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ST. THOMAS AQUINAS, SUMMA THEOLOGICA -
QUESTIONS 67-71 QUESTION OF THE INJUSTICE OF A JUDGE, IN JUDGING (FOUR ARTICLES)
We must now consider those vices opposed to commutative justice, that consist in words injurious to our neighbors. We shall consider (1) those which are connected with judicial proceedings, and (2) injurious words uttered extra-judicially.
Under the first head five points occur for our consideration: (1) The injustice of a judge in judging; (2) The injustice of the prosecutor in accusing; (3) The injustice of the defendant in defending himself; (4) The injustice of the witnesses in giving evidence; (5) The injustice of the advocate in defending.
Under the first head there are four points of inquiry: (1) Whether a man can justly judge one who is not his subject? (2) Whether it is lawful for a judge, on account of the evidence, to deliver judgment in opposition to the truth which is known to him? (3) Whether a judge can justly sentence a man who is not accused? (4) Whether he can justly remit the punishment?
P(2b)- Q(67)- A(1) Whether a man can justly judge one who is not subject to his jurisdiction?
P(2b)- Q(67)- A(1)- O(1) —
It would seem that a man can justly judge one who is not subject to his jurisdiction. For it is stated (Daniel 13) that Daniel sentenced the ancients who were convicted of bearing false witness.
But these ancients were not subject to Daniel; indeed they were judges of the people. Therefore a man may lawfully judge one that is not subject to his jurisdiction.
P(2b)- Q(67)- A(1)- O(2) —
Further, Christ was no man’s subject, indeed He was “King of kings and Lord of lords” ( Revelation 19:16). Yet He submitted to the judgment of a man. Therefore it seems that a man may lawfully judge one that is not subject to his jurisdiction.
P(2b)- Q(67)- A(1)- O(3) —
Further, according to the law [*Cap. Licet ratione, de Foro Comp.] a man is tried in this or that court according to his kind of offense. Now sometimes the defendant is not the subject of the man whose business it is to judge in that particular place, for instance when the defendant belongs to another diocese or is exempt. Therefore it seems that a man may judge one that is not his subject.
P(2b)- Q(67)- A(1) —
On the contrary, Gregory [*Regist. xi, epist. 64] in commenting on Deuteronomy 23:25, “If thou go into thy friend’s corn,” etc. says: “Thou mayest not put the sickle of judgment to the corn that is entrusted to another.”
P(2b)- Q(67)- A(1) —
I answer that, A judge’s sentence is like a particular law regarding some particular fact. Wherefore just as a general law should have coercive power, as the Philosopher states (Ethic. x, 9), so too the sentence of a judge should have coercive power, whereby either party is compelled to comply with the judge’s sentence; else the judgment would be of no effect. Now coercive power is not exercised in human affairs, save by those who hold public authority: and those who have this authority are accounted the superiors of those over whom they preside whether by ordinary or by delegated authority. Hence it is evident that no man can judge others than his subjects and this in virtue either of delegated or of ordinary authority.
P(2b)- Q(67)- A(1)- RO(1) —
In judging those ancients Daniel exercised an authority delegated to him by Divine instinct. This is indicated where it is said (Daniel 13:45) that “the Lord raised up the... spirit of a young boy.”
P(2b)- Q(67)- A(1)- RO(2) —
Wherefore it is necessary that the arbitrator should be upheld by a penalty, since the arbitrators through not exercising authority in the case, have not of themselves full power of coercion. Accordingly in this way did Christ of his own accord submit to human judgment: and thus too did Pope Leo [*Leo IV] submit to the judgment of the emperor [*Can. Nos si incompetenter, caus. ii, qu. 7].
P(2b)- Q(67)- A(1)- RO(3) —
The bishop of the defendant’s diocese becomes the latter’s superior as regards the fault committed, even though he be exempt: unless perchance the defendant offend in a matter exempt from the bishop’s authority, for instance in administering the property of an exempt monastery. But if an exempt person commits a theft, or a murder or the like, he may be justly condemned by the ordinary.
P(2b)- Q(67)- A(2) Whether it is lawful for a judge to pronounce judgment against the truth that he knows, on account of evidence to the contrary?
P(2b)- Q(67)- A(2)- O(1) —
It would seem unlawful for a judge to pronounce judgment against the truth that he knows, on account of evidence to the contrary. For it is written ( Deuteronomy 17:9): “Thou shalt come to the priests of the Levitical race, and to the judge that shall be at that time; and thou shalt ask of them, and they shall show thee the truth of the judgment.”
Now sometimes certain things are alleged against the truth, as when something is proved by means of false witnesses. Therefore it is unlawful for a judge to pronounce judgment according to what is alleged and proved in opposition to the truth which he knows.
P(2b)- Q(67)- A(2)- O(2) —
Further, in pronouncing judgment a man should conform to the Divine judgment, since “it is the judgment of God” ( Deuteronomy 1:17). Now “the judgment of God is according to the truth” ( Romans 2:2), and it was foretold of Christ ( Isaiah 11:3,4): “He shall not judge according to the sight of the eyes, nor reprove according to the hearing of the ears. But He shall judge the poor with justice, and shall reprove with equity for the meek of the earth.” Therefore the judge ought not to pronounce judgment according to the evidence before him if it be contrary to what he knows himself.
P(2b)- Q(67)- A(2)- O(3) —
Further, the reason why evidence is required in a court of law, is that the judge may have a faithful record of the truth of the matter, wherefore in matters of common knowledge there is no need of judicial procedure, according to 1 Timothy 5:24, “Some men’s sins are manifest, going before to judgment.” Consequently, if the judge by his personal knowledge is aware of the truth, he should pay no heed to the evidence, but should pronounce sentence according to the truth which he knows.
P(2b)- Q(67)- A(2)- O(4) —
Further, the word “conscience” denotes application of knowledge to a matter of action as stated in the P(1), Q(79) , A(13) . Now it is a sin to act contrary to one’s knowledge. Therefore a judge sins if he pronounces sentence according to the evidence but against his conscience of the truth.
P(2b)- Q(67)- A(2) —
On the contrary, Augustine [*Ambrose, Super Psalm 118, serm. 20] says in his commentary on the Psalter: “A good judge does nothing according to his private opinion but pronounces sentence according to the law and the right.” Now this is to pronounce judgment according to what is alleged and proved in court. Therefore a judge ought to pronounce judgment in accordance with these things, and not according to his private opinion.
P(2b)- Q(67)- A(2) —
I answer that, As stated above ( A(1) ; Q(60) , AA(2),6 ) it is the duty of a judge to pronounce judgment in as much as he exercises public authority, wherefore his judgment should be based on information acquired by him, not from his knowledge as a private individual, but from what he knows as a public person. Now the latter knowledge comes to him both in general and in particular — in general through the public laws, whether Divine or human, and he should admit no evidence that conflicts therewith — in some particular matter, through documents and witnesses, and other legal means of information, which in pronouncing his sentence, he ought to follow rather than the information he has acquired as a private individual. And yet this same information may be of use to him, so that he can more rigorously sift the evidence brought forward, and discover its weak points. If, however, he is unable to reject that evidence juridically, he must, as stated above, follow it in pronouncing sentence.
P(2b)- Q(67)- A(2)- RO(1) —
The reason why, in the passage quoted, it is stated that the judges should first of all be asked their reasons, is to make it clear that the judges ought to judge the truth in accordance with the evidence.
P(2b)- Q(67)- A(2)- RO(2) —
To judge belongs to God in virtue of His own power: wherefore His judgment is based on the truth which He Himself knows, and not on knowledge imparted by others: the same is to be said of Christ, Who is true God and true man: whereas other judges do not judge in virtue of their own power, so that there is no comparison.
P(2b)- Q(67)- A(2)- RO(3) —
The Apostle refers to the case where something is well known not to the judge alone, but both to him and to others, so that the guilty party can by no means deny his guilt (as in the case of notorious criminals), and is convicted at once from the evidence of the fact. If, on the other hand, it be well known to the judge, but not to others, or to others, but not to the judge, then it is necessary for the judge to sift the evidence.
P(2b)- Q(67)- A(2)- RO(4) —
In matters touching his own person, a man must form his conscience from his own knowledge, but in matters concerning the public authority, he must form his conscience in accordance with the knowledge attainable in the public judicial procedure.
P(2b)- Q(67)- A(3) Whether a judge may condemn a man who is not accused?
P(2b)- Q(67)- A(3)- O(1) —
Therefore it seems that a man may pass sentence of condemnation on a man even though there be no accuser.
P(2b)- Q(67)- A(3)- O(2) —
Further, an accuser is required in judicial procedure in order that he may relate the crime to the judge. Now sometimes the crime may come to the judge’s knowledge otherwise than by accusation; for instance, by denunciation, or by evil report, or through the judge himself being an eye-witness. Therefore a judge may condemn a man without there being an accuser.
P(2b)- Q(67)- A(3)- O(3) —
Therefore it is not contrary to justice for a man to condemn anyone as judge while being at the same time his accuser.
P(2b)- Q(67)- A(3) —
On the contrary, Ambrose in his commentary on Corinthians 5:2, expounding the Apostle’s sentence on the fornicator, says that “a judge should not condemn without an accuser, since our Lord did not banish Judas, who was a thief, yet was not accused.”
