Chapter XLV: Part II: SPECIAL MORAL THEOLOGY (Continued) (8)

1930. Conditions Required by Commutative Justice for Occult Compensation.--(a) Before the Compensation.--There must be a strict right to the thing taken; for, if there is no such right, one takes what belongs to another against his will, or commits theft. Hence, if an employer has freely promised to make a gift to his servant and then fails to keep the promise, the servant has no right to take what was promised, since it is owed from liberality or fidelity or gratitude, but not from commutative justice. The same applies to a non-necessary heir who has been left nothing in a will, since he had no strict right. It is also unjust to take secret compensation for a debt that has not yet fallen due.

(b) During the Compensation.--No wrong must be done to the debtor (e.g., by taking more than is due, by taking an article which the debtor needs for earning his living) or to third parties (e.g., by taking goods deposited by them with the debtor). If possible, compensation should be made from goods of the same nature and kind as those that were taken or damaged, for the debtor should not be forced to part with things he wishes to retain and which are not necessary for the creditor’s satisfaction.

(c) After the Compensation.--One must avoid injury to the debtor (e.g., the keeping of a payment which is now not owed by him and which one can refuse or return to him) and to third parties (e.g., the casting of suspicion on a servant in order to divert attention from one’s act of occult compensation).

1931. Must the strictness of the right be morally certain, or, in other words, must reasonable doubt of fact and of law be excluded?

(a) As to doubt of fact, it must be excluded; for in such doubt the presumption is with the possessor, or at least it is certainly wrong to perform an act that will probably be injurious to another person (see 713). Moreover, everyone can see that the public good would suffer greatly, if occult compensation were permissible when the existence of a debt is uncertain. Hence, if it is only probable that one sold goods to another person or that another person has not yet paid for services received by him, occult compensation must be avoided.

(b) As to pure doubt of law, the question is controverted. Some think that it also must be excluded, since the possessor should not be deprived of possession unless it is certain that there is a right to do this. Others think that occult compensation may be used in spite of a mere doubt of law, if the doubt concerns only the mode of making the compensation, or if the probability in favor of the creditor is so strong that a judge could conscientiously decide for him against the possessor. Examples of doubts of law here are three cases that are in dispute among authors, namely, whether one may take money as compensation for defamation that will not be repaired by restoration of fame (see 1802, 1803), whether one may deny reparation for defamation when one has been defamed by the other party and has not received restitution, whether one has rights to a legacy of which one is deprived on account of a mere informality in the document. In these cases the right is held by some authorities to be probable, but the decision in a particular instance should be made only on the advice of a learned and conscientious person, since the matter is very complicated and there is great danger of self-deception.

1932. Some Cases in Which There Is a Strict Right to Compensation.--(a) Employees (i.e., servants, workingmen, artisans, officials, etc.) have a strict right when they are injured by the employer’s non-observance of the contract (e.g., the stipulated salary is not paid; unjust subtractions are made from the salary, as by fines for the inadvertent and infrequent breaking of tools, etc., about which there was no agreement in the contract; labors not contracted for are exacted), or when an unjust contract is imposed on them (e.g., they are induced by force or threats to accept less than a living wage; advantage is taken of their grave necessity to wring from them agreement to such a wage).

(b) Merchants have a strict right when a debt which they cannot collect is certainly owed them, or when they sold below the minimum just price, because forced to this unjustly, or because they made a mistake in charging. They may compensate themselves by diminishing weights or measurements.

(c) One has a right to compensation who has been condemned under a sentence manifestly unjust, because the law is certainly unjust or because the judge clearly gave a wrong decision in a matter of fact (e.g., he erroneously presumed that a debt had been contracted, or that it had not been paid).

1933. Some Cases in Which There Is No Right to Compensation.--(a) Employees have no right to compensation for subtractions from their salary, if they culpably injure the property of their employer, or if they agreed to such subtractions; nor for the smallness of their wage, if they freely accepted it (e.g., if they regarded it as a favor to be employed, and the employer did not really need them), or if it is made up for by presents, board or lodging, opportunity for good tips, etc.; nor for unusual labors, if they hired themselves out for general service (unless they are asked to perform work of an entirely unforeseen kind, such as a very perilous mission), or if they undertook these labors freely without the knowledge or wish (express or tacit) of the employer.

(b) Merchants have no right to compensation for goods sold by them below the minimum just price, if they freely agreed to sell at that price.

1934. Children and Employees and Compensation.--Some special questions arise for consideration in case of parents who employ their own children, and of employers who are forced to underpay on account of the dishonesty of their help.

(a) Children who work for their parents and who are entitled to a salary, by agreement or from the law, have the same rights as other employees, but injustice against them would be less frequent. In this country the father has a right to the services and wages of his unemancipated child, but the child becomes independent of the father when it reaches the age of majority or when the father relinquishes his right.

(b) Employees who are underpaid because the employer is cheated by his help have the right to occult compensation, if they are forced to take less than a living wage (1932); otherwise this is not permissible, unless it be certain that the employer is not unwilling that the honest employees receive more than their pay. In practice, on account of the great peril of injustice, it is advisable that such workers seek better pay through their organizations or else look for employment elsewhere.

