first I say that, since the sin is in the knowledge of one witness, it is not yet public but hidden, as is gathered from C. Inquisitionis, de accusat. Therefore the Accused is questioned against the law of nature.

FURTHER, it is not repugnant that there be a war just on both sides, just as it is lawful for the Judge to forbid a condemned man under the last punishments to flee, and the Accused can flee, as Pesantius notes, quaest. 77. quaest. unica, and the precept in such a case can be judged given for terrifying the Accused. So Sancius, Reginaldus, Lessius, and others in Diana. For no one is bound to furnish arms against himself for his own killing, or to deprive himself of his goods, or to throw himself into prison.

In the same way, however, they do who disclose their sin when it is not fully proved: and indeed, as long as there is hope of escaping, it is safest to keep this precept, which scarcely one in a thousand would wish to observe, because it is against the dictate of nature; but human precepts ought to be conformable to the law of nature, not above it or against its powers.

MOREOVER no one in criminal matters is bound, or can be compelled, to testify against his kinsmen, as is clear from Leg. 4. ff. de Testibus, when the truth can be had otherwise, as Lazarius Papiensis teaches, lib. de quaest. canon. sect. 3. quaest. 11., and Rodriquez, T. 1. Summae cap. 69., except in a cause of faith, or on account of the good of the Republic, or of the Prince. But who is more akin to me than I am to myself? Nor say that the law speaks of hidden crimes. For it is against it, otherwise there would be no benefit of the law toward kinsmen; for indeed even strangers cannot be compelled to disclose hidden crimes.

FOR these reasons, according to others also, the Accused is not bound at least to answer for the avoiding of a grave temporal punishment; nevertheless, if the questioning be for a spiritual punishment, such as irregularity, excommunication, or interdict, which are easily removed and are rather medicines than punishments, it is otherwise. For this they bring forward Abbas, in cap. cum super, de confess.; Angelus, v. confessio delicti; Sylvest., v. delicti confessio quaest. 1.; Armilla, ibi, quaest. 8.; Alcozer., Summae cap. 16. §. et reo; Lessius, l. 2. cap. 31. dub. 3. num. 16.; Filliuc., tract. 40. in octavum Praeceptum Decal. cap. 9. num. 266.; Sà, v. reus.; Petrus Navar., l. 2. de restit. cap. 4. num. 136. Also Navar. is cited, C. Inter verba, coroll. 64. num. 733.; Vega, Summae cas. l. 5. casu 603.

FINALLY Fagundez also judges it most probable, in octavum praeceptum Decal. l. 8. cap. 31. a num. 11., and Bictus does not reject it, quaest. 81. num. 21.; who adds, num. 25., that even one convicted can deny the external fact, if it be not criminal, as when he killed a man thinking it to be a wild beast. So also others with Diana, 3. p. Tract. 5. resol. 66.

The opposing arguments collapse in four words, saying that, even given that the Judge use his right to question, and the Accused use his right to save his life, etc., and hence a war can be waged and carried on justly on both sides by reason of probability; nevertheless the right of nature to preserve life is stricter than that of obeying the Judge, because the former is merely natural; the latter, however, is mixed with human law, or with power and human law compelling to confession.

But as to what they infer, that shortly the places will be filled with evildoers, as is gathered from C. cum dilecti, de accusat. et cap. 2. de confession. — I say that this follows per accidens, for the wicked are not to be extirpated for any reason whatsoever, but by the best right.

Much less, however, is the Accused bound — indeed even a witness — to confess, if there be doubt whether the inquiry is juridical. So commonly in Baffaeo.

Whether an ACCUSED, defamed in one crime, can also be questioned about others.

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

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

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

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

Whether one convicted of a crime can be questioned about hidden associates, of whom there is no defamation.

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

The common and true opinion denies it (except heresy, lèse-majesté, treason against the fatherland, and the coining of false money.) So Caietanus, 1. 2. quaest. 69. art. 1.; Salon., ibi, controv. 8.; Aragon., ibi dub. 3.; Bannes, disp. 1.; Sotus, l. 5. de iustitia, quaest. 6. art. 2. concl. 5.; Navar., Summae Lat. cap. 18. num. 58. et in C. inter verba, 11. quaest. 3. concl. 6. corrolario 49. num. 584.; Baff., num. 7.; Tolet., l. 5. Summae cap. 58.; Sà, v. Iudicium, num. 15.; Angel., v. confessio delicti, §. 4.; Petrus Navar., l. 2. de restit. cap. 4. p. 2. disp. 5. num. 173.; and others, as is clear from in Leg. finali, Cod. de accusat. et Cod. repetita, ff. de quaest. And from Canon Law, C. Nemini 15. quaest. 3., there: Nemini (except for the crime of lèse-majesté) ought credit be given concerning another's crime on one's own confession: since confession of this, and of every matter, is perilous, and ought not to be admitted against anyone. And the same is had in Cod. Monasterium de confessis. But how it is perilous, the Emperor Severus teaches, Leg. 1. ff. de quaest. §. Divus Antoninus, because the accused can seize an occasion of avenging himself upon his enemies, or upon those whose help he sought and they refused, by making them partners of his crime.