P(2b)- Q(67)- A(3) —
I answer that, A judge is an interpreter of justice.
Wherefore, as the Philosopher says (Ethic. v, 4), “men have recourse to a judge as to one who is the personification of justice.” Now, as stated above ( Q(58) , A(2) ), justice is not between a man and himself but between one man and another. Hence a judge must needs judge between two parties, which is the case when one is the prosecutor, and the other the defendant.
Therefore in criminal cases the judge cannot sentence a man unless the latter has an accuser, according to Acts 25:16: “It is not the custom of the Romans to condemn any man, before that he who is accused have his accusers present, and have liberty to make his answer, to clear himself of the crimes” of which he is accused.
P(2b)- Q(67)- A(3)- RO(1) —
God, in judging man, takes the sinner’s conscience as his accuser, according to Romans 2:15, “Their thoughts between themselves accusing, or also defending one another”; or again, He takes the evidence of the fact as regards the deed itself, according to Genesis 4:10, “The voice of thy brother’s blood crieth to Me from the earth.”
P(2b)- Q(67)- A(3)- RO(2) —
Hence a gloss on Genesis 4:10, “The voice of thy brother’s blood,” etc. says: “There is no need of an accuser when the crime committed is notorious.” In a case of denunciation, as stated above ( Q(33) , A(7) ), the amendment, not the punishment, of the sinner is intended: wherefore when a man is denounced for a sin, nothing is done against him, but for him, so that no accuser is required. The punishment that is inflicted is on account of his rebellion against the Church, and since this rebellion is manifest, it stands instead of an accuser. The fact that the judge himself was an eyewitness, does not authorize him to proceed to pass sentence, except according to the order of judicial procedure.
P(2b)- Q(67)- A(3)- RO(3) —
God, in judging man, proceeds from His own knowledge of the truth, whereas man does not, as stated above ( A(2) ).
Hence a man cannot be accuser, witness and judge at the same time, as God is. Daniel was at once accuser and judge, because he was the executor of the sentence of God, by whose instinct he was moved, as stated above ( A(1), ad 1).
P(2b)- Q(67)- A(4) Whether the judge can lawfully remit the punishment?
P(2b)- Q(67)- A(4)- O(1) —
It would seem that the judge can lawfully remit the punishment. For it is written ( James 2:13): “Judgment without mercy” shall be done “to him that hath not done mercy.” Now no man is punished for not doing what he cannot do lawfully. Therefore any judge can lawfully do mercy by remitting the punishment.
P(2b)- Q(67)- A(4)- O(2) —
Further, human judgment should imitate the Divine judgment. Now God remits the punishment to sinners, because He desires not the death of the sinner, according to Ezekiel 18:23. Therefore a human judge also may lawfully remit the punishment to one who repents.
P(2b)- Q(67)- A(4)- O(3) —
Further, it is lawful for anyone to do what is profitable to some one and harmful to none. Now the remission of his punishment profits the guilty man and harms nobody. Therefore the judge can lawfully loose a guilty man from his punishment.
P(2b)- Q(67)- A(4) —
On the contrary, It is written ( Deuteronomy 13:8,9) concerning anyone who would persuade a man to serve strange gods: “Neither let thy eye spare him to pity and conceal him, but thou shalt presently put him to death”: and of the murderer it is written ( Deuteronomy 19:12,13): “He shall die. Thou shalt not pity him.”
P(2b)- Q(67)- A(4) —
I answer that, As may be gathered from what has been said ( AA(2),3 ), with regard to the question in point, two things may be observed in connection with a judge. One is that he has to judge between accuser and defendant, while the other is that he pronounces the judicial sentence, in virtue of his power, not as a private individual but as a public person. Accordingly on two counts a judge is hindered from loosing a guilty person from his punishment. First on the part of the accuser, whose right it sometimes is that the guilty party should be punished — for instance on account of some injury committed against the accuser — because it is not in the power of a judge to remit such punishment, since every judge is bound to give each man his right. Secondly, he finds a hindrance on the part of the commonwealth, whose power he exercises, and to whose good it belongs that evil-doers should be punished.
Nevertheless in this respect there is a difference between judges of lower degree and the supreme judge, i.e. the sovereign, to whom the entire public authority is entrusted. For the inferior judge has no power to exempt a guilty man from punishment against the laws imposed on him by his superior. Wherefore Augustine in commenting on John 19:11, “Thou shouldst not have any power against Me,” says (Tract. cxvi in Joan.): “The power which God gave Pilate was such that he was under the power of Caesar, so that he was by no means free to acquit the person accused.”
On the other hand the sovereign who has full authority in the commonwealth, can lawfully remit the punishment to a guilty person, provided the injured party consent to the remission, and that this do not seem detrimental to the public good.
P(2b)- Q(67)- A(4)- RO(1) —
There is a place for the judge’s mercy in matters that are left to the judge’s discretion, because in like matters a good man is slow to punish as the Philosopher states (Ethic. v, 10). But in matters that are determined in accordance with Divine or human laws, it is not left to him to show mercy.
P(2b)- Q(67)- A(4)- RO(2) —
God has supreme power of judging, and it concerns Him whatever is done sinfully against anyone. Therefore He is free to remit the punishment, especially since punishment is due to sin chiefly because it is done against Him. He does not, however, remit the punishment, except in so far as it becomes His goodness, which is the source of all laws.
P(2b)- Q(67)- A(4)- RO(3) —
Hence the text, after appointing the punishment of the seducer, adds ( Deuteronomy 13:11): “That all Israel hearing may fear, and may do no more anything like this.” He would also inflict harm on the injured person; who is compensated by having his honor restored in the punishment of the man who has injured him.
QUESTION OF MATTERS CONCERNING UNJUST ACCUSATION (FOUR ARTICLES)
We must now consider matters pertaining to unjust accusation. Under this head there are four points of inquiry: (1) Whether a man is bound to accuse? (2) Whether the accusation should be made in writing? (3) How is an accusation vitiated? (4) How should those be punished who have accused a man wrongfully?
P(2b)- Q(68)- A(1) Whether a man is bound to accuse?
P(2b)- Q(68)- A(1)- O(1) —
It would seem that a man is not bound to accuse. For no man is excused on account of sin from fulfilling a Divine precept, since he would thus profit by his sin. Yet on account of sin some are disqualified from accusing, such as those who are excommunicate or of evil fame, or who are accused of grievous crimes and are not yet proved to be innocent [* 1 Timothy 1:5]. Therefore a man is not bound by a Divine precept to accuse.
P(2b)- Q(68)- A(1)- O(2) —
Further, every duty depends on charity which is “the end of the precept” [*Can. Definimus, caus. iv, qu. 1; caus. vi, qu. 1]: wherefore it is written ( Romans 13:8): “Owe no man anything, but to love one another.” Now that which belongs to charity is a duty that man owes to all both of high and of low degree, both superiors and inferiors.
Since therefore subjects should not accuse their superiors, nor persons of lower degree, those of a higher degree, as shown in several chapters (Decret. II, qu. vii), it seems that it is no man’s duty to accuse.
P(2b)- Q(68)- A(1)- O(3) —
Further, no man is bound to act against the fidelity which he owes his friend; because he ought not to do to another what he would not have others do to him. Now to accuse anyone is sometimes contrary to the fidelity that one owes a friend; for it is written ( Proverbs 11:13): “He that walketh deceitfully, revealeth secrets; but he that is faithful, concealeth the thing committed to him by his friend.”
Therefore a man is not bound to accuse.
P(2b)- Q(68)- A(1) —
On the contrary, It is written ( Leviticus 5:1): “If any one sin, and hear the voice of one swearing, and is a witness either because he himself hath seen, or is privy to it: if he do not utter it, he shall bear his iniquity.”
P(2b)- Q(68)- A(1) —
I answer that, As stated above ( Q(33) , AA(6),7 ; Q(67) , A(3), ad 2), the difference between denunciation and accusation is that in denunciation we aim at a brother’s amendment, whereas in accusation we intend the punishment of his crime. Now the punishments of this life are sought, not for their own sake, because this is not the final time of retribution, but in their character of medicine, conducing either to the amendment of the sinner, or to the good of the commonwealth whose calm is ensured by the punishment of evil-doers. The former of these is intended in denunciation, as stated, whereas the second regards properly accusation. Hence in the case of a crime that conduces to the injury of the commonwealth, a man is bound to accusation, provided he can offer sufficient proof, since it is the accuser’s duty to prove: as, for example, when anyone’s sin conduces to the bodily or spiritual corruption of the community. If, however, the sin be not such as to affect the community, or if he cannot offer sufficient proof, a man is not bound to attempt to accuse, since no man is bound to do what he cannot duly accomplish.
P(2b)- Q(68)- A(1)- RO(1) —
Nothing prevents a man being debarred by sin from doing what men are under an obligation to do: for instance from meriting eternal life, and from receiving the sacraments of the Church. Nor does a man profit by this: indeed it is a most grievous fault to fail to do what one is bound to do, since virtuous acts are perfections of man.
P(2b)- Q(68)- A(1)- RO(2) —
Subjects are debarred from accusing their superiors, “if it is not the affection of charity but their own wickedness that leads them to defame and disparage the conduct of their superiors” [*Append. Grat. ad can. Sunt nonnulli, caus. ii, qu. 7] — or again if the subject who wishes to accuse his superior is himself guilty of crime [*Decret. II, qu. vii, can. Praesumunt.]. Otherwise, provided they be in other respects qualified to accuse, it is lawful for subjects to accuse their superiors out of charity.
