Chapter XXXI: Part 31

Reply Obj. 3: He who by stealth takes his own property which is deposited with another man burdens the depositary, who is bound either to restitution, or to prove himself innocent. Hence he is clearly guilty of sin, and is bound to ease the depositary of his burden. On the other hand he who, by stealth, takes his own property, if this be unjustly detained by another, he sins indeed; yet not because he burdens the retainer, and so he is not bound to restitution or compensation: but he sins against general justice by disregarding the order of justice and usurping judgment concerning his own property. Hence he must make satisfaction to God and endeavor to allay whatever scandal he may have given his neighbor by acting this way. _______________________

SIXTH ARTICLE [II-II, Q. 66, Art. 6]

Whether Theft Is a Mortal Sin?

Objection 1: It would seem that theft is not a mortal sin. For it is written (Prov. 6:30): "The fault is not so great when a man hath stolen." But every mortal sin is a great fault. Therefore theft is not a mortal sin.

Obj. 2: Further, mortal sin deserves to be punished with death. But in the Law theft is punished not by death but by indemnity, according to Ex. 22:1, "If any man steal an ox or a sheep . . . he shall restore have oxen for one ox, and four sheep for one sheep." Therefore theft is not a mortal sin.

Obj. 3: Further, theft can be committed in small even as in great things. But it seems unreasonable for a man to be punished with eternal death for the theft of a small thing such as a needle or a quill. Therefore theft is not a mortal sin.

_On the contrary,_ No man is condemned by the Divine judgment save for a mortal sin. Yet a man is condemned for theft, according to Zech. 5:3, "This is the curse that goeth forth over the face of the earth; for every thief shall be judged as is there written." Therefore theft is a mortal sin.

_I answer that,_ As stated above (Q. 59, A. 4; I-II, Q. 72, A. 5), a mortal sin is one that is contrary to charity as the spiritual life of the soul. Now charity consists principally in the love of God, and secondarily in the love of our neighbor, which is shown in our wishing and doing him well. But theft is a means of doing harm to our neighbor in his belongings; and if men were to rob one another habitually, human society would be undone. Therefore theft, as being opposed to charity, is a mortal sin.

Reply Obj. 1: The statement that theft is not a great fault is in view of two cases. First, when a person is led to thieve through necessity. This necessity diminishes or entirely removes sin, as we shall show further on (A. 7). Hence the text continues: "For he stealeth to fill his hungry soul." Secondly, theft is stated not to be a great fault in comparison with the guilt of adultery, which is punished with death. Hence the text goes on to say of the thief that "if he be taken, he shall restore sevenfold . . . but he that is an adulterer . . . shall destroy his own soul."

Reply Obj. 2: The punishments of this life are medicinal rather than retributive. For retribution is reserved to the Divine judgment which is pronounced against sinners "according to truth" (Rom. 2:2). Wherefore, according to the judgment of the present life the death punishment is inflicted, not for every mortal sin, but only for such as inflict an irreparable harm, or again for such as contain some horrible deformity. Hence according to the present judgment the pain of death is not inflicted for theft which does not inflict an irreparable harm, except when it is aggravated by some grave circumstance, as in the case of sacrilege which is the theft of a sacred thing, of peculation, which is theft of common property, as Augustine states (Tract. 1, Super Joan.), and of kidnaping which is stealing a man, for which the pain of death is inflicted (Ex. 21:16).

Reply Obj. 3: Reason accounts as nothing that which is little: so that a man does not consider himself injured in very little matters: and the person who takes such things can presume that this is not against the will of the owner. And if a person take such like very little things, he may be proportionately excused from mortal sin. Yet if his intention is to rob and injure his neighbor, there may be a mortal sin even in these very little things, even as there may be through consent in a mere thought. _______________________

SEVENTH ARTICLE [II-II, Q. 66, Art. 7]

Whether It Is Lawful to Steal Through Stress of Need?

Objection 1: It would seem unlawful to steal through stress of need. For penance is not imposed except on one who has sinned. Now it is stated (Extra, De furtis, Cap. Si quis): "If anyone, through stress of hunger or nakedness, steal food, clothing or beast, he shall do penance for three weeks." Therefore it is not lawful to steal through stress of need.

Obj. 2: Further, the Philosopher says (Ethic. ii, 6) that "there are some actions whose very name implies wickedness," and among these he reckons theft. Now that which is wicked in itself may not be done for a good end. Therefore a man cannot lawfully steal in order to remedy a need.

Obj. 3: Further, a man should love his neighbor as himself. Now, according to Augustine (Contra Mendac. vii), it is unlawful to steal in order to succor one's neighbor by giving him an alms. Therefore neither is it lawful to steal in order to remedy one's own needs.

