23:5): "If thou see the ass
of him that hateth thee lie underneath his burden, thou shalt not pass
by, but shall lift him up with him.
of him that hateth thee lie underneath his burden, thou shalt not pass
by, but shall lift him up with him.
Summa Theologica
If the
lower authority departs from the order of the higher, we ought not to
submit to it, for instance "if the proconsul order one thing and the
emperor another," according to a gloss on Rom. 13:2. Now when a judge
oppresses anyone unjustly, in this respect he departs from the order of
the higher authority, whereby he is obliged to judge justly. Hence it
is lawful for a man who is oppressed unjustly, to have recourse to the
authority of the higher power, by appealing either before or after
sentence has been pronounced. And since it is to be presumed that there
is no rectitude where true faith is lacking, it is unlawful for a
Catholic to appeal to an unbelieving judge, according to Decretals II,
qu. vi, can. Catholicus: "The Catholic who appeals to the decision of a
judge of another faith shall be excommunicated, whether his case be
just or unjust. " Hence the Apostle also rebuked those who went to law
before unbelievers (1 Cor. 6:6).
Reply to Objection 2: It is due to a man's own fault or neglect that,
of his own accord, he submits to the judgment of one in whose justice
he has no confidence. Moreover it would seem to point to levity of mind
for a man not to abide by what he has once approved of. Hence it is
with reason that the law refuses us the faculty of appealing from the
decision of judges of our own choice, who have no power save by virtue
of the consent of the litigants. On the other hand the authority of an
ordinary judge depends, not on the consent of those who are subject to
his judgment, but on the authority of the king or prince who appointed
him. Hence, as a remedy against his unjust oppression, the law allows
one to have recourse to appeal, so that even if the judge be at the
same time ordinary and chosen by the litigants, it is lawful to appeal
from his decision, since seemingly his ordinary authority occasioned
his being chosen as arbitrator. Nor is it to be imputed as a fault to
the man who consented to his being arbitrator, without adverting to the
fact that he was appointed ordinary judge by the prince.
Reply to Objection 3: The equity of the law so guards the interests of
the one party that the other is not oppressed. Thus it allows ten days
for appeal to be made, this being considered sufficient time for
deliberating on the expediency of an appeal. If on the other hand there
were no fixed time limit for appealing, the certainty of judgment would
ever be in suspense, so that the other party would suffer an injury.
The reason why it is not allowed to appeal a third time on the same
point, is that it is not probable that the judges would fail to judge
justly so many times.
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Whether a man who is condemned to death may lawfully defend himself if he
can?
Objection 1: It would seem that a man who is condemned to death may
lawfully defend himself if he can. For it is always lawful to do that
to which nature inclines us, as being of natural right, so to speak.
Now, to resist corruption is an inclination of nature not only in men
and animals but also in things devoid of sense. Therefore if he can do
so, the accused, after condemnation, may lawfully resist being put to
death.
Objection 2: Further, just as a man, by resistance, escapes the death
to which he has been condemned, so does he by flight. Now it is lawful
seemingly to escape death by flight, according to Ecclus. 9:18, "Keep
thee far from the man that hath power to kill [and not to quicken]"
[*The words in the brackets are not in the Vulgate]. Therefore it is
also lawful for the accused to resist.
Objection 3: Further, it is written (Prov. 24:11): "Deliver them that
are led to death: and those that are drawn to death forbear not to
deliver. " Now a man is under greater obligation to himself than to
another. Therefore it is lawful for a condemned man to defend himself
from being put to death.
On the contrary, The Apostle says (Rom. 13:2): "He that resisteth the
power, resisteth the ordinance of God: and they that resist, purchase
to themselves damnation. " Now a condemned man, by defending himself,
resists the power in the point of its being ordained by God "for the
punishment of evil-doers, and for the praise of the good" [*1 Pet.
2:14]. Therefore he sins in defending himself.
I answer that, A man may be condemned to death in two ways. First
justly, and then it is not lawful for the condemned to defend himself,
because it is lawful for the judge to combat his resistance by force,
so that on his part the fight is unjust, and consequently without any
doubt he sins.
Secondly a man is condemned unjustly: and such a sentence is like the
violence of robbers, according to Ezech. 22:21, "Her princes in the
midst of her are like wolves ravening the prey to shed blood. "
Wherefore even as it is lawful to resist robbers, so is it lawful, in a
like case, to resist wicked princes; except perhaps in order to avoid
scandal, whence some grave disturbance might be feared to arise.
Reply to Objection 1: Reason was given to man that he might ensue those
things to which his nature inclines, not in all cases, but in
accordance with the order of reason. Hence not all self-defense is
lawful, but only such as is accomplished with due moderation.