P(2b)- Q(68)- A(1)- RO(3) —
It is contrary to fidelity to make known secrets to the injury of a person; but not if they be revealed for the good of the community, which should always be preferred to a private good.
Hence it is unlawful to receive any secret in detriment to the common good: and yet a thing is scarcely a secret when there are sufficient witnesses to prove it.
P(2b)- Q(68)- A(2) Whether it is necessary for the accusation to be made in writing?
P(2b)- Q(68)- A(2)- O(1) —
It would seem unnecessary for the accusation to be made in writing. For writing was devised as an aid to the human memory of the past. But an accusation is made in the present. Therefore the accusation needs not to be made in writing.
P(2b)- Q(68)- A(2)- O(2) —
Further, it is laid down (Decret. II, qu. viii, can.
Per scripta) that “no man may accuse or be accused in his absence.” Now writing seems to be useful in the fact that it is a means of notifying something to one who is absent, as Augustine declares (De Trin. x, 1).
P(2b)- Q(68)- A(2)- O(3) —
P(2b)- Q(68)- A(2)- O(3) —
P(2b)- Q(68)- A(2) —
On the contrary, It is laid down (Decret. II, qu. viii, can. Accusatorum) that “the role of accuser must never be sanctioned without the accusation be in writing.”
P(2b)- Q(68)- A(2) —
I answer that, As stated above ( Q(67) , A(3) ), when the process in a criminal case goes by way of accusation, the accuser is in the position of a party, so that the judge stands between the accuser and the accused for the purpose of the trial of justice, wherein it behooves one to proceed on certainties, as far as possible. Since however verbal utterances are apt to escape one’s memory, the judge would be unable to know for certain what had been said and with what qualifications, when he comes to pronounce sentence, unless it were drawn up in writing. Hence it has with reason been established that the accusation, as well as other parts of the judicial procedure, should be put into writing.
P(2b)- Q(68)- A(2)- RO(1) —
Words are so many and so various that it is difficult to remember each one. A proof of this is the fact that if a number of people who have heard the same words be asked what was said, they will not agree in repeating them, even after a short time. And since a slight difference of words changes the sense, even though the judge’s sentence may have to be pronounced soon afterwards, the certainty of judgment requires that the accusation be drawn up in writing.
P(2b)- Q(68)- A(2)- RO(2) —
Writing is needed not only on account of the absence of the person who has something to notify, or of the person to whom something is notified, but also on account of the delay of time as stated above (ad 1). Hence when the canon says, “Let no accusation be accepted in writing” it refers to the sending of an accusation by one who is absent: but it does not exclude the necessity of writing when the accuser is present.
P(2b)- Q(68)- A(2)- RO(3) —
The denouncer does not bind himself to give proofs: wherefore he is not punished if he is unable to prove. For this reason writing is unnecessary in a denunciation: and it suffices that the denunciation be made verbally to the Church, who will proceed, in virtue of her office, to the correction of the brother.
P(2b)- Q(68)- A(3) Whether an accusation is rendered unjust by calumny, collusion or evasion?
P(2b)- Q(68)- A(3)- O(1) —
It would seem that an accusation is not rendered unjust by calumny, collusion or evasion. For according to Decret.
II, qu. iii [*Append. Grat. ad can. Si quem poenituerit.], “calumny consists in falsely charging a person with a crime.” Now sometimes one man falsely accuses another of a crime through ignorance of fact which excuses him.
Therefore it seems that an accusation is not always rendered unjust through being slanderous.
P(2b)- Q(68)- A(3)- O(2) —
Further, it is stated by the same authority that “collusion consists in hiding the truth about a crime.” But seemingly this is not unlawful, because one is not bound to disclose every crime, as stated above ( A(1) ; Q(33) , A(7) ). Therefore it seems that an accusation is not rendered unjust by collusion.
P(2b)- Q(68)- A(3)- O(3) —
Further, it is stated by the same authority that “evasion consists in withdrawing altogether from an accusation.” But this can be done without injustice: for it is stated there also: “If a man repent of having made a wicked accusation and inscription* in a matter which he cannot prove, and come to an understanding with the innocent party whom he has accused, let them acquit one another.” [*The accuser was bound by Roman Law to endorse (se inscribere) the writ of accusation.
The effect of this endorsement or inscription was that the accuser bound himself, if he failed to prove the accusation, to suffer the same punishment as the accused would have to suffer if proved guilty.] Therefore evasion does not render an accusation unjust.
P(2b)- Q(68)- A(3) —
On the contrary, It is stated by the same authority: “The rashness of accusers shows itself in three ways. For they are guilty either of calumny, or of collusion, or of evasion.”
P(2b)- Q(68)- A(3) —
I answer that, As stated above ( A(1) ), accusation is ordered for the common good which it aims at procuring by means of knowledge of the crime. Now no man ought to injure a person unjustly, in order to promote the common good. Wherefore a man may sin in two ways when making an accusation: first through acting unjustly against the accused, by charging him falsely with the commission of a crime, i.e. by calumniating him; secondly, on the part of the commonwealth, whose good is intended chiefly in an accusation, when anyone with wicked intent hinders a sin being punished. This again happens in two ways: first by having recourse to fraud in making the accusation. This belongs to collusion [prevaricatio] for “he that is guilty of collusion is like one who rides astraddle [varicator], because he helps the other party, and betrays his own side” [*Append. Grat. ad can. Si quem poenituerit.]. Secondly by withdrawing altogether from the accusation. This is evasion [tergiversatio] for by desisting from what he had begun he seems to turn his back [tergum vertere].
P(2b)- Q(68)- A(3)- RO(1) —
Yet he who falsely charges another with a crime is not a calumniator unless he gives utterance to false accusations out of malice. For it happens sometimes that a man through levity of mind proceeds to accuse someone, because he believes too readily what he hears, and this pertains to rashness; while, on the other hand sometimes a man is led to make an accusation on account of an error for which he is not to blame. All these things must be weighed according to the judge’s prudence, lest he should declare a man to have been guilty of calumny, who through levity of mind or an error for which he is not to be blamed has uttered a false accusation.
P(2b)- Q(68)- A(3)- RO(2) —
Not everyone who hides the truth about a crime is guilty of collusion, but only he who deceitfully hides the matter about which he makes the accusation, by collusion with the defendant, dissembling his proofs, and admitting false excuses.
P(2b)- Q(68)- A(3)- RO(3) —
Evasion consists in withdrawing altogether from the accusation, by renouncing the intention of accusing, not anyhow, but inordinately. There are two ways, however, in which a man may rightly desist from accusing without committing a sin — in one way, in the very process of accusation, if it come to his knowledge that the matter of his accusation is false, and then by mutual consent the accuser and the defendant acquit one another — in another way, if the accusation be quashed by the sovereign to whom belongs the care of the common good, which it is intended to procure by the accusation.
P(2b)- Q(68)- A(4) Whether an accuser who fails to prove his indictment is bound to the punishment of retaliation?
P(2b)- Q(68)- A(4)- O(1) —
It would seem that the accuser who fails to prove his indictment is not bound to the punishment of retaliation. For sometimes a man is led by a just error to make an accusation, in which case the judge acquit the accuser, as stated in Decret. II, qu. 3:[*Append. Grat., ad can. Si quem poenituerit.] Therefore the accuser who fails to prove his indictment is not bound to the punishment of retaliation.
P(2b)- Q(68)- A(4)- O(2) —
Further, if the punishment of retaliation ought to be inflicted on one who has accused unjustly, this will be on account of the injury he has done to someone — but not on account of any injury done to the person of the accused, for in that case the sovereign could not remit this punishment, nor on account of an injury to the commonwealth, because then the accused could not acquit him. Therefore the punishment of retaliation is not due to one who has failed to prove his accusation.
P(2b)- Q(68)- A(4)- O(3) —
Further, the one same sin does not deserve a twofold punishment, according to Nahum 1:9 [*Septuagint version]: “God shall not judge the same thing a second time.” But he who fails to prove his accusation, incurs the punishment due to defamation [*Can.
Infames, caus. vi, qu. 1], which punishment even the Pope seemingly cannot remit, according to a statement of Pope Gelasius [*Callist. I, Epist. ad omn. Gall. episc.]: “Although we are able to save souls by Penance, we are unable to remove the defamation.” Therefore he is not bound to suffer the punishment of retaliation.
P(2b)- Q(68)- A(4) —
P(2b)- Q(68)- A(4) —
I answer that, As stated above ( A(2) ), in a case, where the procedure is by way of accusation, the accuser holds the position of a party aiming at the punishment of the accused. Now the duty of the judge is to establish the equality of justice between them: and the equality of justice requires that a man should himself suffer whatever harm he has intended to be inflicted on another, according to Exodus 21:24, “Eye for eye, tooth for tooth.” Consequently it is just that he who by accusing a man has put him in danger of being punished severely, should himself suffer a like punishment.
P(2b)- Q(68)- A(4)- RO(1) —
As the Philosopher says (Ethic. v, 5) justice does not always require counterpassion, because it matters considerably whether a man injures another voluntarily or not. Voluntary injury deserves punishment, involuntary deserves forgiveness. Hence when the judge becomes aware that a man has made a false accusation, not with a mind to do harm, but involuntarily through ignorance or a just error, he does not impose the punishment of retaliation.