_On the contrary,_ In cases of need all things are common property, so that there would seem to be no sin in taking another's property, for need has made it common.

_I answer that,_ Things which are of human right cannot derogate from natural right or Divine right. Now according to the natural order established by Divine Providence, inferior things are ordained for the purpose of succoring man's needs by their means. Wherefore the division and appropriation of things which are based on human law, do not preclude the fact that man's needs have to be remedied by means of these very things. Hence whatever certain people have in superabundance is due, by natural law, to the purpose of succoring the poor. For this reason Ambrose [*Loc. cit., A. 2, Obj. 3] says, and his words are embodied in the Decretals (Dist. xlvii, can. Sicut ii): "It is the hungry man's bread that you withhold, the naked man's cloak that you store away, the money that you bury in the earth is the price of the poor man's ransom and freedom."

Since, however, there are many who are in need, while it is impossible for all to be succored by means of the same thing, each one is entrusted with the stewardship of his own things, so that out of them he may come to the aid of those who are in need. Nevertheless, if the need be so manifest and urgent, that it is evident that the present need must be remedied by whatever means be at hand (for instance when a person is in some imminent danger, and there is no other possible remedy), then it is lawful for a man to succor his own need by means of another's property, by taking it either openly or secretly: nor is this properly speaking theft or robbery.

Reply Obj. 1: This decretal considers cases where there is no urgent need.

Reply Obj. 2: It is not theft, properly speaking, to take secretly and use another's property in a case of extreme need: because that which he takes for the support of his life becomes his own property by reason of that need.

Reply Obj. 3: In a case of a like need a man may also take secretly another's property in order to succor his neighbor in need. _______________________

EIGHTH ARTICLE [II-II, Q. 66, Art. 8]

Whether Robbery May Be Committed Without Sin?

Objection 1: It would seem that robbery may be committed without sin. For spoils are taken by violence, and this seems to belong to the essence of robbery, according to what has been said (A. 4). Now it is lawful to take spoils from the enemy; for Ambrose says (De Patriarch. 4 [*De Abraham i, 3]): "When the conqueror has taken possession of the spoils, military discipline demands that all should be reserved for the sovereign," in order, to wit, that he may distribute them. Therefore in certain cases robbery is lawful.

Obj. 2: Further, it is lawful to take from a man what is not his. Now the things which unbelievers have are not theirs, for Augustine says (Ep. ad Vincent. Donat. xciii.): "You falsely call things your own, for you do not possess them justly, and according to the laws of earthly kings you are commanded to forfeit them." Therefore it seems that one may lawfully rob unbelievers.

Obj. 3: Further, earthly princes violently extort many things from their subjects: and this seems to savor of robbery. Now it would seem a grievous matter to say that they sin in acting thus, for in that case nearly every prince would be damned. Therefore in some cases robbery is lawful.

_On the contrary,_ Whatever is taken lawfully may be offered to God in sacrifice and oblation. Now this cannot be done with the proceeds of robbery, according to Isa. 61:8, "I am the Lord that love judgment, and hate robbery in a holocaust." Therefore it is not lawful to take anything by robbery.

_I answer that,_ Robbery implies a certain violence and coercion employed in taking unjustly from a man that which is his. Now in human society no man can exercise coercion except through public authority: and, consequently, if a private individual not having public authority takes another's property by violence, he acts unlawfully and commits a robbery, as burglars do. As regards princes, the public power is entrusted to them that they may be the guardians of justice: hence it is unlawful for them to use violence or coercion, save within the bounds of justice--either by fighting against the enemy, or against the citizens, by punishing evil-doers: and whatever is taken by violence of this kind is not the spoils of robbery, since it is not contrary to justice. On the other hand to take other people's property violently and against justice, in the exercise of public authority, is to act unlawfully and to be guilty of robbery; and whoever does so is bound to restitution.

Reply Obj. 1: A distinction must be made in the matter of spoils. For if they who take spoils from the enemy, are waging a just war, such things as they seize in the war become their own property. This is no robbery, so that they are not bound to restitution. Nevertheless even they who are engaged in a just war may sin in taking spoils through cupidity arising from an evil intention, if, to wit, they fight chiefly not for justice but for spoil. For Augustine says (De Verb. Dom. xix; Serm. lxxxii) that "it is a sin to fight for booty." If, however, those who take the spoil, are waging an unjust war, they are guilty of robbery, and are bound to restitution.