This is indeed the opinion of D. Bonav.; for in 4. dist. 21. p. 2. art. 1. quaest. 3., where, though he speaks of sacramental confession, he nevertheless denies that the crimes of others can be uncovered, while we can reveal our own without those of others: and in dist. 19. dub. 5., speaking of the Judge, he implies that the same is to be said proportionally of him as of confession.

This opinion they maintain commonly, cited by Farinac., quaest. 43.; for according to the statutes of both laws one cannot be questioned about the associates of others, as D. Bonaventure also teaches, expounding that passage of Deuter. 24.

They except, however, the case where the crime is such that it cannot be done mortally without an associate, e. g. such a robbery.

Similarly in the falsification of a Scripture not pertaining to oneself, or in the examination of a false witness at the instances of others; for inquiry must be made at whose instance he deposed falsely. Similarly in a homicide who had no cause; for inquiry can be made of the one who ordered it, Farinac., quaest. 43. num. 91., citing others.

Bictus nevertheless concludes, quaest. 80. num. 36., that by custom it is observed that one convicted be questioned about his accomplices and abettors and favorers, as very many have it, cited by Guze, defensione 30. cap. 9., Gandinus Iacobus de Belvis, and Blanch., tract. de Inditiis, num. 374., and Vulpel. and Mascar., de prob. concl. 1311. vol. 3., who says it is thus observed in the general custom of Italy. And Baiard., who refers this to Clar., quaest. 21., says he has seen the same observed in whatsoever crime; and Cason. asserts this most recently, tract. de torm. cap. 16. num. 6., and Giacharius ad Clarum, who nevertheless says that at Milan this custom is not observed, but the common law, except in certain excepted cases; and he adds that, where there is no such custom, it is laudable to stand by the common law.

Bictus indeed admonishes, num. 38., the Judges to beware, even where this custom exists, of suggestion, or of naming any person, as Chart. and Ambrosin. also admonish, de modo formandi processus in foro, l. 6. cap. 4. num. 10., unless sufficient indications against that person are at hand; otherwise it would be a suggestion, and the Judge would sin gravely, and the process would be null of itself. Clar., quaest. 21., and Barac. on him, num. 28., citing Castrensis, and Fuller., teach that such a questioning would be suggestive; Farinacius also refers to others, quaest. 43. num. 132., who at num. 33. admonishes that in this case the indications must be all too manifest.

But in truth Sayrus proclaims this custom unjust, lib. 12. cap. 17. num. 9., because it is against the law of nature. So also Salon., 2. 2. quaest. 69. art. 2. controu. 8.; Caietanus there; Sotus, lib. 5. de Iustitia, quaest. 6. art. 2. concl. 5.; and others cited by Fagundez, in 8. praeceptum, l. 8. cap. 34. num. 13. They understand it, however, of private crimes, which do not require an accomplice, as simple homicide, theft, etc.; for in crimes that require an associate, as sodomy, adultery, highway robbery, one may question about the associates, and much more in the excepted cases against the Republic, as conspiracies, treasons, false coinings, etc., as I said.

Whether an Accused who unjustly denies a true crime, for which he was to be condemned to a pecuniary punishment, is bound to pay, and whether he is liable to restitution.

The first opinion is affirmative: Molina, de iust. tomo 1. tract. 2. disp. 95.; Soto, l. 1. quaest. 6. art. 6.; Castridel., paen. l. 2. cap. 12.; Layman, l. 3. sect. 5. tract. 2. cap. 7. num. 4.

But the opposite opinion is that of Tanner, 2. 2. disp. 4. quaest. 6. dub. 2. num. 76.; Nauarr, cap. 18. ad num. 46.; Azor, t. 1. l. 5. cap. 8. quaestio 5.; Vazquez, prima secundae, disp. 175. cap. 12.; Less., l. 2. cap. 13. dub. 10.; Sanchez, Summ. tom. 1. l. 2. cap. 22. num. 22., and lib. 10. de matrim. disput. 8. num. 14.; Medina, lib. 1. Summae cap. 14. §. is; Angles, in flor. 2. p. de restit. legis paen. art. un. diff. un. concl. 3. fol. 248.; Aragon., 2. 2. quaest. 62. art. 3. fol. 228., and there Salon, controu. 2.; Bannes, art. 3. disp. 2.; Lud. Lopez, p. 1. Instruct. cap. 159.; Rodriquez, T. 1. Sum. in secunda edit. cap. 186. num. 6.; Graff, p. 1. decis. l. 3. cap. 7. num. 25.; Azor, t. 1. l. 5. cap. 8. quaestio 5., and l. 8. cap. 12. quaest. 5.; Vasquez, prima 2. disp. 175. cap. 12. num. 13.; Fagundez, in octavum praeceptum decal. l. 8. cap. 30.; Palac., l. 4. de contract. cap. 5. resol. 52., and p. 4. Tract. 4. resol. 65., where he reports that one condemned to a pecuniary punishment appeals unjustly; Diana, p. 3. Tract. 5. resol. 52., and p. 4. Tract. 4. resol. 65., where he reports that the opinion of Layman is that he is bound to the punishment by force of the crime, as imposed upon him by that very fact, not at the discretion of the Judge to be inflicted. Bassaeus makes an exception, num. 17., namely that he would not be bound before the sentence.