P(2b)- Q(68)- A(4)- RO(2) —
He who accuses wrongfully sins both against the person of the accused and against the commonwealth; wherefore he is punished on both counts. This is the meaning of what is written ( Deuteronomy 19:18-20): “And when after most diligent inquisition, they shall find that the false witness hath told a lie against his brother: then shall render to him as he meant to do to his brother,” and this refers to the injury done to the person: and afterwards, referring to the injury done to the commonwealth, the text continues: “And thou shalt take away the evil out of the midst of thee, that others hearing may fear, and may not dare to do such things.” Specially, however, does he injure the person of the accused, if he accuse him falsely. Wherefore the accused, if innocent, may condone the injury done to himself, particularly if the accusation were made not calumniously but out of levity of mind. But if the accuser desist from accusing an innocent man, through collusion with the latter’s adversary, he inflicts an injury on the commonwealth: and this cannot be condoned by the accused, although it can be remitted by the sovereign, who has charge of the commonwealth.
P(2b)- Q(68)- A(4)- RO(3) —
The accuser deserves the punishment of retaliation in compensation for the harm he attempts to inflict on his neighbor: but the punishment of disgrace is due to him for his wickedness in accusing another man calumniously. Sometimes the sovereign remits the punishment, and not the disgrace, and sometimes he removes the disgrace also: wherefore the Pope also can remove this disgrace. When Pope Gelasius says: “We cannot remove the disgrace,” he may mean either the disgrace attaching to the deed [infamia facti], or that sometimes it is not expedient to remove it, or again he may be referring to the disgrace inflicted by the civil judge, as Gratian states (Callist. I, Epist. ad omn. Gall. episc.).
QUESTION OF SINS COMMITTED AGAINST JUSTICE ON THE PART OF THE DEFENDANT (FOUR ARTICLES)
We must now consider those sins which are committed against justice on the part of the defendant. Under this head there are four points of inquiry: (1) Whether it is a mortal sin to deny the truth which would lead to one’s condemnation? (2) Whether it is lawful to defend oneself with calumnies? (3) Whether it is lawful to escape condemnation by appealing? (4) Whether it is lawful for one who has been condemned to defend himself by violence if he be able to do so?
P(2b)- Q(69)- A(1) Whether one can, without a mortal sin, deny the truth which would lead to one’s condemnation?
P(2b)- Q(69)- A(1)- O(1) —
It would seem one can, without a mortal sin, deny the truth which would lead to one’s condemnation. For Chrysostom says (Hom. xxxi super Ep. ad Heb.): “I do not say that you should lay bare your guilt publicly, nor accuse yourself before others.” Now if the accused were to confess the truth in court, he would lay bare his guilt and be his own accuser. Therefore he is not bound to tell the truth: and so he does not sin mortally if he tell a lie in court.
P(2b)- Q(69)- A(1)- O(2) —
Further, just as it is an officious lie when one tells a lie in order to rescue another man from death, so is it an officious lie when one tells a lie in order to free oneself from death, since one is more bound towards oneself than towards another. Now an officious lie is considered not a mortal but a venial sin. Therefore if the accused denies the truth in court, in order to escape death, he does not sin mortally.
P(2b)- Q(69)- A(1)- O(3) —
Further, every mortal sin is contrary to charity, as stated above ( Q(24) , A(12) ). But that the accused lie by denying himself to be guilty of the crime laid to his charge is not contrary to charity, neither as regards the love we owe God, nor as to the love due to our neighbor. Therefore such a lie is not a mortal sin.
P(2b)- Q(69)- A(1) —
On the contrary, Whatever is opposed to the glory of God is a mortal sin, because we are bound by precept to “do all to the glory of God” ( 1 Corinthians 10:31). Now it is to the glory of God that the accused confess that which is alleged against him, as appears from the words of Josue to Achan, “My son, give glory to the Lord God of Israel, and confess and tell me what thou hast done, hide it not” ( Joshua 7:19).
Therefore it is a mortal sin to lie in order to cover one’s guilt.
P(2b)- Q(69)- A(1) —
I answer that, Whoever acts against the due order of justice, sins mortally, as stated above ( Q(59) , A(4) ). Now it belongs to the order of justice that a man should obey his superior in those matters to which the rights of his authority extend. Again, the judge, as stated above ( Q(67) , A(1) ), is the superior in relation to the person whom he judges.
Therefore the accused is in duty bound to tell the judge the truth which the latter exacts from him according to the form of law. Hence if he refuse to tell the truth which he is under obligation to tell, or if he mendaciously deny it, he sins mortally. If, on the other hand, the judge asks of him that which he cannot ask in accordance with the order of justice, the accused is not bound to satisfy him, and he may lawfully escape by appealing or otherwise: but it is not lawful for him to lie.
P(2b)- Q(69)- A(1)- RO(1) —
When a man is examined by the judge according to the order of justice, he does not lay bare his own guilt, but his guilt is unmasked by another, since the obligation of answering is imposed on him by one whom he is bound to obey.
P(2b)- Q(69)- A(1)- RO(2) —
To lie, with injury to another person, in order to rescue a man from death is not a purely officious lie, for it has an admixture of the pernicious lie: and when a man lies in court in order to exculpate himself, he does an injury to one whom he is bound to obey, since he refuses him his due, namely an avowal of the truth.
P(2b)- Q(69)- A(1)- RO(3) —
He who lies in court by denying his guilt, acts both against the love of God to whom judgment belongs, and against the love of his neighbor, and this not only as regards the judge, to whom he refuses his due, but also as regards his accuser, who is punished if he fail to prove his accusation. Hence it is written ( <19E004> Psalm 140:4): “Incline not my heart to evil words, to make excuses in sins”: on which words a gloss says: “Shameless men are wont by lying to deny their guilt when they have been found out.” And Gregory in expounding Job 31:33, “If as a man I have hid my sin,” says (Moral. xxii, 15): “It is a common vice of mankind to sin in secret, by lying to hide the sin that has been committed, and when convicted to aggravate the sin by defending oneself.”
P(2b)- Q(69)- A(2) Whether it is lawful for the accused to defend himself with calumnies?
P(2b)- Q(69)- A(2)- O(1) —
It would seem lawful for the accused to defend himself with calumnies. Because, according to civil law (Cod. II, iv, De transact. 18), when a man is on trial for his life it is lawful for him to bribe his adversary. Now this is done chiefly by defending oneself with calumnies. Therefore the accused who is on trial for his life does not sin if he defend himself with calumnies.
P(2b)- Q(69)- A(2)- O(2) —
Further, an accuser who is guilty of collusion with the accused, is punishable by law (Decret. II, qu. iii, can. Si quem poenit.). Yet no punishment is imposed on the accused for collusion with the accuser. Therefore it would seem lawful for the accused to defend himself with calumnies.
P(2b)- Q(69)- A(2)- O(3) —
Further, it is written ( Proverbs 14:16): “A wise man feareth and declineth from evil, the fool leapeth over and is confident.” Now what is done wisely is no sin. Therefore no matter how a man declines from evil, he does not sin.
P(2b)- Q(69)- A(2) —
Inhaerentes): and this would not be the case if it were lawful to defend oneself with calumnies. Therefore it is not lawful for the accused to defend himself with calumnies.
P(2b)- Q(69)- A(2) —
I answer that, It is one thing to withhold the truth, and another to utter a falsehood. The former is lawful sometimes, for a man is not bound to divulge all truth, but only such as the judge can and must require of him according to the order of justice; as, for instance, when the accused is already disgraced through the commission of some crime, or certain indications of his guilt have already been discovered, or again when his guilt is already more or less proven. On the other hand it is never lawful to make a false declaration.
As regards what he may do lawfully, a man can employ either lawful means, and such as are adapted to the end in view, which belongs to prudence; or he can use unlawful means, unsuitable to the proposed end, and this belongs to craftiness, which is exercised by fraud and guile, as shown above ( Q(55) , AA(3), seqq.). His conduct in the former case is praiseworthy, in the latter sinful. Accordingly it is lawful for the accused to defend himself by withholding the truth that he is not bound to avow, by suitable means, for instance by not answering such questions as he is not bound to answer. This is not to defend himself with calumnies, but to escape prudently. But it is unlawful for him, either to utter a falsehood, or to withhold a truth that he is bound to avow, or to employ guile or fraud, because fraud and guile have the force of a lie, and so to use them would be to defend oneself with calumnies.
P(2b)- Q(69)- A(2)- RO(1) —
Human laws leave many things unpunished, which according to the Divine judgment are sins, as, for example, simple fornication; because human law does not exact perfect virtue from man, for such virtue belongs to few and cannot be found in so great a number of people as human law has to direct. That a man is sometimes unwilling to commit a sin in order to escape from the death of the body, the danger of which threatens the accused who is on trial for his life, is an act of perfect virtue, since “death is the most fearful of all temporal things” (Ethic. iii, 6).
Wherefore if the accused, who is on trial for his life, bribes his adversary, he sins indeed by inducing him to do what is unlawful, yet the civil law does not punish this sin, and in this sense it is said to be lawful.