Reply Obj. 2: Unbelievers possess their goods unjustly in so far as they are ordered by the laws of earthly princes to forfeit those goods. Hence these may be taken violently from them, not by private but by public authority.

Reply Obj. 3: It is no robbery if princes exact from their subjects that which is due to them for the safe-guarding of the common good, even if they use violence in so doing: but if they extort something unduly by means of violence, it is robbery even as burglary is. Hence Augustine says (De Civ. Dei iv, 4): "If justice be disregarded, what is a king but a mighty robber? since what is a robber but a little king?" And it is written (Ezech. 22:27): "Her princes in the midst of her, are like wolves ravening the prey." Wherefore they are bound to restitution, just as robbers are, and by so much do they sin more grievously than robbers, as their actions are fraught with greater and more universal danger to public justice whose wardens they are. _______________________

NINTH ARTICLE [II-II, Q. 66, Art. 9]

Whether Theft Is a More Grievous Sin Than Robbery?

Objection 1: It would seem that theft is a more grievous sin than robbery. For theft adds fraud and guile to the taking of another's property: and these things are not found in robbery. Now fraud and guile are sinful in themselves, as stated above (Q. 55, AA. 4, 5). Therefore theft is a more grievous sin than robbery.

Obj. 2: Further, shame is fear about a wicked deed, as stated in _Ethic._ iv, 9. Now men are more ashamed of theft than of robbery. Therefore theft is more wicked than robbery.

Obj. 3: Further, the more persons a sin injures the more grievous it would seem to be. Now the great and the lowly may be injured by theft: whereas only the weak can be injured by robbery, since it is possible to use violence towards them. Therefore the sin of theft seems to be more grievous than the sin of robbery.

_On the contrary,_ According to the laws robbery is more severely punished than theft.

_I answer that,_ Robbery and theft are sinful, as stated above (AA. 4, 6), on account of the involuntariness on the part of the person from whom something is taken: yet so that in theft the involuntariness is due to ignorance, whereas in robbery it is due to violence. Now a thing is more involuntary through violence than through ignorance, because violence is more directly opposed to the will than ignorance. Therefore robbery is a more grievous sin than theft. There is also another reason, since robbery not only inflicts a loss on a person in his things, but also conduces to the ignominy and injury of his person, and this is of graver import than fraud or guile which belong to theft. Hence the Reply to the First Objection is evident.

Reply Obj. 2: Men who adhere to sensible things think more of external strength which is evidenced in robbery, than of internal virtue which is forfeit through sin: wherefore they are less ashamed of robbery than of theft.

Reply Obj. 3: Although more persons may be injured by theft than by robbery, yet more grievous injuries may be inflicted by robbery than by theft: for which reason also robbery is more odious. _______________________

QUESTION 67

OF THE INJUSTICE OF A JUDGE, IN JUDGING (In 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? _______________________

FIRST ARTICLE [II-II, Q. 67, Art. 1]

Whether a Man Can Justly Judge One Who Is Not Subject to His Jurisdiction?

Objection 1: It would seem that a man can justly judge one who is not subject to his jurisdiction. For it is stated (Dan. 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.

Obj. 2: Further, Christ was no man's subject, indeed He was "King of kings and Lord of lords" (Apoc. 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.

Obj. 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.

_On the contrary,_ Gregory [*Regist. xi, epist. 64] in commenting on Deut. 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."

_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.

Reply Obj. 1: In judging those ancients Daniel exercised an authority delegated to him by Divine instinct. This is indicated where it is said (Dan. 13:45) that "the Lord raised up the . . . spirit of a young boy."

Reply Obj. 2: In human affairs a man may submit of his own accord to the judgment of others although these be not his superiors, an example of which is when parties agree to a settlement by arbitrators. 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].

Reply Obj. 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. _______________________

SECOND ARTICLE [II-II, Q. 67, Art. 2]

Whether It Is Lawful for a Judge to Pronounce Judgment Against the Truth That He Knows, on Account of Evidence to the Contrary?

Objection 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 (Deut. 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.

Obj. 2: Further, in pronouncing judgment a man should conform to the Divine judgment, since "it is the judgment of God" (Deut. 1:17). Now "the judgment of God is according to the truth" (Rom. 2:2), and it was foretold of Christ (Isa. 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.

Obj. 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 Tim. 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.

Obj. 4: Further, the word "conscience" denotes application of knowledge to a matter of action as stated in the First Part (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.

_On the contrary,_ Augustine [*Ambrose, Super Ps. 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.

_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.

Reply Obj. 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.

Reply Obj. 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.

Reply Obj. 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.