Reply to Objection 2: When a man is condemned to death, he has not to
kill himself, but to suffer death: wherefore he is not bound to do
anything from which death would result, such as to stay in the place
whence he would be led to execution. But he may not resist those who
lead him to death, in order that he may not suffer what is just for him
to suffer. Even so, if a man were condemned to die of hunger, he does
not sin if he partakes of food brought to him secretly, because to
refrain from taking it would be to kill himself.
Reply to Objection 3: This saying of the wise man does not direct that
one should deliver a man from death in opposition to the order of
justice: wherefore neither should a man deliver himself from death by
resisting against justice.
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OF INJUSTICE WITH REGARD TO THE PERSON OF THE WITNESS (FOUR ARTICLES)
We must now consider injustice with regard to the person of the
witness. Under this head there are four points of inquiry:
(1) Whether a man is bound to give evidence?
(2) Whether the evidence of two or three witnesses suffices?
(3) Whether a man's evidence may be rejected without any fault on his
part?
(4) Whether it is a mortal sin to bear false witness?
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Whether a man is bound to give evidence?
Objection 1: It would seem that a man is not bound to give evidence.
Augustine say (QQ. Gn. 1:26) [*Cf. Contra Faust. xxii, 33,34], that
when Abraham said of his wife (Gn. 20:2), "She is my sister," he wished
the truth to be concealed and not a lie be told. Now, by hiding the
truth a man abstains from giving evidence. Therefore a man is not bound
to give evidence.
Objection 2: Further, no man is bound to act deceitfully. Now 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 always bound to give evidence,
especially on matters committed to him as a secret by a friend.
Objection 3: Further, clerics and priests, more than others, are bound
to those things that are necessary for salvation. Yet clerics and
priests are forbidden to give evidence when a man is on trial for his
life. Therefore it is not necessary for salvation to give evidence.
On the contrary, Augustine [*Can. Quisquis, caus. xi, qu. 3, cap.
Falsidicus; cf. Isidore, Sentent. iii, 55] says: "Both he who conceals
the truth and he who tells a lie are guilty, the former because he is
unwilling to do good, the latter because he desires to hurt. "
I answer that, We must make a distinction in the matter of giving
evidence: because sometimes a certain man's evidence is necessary, and
sometimes not. If the necessary evidence is that of a man subject to a
superior whom, in matters pertaining to justice, he is bound to obey,
without doubt he is bound to give evidence on those points which are
required of him in accordance with the order of justice, for instance
on manifest things or when ill-report has preceded. If however he is
required to give evidence on other points, for instance secret matters,
and those of which no ill-report has preceded, he is not bound to give
evidence. On the other hand, if his evidence be required by authority
of a superior whom he is bound to obey, we must make a distinction:
because if his evidence is required in order to deliver a man from an
unjust death or any other penalty, or from false defamation, or some
loss, in such cases he is bound to give evidence. Even if his evidence
is not demanded, he is bound to do what he can to declare the truth to
someone who may profit thereby. For it is written (Ps. 81:4): "Rescue
the poor, and deliver the needy from the hand of the sinner"; and
(Prov. 24:11): "Deliver them that are led to death"; and (Rom. 1:32):
"They are worthy of death, not only they that do them, but they also
that consent to them that do them," on which words a gloss says: "To be
silent when one can disprove is to consent. " In matters pertaining to a
man's condemnation, one is not bound to give evidence, except when one
is constrained by a superior in accordance with the order of justice;
since if the truth of such a matter be concealed, no particular injury
is inflicted on anyone. Or, if some danger threatens the accuser, it
matters not since he risked the danger of his own accord: whereas it is
different with the accused, who incurs the danger against his will.
Reply to Objection 1: Augustine is speaking of concealment of the truth
in a case when a man is not compelled by his superior's authority to
declare the truth, and when such concealment is not specially injurious
to any person.
Reply to Objection 2: A man should by no means give evidence on matters
secretly committed to him in confession, because he knows such things,
not as man but as God's minister: and the sacrament is more binding
than any human precept. But as regards matters committed to man in some
other way under secrecy, we must make a distinction. Sometimes they are
of such a nature that one is bound to make them known as soon as they
come to our knowledge, for instance if they conduce to the spiritual or
corporal corruption of the community, or to some grave personal injury,
in short any like matter that a man is bound to make known either by
giving evidence or by denouncing it. Against such a duty a man cannot
be obliged to act on the plea that the matter is committed to him under
secrecy, for he would break the faith he owes to another. On the other
hand sometimes they are such as one is not bound to make known, so that
one may be under obligation not to do so on account of their being
committed to one under secrecy. In such a case one is by no means bound
to make them known, even if the superior should command; because to
keep faith is of natural right, and a man cannot be commanded to do
what is contrary to natural right.