P(2b)- Q(69)- A(2)- RO(2) —
If the accuser is guilty of collusion with the accused and the latter is guilty, he incurs punishment, and so it is evident that he sins. Wherefore, since it is a sin to induce a man to sin, or to take part in a sin in any way — for the Apostle says ( Romans 1:32), that “they... are worthy of death... that consent” to those who sin — it is evident that the accused also sins if he is guilty of collusion with his adversary. Nevertheless according to human laws no punishment is inflicted on him, for the reason given above.
P(2b)- Q(69)- A(2)- RO(3) —
The wise man hides himself not by slandering others but by exercising prudence.
P(2b)- Q(69)- A(3) Whether it is lawful for the accused to escape judgment by appealing?
P(2b)- Q(69)- A(3)- O(1) —
It would seem unlawful for the accused to escape judgment by appealing. The Apostle says ( Romans 13:1): “Let every soul be subject to the higher powers.” Now the accused by appealing refuses to be subject to a higher power, viz. the judge. Therefore he commits a sin.
P(2b)- Q(69)- A(3)- O(2) —
Further, ordinary authority is more binding than that which we choose for ourselves. Now according to the Decretals (II, qu. vi, cap. A judicibus) it is unlawful to appeal from the judges chosen by common consent. Much less therefore is it lawful to appeal from ordinary judges.
P(2b)- Q(69)- A(3)- O(3) —
Further, whatever is lawful once is always lawful. But it is not lawful to appeal after the tenth day [*Can.
P(2b)- Q(69)- A(3) —
P(2b)- Q(69)- A(3) —
I answer that, There are two motives for which a man appeals. First through confidence in the justice of his cause, seeing that he is unjustly oppressed by the judge, and then it is lawful for him to appeal, because this is a prudent means of escape. Hence it is laid down (Decret. II, qu. vi, can. Omnis oppressus): “All those who are oppressed are free, if they so wish, to appeal to the judgment of the priests, and no man may stand in their way.” Secondly, a man appeals in order to cause a delay, lest a just sentence be pronounced against him. This is to defend oneself calumniously, and is unlawful as stated above ( A(2) ). For he inflicts an injury both on the judge, whom he hinders in the exercise of his office, and on his adversary, whose justice he disturbs as far as he is able.
Hence it is laid down (II, qu. vi, can. Omnino puniendus): “Without doubt a man should be punished if his appeal be declared unjust.”
P(2b)- Q(69)- A(3)- RO(1) —
A man should submit to the lower authority in so far as the latter observes the order of the higher authority. If the lower authority departs from the order of the higher, we ought not to submit to it, for instance “if the proconsul order one thing and the emperor another,” according to a gloss on Romans 13:2. Now when a judge oppresses anyone unjustly, in this respect he departs from the order of the higher authority, whereby he is obliged to judge justly. Hence it is lawful for a man who is oppressed unjustly, to have recourse to the authority of the higher power, by appealing either before or after sentence has been pronounced. And since it is to be presumed that there is no rectitude where true faith is lacking, it is unlawful for a Catholic to appeal to an unbelieving judge, according to Decretals II, qu. vi, can. Catholicus: “The Catholic who appeals to the decision of a judge of another faith shall be excommunicated, whether his case be just or unjust.” Hence the Apostle also rebuked those who went to law before unbelievers ( 1 Corinthians 6:6).
P(2b)- Q(69)- A(3)- RO(2) —
It is due to a man’s own fault or neglect that, of his own accord, he submits to the judgment of one in whose justice he has no confidence. Moreover it would seem to point to levity of mind for a man not to abide by what he has once approved of. Hence it is with reason that the law refuses us the faculty of appealing from the decision of judges of our own choice, who have no power save by virtue of the consent of the litigants. On the other hand the authority of an ordinary judge depends, not on the consent of those who are subject to his judgment, but on the authority of the king or prince who appointed him. Hence, as a remedy against his unjust oppression, the law allows one to have recourse to appeal, so that even if the judge be at the same time ordinary and chosen by the litigants, it is lawful to appeal from his decision, since seemingly his ordinary authority occasioned his being chosen as arbitrator. Nor is it to be imputed as a fault to the man who consented to his being arbitrator, without adverting to the fact that he was appointed ordinary judge by the prince.
P(2b)- Q(69)- A(3)- RO(3) —
The equity of the law so guards the interests of the one party that the other is not oppressed. Thus it allows ten days for appeal to be made, this being considered sufficient time for deliberating on the expediency of an appeal. If on the other hand there were no fixed time limit for appealing, the certainty of judgment would ever be in suspense, so that the other party would suffer an injury. The reason why it is not allowed to appeal a third time on the same point, is that it is not probable that the judges would fail to judge justly so many times.
P(2b)- Q(69)- A(4) Whether a man who is condemned to death may lawfully defend himself if he can?
P(2b)- Q(69)- A(4)- O(1) —
It would seem that a man who is condemned to death may lawfully defend himself if he can. For it is always lawful to do that to which nature inclines us, as being of natural right, so to speak.
Now, to resist corruption is an inclination of nature not only in men and animals but also in things devoid of sense. Therefore if he can do so, the accused, after condemnation, may lawfully resist being put to death.
P(2b)- Q(69)- A(4)- O(2) —
Further, just as a man, by resistance, escapes the death to which he has been condemned, so does he by flight. Now it is lawful seemingly to escape death by flight, according to Ecclus. 9:18, “Keep thee far from the man that hath power to kill [and not to quicken]” [*The words in the brackets are not in the Vulgate]. Therefore it is also lawful for the accused to resist.
P(2b)- Q(69)- A(4)- O(3) —
Now a man is under greater obligation to himself than to another.
Therefore it is lawful for a condemned man to defend himself from being put to death.
P(2b)- Q(69)- A(4) —
Now a condemned man, by defending himself, resists the power in the point of its being ordained by God “for the punishment of evil-doers, and for the praise of the good” [* 1 Peter 2:14]. Therefore he sins in defending himself.
P(2b)- Q(69)- A(4) —
I answer that, A man may be condemned to death in two ways. First justly, and then it is not lawful for the condemned to defend himself, because it is lawful for the judge to combat his resistance by force, so that on his part the fight is unjust, and consequently without any doubt he sins.
Secondly a man is condemned unjustly: and such a sentence is like the violence of robbers, according to Ezekiel 22:21, “Her princes in the midst of her are like wolves ravening the prey to shed blood.” Wherefore even as it is lawful to resist robbers, so is it lawful, in a like case, to resist wicked princes; except perhaps in order to avoid scandal, whence some grave disturbance might be feared to arise.
P(2b)- Q(69)- A(4)- RO(1) —
Reason was given to man that he might ensue those things to which his nature inclines, not in all cases, but in accordance with the order of reason. Hence not all self-defense is lawful, but only such as is accomplished with due moderation.
P(2b)- Q(69)- A(4)- RO(2) —
When a man is condemned to death, he has not to kill himself, but to suffer death: wherefore he is not bound to do anything from which death would result, such as to stay in the place whence he would be led to execution. But he may not resist those who lead him to death, in order that he may not suffer what is just for him to suffer.
Even so, if a man were condemned to die of hunger, he does not sin if he partakes of food brought to him secretly, because to refrain from taking it would be to kill himself.
P(2b)- Q(69)- A(4)- RO(3) —
This saying of the wise man does not direct that one should deliver a man from death in opposition to the order of justice: wherefore neither should a man deliver himself from death by resisting against justice.
QUESTION OF INJUSTICE WITH REGARD TO THE PERSON OF THE WITNESS (FOUR ARTICLES)
We must now consider injustice with regard to the person of the witness.
Under this head there are four points of inquiry: (1) Whether a man is bound to give evidence? (2) Whether the evidence of two or three witnesses suffices? (3) Whether a man’s evidence may be rejected without any fault on his part? (4) Whether it is a mortal sin to bear false witness?
P(2b)- Q(70)- A(1) Whether a man is bound to give evidence?
P(2b)- Q(70)- A(1)- O(1) —
It would seem that a man is not bound to give evidence. Augustine say (QQ. Genesis 1:26) [*Cf. Contra Faust. xxii, 33,34], that when Abraham said of his wife ( Genesis 20:2), “She is my sister,” he wished the truth to be concealed and not a lie be told. Now, by hiding the truth a man abstains from giving evidence. Therefore a man is not bound to give evidence.
P(2b)- Q(70)- A(1)- O(2) —
Further, no man is bound to act deceitfully.
Now it is written ( Proverbs 11:13): “He that walketh deceitfully revealeth secrets, but he that is faithful concealeth the thing committed to him by his friend.”
Therefore a man is not always bound to give evidence, especially on matters committed to him as a secret by a friend.
P(2b)- Q(70)- A(1)- O(3) —
Further, clerics and priests, more than others, are bound to those things that are necessary for salvation. Yet clerics and priests are forbidden to give evidence when a man is on trial for his life.
Therefore it is not necessary for salvation to give evidence.
P(2b)- Q(70)- A(1) —
On the contrary, Augustine [*Can. Quisquis, caus. xi, qu. 3, cap. Falsidicus; cf. Isidore, Sentent. iii, 55] says: “Both he who conceals the truth and he who tells a lie are guilty, the former because he is unwilling to do good, the latter because he desires to hurt.”
