Objection
3: Further, according to the law [*Cap.
Summa Theologica
" Therefore theft is not always a sin.
Objection 2: Further, if a man finds a thing that is not his and takes
it, he seems to commit a theft, for he takes another's property. Yet
this seems lawful according to natural equity, as the jurists hold.
[*See loc. cit. in Reply. ] Therefore it seems that theft is not always
a sin.
Objection 3: Further, he that takes what is his own does not seem to
sin, because he does not act against justice, since he does not destroy
its equality. Yet a man commits a theft even if he secretly take his
own property that is detained by or in the safe-keeping of another.
Therefore it seems that theft is not always a sin.
On the contrary, It is written (Ex. 20:15): "Thou shalt not steal. "
I answer that, If anyone consider what is meant by theft, he will find
that it is sinful on two counts. First, because of its opposition to
justice, which gives to each one what is his, so that for this reason
theft is contrary to justice, through being a taking of what belongs to
another. Secondly, because of the guile or fraud committed by the
thief, by laying hands on another's property secretly and cunningly.
Wherefore it is evident that every theft is a sin.
Reply to Objection 1: It is no theft for a man to take another's
property either secretly or openly by order of a judge who has
commanded him to do so, because it becomes his due by the very fact
that it is adjudicated to him by the sentence of the court. Hence still
less was it a theft for the Israelites to take away the spoils of the
Egyptians at the command of the Lord, Who ordered this to be done on
account of the ill-treatment accorded to them by the Egyptians without
any cause: wherefore it is written significantly (Wis. 10:19): "The
just took the spoils of the wicked. "
Reply to Objection 2: With regard to treasure-trove a distinction must
be made. For some there are that were never in anyone's possession, for
instance precious stones and jewels, found on the seashore, and such
the finder is allowed to keep [*Dig. I, viii, De divis. rerum: Inst.
II, i, De rerum divis. ]. The same applies to treasure hidden
underground long since and belonging to no man, except that according
to civil law the finder is bound to give half to the owner of the land,
if the treasure trove be in the land of another person [*Inst. II, i,
39: Cod. X, xv, De Thesauris]. Hence in the parable of the Gospel (Mat.
13:44) it is said of the finder of the treasure hidden in a field that
he bought the field, as though he purposed thus to acquire the right of
possessing the whole treasure. On the other Land the treasure-trove may
be nearly in someone's possession: and then if anyone take it with the
intention, not of keeping it but of returning it to the owner who does
not look upon such things as unappropriated, he is not guilty of theft.
In like manner if the thing found appears to be unappropriated, and if
the finder believes it to be so, although he keep it, he does not
commit a theft [*Inst. II, i, 47]. In any other case the sin of theft
is committed [*Dig. XLI, i, De acquirend, rerum dominio, 9: Inst. II,
i, 48]: wherefore Augustine says in a homily (Serm. clxxviii; De Verb.
Apost. ): "If thou hast found a thing and not returned it, thou hast
stolen it" (Dig. xiv, 5, can. Si quid invenisti).
Reply to Objection 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.
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.
Objection 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.
Objection 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]; [2916]FS, 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 to Objection 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 [2917](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 to Objection 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 to Objection 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.
__________________________________________________________________
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.
Objection 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.
Objection 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 to Objection 1: This decretal considers cases where there is no
urgent need.
Reply to Objection 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 to Objection 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.
__________________________________________________________________
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 [2918](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.
Objection 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.
Objection 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 Is. 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 to Objection 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 to Objection 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 to Objection 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.
__________________________________________________________________
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 ([2919]Q[55], AA[4],5).
Therefore theft is a more grievous sin than robbery.
Objection 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.
Objection 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
([2920]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 to Objection 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 to Objection 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.
__________________________________________________________________
OF THE INJUSTICE OF A JUDGE, IN JUDGING (FOUR ARTICLES)
We must now consider those vices opposed to commutative justice, that
consist in words injurious to our neighbors. We shall consider (1)
those which are connected with judicial proceedings, and (2) injurious
words uttered extra-judicially.
Under the first head five points occur for our consideration: (1) The
injustice of a judge in judging; (2) The injustice of the prosecutor in
accusing; (3) The injustice of the defendant in defending himself; (4)
The injustice of the witnesses in giving evidence; (5) The injustice of
the advocate in defending.
Under the first head there are four points of inquiry:
(1) Whether a man can justly judge one who is not his subject?