Yet he is bound, they say, to the costs of the suit, says Diana, tract. 5. p. 3. resol. 52., with Sanchez, de matrimonio l. 10. d. 8. num. 14.

Hence also Tanner, num. 8., and others with Azor ad 4., pursue the point: Less., lib. 2. cap. 13. dub. 10. num. 7.; Granado, prima 2. controu. 7. tract. 3. p. 1. disput. 14. sect. 2.; Vasquez, p. 2. disp. 168. num. 30.; Sala, de leg. disp. 13. sect. 8. num. 105.; Sà, verbo restit. num. 46., and v. poena, num. 14.; Diana, p. 1. Tract. 10. resol. 23., and p. 3. Tract. 5. resol. 52.: that a Fiscal who does not accuse, or a Judge who does not condemn — who are the cause of injustice, so that the Accused is not condemned to a pecuniary punishment — is not bound to restitution. Say the same of the keeper of the woods who does not accuse the one cutting the wood. The reason is that these do not sin against commutative or distributive justice, but against public vindicative justice, and the treasury has no right to the punishment directly, but only indirectly, and by means of the sentence of the Judge. Therefore a Judge without a sentence is not bound by justice to exact that punishment.

Whether an Accused who denies the truth unduly, that he may be condemned, is bound to retract before the end of the trial.

They affirm: Sayrus, l. 12. cap. 17. num. 13.; Angles, in flor. 2. p. q. de correct. fraterna, art. 3. diffic. 7.; Malder., 2. 2. tract. 6. cap. 3. dub. 1. assert. 4.; and others cited by Sanchez. But Sanchez, cited above, steadily denies, citing Philiarcus, Bonac., Tract. de Legibus disp. 10. quaest. 3. punct. 1. num. 8.; Azor., p. 3. l. 13. cap. 25. dub. 5., who nevertheless adds that the confessor is bound to admonish the accused to be ready for the truth if he is questioned again. Yet this displeases Diana, tract. 15. resol. 26. p. 1., and deservedly, because it exposes the Accused to peril; but it is enough to admonish him to amendment. The same think all who deny that he is bound to confess the truth in a capital case: Panorm., in C. cum super de confess.; Angelus, v. Confessio delicti; Sylvest., ibidem; Petrus Navar., l. 2. de restit. cap. 4. a num. 142.; and Sà judges it probable, v. Iudex; Less., dub. 3. cap. 31.; Tanner., disp. 4. quaest. 5. Their reason is that in every other matter extreme necessity excuses from payment of a debt. Therefore Sà admonishes confessors not to compel an accused acting on this opinion. Bassaeus also admonishes this, v. Reus, num. 5.

THIS second opinion holds much more after the sentence has been given; for then the judgment is finished, and he has ceased in that cause to be Judge, as S. Antonin. weighs, 3. p. tit. 9. cap. 16. §. 8.; Sylvester, v. iudicium in fine; Diana with Sanchez above; and it is the text in Leg. Iudex, ff. de re iudiciaria; and consequently the accused is no longer bound to answer the judge, Navar., Man. cap. 25. numero 38.; Rodriquez, tomo 2. quaestione 18. art. 9.; Pingianus, in pract. crim. can. cap. 3. fol. 258.; Segura Davolos, in direct. iudicii, cap. 17. num. 36.; Villalobos, tomo 2. tract. 16. diff. 3. num. 4; Diana, p. 3. tract. 5. resol. 103.; Dictus, quaest. 81. num. 10., against Ledesma, tomo 2. tract. 8. cap. 24.; Salon, 2. 2. quaest. 69. art. 2. concl. 3.; Vega, Tom. 2. cap. 89. casu 2. et 3.; Bannes, 1. 2. quaest. 69. art. 2.; Medina, in Summa, l. 1. cap. 14. §. 35.; Corduba, Sum. quaest. 64 p. 2.; and others who relied on this reason: because in such a case he who denied his true crime, and yet is condemned to death, exposes himself as one unjustly condemned by the judge, and therefore defames him and stirs up the people against him.

BUT it is answered that no infamy is thence brought upon the Judge, or even upon the witnesses. For the Accused are wont to deny, and the presumption stands in place of the judge's sentence. Therefore judges should beware lest they lead accused of this kind to a recantation.

Sanchez ADDS, num. 12., that if the Accused has by force of torture imposed upon himself a false crime, for which he is condemned, he is not bound to retract, unless the infamy would redound to others.

Whether, if the Accused be questioned again, he may give only a relative answer, saying, As I answered.