1935. Conditions Required by Legal Justice for Occult Compensation.--(a) Occult compensation must not be used if payment can easily be obtained through suit at law or agreement; for the order of law and the public welfare require that one should not have recourse to the extraordinary means of occult compensation if ordinary means will suffice and not cause notable difficulties. But as a rule it seems this obliges only under venial sin, since ordinarily the departure from normal procedure in this matter is not seriously detrimental to public morals or order; and it does not impose a duty of restitution, since he who takes only what belongs to him does not offend against commutative justice. Indeed, if it is certain that other means will be futile (e.g., because one has not sufficient evidence to win or because the decision would he biased) or harmful (e.g., because great dissensions will be aroused, or heavy expenses incurred in litigation), occult compensation is not even venially unlawful.

(b) Occult compensation, according to law, should not be used by a bailee, for he has a lien for his services and proper expenditures in caring for the object bailed, but not for any other debt the bailor may owe him (Bolles, _Handy Law Book_). This is obligatory at least for the external forum.

1936. Some Conditions Required by Charity for Occult Compensation (see 1165, 1236, 1483).--(a) Charity towards the Debtor.--The creditor should see, when possible, that the debtor suffers no loss by occasion of the compensation. Hence, in order to spare the debtor the evils of a bad conscience in reference to the debt or of a second payment of the debt, the creditor should, if possible, inform the debtor that the debt is cancelled or that payment is not expected.

(b) Charity towards Third Parties.-The creditor should, if possible, prevent any trouble or loss to others that might be occasioned by the compensation, such as suspicion of theft that might fall on servants.

1937. The Lawfulness of Open Compensation.--(a) If one’s property is being stolen or carried away, it is lawful to protect or recover it by force; for this is only just defense.

(b) If one’s property has already been carried away but is still in being and in a safe place, legal justice requires that one seek redress from the courts. But it does not seem a serious fault if one recovers goods by using moderate force, since the property is one’s own and the public manner of seizing it enables the law to take cognizance of the case. American law recognizes with certain restrictions the rights of recaption and of entry whereby a person takes possession without legal process of goods unlawfully taken or withheld from him (Robinson, _Elementary Law_, Sec.239, 240).

(c) If a debt owed to one is denied by the debtor, it is not lawful to take payment from him by force, since this is against the law and productive of scandal and disturbance, and moreover one is not the owner of the goods which one thus takes by force.

1938. Notanda pro Confessariis.--(a) Ante factum, rarissime consulenda est occulta compensatio, tum quia ut plurimum illicita est (1928) utpote periculo injustitiae, scandali, perturbationis plena, tum quia lex civilis non solet eam ut remedium agnoscere sed potius ut furtum habet. Publice de occulta compensatione non expedit loqui, et praestat ut qui privatim de ea interrogentur, etiam datis conditionibus ad liceitatem necessariis, per modum tolerationis tantum annuant.

(b) Post factum, facilius in favorem utentis compensatione judicari potest, in ordine ad restitutionem, sed prudenter, et quasi evasive loquendum, ne praxis ita agendi ut per se et generaliter licita approbari videatur.

1939. Judicial Injustice.--We pass now from injustices committed by deed to those committed by words, and shall consider first unjust words spoken in courts of law and next unjust words spoken in private or outside of legal processes. Judicial injustice will be treated under the following heads: (a) injustice in judges; (b) injustice in plaintiffs or accusers; (c) injustice in defendants; (d) injustice in witnesses; (e) injustice in lawyers.

1940. The Office of Judge.--Judgment is the proper act of justice (1727) and therefore when exercised under due conditions it is not only lawful, but virtuous. The exercise of public judgment belongs to the judge, who is a person vested with authority to decide litigated questions in civil or criminal cases.

(a) Thus, in the strict sense, a judge is the official who has public authority to preside over tribunals of justice, in which major matters are tried and a formal procedure is followed, and whose function it is to direct the course of the proceedings and to settle questions of fact or of law that arise.

(b) In the wide sense, a judge is any person who has lawful authority to pass an obligatory sentence in criminal or civil matters. The name may be applied, then, to those who preside over a tribunal in which minor or urgent questions are considered and treated summarily (justices of the peace, police magistrates, etc.); to those who do not preside over a tribunal, but who are attorneys at law appointed as officers of a court to pass on some issue of a pending proceeding or suit (referees); to those who act as assistants of the presiding judge, by determining the truth of alleged facts in civil cases, or the innocence or guilt of an accused in criminal cases (trial jurymen); to those who are chosen, by the parties to the dispute or by a court, as substitutes for the ordinary courts provided by law, to hear and settle, without legal formalities, the matter in controversy (arbitrators).

1941. Classes of Courts.--There are various classes of courts and therefore various kinds of judges.

(a) Thus, according to their relative dignity and jurisdiction there are higher and lower courts, courts of the first, second and last instance.

(b) According to the cases they try, courts are either civil (in which redress of private injuries is sought) or criminal (in which the community prosecutes public wrongs).

(c) According to the law which they use courts are ecclesiastical or secular.