Reply to Objection 3: It is unbecoming for ministers of the altar to
slay a man or to cooperate in his slaying, as stated above
([2938]Q[64], A[4]); hence according to the order of justice they
cannot be compelled to give evidence when a man is on trial for his
life.
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Whether the evidence of two or three persons suffices?
Objection 1: It would seem that the evidence of two or three persons is
not sufficient. For judgment requires certitude. Now certitude of the
truth is not obtained by the assertions of two or three witnesses, for
we read that Naboth was unjustly condemned on the evidence of two
witnesses (3 Kings 21). Therefore the evidence of two or three
witnesses does not suffice.
Objection 2: Further, in order for evidence to be credible it must
agree. But frequently the evidence of two or three disagrees in some
point. Therefore it is of no use for proving the truth in court.
Objection 3: Further, it is laid down (Decret. II, qu. iv, can.
Praesul. ): "A bishop shall not be condemned save on the evidence of
seventy-two witnesses; nor a cardinal priest of the Roman Church,
unless there be sixty-four witnesses. Nor a cardinal deacon of the
Roman Church, unless there be twenty-seven witnesses; nor a subdeacon,
an acolyte, an exorcist, a reader or a doorkeeper without seven
witnesses. " Now the sin of one who is of higher dignity is more
grievous, and consequently should be treated more severely. Therefore
neither is the evidence of two or three witnesses sufficient for the
condemnation of other persons.
On the contrary, It is written (Dt. 17:6): "By the mouth of two or
three witnesses shall he die that is to be slain," and further on (Dt.
19:15): "In the mouth of two or three witnesses every word shall
stand. "
I answer that, According to the Philosopher (Ethic. i, 3), "we must not
expect to find certitude equally in every matter. " For in human acts,
on which judgments are passed and evidence required, it is impossible
to have demonstrative certitude, because they a about things contingent
and variable. Hence the certitude of probability suffices, such as may
reach the truth in the greater number, cases, although it fail in the
minority. No it is probable that the assertion of sever witnesses
contains the truth rather than the assertion of one: and since the
accused is the only one who denies, while several witness affirm the
same as the prosecutor, it is reasonably established both by Divine and
by human law, that the assertion of several witnesses should be upheld.
Now all multitude is comprised of three elements, the beginning, the
middle and the end. Wherefore, according to the Philosopher (De Coelo
i, 1), "we reckon 'all' and 'whole' to consist of three parts. " Now we
have a triple voucher when two agree with the prosecutor: hence two
witnesses are required; or for the sake of greater certitude three,
which is the perfect number. Wherefore it is written (Eccles. 4:12): "A
threefold cord is not easily broken": and Augustine, commenting on Jn.
8:17, "The testimony of two men is true," says (Tract. xxxvi) that
"there is here a mystery by which we are given to understand that
Trinity wherein is perpetual stability of truth. "
Reply to Objection 1: No matter how great a number of witnesses may be
determined, the evidence might sometimes be unjust, since is written
(Ex. 23:2): "Thou shalt not follow the multitude to do evil. " And yet
the fact that in so many it is not possible to have certitude without
fear of error, is no reason why we should reject the certitude which
can probably be had through two or three witnesses, as stated above.
Reply to Objection 2: If the witnesses disagree certain principal
circumstances which change the substance of the fact, for instance in
time, place, or persons, which are chiefly in question, their evidence
is of no weight, because if they disagree in such things, each one
would seem to be giving distinct evidence and to be speaking of
different facts. For instance, one say that a certain thing happened at
such and such a time or place, while another says it happened at
another time or place, they seem not to be speaking of the same event.
The evidence is not weakened if one witness says that he does not
remember, while the other attests to a determinate time or place And if
on such points as these the witness for prosecution and defense
disagree altogether, and if they be equal in number on either side, and
of equal standing, the accused should have the benefit of the doubt,
because the judge ought to be more inclined to acquit than to condemn,
except perhaps in favorable suits, such as a pleading for liberty and
the like. If, however, the witnesses for the same side disagree, the
judge ought to use his own discretion in discerning which side to
favor, by considering either the number of witnesses, or their
standing, or the favorableness of the suit, or the nature of the
business and of the evidence
Much more ought the evidence of one witness to be rejected if he
contradict himself when questioned about what he has seen and about
what he knows; not, however, if he contradict himself when questioned
about matters of opinion and report, since he may be moved to answer
differently according to the different things he has seen and heard.