Reply Obj. 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. _______________________

THIRD ARTICLE [II-II, Q. 67, Art. 3]

Whether a Judge May Condemn a Man Who Is Not Accused?

Objection 1: It would seem that a judge may pass sentence on a man who is not accused. For human justice is derived from Divine justice. Now God judges the sinner even though there be no accuser. Therefore it seems that a man may pass sentence of condemnation on a man even though there be no accuser.

Obj. 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.

Obj. 3: Further, the deeds of holy persons are related in Holy Writ, as models of human conduct. Now Daniel was at the same time the accuser and the judge of the wicked ancients (Dan. 13). Therefore it is not contrary to justice for a man to condemn anyone as judge while being at the same time his accuser.

_On the contrary,_ Ambrose in his commentary on 1 Cor. 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."

_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.

Reply Obj. 1: God, in judging man, takes the sinner's conscience as his accuser, according to Rom. 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 Gen. 4:10, "The voice of thy brother's blood crieth to Me from the earth."

Reply Obj. 2: Public disgrace takes the place of an accuser. Hence a gloss on Gen. 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 eye-witness, does not authorize him to proceed to pass sentence, except according to the order of judicial procedure.

Reply Obj. 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). _______________________

FOURTH ARTICLE [II-II, Q. 67, Art. 4]

Whether the Judge Can Lawfully Remit the Punishment?

Objection 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.

Obj. 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 Ezech. 18:23. Therefore a human judge also may lawfully remit the punishment to one who repents.

Obj. 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.

_On the contrary,_ It is written (Deut. 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 (Deut. 19:12, 13): "He shall die. Thou shalt not pity him."

_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.

Reply Obj. 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.

Reply Obj. 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.

Reply Obj. 3: If the judge were to remit punishment inordinately, he would inflict an injury on the community, for whose good it behooves ill-deeds to be punished, in order that men may avoid sin. Hence the text, after appointing the punishment of the seducer, adds (Deut. 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 68

OF MATTERS CONCERNING UNJUST ACCUSATION (In 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? _______________________

FIRST ARTICLE [II-II, Q. 68, Art. 1]

Whether a Man Is Bound to Accuse?

Objection 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 Tim. 1:5]. Therefore a man is not bound by a Divine precept to accuse.

Obj. 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 (Rom. 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.

Obj. 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 (Prov. 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.

_On the contrary,_ It is written (Lev. 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."

_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.

Reply Obj. 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.

Reply Obj. 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.

Reply Obj. 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. _______________________

SECOND ARTICLE [II-II, Q. 68, Art. 2]

Whether It Is Necessary for the Accusation to Be Made in Writing?

Objection 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.

Obj. 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). Therefore the accusation need not be in writing: and all the more that the canon declares that "no accusation in writing should be accepted."

Obj. 3: Further, a man's crime is made known by denunciation, even as by accusation. Now writing is unnecessary in denunciation. Therefore it is seemingly unnecessary in accusation.

_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."

_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.

Reply Obj. 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.

Reply Obj. 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.

Reply Obj. 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. _______________________

THIRD ARTICLE [II-II, Q. 68, Art. 3]

Whether an Accusation Is Rendered Unjust by Calumny, Collusion or Evasion?

Objection 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.

Obj. 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.

Obj. 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.

_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."

_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_).

Reply Obj. 1: A man ought not to proceed to accuse except of what he is quite certain about, wherein ignorance of fact has no place. 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.

Reply Obj. 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.

Reply Obj. 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. _______________________

FOURTH ARTICLE [II-II, Q. 68, Art. 4]

Whether an Accuser Who Fails to Prove His Indictment Is Bound to the Punishment of Retaliation?

Objection 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. iii. [*Append. Grat., ad can. Si quem poenituerit.] Therefore the accuser who fails to prove his indictment is not bound to the punishment of retaliation.

Obj. 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.

Obj. 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.

_On the contrary,_ Pope Hadrian I says (Cap. lii): "He that fails to prove his accusation, must himself suffer the punishment which his accusation inferred."

_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 Ex. 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.

Reply Obj. 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.

Reply Obj. 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 (Deut. 19:18-20): "And when after most diligent inquisition, they shall find that the false witness hath told a lie against his brother: they 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.

Reply Obj. 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 69

OF SINS COMMITTED AGAINST JUSTICE ON THE PART OF THE DEFENDANT (In 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? _______________________

FIRST ARTICLE [II-II, Q. 69, Art. 1]

Whether One Can, Without a Mortal Sin, Deny the Truth Which Would Lead to One's Condemnation?

Objection 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.

Obj. 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.

Obj. 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.

_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 Cor. 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.