(d) According to the form of procedure used and the remedies applied, courts in the United States are divided into courts of common law, courts of equity, probate, admiralty, and military courts.

1942. Jurisdiction.--Authority is necessary in a judge, for judgment is a binding decision that may be executed by force, and this supposes that he who pronounces the judgment is the superior of the person on whom the judgment is passed, Hence, he who acts as judge when he lacks jurisdiction acts invalidly (unless jurisdiction is supplied, as in common error for an ecclesiastical judge, in Canon 209), and offends against the rights of another judge and of the person on whom he passes sentence. Examples would be secular judges acting in ecclesiastical cases or ecclesiastical judges acting in temporal cases.

1943. The Qualifications of a Judge.--(a) Mentally, he must be endowed with knowledge of the law and with prudence, so as to be competent to pronounce correctly on the questions that are brought to him for decision; for, as being the authorized interpreter and custodian of the law, he is bound by quasi-contract with the community and with those who appear before him to be competent for these offices. If a judge realizes that he is incompetent in these ways, he must either resign his office, or make up for his deficiency by study or consultation with those who are more learned than himself. A juryman, being a layman to the law, is not expected to have the mental equipment of a lawyer; but it is his duty to give his attention to the statements, arguments and testimony and to the instructions of the judge.

(b) Morally, the judge must be a lover of justice, whether commutative, distributive or legal; for the proper office of the judge is to apply the law to particular cases and to declare officially the mutual rights and obligations of litigants who are before him. He must not be a respecter of persons, one who is moved for or against a man on account of rank, position or wealth, nor one who is swayed by fear or favor, by popular outcry or personal ambition. Not only legal but also commutative justice obliges him to perform his duties conscientiously; for in taking his office he enters into a quasi-contract with the community to execute his functions faithfully and well, and similarly by trying a case he engages that those before him will receive evenhanded justice. A juror should be a conscientious person who is openminded and free from prejudice for or against those on whom he has to vote.

1944. Conduct of a Judge.--A judge must be above suspicion, since respect for the courts is the very life of the State. But there is good reason to suspect a judge who judges in his own case, or in a case in which he will be naturally inclined to favor one side. Hence the duty of abstaining from certain things.

(a) Thus, he should avoid business, social and political activities that will give ground for belief that he uses his office for the promotion of private interests.

(b) He should not act in a case in which his own advantage or the advantage of his friends might appear to conflict with the duty of strict impartiality, as when he has personal litigation in the court, or when a near relative of his is party in a controversy, or when one of the contestants is his personal or political friend or enemy, etc. Canon 1613 of the Code forbids a church judge to act in the case of a person related by blood or marriage in the direct line or in the first and second degrees of the collateral line, or of a person for whom he is guardian or administrator, or in cases in which he had previously acted as advocate or proxy, or from which he stands to profit or lose.

(c) He should refrain from conduct that would tend to arouse doubts of his impartial attitude, such as incivility to counsel or witnesses, unexplained rulings that have the appearance of arbitrariness, private interviews or dealings with one of the parties before him in ways calculated to influence his action.

1945. Accepting Gifts from Litigants or Others.--May a judge take money or other goods from those whose interests are submitted to him, such as litigants or lawyers in his court or their friends?

(a) If the goods are extorted by threats or pressure or unjust vexation, the judge is guilty of robbery, since he forcibly takes that to which he has no right.

(b) If the goods are given as payment for the judge’s services during the trial, the judge sins against commutative justice in receiving payment for services already due, since his salary comes from the community and obliges him to administer justice without charge to those who seek it. Neither is it lawful to take money as compensation for trying one case before another, or for hastening a case, or for giving unusual diligence to a complicated case, or for deciding for one side when the evidence is equal on both sides. But the law could permit a judge to collect his expenses from both parties if the trial necessitated a personal outlay of money (e.g., for travel or hire of assistants) and there was no public fund to defray these costs.

(c) If the goods are offered as bribes, in order that the judge may be influenced to act against justice, it is clear that grave injustice is done both to the community and to the party who is injured.

(d) If the goods are given as free gifts, with no condition attached, some think they may be lawfully accepted, if there is little probability that they will influence the judge (e.g., because they are small or given after the trial has ended). But others hold, and it seems more correctly, that both natural and positive law forbids this. Natural law forbids because of the danger (“Presents and gifts blind the eyes of judges, and make them dumb in the mouth, so that they cannot correct,” Ecclus., xx. 31), and because of the mistrust and scandal that will result. It is incorrect to suppose that small gifts and gifts offered after sentence would not have influence, for the contending parties would soon come to vie with one another in making gifts, while judges would begin to think about the gratuities that might be looked for at the conclusion of a trial. Canon Law forbids all ecclesiastical judges and all who assist in court to accept any gifts whatever that are offered in connection with the trial (Canon 1624), and the civil law provides severe penalties for bribes offered as gifts.

(e) If goods are given as a mere alms or from civility or hospitality (e.g., food and drink such as is usually offered to a guest or visitor), it does not seem unlawful in itself to accept them, but, since there is a danger of suspicion and scandal, even this should be avoided.