They SUPPOSE that the Judge is given the right to compel the accused to answer clearly, so that he be tortured if he will not answer: Chart., in praxi interr. reorum, l. 3. cap. 2. num. 11. et 25.; Iason, in Leg. Praescriptione, Cod. si contra ius vel util. publ.; Baldus, leg. Barb.; and Boss., tit. de responsis reo faciendis, num. 4. And the aforesaid torture is given to the accused, not for eliciting the truth about the crime; for to that effect preceding indications sufficient for torture are required, as Clarus says with the common view, §. fin. quaest. 64., and Chart. above num. 4. But torture in this case is given for extorting a precise assertive or negative answer, Carrer. Paris. de Pat., Bald., Bossius, Brunus, Clarus, Cason, cited by Chart. above. Indeed Follerus and Millcius add with him that an Accused refusing to answer is to be punished as a criminal; but this is admitted in a civil matter, not in criminal causes, as Socinus, Bettandus, and Chart. note, where above num. 9.; for in criminal causes silence is an indication for torture.

THEREFORE, for our matter: in the case where the Judge again wishes to examine, whether he may answer relatively so dryly: I say, as I answered before; whether the Judge is bound to accept such an answer.

MANY, whom Chart. follows, loc. cit. l. 3. cap. 2. num. 83. et 84., say the Judge can again require that he answer integrally.

I SUPPOSE that the accused can ask that his first answers be read out, Boss., tit. de respons. a reo facienda, num. 3., and others cited by Chart., num. 86.

He can also answer with a protestation, as he now recollects; but refer himself to the first answers, about which he recollected better.

But beware that at times the judge, whether covetous of money or urged on by others, presses the accused too severely; and then indeed, if the accused proceeds candidly, he is not bound to answer, as Menochius and others cited by Chartar. note, num. 87.

AND if the Accused doubts whether the Judge interrogate him first and second, he is not bound to answer. So Bannes, Henriquez, Less., Salas, Sanchez, Sotus, and others cited by them. And Diana asserts this as more probable, p. 3. tract. 5. resol. 106., bringing forward Lessius, l. 2. cap. 31. dub. 3.; Sanchez, T. 2. l. 6. cap. 3. num. 24.; Salas, p. 2. quaest. 21. tract. 8. d. un. sect. 17. num. 155.; Henriquez, l. 14. cap. 3. num. 3. in Gloss. littera X.; Bannes, Soto, Medina, and others, against Sancius, Select. disp. 43. num. 28. The reason is that it is a greater evil that a man be killed on my confession, than that I not obey the Judge, uncertain in possession of the right of questioning him. Moreover, everyone is presumed good until he be proved bad; and the laws favor the accused as one in possession.

But the Accused thus presumptively in possession can require that the depositions of the witnesses be given to him; and as long as they are not given, he can reasonably doubt whether he is being questioned lawfully. So Aldiete. of the Society of Jesus, de Religiosa disciplina tuenda, l. 2. cap. 4. num. 7.; Caietanus, and Aragon., 2. 2. quaest. 69. art. 2.; Ioan. de Cruz, in direct. p. 1. tract. 8. art. 8. dub. 9. concl. 1.; Sanchez, in Summa t. 1. disp. 3. cap. 7. num. 15.; Salon., 2. 2. quaest. 69. art. 2. controv. 2.; Lessius, l. 2. cap. 31. dub. 3. num. 10.; Segura de Auolos., in direct. iud. p. 2. cap. 24. num. 3.; Miranda, in ord. iudic. T. 2. quaest. 19. art. 13.; Diana, p. 3. Tract. 5. resol. 91., where, with Salzedo, in pract. cap. 126., he praises the rite of certain Judges who, before the confession of the Accused, order the Tabellion or Notary that the depositions of the witnesses be read in the presence of the Accused without their names, whence he may have proven what stands against him.

ADVERTISE, however, that the Doctors alleged assert the same even concerning regular Judges, as Diana notes. Wherefore Ioseph a S. Maria is deceived, in Tribun. Relig. tract. 4. cap. 17. §. 3., saying these rules do not obtain in the judgment of Regulars. To them add Navar., in Summa, cap. 25. num. 35.; Rodriquez, in ord. iud. cap. 10. n. 3.; Bonacina, in Decalogum disp. 10. q. 3. p. 2.; Dictus, q. 81. num. 37.

NEITHER does it avail in this case to say that the Prelate is in possession of superiority, as Lorca objects, 2. 2. sect. 3. disp. 53. num. 8. et 9. For Dictus answers that this is true in simple extrajudicial obedience, of which the objection is verified; but otherwise in judicial obedience, in which a superior, even a Regular, is not in possession unless the order of law is observed.

Diana, 4. p. Tract. 8. resol. 130., treats of this question again, p. 4. tract. 8. resol. 130., treating of the judgment of the Holy Inquisition, where greater severity is required; and he says that in that forum it is not required that the witnesses and other indications be made manifest. Lodovicus Peguera notes the same, in praxi crim. cap. 12. §. 5. num. 13. For the rest he refers himself to those things which he had said, tract. 5. resol. 91., in 3. p.; and he brings forward also Suarez de Paz., in praxi, tom. 3. p. 5. cap. 3. num. 14., constantly confirming that it is certain the Judge is bound to notify the Accused of the depositions of all the witnesses; otherwise he is most wretchedly deceived.