P(2b)- Q(70)- A(1) —
I answer that, We must make a distinction in the matter of giving evidence: because sometimes a certain man’s evidence is necessary, and sometimes not. If the necessary evidence is that of a man subject to a superior whom, in matters pertaining to justice, he is bound to obey, without doubt he is bound to give evidence on those points which are required of him in accordance with the order of justice, for instance on manifest things or when ill-report has preceded. If however he is required to give evidence on other points, for instance secret matters, and those of which no ill-report has preceded, he is not bound to give evidence. On the other hand, if his evidence be required by authority of a superior whom he is bound to obey, we must make a distinction: because if his evidence is required in order to deliver a man from an unjust death or any other penalty, or from false defamation, or some loss, in such cases he is bound to give evidence. Even if his evidence is not demanded, he is bound to do what he can to declare the truth to someone who may profit thereby. For it is written ( Psalm 81:4): “Rescue the poor, and deliver the needy from the hand of the sinner”; and ( Proverbs 24:11): “Deliver them that are led to death”; and ( Romans 1:32): “They are worthy of death, not only they that do them, but they also that consent to them that do them,” on which words a gloss says: “To be silent when one can disprove is to consent.” In matters pertaining to a man’s condemnation, one is not bound to give evidence, except when one is constrained by a superior in accordance with the order of justice; since if the truth of such a matter be concealed, no particular injury is inflicted on anyone. Or, if some danger threatens the accuser, it matters not since he risked the danger of his own accord: whereas it is different with the accused, who incurs the danger against his will.
P(2b)- Q(70)- A(1)- RO(1) —
Augustine is speaking of concealment of the truth in a case when a man is not compelled by his superior’s authority to declare the truth, and when such concealment is not specially injurious to any person.
P(2b)- Q(70)- A(1)- RO(2) —
A man should by no means give evidence on matters secretly committed to him in confession, because he knows such things, not as man but as God’s minister: and the sacrament is more binding than any human precept. But as regards matters committed to man in some other way under secrecy, we must make a distinction. Sometimes they are of such a nature that one is bound to make them known as soon as they come to our knowledge, for instance if they conduce to the spiritual or corporal corruption of the community, or to some grave personal injury, in short any like matter that a man is bound to make known either by giving evidence or by denouncing it. Against such a duty a man cannot be obliged to act on the plea that the matter is committed to him under secrecy, for he would break the faith he owes to another. On the other hand sometimes they are such as one is not bound to make known, so that one may be under obligation not to do so on account of their being committed to one under secrecy. In such a case one is by no means bound to make them known, even if the superior should command; because to keep faith is of natural right, and a man cannot be commanded to do what is contrary to natural right.
P(2b)- Q(70)- A(1)- RO(3) —
It is unbecoming for ministers of the altar to slay a man or to cooperate in his slaying, as stated above ( Q(64) , A(4) ); hence according to the order of justice they cannot be compelled to give evidence when a man is on trial for his life.
P(2b)- Q(70)- A(2) Whether the evidence of two or three persons suffices?
P(2b)- Q(70)- A(2)- O(1) —
It would seem that the evidence of two or three persons is not sufficient. For judgment requires certitude. Now certitude of the truth is not obtained by the assertions of two or three witnesses, for we read that Naboth was unjustly condemned on the evidence of two witnesses ( 1 Kings 21). Therefore the evidence of two or three witnesses does not suffice.
P(2b)- Q(70)- A(2)- O(2) —
P(2b)- Q(70)- A(2)- O(3) —
Further, it is laid down (Decret. II, qu. iv, can.
Praesul.): “A bishop shall not be condemned save on the evidence of seventy-two witnesses; nor a cardinal priest of the Roman Church, unless there be sixty-four witnesses. Nor a cardinal deacon of the Roman Church, unless there be twenty-seven witnesses; nor a subdeacon, an acolyte, an exorcist, a reader or a doorkeeper without seven witnesses.” Now the sin of one who is of higher dignity is more grievous, and consequently should be treated more severely. Therefore neither is the evidence of two or three witnesses sufficient for the condemnation of other persons.
P(2b)- Q(70)- A(2) —
P(2b)- Q(70)- A(2) —
On the contrary, It is written ( Deuteronomy 17:6): “By the mouth of two or three witnesses shall he die that is to be slain,” and further on ( Deuteronomy 19:15): “In the mouth of two or three witnesses every word shall stand.”
P(2b)- Q(70)- A(2) —
I answer that, According to the Philosopher (Ethic. i, 3), “we must not expect to find certitude equally in every matter.” For in human acts, on which judgments are passed and evidence required, it is impossible to have demonstrative certitude, because they a about things contingent and variable. Hence the certitude of probability suffices, such as may reach the truth in the greater number, cases, although it fail in the minority. No it is probable that the assertion of sever witnesses contains the truth rather than the assertion of one: and since the accused is the only one who denies, while several witness affirm the same as the prosecutor, it is reasonably established both by Divine and by human law, that the assertion of several witnesses should be upheld. Now all multitude is comprised of three elements, the beginning, the middle and the end.
Wherefore, according to the Philosopher (De Coelo i, 1), “we reckon ‘all’ and ‘whole’ to consist of three parts.” Now we have a triple voucher when two agree with the prosecutor: hence two witnesses are required; or for the sake of greater certitude three, which is the perfect number. Wherefore it is written ( Ecclesiastes 4:12): “A threefold cord is not easily broken”: and Augustine, commenting on John 8:17, “The testimony of two men is true,” says (Tract. xxxvi) that “there is here a mystery by which we are given to understand that Trinity wherein is perpetual stability of truth.”
P(2b)- Q(70)- A(2)- RO(1) —
And yet the fact that in so many it is not possible to have certitude without fear of error, is no reason why we should reject the certitude which can probably be had through two or three witnesses, as stated above.
P(2b)- Q(70)- A(2)- RO(2) —
If the witnesses disagree certain principal circumstances which change the substance of the fact, for instance in time, place, or persons, which are chiefly in question, their evidence is of no weight, because if they disagree in such things, each one would seem to be giving distinct evidence and to be speaking of different facts. For instance, one say that a certain thing happened at such and such a time or place, while another says it happened at another time or place, they seem not to be speaking of the same event. The evidence is not weakened if one witness says that he does not remember, while the other attests to a determinate time or place And if on such points as these the witness for prosecution and defense disagree altogether, and if they be equal in number on either side, and of equal standing, the accused should have the benefit of the doubt, because the judge ought to be more inclined to acquit than to condemn, except perhaps in favorable suits, such as a pleading for liberty and the like. If, however, the witnesses for the same side disagree, the judge ought to use his own discretion in discerning which side to favor, by considering either the number of witnesses, or their standing, or the favorableness of the suit, or the nature of the business and of the evidence Much more ought the evidence of one witness to be rejected if he contradict himself when questioned about what he has seen and about what he knows; not, however, if he contradict himself when questioned about matters of opinion and report, since he may be moved to answer differently according to the different things he has seen and heard.
On the other hand if there be discrepancy of evidence in circumstances not touching the substance of the fact, for instance, whether the weather were cloudy or fine, whether the house were painted or not, or such like matters, such discrepancy does not weaken the evidence, because men are not wont to take much notice of such things, wherefore they easily forget them. Indeed, a discrepancy of this kind renders the evidence more credible, as Chrysostom states (Hom. i in Matth.), because if the witnesses agreed in every point, even in the minutest of details, they would seem to have conspired together to say the same thing: but this must be left to the prudent discernment of the judge.
P(2b)- Q(70)- A(2)- RO(3) —
This passage refers specially to the bishops, priests, deacons and clerics of the Roman Church, on account of its dignity: and this for three reasons. First because in that Church those men ought to be promoted whose sanctity makes their evidence of more weight than that of many witnesses. Secondly, because those who have to judge other men, often have many opponents on account of their justice, wherefore those who give evidence against them should not be believed indiscriminately, unless they be very numerous. Thirdly, because the condemnation of any one of them would detract in public opinion from the dignity and authority of that Church, a result which would be more fraught with danger than if one were to tolerate a sinner in that same Church, unless he were very notorious and manifest, so that a grave scandal would arise if he were tolerated.
P(2b)- Q(70)- A(3) Whether a man’s evidence can be rejected without any fault of his?
P(2b)- Q(70)- A(3)- O(1) —
It would seem that a man’s evidence ought not to be rejected except on account of some fault. For it a penalty on some that their evidence is inadmissible, as in the case of those who are branded with infamy. Now a penalty must not be inflicted save for a fault.
Therefore it would seem that no man’s evidence ought to be rejected save on account of a fault.
P(2b)- Q(70)- A(3)- O(2) —
Further, “Good is to be presumed of every one, unless the contrary appear” [*Cap. Dudum, de Praesumpt.]. Now it pertains to a man’s goodness that he should give true evidence. Since therefore there can be no proof of the contrary, unless there be some fault of his, it would seem that no man’s evidence should be rejected save for some fault.
P(2b)- Q(70)- A(3)- O(3) —
Further, no man is rendered unfit for things necessary for salvation except by some sin. But it is necessary for salvation to give true evidence, as stated above ( A(1) ). Therefore no man should be excluded from giving evidence save for some fault.
P(2b)- Q(70)- A(3) —
On the contrary, Gregory says (Regist. xiii, 44): “As to the bishop who is said to have been accused by his servants, you are to know that they should by no means have been heard”: which words are embodied in the Decretals II, qu. 1, can. Imprimis.