1946. Obligation of a Judge to Restore Goods Received in the Above-Mentioned Ways.--(a) If retention of the goods is contrary to the reasonable wishes of the person who gave them, restitution is necessary. Hence, the judge must give back money that was extorted and the payments made by private parties for the exercise of his official duties.

(b) If retention of the goods is contrary to law, restitution is also necessary. Hence, if a judge has taken a bribe, he must give it back, because the agreement is null, and he cannot lawfully keep his part of the compact by acting contrary to justice. The same is true when the law voids the contract whereby he received the goods, or when a court decree obliges him to return a free gift bestowed upon him.

(c) If retention of the goods is not contrary to the will of the giver nor to the law, restitution is not necessary. Hence, if a judge has received a pure gift and no corruption was intended or practised, he sinned in taking it, but the donation was valid and there is no obligation to return it. And even though he has taken a bribe, and in consideration of it has acted against justice, it seems there is no natural obligation to make restitution to the party who gave the bribe, since the latter has received a consideration for his payment, but the judge is held to indemnify the injured party.

1947. Duties of a Judge in the Course of a Trial.--(a) The purpose of the investigation is to discover the truth in the matter before the court, and consequently it is the duty of a judge to give a case the study and attention it deserves.

(b) The method of procedure is intended to secure a fair hearing for both parties and so to expedite business that the litigants will not be harmed by needless delays. The judge should therefore observe the necessary and customary forms of law, while avoiding waste of time and unnecessary interruptions. “It is not the custom of the Romans,” said Festus to the Jews who asked him to condemn Paul, “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 things laid to his charge” (Acts, xxv. 15).

1948. Duties of a Judge at the Conclusion of a Trial.--(a) The sentence must be just, that is, it must be based on the law and the evidence. Even though a judge does not personally approve of a law, thinking it unwise or unnecessary or over-severe, he should nevertheless enforce it; for he is appointed, not to change or reform, but to apply the law, yet so, however, that the spirit is not sacrificed.

(b) Sentence must not be relaxed as a rule, for otherwise the rights of the State or of the party winning the case will be harmed. But there are times when the public good or some other sufficient reason calls for relaxation, and in such cases judges have the power to refrain from passing sentence or to suspend or respite a sentence already announced. The defeated party should be allowed the opportunity which the law grants him for seeking a reversal of the judgment.

1949. Sentence Passed under a Law Manifestly Unjust.--(a) If the law is manifestly opposed to divine or natural law and sentence under it would command the commission of an act intrinsically evil (e.g., cohabitation of those who are not really married, “mercy killing” of the physically or mentally incapacitated, eugenic sterilization of defectives or criminals), the judge should resign rather than give such a sentence.

(b) If the law is manifestly opposed to divine or natural law and sentence under it would inflict a grievous penalty (e.g., death or long imprisonment) on the transgressor of the law, sentence would be unlawful. But if only a light penalty would be inflicted (e.g., a small fine or short confinement), it seems that sentence might be tolerated; for the person condemned might be considered to yield his rights in such a case for the sake of the public good, which suffers from the loss of conscientious officials. The act of the judge in giving the sentence would be only material cooperation, which is lawful for grave reasons (see 1515 sqq.).

(c) If the law is manifestly opposed to ecclesiastical law, sentence may be given lawfully, if scandal is avoided and the Church yields her right in the case, as is sometimes done in favor of Catholic judges, lest they be deprived of their positions.

1950. May a Catholic Judge Grant a Decree of Divorce?---Apart from scandal or a positive ecclesiastical prohibition:

(a) The judge may grant a divorce to a couple not married validly although they have had a marriage ceremony recognized by civil law. This would occur in the case of Catholics married before a civil magistrate or non-Catholic minister. Also, when the Church has pronounced a marriage invalid, civil divorce may be granted for the sake of civil effects.

(b) Divorce may be granted if the judge knows that one of the parties will invoke the Pauline privilege.

(c) If the judge is morally certain that neither party will attempt remarriage and that the divorce is being sought merely for the sake of civil effects, he may grant the divorce. In the case of Catholics the consent of Church authorities would be required for this procedure.

(d) If the marriage is valid and it is known that the parties will attempt a new marriage, some consider that a decree of divorce is intrinsically evil, since it but applies a law that attempts, contrary to divine right, to dissolve the marriage bond. Others (and this is the more common view today) distinguish and think that the decree of divorce does not concern the religious obligation of the petitioners, but is simply an official declaration that the state regards the civil effects of the marriage as no longer existing. Under certain circumstances, (e. g., loss of office for refusal to accept a divorce case, loss of prestige, antagonism, etc.), such a decree, in itself morally indifferent, may be permitted.

(e) If there is question of partial divorce (i.e., separation from bed and board) of Catholic spouses, a decree is lawful, the Church consenting, for a reason recognized by ecclesiastical authority, such as adultery.

1951. When Evidence Is Contrary to Personal Knowledge of Judge.--(a) In a civil case, the judge should follow the public evidence rather than his private knowledge; for he acts as a public, not as a private, person. Moreover, the State has the power to transfer property from one to another, when the common good requires this, and the common good requires that civil decisions be based on public evidence rather than on private information. Some moralists deny this conclusion on the ground that it is intrinsically wrong to force a person to pay who does not owe, even though the evidence is against him.