Whence you have that it was badly said, quaest. 81. num. 39., that it would drive us to straits to say that Diana moderates that opinion which he had handed down in that resol. 91., and to think it enough if the Accused be told by the Judge that he is held, so that proceedings be taken against him; and he brings forward also Bouentius, in direct. p. 2. cap. 55., verbo Reus.

How the ACCUSED ought to conduct himself in the examination, when pressed by the Judge with iniquitous interrogations.

Judges are accustomed to tender to the Accused an oath concerning the truth to be told, according to the opinion of Bartolus on the Leg. Inter omnes, §. recte, ff. de furtis, and the common opinion at August. ad Ang. de malef. on the verse, Comperuerunt. And in the Leg. 1. Cod. de iuram. calumn. where Baldus also, who also say that this is observed throughout all Italy. So too D. Thom. 2. 2. question 69. art. 1. and 2. More on this Chartar. l. 3. cap. 3. num. 11 has.

But whatever oath may have been taken, if he is interrogated iniquitously, he is not bound to confess the truth, as Henry admonishes quodl. 1. quaest. 14. Sylvester v. Confessio delicti, quaest. 1. Petrus Nauar. l. 2. cap. 4. num. 136. it is gathered from C. Qualiter, et quando, and C. Inquisitionis, de accusat. Lessius l. 2. cap. 3. dub. 3. Tolet. Sum. l. 5. cap. 58. yet neither ought he to lie, as the Saintly Doctor says in spec. animae, cap. 1.

Then indeed the Judge does not legitimately interrogate, when he does not observe the order prescribed by the Law; but he interrogates suggestively those things which he cannot, and by seeking to extort, and by suggesting, and by deceptive cavils drawing one into snares, so that at times the Accused, reduced to straits, can neither deny, nor assert, nor keep silent, nor use any of the usual amphibologies.

Sotus l. 5. quaest. 6. art. 1. thinks that the accused cannot employ words signifying an express negation of the truth, and is bound rather to meet death. Couar. l. 1. var. cap. 2. follows; the reason is, because this is openly to lie, which is never licit.

On the contrary, they commonly grant that it is licit for him even to use those modes of speaking. Adrian. in 4. quaest. de sigillo, confess. Caietanus opusc. 17. respons. 5. Maior in 4. dist. 15. quaest. 18. Nauar. Man. cap. 12. num. 9. and cap. 18. num. 61. Valentia disp. 5. quaest. 13. p. 1. Tanner. disp. 4. quaest. 4. dub. 5. Less. de iust. cap. 31. dub. 2. and others at these places. And this is the opinion of D. Bonau. in 3. dist. 38. quaest. 2. in resolut. where he teaches, the discord between understanding and speech remaining; that all fault can be removed, and there, and dub. 3. litt. ad mendacium he requires two things; the false signification of the voice, as the material, and the wicked intention of deceiving, as the formal, which dub. 2. he calls the desire to lie. And disp. 39. art. 3. quaest. 1. fundamento 1. he brings forward that saying of D. Gregory. Words serve the intention, and God judges such words as those from which they are uttered from the innermost heart; and therefore on the ultimate foundation he says, those words, confirmed by oath, are to be measured according to the intention of the one swearing. Therefore when he is interrogated iniquitously, he can employ whatever words he pleases from the intention of signifying whatever he wants; so that just as, if no one were interrogating, he could turn those words to any sense he pleased; so also now, where the Interrogator is illegitimate. Whence Valentia answers all the objections; for that is not formally a lie in which the intention is right, although the words sound the opposite outwardly: but this is forbidden, as the Doctors say at Valentia, that the speaker should not intend to deny that which is true, and which he is bound to say, but not to use extraordinary amphibologies. Wherefore, since words are pure matter, they can take on whatever form from the intention.

Whether it be licit for the ACCUSED to appeal to another Judge.

To appeal is licit for one who has been aggrieved. For so the Apostle Act. 25. appealed to Caesar, and it is granted in dist. 2. quaest. 6. C. omnis, where Anacletus the Pope, epist. 1. says: Let every oppressed man freely, if he wishes, appeal to the judgment of Priests, and let him be prohibited by no one, but be supported and delivered by them.

And this has also been granted to Regulars, as the Sacred Congregation over Bishops and Regulars declared in the year 1587, of which Sorbus in Compend. Privilig. Mendic. v. Appellare, and Lezana notes t. 1. cap. 9. num. 7. with D. Bonau. in spec. animae, cap. 1. §. Item ex tertio.

So that not only one condemned from indicia, but even one convicted can appeal, l. 2. §. 1. where the Glossa Bart. Cyn. and Castrens. Cod. whose appell. Vivian. opinione 50. Guaz defens. 36. cap. 11. Farinac. quaest. 101. num. 131. Scacc. de appell. quaest. 17. lim. 4. num. 7. asserting this to be the common opinion.