P(2b)- Q(70)- A(3) —
I answer that, As stated above ( A(2) ), the authority of evidence is not infallible but probable; and consequently the evidence for one side is weakened by whatever strengthens the probability of the other. Now the reliability of a person’s evidence is weakened, sometimes indeed on account of some fault of his, as in the case of unbelievers and persons of evil repute, as well as those who are guilty of a public crime and who are not allowed even to accuse; sometimes, without any fault on his part, and this owing either to a defect in the reason, as in the case of children, imbeciles and women, or to personal feeling, as in the case of enemies, or persons united by family or household ties, or again owing to some external condition, as in the case of poor people, slaves, and those who are under authority, concerning whom it is to be presumed that they might easily be induced to give evidence against the truth.
Thus it is manifest that a person’s evidence may be rejected either with or without some fault of his.
P(2b)- Q(70)- A(3)- RO(1) —
If a person is disqualified from giving evidence this is done as a precaution against false evidence rather than as a punishment. Hence the argument does not prove.
P(2b)- Q(70)- A(3)- RO(2) —
Good is to be presumed of everyone unless the contrary appear, provided this does not threaten injury to another: because, in that case, one ought to be careful not to believe everyone readily, according to 1 John 4:1: “Believe not every spirit.”
P(2b)- Q(70)- A(3)- RO(3) —
To give evidence is necessary for salvation, provided the witness be competent, and the order of justice observed.
Hence nothing hinders certain persons being excused from giving evidence, if they be considered unfit according to law.
P(2b)- Q(70)- A(4) Whether it is always a mortal sin to give false evidence?
P(2b)- Q(70)- A(4)- O(1) —
It would seem that it is not always a mortal sin to give false evidence. For a person may happen to give false evidence, through ignorance of fact. Now such ignorance excuses from mortal sin.
Therefore the giving of false evidence is not always a mortal sin.
P(2b)- Q(70)- A(4)- O(2) —
Further, a lie that benefits someone and hurts no man is officious, and this is not a mortal sin. Now sometimes a lie of this kind occurs in false evidence, as when a person gives false evidence in order to save a man from death, or from an unjust sentence which threatens him through other false witnesses or a perverse judge. Therefore in such cases it is not a mortal sin to give false evidence.
P(2b)- Q(70)- A(4)- O(3) —
Further, a witness is required to take an oath in order that he may fear to commit a mortal sin of perjury. But this would not be necessary, if it were already a mortal sin to give false evidence.
Therefore the giving of false evidence is not always mortal sin.
P(2b)- Q(70)- A(4) —
On the contrary, It is written ( Proverbs 19:5): “A false witness shall not be unpunished.”
P(2b)- Q(70)- A(4) —
I answer that, False evidence has a threefold deformity. The first is owing to perjury, since witnesses are admitted only on oath and on this count it is always a mortal sin. Secondly, owing to the violation of justice, and on this account it is a mortal sin generically, even as any kind of injustice. Hence the prohibition of false evidence by the precept of the decalogue is expressed in this form when it is said ( Exodus 20:16), “Thou shalt not bear false witness against thy neighbor.” For one does nothing against a man by preventing him from doing someone an injury, but only by taking away his justice. Thirdly, owing to the falsehood itself, by reason of which every lie is a sin: on this account, the giving of false evidence is not always a mortal sin.
P(2b)- Q(70)- A(4)- RO(1) —
In giving evidence a man ought not to affirm as certain, as though he knew it, that about which he is not certain and he should confess his doubt in doubtful terms, and that which he is certain about, in terms of certainty. Owing however to the frailty of the human memory, a man sometimes thinks he is certain about something that is not true; and then if after thinking over the matter with due care he deems himself certain about that false thing, he does not sin mortally if he asserts it, because the evidence which he gives is not directly an intentionally, but accidentally contrary to what he intends.
P(2b)- Q(70)- A(4)- RO(2) —
An unjust judgment is not a judgment, wherefore the false evidence given in an unjust judgment, in order to prevent injustice is not a mortal sin by virtue of the judgment, but only by reason of the oath violated.
P(2b)- Q(70)- A(4)- RO(3) —
Men abhor chiefly those sin that are against God, as being most grievous and among them is perjury: whereas they do not abhor so much sins against their neighbor. Consequently, for the greater certitude of evidence, the witness is required to take a oath.
QUESTION OF INJUSTICE IN JUDGMENT ON THE PART OF COUNSEL (FOUR ARTICLES)
We must now consider the injustice which takes place in judgment on the part of counsel, and under this head there are four points of inquiry: (1) Whether an advocate is bound to defend the suits of the poor? (2) Whether certain persons should be prohibited from exercising the office of advocate? (3) Whether an advocate sins by defending an unjust cause? (4) Whether he sins if he accept a fee for defending a suit?
P(2b)- Q(71)- A(1) Whether an advocate is bound to defend the suits of the poor?
P(2b)- Q(71)- A(1)- O(1) —
It would seem that an advocate is bound to defend the suits of the poor. For it is written ( Exodus 23:5): “If thou see the ass of him that hateth thee lie underneath his burden, thou shalt not pass by, but shall lift him up with him.”
Now no less a danger threatens the poor man whose suit is being unjustly prejudiced, than if his ass were to lie underneath its burden. Therefore an advocate is bound to defend the suits of the poor.
P(2b)- Q(71)- A(1)- O(2) —
Further, Gregory says in a homily (ix in Evang.): “Let him that hath understanding beware lest he withhold his knowledge; let him that hath abundance of wealth watch lest he slacken his merciful bounty; let him who is a servant to art share his skill with his neighbor; let him who has an opportunity of speaking with the wealthy plead the cause of the poor: for the slightest gift you have received will be reputed a talent.” Now every man is bound, not to hide but faithfully to dispense the talent committed to him; as evidenced by the punishment inflicted on the servant who hid his talent ( Matthew 25:30). Therefore an advocate is bound to plead for the poor.
P(2b)- Q(71)- A(1)- O(3) —
Further, the precept about performing works of mercy, being affirmative, is binding according to time and place, and this is chiefly in cases of need. Now it seems to be a case of need when the suit of a poor man is being prejudiced. Therefore it seems that in such a case an advocate is bound to defend the poor man’s suit.
P(2b)- Q(71)- A(1) —
On the contrary, He that lacks food is no less in need than he that lacks an advocate. Yet he that is able to give food is not always bound to feed the needy. Therefore neither is an advocate always bound to defend the suits of the poor.
P(2b)- Q(71)- A(1) —
I answer that, Since defense of the poor man’s suit belongs to the works of mercy, the answer to this inquiry is the same as the one given above with regard to the other works of mercy ( Q(32) , AA(5),9 ). Now no man is sufficient to bestow a work of mercy on all those who need it. Wherefore, as Augustine says (De Doctr. Christ. i, 28), “since one cannot do good to all, we ought to consider those chiefly who by reason of place, time, or any other circumstance, by a kind of chance are more closely united to us.” He says “by reason of place,” because one is not bound to search throughout the world for the needy that one may succor them; and it suffices to do works of mercy to those one meets with.
Hence it is written ( Exodus 23:4): “If thou meet thy enemy’s ass going astray, bring it back to him.” He says also “by reason of time,” because one is not bound to provide for the future needs of others, and it suffices to succor present needs. Hence it is written ( 1 John 3:17): “He that... shall see his brother in need, and shall put up his bowels from him, how doth the charity of God abide in him?”
Lastly he says, “or any other circumstance,” because one ought to show kindness to those especially who are by any tie whatever united to us, according to 1 Timothy 5:8, “If any man have not care of his own, and especially of those of his house, he hath denied the faith and is worse than an infidel.”
It may happen however that these circumstances concur, and then we have to consider whether this particular man stands in such a need that it is not easy to see how he can be succored otherwise, and then one is bound to bestow the work of mercy on him. If, however, it is easy to see how he can be otherwise succored, either by himself, or by some other person still more closely united to him, or in a better position to help him, one is not bound so strictly to help the one in need that it would be a sin not to do so: although it would be praiseworthy to do so where one is not bound to.
Therefore an advocate is not always bound to defend the suits of the poor, but only when the aforesaid circumstances concur, else he would have to put aside all other business, and occupy himself entirely in defending the suits of poor people. The same applies to a physician with regard to attendance on the sick.
P(2b)- Q(71)- A(1)- RO(1) —
So long as the ass lies under the burden, there is no means of help in this case, unless those who are passing along come to the man’s aid, and therefore they are bound to help. But they would not be so bound if help were possible from another quarter.
P(2b)- Q(71)- A(1)- RO(2) —
P(2b)- Q(71)- A(1)- RO(3) —
Not every need is such that it is one’s duty to remedy it, but only such as we have stated above.
P(2b)- Q(71)- A(2)- O(1) —
It would seem unfitting for the law to debar certain persons from the office of advocate. For no man should be debarred from doing works of mercy. Now it belongs to the works of mercy to defend a man’s suit, as stated above ( A(1) ). Therefore no man should be debarred from this office.
P(2b)- Q(71)- A(2)- O(2) —
Further, contrary causes have not, seemingly, the same effect. Now to be busy with Divine things and to be busy about sin are contrary to one another. Therefore it is unfitting that some should be debarred from the office of advocate, on account of religion, as monks and clerics, while others are debarred on account of sin, as persons of illrepute and heretics.