On the other hand if there be discrepancy of evidence in circumstances
not touching the substance of the fact, for instance, whether the
weather were cloudy or fine, whether the house were painted or not, or
such like matters, such discrepancy does not weaken the evidence,
because men are not wont to take much notice of such things, wherefore
they easily forget them. Indeed, a discrepancy of this kind renders the
evidence more credible, as Chrysostom states (Hom. i in Matth. ),
because if the witnesses agreed in every point, even in the minutest of
details, they would seem to have conspired together to say the same
thing: but this must be left to the prudent discernment of the judge.
Reply to Objection 3: This passage refers specially to the bishops,
priests, deacons and clerics of the Roman Church, on account of its
dignity: and this for three reasons. First because in that Church those
men ought to be promoted whose sanctity makes their evidence of more
weight than that of many witnesses. Secondly, because those who have to
judge other men, often have many opponents on account of their justice,
wherefore those who give evidence against them should not be believed
indiscriminately, unless they be very numerous. Thirdly, because the
condemnation of any one of them would detract in public opinion from
the dignity and authority of that Church, a result which would be more
fraught with danger than if one were to tolerate a sinner in that same
Church, unless he were very notorious and manifest, so that a grave
scandal would arise if he were tolerated.
__________________________________________________________________
Whether a man's evidence can be rejected without any fault of his?
Objection 1: It would seem that a man's evidence ought not to be
rejected except on account of some fault. For it a penalty on some that
their evidence is inadmissible, as in the case of those who are branded
with infamy. Now a penalty must not be inflicted save for a fault.
Therefore it would seem that no man's evidence ought to be rejected
save on account of a fault.
Objection 2: Further, "Good is to be presumed of every one, unless the
contrary appear" [*Cap. Dudum, de Praesumpt. ]. Now it pertains to a
man's goodness that he should give true evidence. Since therefore there
can be no proof of the contrary, unless there be some fault of his, it
would seem that no man's evidence should be rejected save for some
fault.
Objection 3: Further, no man is rendered unfit for things necessary for
salvation except by some sin. But it is necessary for salvation to give
true evidence, as stated above [2939](A[1]). Therefore no man should be
excluded from giving evidence save for some fault.
On the contrary, Gregory says (Regist. xiii, 44): "As to the bishop who
is said to have been accused by his servants, you are to know that they
should by no means have been heard": which words are embodied in the
Decretals II, qu. 1, can. Imprimis.
I answer that, As stated above [2940](A[2]), the authority of evidence
is not infallible but probable; and consequently the evidence for one
side is weakened by whatever strengthens the probability of the other.
Now the reliability of a person's evidence is weakened, sometimes
indeed on account of some fault of his, as in the case of unbelievers
and persons of evil repute, as well as those who are guilty of a public
crime and who are not allowed even to accuse; sometimes, without any
fault on his part, and this owing either to a defect in the reason, as
in the case of children, imbeciles and women, or to personal feeling,
as in the case of enemies, or persons united by family or household
ties, or again owing to some external condition, as in the case of poor
people, slaves, and those who are under authority, concerning whom it
is to be presumed that they might easily be induced to give evidence
against the truth.
Thus it is manifest that a person's evidence may be rejected either
with or without some fault of his.
Reply to Objection 1: If a person is disqualified from giving evidence
this is done as a precaution against false evidence rather than as a
punishment. Hence the argument does not prove.
Reply to Objection 2: Good is to be presumed of everyone unless the
contrary appear, provided this does not threaten injury to another:
because, in that case, one ought to be careful not to believe everyone
readily, according to 1 Jn. 4:1: "Believe not every spirit. "
Reply to Objection 3: To give evidence is necessary for salvation,
provided the witness be competent, and the order of justice observed.
Hence nothing hinders certain persons being excused from giving
evidence, if they be considered unfit according to law.
__________________________________________________________________
Whether it is always a mortal sin to give false evidence?
Objection 1: It would seem that it is not always a mortal sin to give
false evidence. For a person may happen to give false evidence, through
ignorance of fact. Now such ignorance excuses from mortal sin.
Therefore the giving of false evidence is not always a mortal sin.
Objection 2: Further, a lie that benefits someone and hurts no man is
officious, and this is not a mortal sin. Now sometimes a lie of this
kind occurs in false evidence, as when a person gives false evidence in
order to save a man from death, or from an unjust sentence which
threatens him through other false witnesses or a perverse judge.
Therefore in such cases it is not a mortal sin to give false evidence.
Objection 3: Further, a witness is required to take an oath in order
that he may fear to commit a mortal sin of perjury. But this would not
be necessary, if it were already a mortal sin to give false evidence.
Therefore the giving of false evidence is not always mortal sin.