That one who is not aggrieved cannot appeal, all teach with Baldus on the Leg. un. Bartolo Castrensi, Salyceto, Cod. whose appell. Scac. quaest. 5. num. 94. See below on the Aduocato quaest. 6.

Therefore one who has confessed, and one convicted, for that reason they say cannot appeal, unless he brings forward some grave cause. See Farinacium quaest. 101. num. 143. Scac. quaest. 17. lim. 4. num. 15.

Since therefore the Judge proceeds by the right order, and there is no cause for the Accused, because the sentence has been laid down according to the sense of the Doctors, it is not licit to appeal.

Three conditions they require for a just appeal. The first is, that it be made within ten days. The second, that the Judge be ordinary, or delegate, not arbiter. The third, that one not be appealed more than three times from the same sentence. So Tanner. disp. 4. quaest. 4. dub. 5. See other conditions in Sylvestro under the word appellatio.

But if the sentence is manifestly iniquitous, one can appeal even without those conditions. So Tanner. num. 100. with Valentia quaest. 11. p. 3.

But here a grave question occurs: Whether when the Judge has judged according to the more probable opinion, the appeal is licit.

I SUPPOSE, however, that the Judge is bound in judging to follow the more probable opinion. So commonly at Sanchez Tom. 1. Lib. 1. cap. 9. num. 37. and Dianam part. 2. Tract. 13. resol. 3.

THAT, however, in absolving and condemning he might act on a probable opinion, leaving the more probable aside, many have taught, at Sanchez num. 46. Dianam part. 2. tract. 13. resol. 3. where he reports Alvarez, Bonacina, Lorcam, Ruam, Delrium. Others subscribe to these at Dianam part. 3. in addit. secundariis, resolutione 13.

INDEED I in prima secunda, Tract. 2. disp. 17. de opinione probabili judged that in criminal matters the Judge ought to hold that opinion which favors the Accused, even if less probable. So with Diana part. 3. addit secund. resol. 13. from which it follows that if he judges, following the more probable opinion against the Accused, the latter can appeal. In this, however, there is a great controversy: Whether he can licitly appeal.

The FIRST opinion entirely denies it. So Petrus Ledesma tom. 2. tract. 8. cap. 24. concl. 8. diff. 2. adducing Bannes, and it is held by those who say the Judge is not obliged, for the favor of the Accused, to follow even a less probable opinion. Sancius in select. diff. 44. num. 52. Bonacina de Legibus, disp. 2. quaest. 4. puncto 9. num. 15. Philippus dictus noster quaest. 143. num. 6.

BUT woe, woe to the Accused, the Advocates, and the Procurators (Diana cries out, part. 3. resol. 104.) if that opinion were true. Therefore he asserts that the Accused can in this case appeal on account of a cause of blood, with Ioan de la Cruz in direct. part. 1. pract. 8. art. 3. dub. 11. concl. 2. Salon 2. 2. q. 69. art. 3. concl. 2. Sylvius inclines in 2. 2. D. Thom. quaest. 64. art. 5. and Turrianus holds it absolutely 2. 2. Tom. 2. disp. 51. dub. 1.

I ADD with Diana, against Salonium, Sylvius above, and Malderum 2. 2. tract. 6. cap. 3. dub. 4. that this is true also in civil causes, even if the inferior Judge has rendered sentence according to the more probable opinion. Which opinion Cruz holds only in the case where the appellant is in possession; but Diana says it is always true generously, provided the contrary opinion, for which the appeal is made, be probable.

YOU WILL SAY. In a civil cause the superior Judge will be bound to judge according to the more probable opinion, as you said in prima secundae, at the place cited, and the inferior has already judged according to this.

Diana answers that the Judge can judge according to a probable opinion, leaving the more probable aside, as the Doctors teach, whom he adduced in Tract. de Parlam. resol. 20. and Tract. de opinione probabili resol. 3.

But the RATIONALE in the criminal case is more solid, because it is licit to defend one's life by an honest means. Therefore the appellant, resting on a probable opinion, acts reasonably and licitly; why then is he compelled to undergo death, if he is held on a probable basis to defend his life?

THIS follows more concerning reputation than concerning the goods of riches: For reputation is a good which for the most part I preserve for myself without the loss of any good in another nearby; But riches, if they are given to me, are taken away from another.

Whether, and how, the ACCUSED can defend himself.

The ACCUSED, if he confesses the crime, will leave only slight means of defense for his cause; for in one who has confessed there are no parts for the Judge, except condemning, as Clarus notes, §. fin. quaest. 65. Farinacius quaest. 81. and others at these places.

SIMILARLY while he is convicted by two witnesses, who are contestes, as Farinac. notes, quaest. 63. num. 133. For two witnesses suffice in every cause for perfect proof, cap. in omni negotio, de testibus. But who are contestes I shall say in disp. 50.

THEREFORE the Accused can then be condemned just as if he had confessed, Leg. qui sententia, and there the Doctors Cod. de custodia reorum, cap. At si clerici. where all. See Farinac. quaest. 81.