(b) In a criminal case, the judge should follow the evidence rather than his own knowledge, if the evidence calls for acquittal of the accused; for it is better for the public welfare that a guilty man escape than that the judicial order be neglected and a rule admitted that might convict the innocent as well as the guilty.

(c) In a criminal case in which the evidence points to guilt while the judge’s private knowledge assures him of the innocence of the accused, the judge must not condemn, if there is any legal way to avoid it. But if the evidence stands and the judge has to pronounce sentence, it is not easy to determine the course that should be followed. According to St. Thomas, the judge should condemn, since he is a public official and must therefore be guided by the allegations and proofs offered during the trial, especially since public order and respect for law depend on the good reputation of the courts. If judges could disregard at will the evidence offered on account of private knowledge they claimed to have, the confidence of the public in the integrity of courts would be shaken, men would take the law into their own hands, and peace and order on which the happiness of the community depend would be at an end. Moreover, the judge is not guilty in sentencing in this case, since he does not intend evil and acts according to the principle of double effect (see 103 sqq.). According to a second opinion attributed to St. Bonaventure, the judge should acquit, since it is intrinsically wrong to condemn to death a person about whose innocence one is certain. According to a third opinion, which St. Alphonsus considers as probable, the judge should condemn in minor criminal cases in which only pecuniary penalties are imposed (for the State has the right to exercise eminent domain in order to safeguard an important public good like that of respect for the law and the courts); but he should acquit in major cases in which personal punishments are inflicted, for society has no right to deprive an innocent person of life or liberty.

1952. When the Judge Is the Unjust Cause of Damaging Evidence.--In some cases the judge may be the unjust cause of the evidence that convicts an innocent man, as when the judge has committed a crime and thrown suspicion on the accused (Dan, xiii), or when the judge has moved others to testify falsely against a man he knows to be innocent.

(a) One opinion holds that the judge would be obliged to condemn, on account of the reasons just given for the opinion of St. Thomas, if the judge were unable to overcome the evidence. But those who hold this add that this is purely speculative, for in a concrete case there would be many ways by which the judge could extricate both himself and the accused from the difficulty.

(b) Another opinion says that in no case could the judge of the present hypothesis condemn. Those who favor this opinion declare that St. Thomas is to be understood only of the case in which the judge is not the cause of the unjust accusation; for one who has culpably placed a cause of damage is bound to remove that cause before it acts, if this is possible, and in the present instance it is possible for the judge, if all other things have failed, to free the innocent person by testifying for him, or even by acknowledging his own guilt.

1953. Practical Conclusions about the Three Controverted Opinions Given Above in 1951.--(a) In a case tried according to Canon Law, it seems that the opinion of St. Thomas should be followed, since Canon 1869, n. 2, declares that the ecclesiastical judge must not give sentence unless he is certain about the matter of the sentence, and that his certainty must be derived from the acts and proofs of the trial.

(b) In a case tried according to civil law, it seems that the whole controversy is today very often of little practical importance; for court decisions are now frequently left to jurymen, and these men must either have no private certainty before they are admitted to their office (as is the case in the United States), or they have the obligation of using private knowledge in casting their vote and of communicating it to fellow-jurors during the deliberations (as is the case in some other countries). Hence, the moral question whether it is lawful to decide according to private knowledge against the public evidence largely disappears. But when a case of the kind now considered does occur, the position of the civil law also agrees, it seems, with that of St. Thomas: “Neither the judge nor the jury can consider a private fact of which they have a merely personal knowledge, however important may be its bearing on the issue, unless it has been brought to their attention by evidence properly produced in open court” (Robinson, Elementary Law, Sec. 334). But the lightest penalty allowed by the law should be imposed in such a case. If a judge were privately certain that a jury verdict was unjust, he could offer his own testimony or appeal to the pardoning power.

1954. The principle that a judge must be guided only by his public knowledge applies also to other officials who are required to follow the results of a public investigation, but not to those who are required to act according to their best knowledge, whether public or private.

(a) Thus, public knowledge must be the guide of those who are ministers of a court and on whom it falls to execute its decrees; for they are the instruments and subjects of the president of the court. If they have private information of a material and relevant kind, they should disclose it as witnesses.

(b) Private knowledge that is opposed to and more reliable than public knowledge must be the guide of those who are supposed to act according to the most trustworthy knowledge they have. Hence, a superior who has the power to make appointments to office should disregard the votes of his advisors, if he can prove that they are wrong in their opinions about a nominee for office. He may confirm or annul their choice according to his honest conscience.

1955. When Guilt Is Doubtful in Criminal Cases.--In a criminal case or a case in which punishment is inflicted, if the guilt of the accused is doubtful, the sentence should be for acquittal; for no one should be condemned unless his guilt is morally certain (see 1728 sqq.).