On the contrary, It is written (Prov. 19:5): "A false witness shall not
be unpunished. "
I answer that, False evidence has a threefold deformity. The first is
owing to perjury, since witnesses are admitted only on oath and on this
count it is always a mortal sin. Secondly, owing to the violation of
justice, and on this account it is a mortal sin generically, even as
any kind of injustice. Hence the prohibition of false evidence by the
precept of the decalogue is expressed in this form when it is said (Ex.
20:16), "Thou shalt not bear false witness against thy neighbor. " For
one does nothing against a man by preventing him from doing someone an
injury, but only by taking away his justice. Thirdly, owing to the
falsehood itself, by reason of which every lie is a sin: on this
account, the giving of false evidence is not always a mortal sin.
Reply to Objection 1: In giving evidence a man ought not to affirm as
certain, as though he knew it, that about which he is not certain and
he should confess his doubt in doubtful terms, and that which he is
certain about, in terms of certainty. Owing however to the frailty of
the human memory, a man sometimes thinks he is certain about something
that is not true; and then if after thinking over the matter with due
care he deems himself certain about that false thing, he does not sin
mortally if he asserts it, because the evidence which he gives is not
directly an intentionally, but accidentally contrary to what he
intends.
Reply to Objection 2: An unjust judgment is not a judgment, wherefore
the false evidence given in an unjust judgment, in order to prevent
injustice is not a mortal sin by virtue of the judgment, but only by
reason of the oath violated.
Reply to Objection 3: Men abhor chiefly those sin that are against God,
as being most grievous and among them is perjury: whereas they do not
abhor so much sins against their neighbor. Consequently, for the
greater certitude of evidence, the witness is required to take a oath.
__________________________________________________________________
OF INJUSTICE IN JUDGMENT ON THE PART OF COUNSEL (FOUR ARTICLES)
We must now consider the injustice which takes place in judgment on the
part of counsel, and under this head there are four points of inquiry:
(1) Whether an advocate is bound to defend the suits of the poor?
(2) Whether certain persons should be prohibited from exercising the
office of advocate?
(3) Whether an advocate sins by defending an unjust cause?
(4) Whether he sins if he accept a fee for defending a suit?
__________________________________________________________________
Whether an advocate is bound to defend the suits of the poor?
Objection 1: It would seem that an advocate is bound to defend the
suits of the poor. For it is written (Ex.
23:5): "If thou see the ass
of him that hateth thee lie underneath his burden, thou shalt not pass
by, but shall lift him up with him. " Now no less a danger threatens the
poor man whose suit is being unjustly prejudiced, than if his ass were
to lie underneath its burden. Therefore an advocate is bound to defend
the suits of the poor.
Objection 2: Further, Gregory says in a homily (ix in Evang. ): "Let him
that hath understanding beware lest he withhold his knowledge; let him
that hath abundance of wealth watch lest he slacken his merciful
bounty; let him who is a servant to art share his skill with his
neighbor; let him who has an opportunity of speaking with the wealthy
plead the cause of the poor: for the slightest gift you have received
will be reputed a talent. " Now every man is bound, not to hide but
faithfully to dispense the talent committed to him; as evidenced by the
punishment inflicted on the servant who hid his talent (Mat. 25:30).
Therefore an advocate is bound to plead for the poor.
Objection 3: Further, the precept about performing works of mercy,
being affirmative, is binding according to time and place, and this is
chiefly in cases of need. Now it seems to be a case of need when the
suit of a poor man is being prejudiced. Therefore it seems that in such
a case an advocate is bound to defend the poor man's suit.
On the contrary, He that lacks food is no less in need than he that
lacks an advocate. Yet he that is able to give food is not always bound
to feed the needy. Therefore neither is an advocate always bound to
defend the suits of the poor.
I answer that, Since defense of the poor man's suit belongs to the
works of mercy, the answer to this inquiry is the same as the one given
above with regard to the other works of mercy ([2941]Q[32], AA[5],9).