P(2b)- Q(71)- A(2)- O(3) —
Further, a man should love his neighbor as himself. Now it is a duty of love for an advocate to plead a person’s cause.
Therefore it is unfitting that certain persons should be debarred from pleading the cause of others, while they are allowed to advocate their own cause.
P(2b)- Q(71)- A(2) —
On the contrary, According to Decretals III, qu. vii, can. Infames, many persons are debarred from the office of advocate.
P(2b)- Q(71)- A(2) —
I answer that, In two ways a person is debarred from performing a certain act: first because it is impossible to him, secondly because it is unbecoming to him: but, whereas the man to whom a certain act is impossible, is absolutely debarred from performing it, he to whom an act is unbecoming is not debarred altogether, since necessity may do away with its unbecomingness. Accordingly some are debarred from the office of advocate because it is impossible to them through lack of sense — either interior, as in the case of madmen and minors — or exterior, as in the case of the deaf and dumb. For an advocate needs to have both interior skill so that he may be able to prove the justice of the cause he defends, and also speech and hearing, that he may speak and hear what is said to him.
Consequently those who are defective in these points, are altogether debarred from being advocates either in their own or in another’s cause.
The becomingness of exercising this office is removed in two ways. First, through a man being engaged in higher things. Wherefore it is unfitting that monks or priests should be advocates in any cause whatever, or that clerics should plead in a secular court, because such persons are engaged in Divine things. Secondly, on account of some personal defect, either of body (for instance a blind man whose attendance in a court of justice would be unbecoming) or of soul, for it ill becomes one who has disdained to be just himself, to plead for the justice of another. Wherefore it is unbecoming that persons of ill repute, unbelievers, and those who have been convicted of grievous crimes should be advocates. Nevertheless this unbecomingness is outweighed by necessity: and for this reason such persons can plead either their own cause or that of persons closely connected with them.
Moreover, clerics can be advocates in the cause of their own church, and monks in the cause of their own monastery, if the abbot direct them to do so.
P(2b)- Q(71)- A(2)- RO(1) —
Certain persons are sometimes debarred by unbecomingness, and others by inability from performing works of mercy: for not all the works of mercy are becoming to all persons: thus it ill becomes a fool to give counsel, or the ignorant to teach.
P(2b)- Q(71)- A(2)- RO(2) —
Just as virtue is destroyed by “too much” and “too little,” so does a person become incompetent by “more” and “less.” For this reason some, like religious and clerics, are debarred from pleading in causes, because they are above such an office; and others because they are less than competent to exercise it, such as persons of illrepute and unbelievers.
P(2b)- Q(71)- A(2)- RO(3) —
The necessity of pleading the causes of others is not so pressing as the necessity of pleading one’s own cause, because others are able to help themselves otherwise: hence the comparison fails.
P(2b)- Q(71)- A(3) Whether an advocate sins by defending an unjust cause?
P(2b)- Q(71)- A(3)- O(1) —
It would seem that an advocate does not sin by defending an unjust cause. For just as a physician proves his skill by healing a desperate disease, so does an advocate prove his skill, if he can defend an unjust cause. Now a physician is praised if he heals a desperate malady. Therefore an advocate also commits no sin, but ought to be praised, if he defends an unjust cause.
P(2b)- Q(71)- A(3)- O(2) —
Further, it is always lawful to desist from committing a sin. Yet an advocate is punished if he throws up his brief (Decret. II, qu. iii, can. Si quem poenit.). Therefore an advocate does not sin by defending an unjust cause, when once he has undertaken its defense.
P(2b)- Q(71)- A(3)- O(3) —
Further, it would seem to be a greater sin for an advocate to use unjust means in defense of a just cause (e.g. by producing false witnesses, or alleging false laws), than to defend an unjust cause, since the former is a sin against the form, the latter against the matter of justice. Yet it is seemingly lawful for an advocate to make use of such underhand means, even as it is lawful for a soldier to lay ambushes in a battle. Therefore it would seem that an advocate does not sin by defending an unjust cause.
P(2b)- Q(71)- A(3) —
On the contrary, It is said (2 Paralip. 19:2): “Thou helpest the ungodly... and therefore thou didst deserve... the wrath of the Lord.” Now an advocate by defending an unjust cause, helps the ungodly.
Therefore he sins and deserves the wrath of the Lord.
P(2b)- Q(71)- A(3) —
I answer that, It is unlawful to cooperate in an evil deed, by counseling, helping, or in any way consenting, because to counsel or assist an action is, in a way, to do it, and the Apostle says ( Romans 1:32) that “they... are worthy of death, not only they that do” a sin, “but they also that consent to them that do” it. Hence it was stated above ( Q(62) , A(7) ), that all such are bound to restitution. Now it is evident that an advocate provides both assistance and counsel to the party for whom he pleads. Wherefore, if knowingly he defends an unjust cause, without doubt he sins grievously, and is bound to restitution of the loss unjustly incurred by the other party by reason of the assistance he has provided. If, however, he defends an unjust cause unknowingly, thinking it just, he is to be excused according to the measure in which ignorance is excusable.
P(2b)- Q(71)- A(3)- RO(1) —
P(2b)- Q(71)- A(3)- RO(2) —
If an advocate believes from the outset that the cause is just, and discovers afterwards while the case is proceeding that it is unjust, he ought not to throw up his brief in such a way as to help the other side, or so as to reveal the secrets of his client to the other party. But he can and must give up the case, or induce his client to give way, or make some compromise without prejudice to the opposing party.
P(2b)- Q(71)- A(3)- RO(3) —
As stated above ( Q(40) , A(3) ), it is lawful for a soldier, or a general to lay ambushes in a just war, by prudently concealing what he has a mind to do, but not by means of fraudulent falsehoods, since we should keep faith even with a foe, as Tully says (De offic. iii, 29). Hence it is lawful for an advocate, in defending his case, prudently to conceal whatever might hinder its happy issue, but it is unlawful for him to employ any kind of falsehood.
P(2b)- Q(71)- A(4) Whether it is lawful for an advocate to take a fee for pleading?
P(2b)- Q(71)- A(4)- O(1) —
It would seem unlawful for an advocate to take a fee for pleading. Works of mercy should not be done with a view to human remuneration, according to Luke 14:12, “When thou makest a dinner or a supper, call not thy friends... nor thy neighbors who are rich: lest perhaps they also invite thee again, and a recompense be made to thee.”
P(2b)- Q(71)- A(4)- O(2) —
Further, spiritual things are not to be bartered with temporal things. But pleading a person’s cause seems to be a spiritual good since it consists in using one’s knowledge of law. Therefore it is not lawful for an advocate to take a fee for pleading.
P(2b)- Q(71)- A(4)- O(3) —
Further, just as the person of the advocate concurs towards the pronouncement of the verdict, so do the persons of the judge and of the witness. Now, according to Augustine (Ep. cliii ad Macedon.), “the judge should not sell a just sentence, nor the witness true evidence.” Therefore neither can an advocate sell a just pleading.
P(2b)- Q(71)- A(4) —
On the contrary, Augustine says (Ep. cliii ad Macedon.) that “an advocate may lawfully sell his pleading, and a lawyer his advice.”
P(2b)- Q(71)- A(4) —
I answer that, A man may justly receive payment for granting what he is not bound to grant. Now it is evident that an advocate is not always bound to consent to plead, or to give advice in other people’s causes. Wherefore, if he sell his pleading or advice, he does not act against justice. The same applies to the physician who attends on a sick person to heal him, and to all like persons; provided, however, they take a moderate fee, with due consideration for persons, for the matter in hand, for the labor entailed, and for the custom of the country. If, however, they wickedly extort an immoderate fee, they sin against justice. Hence Augustine says (Ep. cliii ad Macedon.) that “it is customary to demand from them restitution of what they have extorted by a wicked excess, but not what has been given to them in accordance with a commendable custom.”
P(2b)- Q(71)- A(4)- RO(1) —
Man is not bound to do gratuitously whatever he can do from motives of mercy: else no man could lawfully sell anything, since anything may be given from motives of mercy. But when a man does give a thing out of mercy, he should seek, not a human, but a Divine reward. In like manner an advocate, when he mercifully pleads the cause of a poor man, should have in view not a human but a Divine meed; and yet he is not always bound to give his services gratuitously.
P(2b)- Q(71)- A(4)- RO(2) —
Though knowledge of law is something spiritual, the use of that knowledge is accomplished by the work of the body: hence it is lawful to take money in payment of that use, else no craftsman would be allowed to make profit by his art.
P(2b)- Q(71)- A(4)- RO(3) —
The judge and witnesses are common to either party, since the judge is bound to pronounce a just verdict, and the witness to give true evidence. Now justice and truth do not incline to one side rather than to the other: and consequently judges receive out of the public funds a fixed pay for their labor; and witnesses receive their expenses (not as payment for giving evidence, but as a fee for their labor) either from both parties or from the party by whom they are adduced, because no man “serveth as a soldier at any time at his own charge [*Vulg.: ‘Who serveth as a soldier,’]” ( 1 Corinthians 9:7). On the other hand an advocate defends one party only, and so he may lawfully accept fee from the party he assists.