(a) Thus, according to Canon Law, an ecclesiastical judge who is not certain that sentence for the plaintiff will be just, must declare that the latter has not established his case and must dismiss the defendant, though exception is made for cases that have the favor of law (such as marriage, liberty, testaments, Canon 1869, n. 4). Canon Law places the burden of proof on him who makes an assertion, and it rules that the defendant is to be acquitted if the plaintiff or accuser fails to prove, even though the person on trial says nothing (Canon 1748).

(b) According to the civil law the rules on evidence also favor the accused in cases of doubt. He must not be held guilty unless the State has proved affirmatively and beyond reasonable doubt every material allegation in the indictment. In capital cases the evidence of guilt must be equivalent in weight and conclusiveness to the direct testimony of two competent and reliable witnesses. A reasonable doubt in the mind of a juryman is one for which he can give himself an adequate and satisfactory reason (Robinson, Elementary Law, Sec. 608).

1956. Doubt in Civil Cases.--In civil cases, if it is uncertain after the investigation for whom the decision should be given, the following rules seem to be just:

(a) if the parties are unequal in claim, the decision should be for the one whose claim is more weighty; for the judge is appointed by society to investigate the truth of a controversy and to decide according to the merits of the case. Thus, decision should be for the party Whose arguments are of at least equal strength--but who has legitimate possession (for “possession is nine points in law”), or whose case enjoys the favor of the law (e.g., in Canon Law, the cases of widows, wards, minors), or for the party whose case is stronger and more probable. Innocent XI condemned the proposition that a judge may decide for the side whose arguments are less probable (Denzinger, n. 1152);

(b) if the parties are equal in their claims, some think that property in dispute should be equally divided between the contestants, others that the parties should be persuaded to compromise, or, if this is impossible, that the decision may be given for either one of them. But if positive law regulates the manner of proceeding in such a case, its provisions should be followed. Thus, in Canon Law, if a judge is in doubt as to which one of two competitors has possession, he may grant it to both of them indivisibly, or he may command them to deposit it with a sequester, pending the settlement of the dispute (Canon 1697).

1957. What should be decided when the defendant has possession with probable title and the plaintiff has more probable title?--(a) If the possession is not certain, or not certainly legitimate, decision should be for the plaintiff, for uncertain possession does not create any presumption of right and hence the more probable case prevails.

(b) If the possession is certainly legitimate, the common opinion is that decision should be for the defendant; for certain possession is not overcome by more probable, but only by certain arguments for the plaintiff. Some authors, however, believe that the judge should decide for the plaintiff, since possession prevails only when the arguments are of equal strength on both sides; or at least that he could decide for him, since it is probable that the plaintiff by presenting a more convincing case has sufficiently established his right to eject the defendant.

1958. The Standard by Which a Judge Should Weigh the Evidence.--(a) When the proving force of an argument is settled by the law itself, the legal rule should be followed. Thus, in Canon Law certain kinds of proofs are expressly declared to be demonstrative (e.g., a public instrument not contested, Canon 1816), while other proofs are held to be insufficient or only of partial value (e.g., certain kinds of testimony, Canon 1756). Likewise in civil law public documents are prima facie evidence, oral interpretation of a written document which contradicts its language is not admitted, etc.

(b) When the proving force of an argument is left to the discretion of the judge, he must follow his conscience, that is, he must sincerely and impartially decide to the best of his ability the value of the argument, whether it is decisive, or likely, or Weak. Thus, in judging circumstantial evidence a juryman must use his own common sense and intelligence in determining whether the premises are doubtful or the inference illogical; in estimating testimony a judge must bear in mind the quality of the witnesses and the character of their testimony.

1959. The Moral Obligation of a Judicial Sentence that Is Certainly Just.--(a) It is binding in conscience; for it is merely the application of law to a particular case, and law obliges (see 377). (b) It obliges in virtue of legal justice when the case is only penal, and hence he who is fined by court is held as a duty of obedience to pay the fine; it obliges in virtue of commutative justice when the case is about a strict right, and hence if the court requires an heir to pay a legacy, the latter must make restitution for neglect of this duty (see 1728).

1960. The Moral Obligation of a Judicial Sentence that Is Certainly Unjust.--(a) If the sentence is unjust because it is the application of an unjust law, it produces no obligation in those cases in which the judge cannot lawfully apply the law (see 1949); for an unjust law does not oblige in conscience _per se_, but only _per accidens_ (see 377, 461). (b) If the sentence is unjust because it is not based on the law or the evidence, or because the trial was not conducted fairly, it produces no obligation _per se_, but there may be an obligation _per accidens_, as when scandal or great public disturbance will otherwise result. Hence, one who through plain injustice is deprived of an inheritance has the right to occult compensation (see 1928), while the other party is bound to restitution of the inheritance (unless he is in good faith or has prescribed) and also to damages, if he went to law in bad faith.

1961. The Moral Obligation of a Judicial Sentence in Case of Doubt.--(a) If the doubt is about fact or law, not about the right of the judge to give sentence (see 1955 sqq.), the sentence may be safely followed; for it is the office of the judge to settle doubtful matters, and to promote the common welfare by ending litigation. Thus, in doubtful criminal cases the judge sometimes acquits a guilty man, and in doubtful civil cases he sometimes awards property to one who has no right to it; but these sentences are not unjust, since they are based on rules which long experience has shown to be necessary for the public welfare. (b) If the doubt is about the justice of the sentence, there is an obligation of conscience to observe the judgment, since the presumption favors the judge. Were this not so, the authority of tribunals of justice would be at an end, for almost everyone who loses a case thinks that he has been treated unjustly. But one may enter an appeal, where this is allowed by law.