Now no man is sufficient to bestow a work of mercy on all those who
need it. Wherefore, as Augustine says (De Doctr. Christ. i, 28), "since
one cannot do good to all, we ought to consider those chiefly who by
reason of place, time, or any other circumstance, by a kind of chance
are more closely united to us. " He says "by reason of place," because
one is not bound to search throughout the world for the needy that one
may succor them; and it suffices to do works of mercy to those one
meets with. Hence it is written (Ex. 23:4): "If thou meet thy enemy's
ass going astray, bring it back to him. " He says also "by reason of
time," because one is not bound to provide for the future needs of
others, and it suffices to succor present needs. Hence it is written (1
Jn. 3:17): "He that . . . shall see his brother in need, and shall put
up his bowels from him, how doth the charity of God abide in him? "
Lastly he says, "or any other circumstance," because one ought to show
kindness to those especially who are by any tie whatever united to us,
according to 1 Tim. 5:8, "If any man have not care of his own, and
especially of those of his house, he hath denied the faith and is worse
than an infidel. "
It may happen however that these circumstances concur, and then we have
to consider whether this particular man stands in such a need that it
is not easy to see how he can be succored otherwise, and then one is
bound to bestow the work of mercy on him. If, however, it is easy to
see how he can be otherwise succored, either by himself, or by some
other person still more closely united to him, or in a better position
to help him, one is not bound so strictly to help the one in need that
it would be a sin not to do so: although it would be praiseworthy to do
so where one is not bound to. Therefore an advocate is not always bound
to defend the suits of the poor, but only when the aforesaid
circumstances concur, else he would have to put aside all other
business, and occupy himself entirely in defending the suits of poor
people. The same applies to a physician with regard to attendance on
the sick.
Reply to Objection 1: So long as the ass lies under the burden, there
is no means of help in this case, unless those who are passing along
come to the man's aid, and therefore they are bound to help. But they
would not be so bound if help were possible from another quarter.
Reply to Objection 2: A man is bound to make good use of the talent
bestowed on him, according to the opportunities afforded by time,
place, and other circumstances, as stated above.
Reply to Objection 3: Not every need is such that it is one's duty to
remedy it, but only such as we have stated above.
__________________________________________________________________
Whether it is fitting that the law should debar certain persons from the
office of advocate?
Objection 1: It would seem unfitting for the law to debar certain
persons from the office of advocate. For no man should be debarred from
doing works of mercy. Now it belongs to the works of mercy to defend a
man's suit, as stated above [2942](A[1]). Therefore no man should be
debarred from this office.
Objection 2: Further, contrary causes have not, seemingly, the same
effect. Now to be busy with Divine things and to be busy about sin are
contrary to one another. Therefore it is unfitting that some should be
debarred from the office of advocate, on account of religion, as monks
and clerics, while others are debarred on account of sin, as persons of
ill-repute and heretics.
Objection 3: Further, a man should love his neighbor as himself. Now it
is a duty of love for an advocate to plead a person's cause. Therefore
it is unfitting that certain persons should be debarred from pleading
the cause of others, while they are allowed to advocate their own
cause.
On the contrary, According to Decretals III, qu. vii, can. Infames,
many persons are debarred from the office of advocate.
I answer that, In two ways a person is debarred from performing a
certain act: first because it is impossible to him, secondly because it
is unbecoming to him: but, whereas the man to whom a certain act is
impossible, is absolutely debarred from performing it, he to whom an
act is unbecoming is not debarred altogether, since necessity may do
away with its unbecomingness. Accordingly some are debarred from the
office of advocate because it is impossible to them through lack of
sense---either interior, as in the case of madmen and minors---or
exterior, as in the case of the deaf and dumb. For an advocate needs to
have both interior skill so that he may be able to prove the justice of
the cause he defends, and also speech and hearing, that he may speak
and hear what is said to him. Consequently those who are defective in
these points, are altogether debarred from being advocates either in
their own or in another's cause. The becomingness of exercising this
office is removed in two ways. First, through a man being engaged in
higher things. Wherefore it is unfitting that monks or priests should
be advocates in any cause whatever, or that clerics should plead in a
secular court, because such persons are engaged in Divine things.
Secondly, on account of some personal defect, either of body (for
instance a blind man whose attendance in a court of justice would be
unbecoming) or of soul, for it ill becomes one who has disdained to be
just himself, to plead for the justice of another. Wherefore it is
unbecoming that persons of ill repute, unbelievers, and those who have
been convicted of grievous crimes should be advocates. Nevertheless
this unbecomingness is outweighed by necessity: and for this reason
such persons can plead either their own cause or that of persons
closely connected with them. Moreover, clerics can be advocates in the
cause of their own church, and monks in the cause of their own
monastery, if the abbot direct them to do so.
Reply to Objection 1: Certain persons are sometimes debarred by
unbecomingness, and others by inability from performing works of mercy:
for not all the works of mercy are becoming to all persons: thus it ill
becomes a fool to give counsel, or the ignorant to teach.
Reply to Objection 2: Just as virtue is destroyed by "too much" and
"too little," so does a person become incompetent by "more" and "less. "
For this reason some, like religious and clerics, are debarred from
pleading in causes, because they are above such an office; and others
because they are less than competent to exercise it, such as persons of
ill-repute and unbelievers.
Reply to Objection 3: The necessity of pleading the causes of others is
not so pressing as the necessity of pleading one's own cause, because
others are able to help themselves otherwise: hence the comparison
fails.