(2) Whether it is lawful for a judge, on account of the evidence, to
deliver judgment in opposition to the truth which is known to him?
(3) Whether a judge can justly sentence a man who is not accused?
(4) Whether he can justly remit the punishment?
__________________________________________________________________
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.
Objection 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.
Objection 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 Dt.
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 to Objection 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 to Objection 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 to Objection 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.
__________________________________________________________________
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 (Dt. 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.
Objection 2: Further, in pronouncing judgment a man should conform to
the Divine judgment, since "it is the judgment of God" (Dt. 1:17). Now
"the judgment of God is according to the truth" (Rom. 2:2), and it was
foretold of Christ (Is. 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.
Objection 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.
Objection 4: Further, the word "conscience" denotes application of
knowledge to a matter of action as stated in the [2921]FP, 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 [2922](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 to Objection 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 to Objection 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 to Objection 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 to Objection 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.
__________________________________________________________________
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.
Objection 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.
Objection 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
([2923]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 to Objection 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 Gn. 4:10, "The voice of thy brother's blood crieth to Me from the
earth. "
Reply to Objection 2: Public disgrace takes the place of an accuser.
Hence a gloss on Gn. 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 ([2924]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 to Objection 3: God, in judging man, proceeds from His own
knowledge of the truth, whereas man does not, as stated above
[2925](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).
__________________________________________________________________
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.
Objection 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.
Objection 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 (Dt. 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 (Dt. 19:12,13): "He shall die. Thou shalt
not pity him. "
I answer that, As may be gathered from what has been said
([2926]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 to Objection 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 to Objection 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 to Objection 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 (Dt. 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.
__________________________________________________________________
OF MATTERS CONCERNING UNJUST ACCUSATION (FOUR ARTICLES)
We must now consider matters pertaining to unjust accusation. Under
this head there are four points of inquiry:
(1) Whether a man is bound to accuse?
(2) Whether the accusation should be made in writing?
(3) How is an accusation vitiated?
(4) How should those be punished who have accused a man wrongfully?
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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.
Objection 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.
Objection 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 ([2927]Q[33], AA[6],7;[2928] 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 to Objection 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 to Objection 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 to Objection 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.
__________________________________________________________________
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.
Objection 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. "
Objection 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.
Objection 2: Further, if a man finds a thing that is not his and takes
it, he seems to commit a theft, for he takes another's property. Yet
this seems lawful according to natural equity, as the jurists hold.
[*See loc. cit. in Reply. ] Therefore it seems that theft is not always
a sin.
Objection 3: Further, he that takes what is his own does not seem to
sin, because he does not act against justice, since he does not destroy
its equality. Yet a man commits a theft even if he secretly take his
own property that is detained by or in the safe-keeping of another.
Therefore it seems that theft is not always a sin.
On the contrary, It is written (Ex. 20:15): "Thou shalt not steal. "
I answer that, If anyone consider what is meant by theft, he will find
that it is sinful on two counts. First, because of its opposition to
justice, which gives to each one what is his, so that for this reason
theft is contrary to justice, through being a taking of what belongs to
another. Secondly, because of the guile or fraud committed by the
thief, by laying hands on another's property secretly and cunningly.
Wherefore it is evident that every theft is a sin.
Reply to Objection 1: It is no theft for a man to take another's
property either secretly or openly by order of a judge who has
commanded him to do so, because it becomes his due by the very fact
that it is adjudicated to him by the sentence of the court. Hence still
less was it a theft for the Israelites to take away the spoils of the
Egyptians at the command of the Lord, Who ordered this to be done on
account of the ill-treatment accorded to them by the Egyptians without
any cause: wherefore it is written significantly (Wis. 10:19): "The
just took the spoils of the wicked. "
Reply to Objection 2: With regard to treasure-trove a distinction must
be made. For some there are that were never in anyone's possession, for
instance precious stones and jewels, found on the seashore, and such
the finder is allowed to keep [*Dig. I, viii, De divis. rerum: Inst.
II, i, De rerum divis. ]. The same applies to treasure hidden
underground long since and belonging to no man, except that according
to civil law the finder is bound to give half to the owner of the land,
if the treasure trove be in the land of another person [*Inst. II, i,
39: Cod. X, xv, De Thesauris]. Hence in the parable of the Gospel (Mat.