1962. When a Judge Is Bound to Restitution.--A judge is bound to restitution when he causes unjust damage to the community or to litigants (see 1762 sqq.), and hence he must either recall his unjust act, or repair to the best of his ability the harm done. But the conditions for unjust damage must be verified (see 1763).

(a) Thus, the judge’s act must be objectively unjust, that is, in violation of a strict right under commutative justice. This happens when he conducts the trial unjustly (e.g., when he neglects the essential procedure, tries without an accuser, and the like) or when he passes unjust sentence (e.g., condemns without proof of fact or crime, or in spite of evidence for innocence, votes for acquittal when there is no reasonable doubt of guilt, imposes penalties that are insufficient or excessively severe, or awards property to one who to his knowledge has no right to it).

(b) The judge’s act must be efficaciously unjust, that is, it must be the real cause of the loss sustained by the other person. Hence, there is no duty of restitution if loss does not result (e.g., if the party who is in the right wins in spite of unfairness on the part of the judge), or if loss cannot be traced to the judge’s action (e.g., when a judge is not entirely impartial in his charge to the jury, but his words do not influence them, as they would have given an unfair verdict anyway).

(c) The judge’s act must be subjectively unjust, that is, the judge must be seriously responsible for the damage on account of his culpable ignorance, negligence, or malice. Even though he has made mistakes through excusable inadvertence or error, he becomes seriously responsible for damage, if, foreseeing it, he does not do what is in his power to avert it (see 1769).

1963. When a Judge Is Not Bound to Restitution. A judge is not bound to restitution, however, for violations of virtues other than commutative justice.

(a) Thus, charity is offended, but not justice, if the judge has personal hatred against a person before him, but does not permit this to influence his conduct or decisions.

(b) Legal, but not commutative, justice is offended, if the judge is negligent about exemplary damages, provided the common good does not suffer; for there does not seem to be any strict right to the fine before sentence has been given. This is disputed, however, by some moralists, who hold that the judge is under contract with the community in this matter, and hence that he offends commutative justice, if he is habitually and to notable amounts indulgent about fines.

1964. Kinds of Accusation.--From injustice committed by judges we pass now to that committed by accusers. It should be noted that there are two kinds of accusation: (a) extrajudicial accusation is that which is brought before a superior in order that he may correct or restrain, without recourse to judicial process, a subject who is delinquent. This is evangelical or canonical correction, which was discussed in 1293, 1289; (b) judicial accusation, with which we are now concerned, is that which is brought before a judge, in order that redress may be obtained through judicial process against an accused person.

1965. Judicial accusation is also made in two ways. (a) The accuser sometimes does not act as one of the two antagonistic parties, and does not assume the burden of proving his accusation. He makes an official complaint or denunciation, and then drops out of the case, leaving it to the magistrate or other officer to examine whether a process should be instituted and the informer summoned as a witness. (b) The accuser is sometimes one of the two antagonistic parties during the process, and he then assumes the burden of proving his accusation. In Canon Law there are two kinds of processual accusers, the actor in civil cases and the accuser (an official known as the _promotor justitiae_) in criminal cases. In American law, the accuser in cases of private wrong is known as the plaintiff; in cases of public wrong he is the District Attorney or public prosecutor.

1966. The Duty of Judicial Accusation or Denunciation.--(a) If a wrong has been committed which is directly prejudicial to the common welfare (e.g., treason, counterfeiting, banditry), there is an obligation to make accusation, for each member of society is held to come to its assistance when its peace and order are endangered, and this is done by cooperating with the tribunals of justice. Duty to one’s family also requires that one prosecute, when this is necessary in order to protect its members against some great evil.

(b) If a wrong has been committed which is not immediately prejudicial to the common welfare, there is not _per se_ an obligation of accusation; for the purpose of accusation is to obtain punishment or the correction of a wrong--an end that should not be waived when the common good is at stake, but which may be waived when private interests are concerned. But _per accidens_, or by reason of circumstances, there is often an obligation of denouncing or accusing private wrongs.

1967. Cases in Which There Is a Duty of Making Complaint about Private Wrongs.--(a) Such complaint is obligatory in virtue of commutative justice, when by reason of his office, oath, or function a person is under contract to accuse violators of the law; and hence serious negligence in such a person entails the duty of restitution for any damage caused through his fault. Examples here would be a watchman who fails to report thefts, a man serving on the grand jury who does not vote for an indictment when he should, a prosecutor who is careless. The obligation is grave when the danger or injury to the common good is serious.

(b) This complaint is obligatory in virtue of legal justice, when there is a positive precept of the law which requires that accusation be made. The civil law rarely obliges to this as a duty of conscience, but there are a number of cases in Canon Law in which it is a duty of conscience to denounce (e.g., when there has been a _sollicitatio ad turpia_).