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Whether an advocate sins by defending an unjust cause?
Objection 1: It would seem that an advocate does not sin by defending
an unjust cause. For just as a physician proves his skill by healing a
desperate disease, so does an advocate prove his skill, if he can
defend an unjust cause. Now a physician is praised if he heals a
desperate malady. Therefore an advocate also commits no sin, but ought
to be praised, if he defends an unjust cause.
Objection 2: Further, it is always lawful to desist from committing a
sin. Yet an advocate is punished if he throws up his brief (Decret. II,
qu. iii, can. Si quem poenit. ). Therefore an advocate does not sin by
defending an unjust cause, when once he has undertaken its defense.
Objection 3: Further, it would seem to be a greater sin for an advocate
to use unjust means in defense of a just cause (e. g. by producing false
witnesses, or alleging false laws), than to defend an unjust cause,
since the former is a sin against the form, the latter against the
matter of justice. Yet it is seemingly lawful for an advocate to make
use of such underhand means, even as it is lawful for a soldier to lay
ambushes in a battle. Therefore it would seem that an advocate does not
sin by defending an unjust cause.
On the contrary, It is said (2 Paralip. 19:2): "Thou helpest the
ungodly . . . and therefore thou didst deserve . . . the wrath of the
Lord. " Now an advocate by defending an unjust cause, helps the ungodly.
Therefore he sins and deserves the wrath of the Lord.
I answer that, It is unlawful to cooperate in an evil deed, by
counseling, helping, or in any way consenting, because to counsel or
assist an action is, in a way, to do it, and the Apostle says (Rom.
1:32) that "they . . . are worthy of death, not only they that do" a
sin, "but they also that consent to them that do" it. Hence it was
stated above ([2943]Q[62], A[7]), that all such are bound to
restitution. Now it is evident that an advocate provides both
assistance and counsel to the party for whom he pleads. Wherefore, if
knowingly he defends an unjust cause, without doubt he sins grievously,
and is bound to restitution of the loss unjustly incurred by the other
party by reason of the assistance he has provided. If, however, he
defends an unjust cause unknowingly, thinking it just, he is to be
excused according to the measure in which ignorance is excusable.
Reply to Objection 1: The physician injures no man by undertaking to
heal a desperate malady, whereas the advocate who accepts service in an
unjust cause, unjustly injures the party against whom he pleads
unjustly. Hence the comparison fails. For though he may seem to deserve
praise for showing skill in his art, nevertheless he sins by reason of
injustice in his will, since he abuses his art for an evil end.
Reply to Objection 2: If an advocate believes from the outset that the
cause is just, and discovers afterwards while the case is proceeding
that it is unjust, he ought not to throw up his brief in such a way as
to help the other side, or so as to reveal the secrets of his client to
the other party. But he can and must give up the case, or induce his
client to give way, or make some compromise without prejudice to the
opposing party.
Reply to Objection 3: As stated above ([2944]Q[40], A[3]), it is lawful
for a soldier, or a general to lay ambushes in a just war, by prudently
concealing what he has a mind to do, but not by means of fraudulent
falsehoods, since we should keep faith even with a foe, as Tully says
(De offic. iii, 29). Hence it is lawful for an advocate, in defending
his case, prudently to conceal whatever might hinder its happy issue,
but it is unlawful for him to employ any kind of falsehood.
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Whether it is lawful for an advocate to take a fee for pleading?
Objection 1: It would seem unlawful for an advocate to take a fee for
pleading. Works of mercy should not be done with a view to human
remuneration, according to Lk. 14:12, "When thou makest a dinner or a
supper, call not thy friends . . . nor thy neighbors who are rich: lest
perhaps they also invite thee again, and a recompense be made to thee. "
Now it is a work of mercy to plead another's cause, as stated above
(A[1] ). Therefore it is not lawful for an advocate to take payment in
money for pleading.
Objection 2: Further, spiritual things are not to be bartered with
temporal things. But pleading a person's cause seems to be a spiritual
good since it consists in using one's knowledge of law. Therefore it is
not lawful for an advocate to take a fee for pleading.
Objection 3: Further, just as the person of the advocate concurs
towards the pronouncement of the verdict, so do the persons of the
judge and of the witness. Now, according to Augustine (Ep. cliii ad
Macedon. ), "the judge should not sell a just sentence, nor the witness
true evidence. " Therefore neither can an advocate sell a just pleading.
On the contrary, Augustine says (Ep. cliii ad Macedon. ) that "an
advocate may lawfully sell his pleading, and a lawyer his advice. "
I answer that, A man may justly receive payment for granting what he is
not bound to grant. Now it is evident that an advocate is not always
bound to consent to plead, or to give advice in other people's causes.