YET by Canon law, on one convicted a lesser penalty is to be imposed, as the Doctors teach with Farinac. loco cit.

BUT the contestes ought to be sworn, and exempt from every exception, Leg. ubi numerus, ff. de testibus, cap. in omni negotio, on the same title.

The Accused is found convicted also by undoubted indicia Leg. 2. Cod. quorum appellatio. Likewise by an instrument made by mandate, or by the consent of the Accused. By these three modes he is convicted Leg. sciant cuncti, where Bal. and Sylvius in sum. Cod. de prob. and Farinacius quaest. 84.

BY the way of Notoriety also the Accused is convicted, as Boss. has, tit. de convictis, and tit. quomodo procedatur in crimine notorio. We speak, however, of a Notorious fact.

A fact is called notorious, moreover, when it has been committed before the whole people, or its greater part. So Cyn. whom Clar. follows in §. fin. quaest. 9. Farinac. quaest. 21. num 41. and others at his side.

MOREOVER, the Accused can legitimately defend himself in many ways.

The FIRST is by inducing the nullity of the process, whether by alleging a defect of jurisdiction, which is the foundation. Guaz. defens. 1. cap. 1. Bald. in Rubr. Cod. si a competente Iudice; For that is unjudged which is done by one not having the right of judging; Lib. 1. ff. haec autem, ff. quod quisque iuris.

BUT it lacks jurisdiction for many reasons, as Guaz. reports, defens. 1. cap. 21. and on the Judge suspect Laurentius a Benevento published an entire volume.

The SECOND is, if there be no constancy regarding the body of the crime, Guaz. defens. 4. Bouer. decis. 259.

The THIRD, if the Accused has not been legitimately cited, Guaz. defens. 10. Farinac. consil. 14.

The FOURTH, unless a copy of the process has been offered, Guaz. defens. 22. and 24. So Paul V. decreed in his Constitution for the Roman Curia.

There are many other modes by which the process is made null, from illegitimate testimony, series, etc.

SIMILARLY from the denial of the Accused, grave defenses are brought forth.

Therefore, when the Plaintiff, or the fisc, does not prove, and the Accused denies, the Accused is to be absolved, Clar. quaest. 62. Guaz. defensione 29.

Thus the best defense will be, if the Accused shows that what he did was done licitly, Clar. §. fin. quaest. 56. where Alexand. Iason, Decius, who says; the whole world follows this doctrine, and the fact is always to be interpreted in favor of the Accused, Guaz. defens. 29.

So also, if it is shown that the fact is not punishable, Guaz. defens. 2. even if it were otherwise punishable. But nearly all crimes are prescribed by a space of twenty years, Leg. Querela Cod. de falsis. Farinac. quaest. 10. Guaz. with others there, defens. 2.

For there are some crimes which are not prescribed, as the supposition of a birth, Farinac. quaest. 10. n. 29. Guaz. defens. 2. num. 2. Likewise not parricide, Farinac. num. 29. Guaz. num. 78. The same of the nefarious vice, Guaz. num. 29. and others there.

SIMILARLY neither the crime of lèse-majesté, heresy, assassination, false coinage, simony, abortion are ever prescribed, Guaz. num. 81. Farinac. num. 29. and 90.

There is also a good defense, if he proves that there were not present indicia sufficient for the inquisition. Clar. quaest. 20. Farinac. quaest. 1. For then there is no inquisition. See other matters in the said Tract. 8.

AS TO violent defenses of flight, breaking of prison, and the like, I have spoken in the Tract. de Legibus, disp. 5. quaest. 10. and in the Dispm. de Iudice here: and I shall speak in the following quaest.

For it is CERTAIN first, that one condemned from an iniquitous initiation of the cause, which the Judge had conducted without observing the order, can defend himself even with injury to the Judge; So D. Thom. 2. 2. quaest. 69. art. 4. Caietanus there, Sotus Lib. 5. de iust. quaest. 3. art. 4. Fagundez L. 8. cap. 32. num. 4.

But if he has been condemned through the error of the Judge, he cannot inflict violence on the Judge. So D. Thom. at the place cited. Sotus art. 5. Lessius Lib. 2. cap. 31. de Reo, et Advoc. disp. 4. num. 24. Filliucius tomo 2. tract. 40. in octavum praeceptum, cap. 9. num. 268. Innocent. in cap. Quia plerique, de Immunitate Ecclesiae. Fagundez at the place cited, num. 2.

Whether the Accused can flee, and how, and when.

The COMMON opinion of all the Doctors is that the Accused, once taken into custody and inquired against with death or mutilation, can licitly flee before the sentence. So D. Thom. 2. 2. q. 69. art. 4. ad 2. Lessius Lib. 2. cap. 31. dub. 5. num. 31. Filliucius tract. 40. in octavum praeceptum decal. cap. 9. num. 270. Couar. lib. 11. variarum, cap. 2. num. 7. Sotus lib. 5. de iustitia, quaest. 6. art. 4. Sà V. Reus, num. 9. Aragon. 2. 2. quaest. 69. art. 4. Vasquez prima secunda, disp. 174. Sylvest. et Angel. V. Fugere, Nauar. sum. Lat. cap. 17. num. 102. Driedo Lib. 2. de libertate Christiana, cap. 6. Maior 4. dist. 15. quaest. 22. Fagundez in 8. praeceptum, Lib. 8. cap. 33. Tannerus disp. 4. quaest. 4. dub. 6.