(c) This complaint is obligatory in virtue of charity, when without serious inconvenience one can thereby save a neighbor from a grave evil, such as unjust sentence of death or infamy: “Deliver them that are led to death” (Prov., xxiv. 11); “Rescue the poor, and deliver the needy out of the hand of the sinner” (Psalm lxxxi. 4).

1968. Is a Malefactor Bound to Accuse Himself?--(a) As a rule, he is not bound to confess guilt, either explicitly or implicitly, for this is too much opposed to natural inclination, and hence is not demanded by law (see 552). This seems to be true even though an accused has unjustly declared himself innocent, and has not been questioned further or has been acquitted; for legal justice obliges the accused to give a true answer only when he is being questioned (see 1978). In Canon Law those who would sustain damage from their own testimony are not bound to take the witness stand, and hence persons who reasonably fear that their evidence will subject themselves or their relatives to infamy, vexation or other disadvantage cannot be forced to testify (Canon 1755, n. 2). In civil law one may not be convicted on one’s own testimony alone, unless the confession was voluntary, that is, made neither under fear, nor with the hope of favor, nor as the result of any species of coercion (Robinson, _Elementary Law_, Sec.608).

(b) In exceptional cases, one would be bound to accuse oneself, namely, if there were a grave and urgent necessity of the community which outweighed the loss that would follow from self-accusation (see 1576, 1577). Self-accusation is also a duty when one is the gravely culpable cause of the punishment of an innocent person, if there is no other lawful way of freeing him, and the self-accusation will not bring on one a much more serious evil than that which the innocent person suffers.

1969. Ethical Conditions for Lawful Accusation or Denunciation.--(a) There must be no injury to the common welfare. Hence, if the order and peace of society would be disturbed by the accusation of a crime which was private and from which no further damage could be anticipated, it would be better to leave this occult crime unpunished rather than bring on greater evils to the public.

(b) There must be no injury to private welfare. Hence, if the accuser does not believe that his accusation is just, or if he knows that there is no suitable evidence for his charges, or if he is excluded by law from making an accusation (e.g., when his knowledge has been derived from the confessional or in other confidential ways), it would be unjust to accuse; if the offender offers to make full satisfaction for a private wrong and has already amended, or was not accustomed to commit such wrongs, or if the loss he will suffer from the accusation will be far in excess of the wrong he has done, it would be uncharitable to make formal accusation (see 1200, 1201).

1970. Persons Who May Not Act as Accusers.--Generally speaking, the following persons are naturally incapable of acting as accusers: (a) those who are guilty of greater misdeeds or who are infamous, since it is unbecoming for them to accuse; (b) those who are enemies of the other party, since they are swayed by spite or revengefulness; (c) those who are near relatives of the other party, since it is unnatural for them to attack their own flesh and blood.

1971. In Whose Favor May One Denounce a Private Wrong?--(a) One may denounce it in one’s own favor, for one is not obliged to sacrifice one’s right to redress, and hence accusation is permissible (see 1199). Those who are considered as one person with the injured party may accuse for him, such as parents, husband, wife, children.

(b) One may denounce a private wrong in favor of an innocent third party, as when an innocent person is being harassed by oppression, even though one can defend him only with notable inconvenience to oneself (see 1967).

(c) One may denounce a private wrong in favor of the guilty party himself, as when he is guilty of offenses that are harmful only to himself (e.g., drunkenness, impurities), if he has a bad reputation already or his delinquencies are manifest.

1972. Accusation and Fraternal Correction.--Whether obligatory or permissible accusation should be preceded by a fraternal correction is controverted among moralists. But perhaps the two opposite views may be reconciled as follows:

(a) _per se_, that is, in view of the purpose of accusation (punishment, vindication of justice, example), there is no duty of previous fraternal admonition, since the purpose of the admonition is the amendment of the wrongdoer (see above, 1289, 1293);

(b) _per accidens_, that is, in view of the circumstance that there may be hope of correcting the wrongdoer and of averting evil, and that punishment may not be very necessary to the public welfare, previous fraternal correction for secret delinquencies may sometimes be a duty of charity.

1973. Unjust Accusation.--Injustice in accusation is committed in the following ways: (a) injury is done the accused when a crime is falsely imputed to him through malice (calumny), or through a too great readiness to believe rumors (rashness); (b) injury is done the community if one whose duty it is to conduct a prosecution makes only a sham attack or colludes with the defense (prevarication), or if without good reason he abandons the prosecution (tergiversation).

1974. Cessation of Duty of Accusation.--The duty of accusation ceases: (a) when accusation is found to be unjust, for example, when the prosecutor discovers the accused is really innocent, etc. (see 1969); (b) when accusation is found to be useless, for example, when one discovers that the authorities are already aware of the fact about which one intended to give information, or when one perceives that the charge cannot be substantiated.

1975. The Defendant.--The party who is required to make answer to the charges of the plaintiff or prosecutor is known as the defendant or the accused. We shall now speak of the ways in which he may be guilty of injustice, and shall consider the following cases: (a) the defendant in civil cases; (b) the accused in criminal cases who is innocent; (c) the accused in criminal cases who is guilty.