13:44) it is said of the finder of the treasure hidden in a field that
he bought the field, as though he purposed thus to acquire the right of
possessing the whole treasure. On the other Land the treasure-trove may
be nearly in someone's possession: and then if anyone take it with the
intention, not of keeping it but of returning it to the owner who does
not look upon such things as unappropriated, he is not guilty of theft.
In like manner if the thing found appears to be unappropriated, and if
the finder believes it to be so, although he keep it, he does not
commit a theft [*Inst. II, i, 47]. In any other case the sin of theft
is committed [*Dig. XLI, i, De acquirend, rerum dominio, 9: Inst. II,
i, 48]: wherefore Augustine says in a homily (Serm. clxxviii; De Verb.
Apost. ): "If thou hast found a thing and not returned it, thou hast
stolen it" (Dig. xiv, 5, can. Si quid invenisti).
Reply to Objection 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.
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.
Objection 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.
Objection 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]; [2916]FS, 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 to Objection 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 [2917](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 to Objection 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 to Objection 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.
__________________________________________________________________
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.
Objection 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.
Objection 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 to Objection 1: This decretal considers cases where there is no
urgent need.
Reply to Objection 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 to Objection 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.
__________________________________________________________________
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 [2918](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.
Objection 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.
Objection 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 Is. 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 to Objection 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 to Objection 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 to Objection 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.
__________________________________________________________________
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 ([2919]Q[55], AA[4],5).
Therefore theft is a more grievous sin than robbery.
Objection 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.
Objection 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
([2920]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 to Objection 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 to Objection 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.
__________________________________________________________________
OF THE INJUSTICE OF A JUDGE, IN JUDGING (FOUR ARTICLES)
We must now consider those vices opposed to commutative justice, that
consist in words injurious to our neighbors. We shall consider (1)
those which are connected with judicial proceedings, and (2) injurious
words uttered extra-judicially.
Under the first head five points occur for our consideration: (1) The
injustice of a judge in judging; (2) The injustice of the prosecutor in
accusing; (3) The injustice of the defendant in defending himself; (4)
The injustice of the witnesses in giving evidence; (5) The injustice of
the advocate in defending.
Under the first head there are four points of inquiry:
(1) Whether a man can justly judge one who is not his subject?
(2) Whether it is lawful for a judge, on account of the evidence, to
deliver judgment in opposition to the truth which is known to him?
(3) Whether a judge can justly sentence a man who is not accused?
(4) Whether he can justly remit the punishment?
__________________________________________________________________
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.
Objection 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.
Objection 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 Dt.
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 to Objection 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 to Objection 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 to Objection 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.
__________________________________________________________________
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 (Dt. 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.
Objection 2: Further, in pronouncing judgment a man should conform to
the Divine judgment, since "it is the judgment of God" (Dt. 1:17). Now
"the judgment of God is according to the truth" (Rom. 2:2), and it was
foretold of Christ (Is. 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.
Objection 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.
Objection 4: Further, the word "conscience" denotes application of
knowledge to a matter of action as stated in the [2921]FP, 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 [2922](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 to Objection 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 to Objection 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 to Objection 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 to Objection 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.
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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.
Objection 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.
Objection 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
([2923]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 to Objection 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 Gn. 4:10, "The voice of thy brother's blood crieth to Me from the
earth. "
Reply to Objection 2: Public disgrace takes the place of an accuser.
Hence a gloss on Gn. 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 ([2924]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 to Objection 3: God, in judging man, proceeds from His own
knowledge of the truth, whereas man does not, as stated above
[2925](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).
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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.
Objection 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.
Objection 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 (Dt. 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 (Dt. 19:12,13): "He shall die. Thou shalt
not pity him. "
I answer that, As may be gathered from what has been said
([2926]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 to Objection 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 to Objection 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 to Objection 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 (Dt. 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.
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OF MATTERS CONCERNING UNJUST ACCUSATION (FOUR ARTICLES)
We must now consider matters pertaining to unjust accusation. Under
this head there are four points of inquiry:
(1) Whether a man is bound to accuse?
(2) Whether the accusation should be made in writing?
(3) How is an accusation vitiated?
(4) How should those be punished who have accused a man wrongfully?
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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.
Objection 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.
Objection 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 ([2927]Q[33], AA[6],7;[2928] 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 to Objection 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 to Objection 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 to Objection 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.
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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.
Objection 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. "
Objection 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.