He cannot, however, injure the ministers of justice, by whom he is not injured contrary to justice, as Diana notes, part. 3. Tract. 5. resol. 102.

But when a sentence unjust has been laid down, he can flee even by injuring those resisting: for he uses his own right.

But there can be a QUESTION: whether one justly condemned to death, or to the loss of some member, or to infamy, or to the Galleys, or to perpetual imprisonment, can flee, and break the prisons.

The FIRST opinion is that of Henrici de Gandavo quodlib. 9. quaest. 25. Sylvester V. Accusatio. Couar. Lib. 1. variar. cap. 2. at Dianam, denying that such a one can flee by breaking the prison.

Yet the COMMON opinion is affirmative, as to flight. So D. Thom. 2. 2. quaest. 69. art. 4. with Caietanus there, Sotus at the place cited. Lessius num. 33. Filliucius at the place cited. Sà V. Reus. Sylvester V. Accusatio, num. 12. and at the place cited. Tabien. V. Carcer. Vasquez at the place cited. cap. 17. And commonly the Canonists on the Clementina Pastoralis de re iudicata; indeed Couar. Lib. 1. var. cap. 2. n. 11. adds that the Judge cannot punish this flight. The same Cruz teaches p. p. part. 8. art. 3. disput. 12. Villalob. tom. 2. tract. 16. diff. 11. num. 16. Sylvius 2. 2. quaest. 69. art. 4. quaestione 2. who cites Bannes, and Salonium. Azorium part. 3. lib. 13. cap. 24. Turrianus 2. 2. disp. 51. dub. 3. with others commonly, to whom Diana above, and Fagundez subscribe. All indeed agree concerning the penalty of death and mutilation.

It is PROVED from D. Thom. because no one can be compelled to something in which death follows close upon him, unless the reason of the public good demands it.

Many of these agree even concerning those condemned to prison, or perpetual exile, and servitude, or confinement to places pestilential in the air. So Lessius cap. 31. Fagundez, Salon. and others.

That he can even break the prison, Lessius, Filliucius, Nauar. Caietanus, Sotus, Salon, Sà, Vasquez above teach, and Driedo Lib. 2. de libertate Christ. cap. 6. Cruz, Villalobos, Sylvester above, and many say the same even if he has been condemned to prison for a time, Bonacina de Legibus, disp. 10. at Dianam, who subscribes with Tannerus 2. 2. disput. 4. quaest. 4. dub. 5. num. 103. and even if he has been condemned to the galleys.

From which I deduce also, against Valentia disp. 5. quaest. 13. puncto 4. Sotum, Toletum, and Gtaffium at Malderum,¹ 2. 2. Tract. 6. cap. 3. disp. 7. that instruments can be supplied to him for breaking the prison. So Maldetus, and Diana at the place cited. Villalobos, Caietanus, Vasquez, Lessius, Cruz, Sylv. Bannes, Salon. Azorius, and Turrianus above; Religious, however, must be cautioned, because fleeing they give scandals.

Sylvius ADDS that it makes no difference, even if others also flee. So also Villalob. at the place cited, and Reginaldus tract. 2. Lib. 24. cap. 7. sect. 7. num. 152. and others.

Nor will he be bound to make restitution of the damages that followed. So Diana, Cruz at the place cited. Tanacrus num. 104. Fagundez num. 15. in secundo responso, with Vasquez. The reason is, because one may assume the means necessary to a licit end.

Fagundez ADDS, with Filliucio, Angelo, Azorio, and Sayto, that it is licit to corrupt even the guards with money: But this does not please me, because the guards are bound by justice and a just oath to keep guard. Which argument Fagundez calls Achillean, who afterward too subtly says that it suffices to abstract by the intellect from inducing the guards.

He answers second, that the Accused are bound only out of Charity to avoid the sin of injustice of the guards, which they are not bound to avoid at so great an inconvenience to themselves. Therefore if, from the sole intention of procuring their liberty, not of inducing the guards to evil, they induce it, they do not sin.

Yet this answer is not good. For how can I directly induce the guards to open, and not intend to induce them to the act forbidden by oath?

Nor is it even licit to give them a sleeping potion to seize the keys, or to make them drunk, as Fagundez says num. 15. because this is mortal.

It is doubted, however, whether others can help these by filing the chains, iron, etc. All constantly deny it, at Fagundez num. 19. for this is gravely to violate the public custody to the detriment of the good of the Republic.

Nor is it the same concerning one who persuades, or supplies the iron; for he is a mere instrument, and has no other malice than that of the principal cause; But the breakers are the principal causes.