Wherefore, if he sell his pleading or advice, he does not act against
justice. The same applies to the physician who attends on a sick person
to heal him, and to all like persons; provided, however, they take a
moderate fee, with due consideration for persons, for the matter in
hand, for the labor entailed, and for the custom of the country. If,
however, they wickedly extort an immoderate fee, they sin against
justice. Hence Augustine says (Ep. cliii ad Macedon. ) that "it is
customary to demand from them restitution of what they have extorted by
a wicked excess, but not what has been given to them in accordance with
a commendable custom. "
Reply to Objection 1: Man is not bound to do gratuitously whatever he
can do from motives of mercy: else no man could lawfully sell anything,
since anything may be given from motives of mercy. But when a man does
give a thing out of mercy, he should seek, not a human, but a Divine
reward. In like manner an advocate, when he mercifully pleads the cause
of a poor man, should have in view not a human but a Divine meed; and
yet he is not always bound to give his services gratuitously.
Reply to Objection 2: Though knowledge of law is something spiritual,
the use of that knowledge is accomplished by the work of the body:
hence it is lawful to take money in payment of that use, else no
craftsman would be allowed to make profit by his art.
Reply to Objection 3: The judge and witnesses are common to either
party, since the judge is bound to pronounce a just verdict, and the
witness to give true evidence. Now justice and truth do not incline to
one side rather than to the other: and consequently judges receive out
of the public funds a fixed pay for their labor; and witnesses receive
their expenses (not as payment for giving evidence, but as a fee for
their labor) either from both parties or from the party by whom they
are adduced, because no man "serveth as a soldier at any time at his
own charge [*Vulg. : 'Who serveth as a soldier,']" (1 Cor. 9:7). On the
other hand an advocate defends one party only, and so he may lawfully
accept fee from the party he assists.
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OF REVILING (FOUR ARTICLES)
We must now consider injuries inflicted by words uttered
extrajudicially. We shall consider (1) reviling, (2) backbiting, (3)
tale bearing, (4) derision, (5) cursing.
Under the first head there are four points of inquiry:
(1) What is reviling?
(2) Whether every reviling is a mortal sin?
(3) Whether one ought to check revilers?
(4) Of the origin of reviling.
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Whether reviling consists in words?
Objection 1: It would seem that reviling does not consist in words.
Reviling implies some injury inflicted on one's neighbor, since it is a
kind of injustice. But words seem to inflict no injury on one's
neighbor, either in his person, or in his belongings. Therefore
reviling does not consist in words.
Objection 2: Further, reviling seems to imply dishonor. But a man can
be dishonored or slighted by deeds more than by words. Therefore it
seems that reviling consists, not in words but in deeds.
Objection 3: Further, a dishonor inflicted by words is called a railing
or a taunt. But reviling seems to differ from railing or taunt.
Therefore reviling does not consist in words.
On the contrary, Nothing, save words, is perceived by the hearing. Now
reviling is perceived by the hearing according to Jer. 20:10, "I heard
reviling [Douay: 'contumelies'] on every side. " Therefore reviling
consists in words.
I answer that, Reviling denotes the dishonoring of a person, and this
happens in two ways: for since honor results from excellence, one
person dishonors another, first, by depriving him of the excellence for
which he is honored. This is done by sins of deed, whereof we have
spoken above (Q[64], seqq. ). Secondly, when a man publishes something
against another's honor, thus bringing it to the knowledge of the
latter and of other men. This reviling properly so called, and is done
I some kind of signs. Now, according to Augustine (De Doctr. Christ.
ii, 3), "compared with words all other signs are very few, for words
have obtained the chief place among men for the purpose of expressing
whatever the mind conceives. " Hence reviling, properly speaking
consists in words: wherefore, Isidore says (Etym. x) that a reviler
[contumeliosus] "is hasty and bursts out [tumet] in injurious words. "
Since, however, things are also signified by deeds, which on this
account have the same significance as words, it follows that reviling
in a wider sense extends also to deeds. Wherefore a gloss on Rom. 1:30,
"contumelious, proud," says: "The contumelious are those who by word or
deed revile and shame others. "
Reply to Objection 1: Our words, if we consider them in their essence,
i. e. as audible sound injure no man, except perhaps by jarring of the
ear, as when a person speaks too loud. But, considered as signs
conveying something to the knowledge of others, they may do many kinds
of harm. Such is the harm done to a man to the detriment of his honor,
or of the respect due to him from others. Hence the reviling is greater
if one man reproach another in the presence of many: and yet there may
still be reviling if he reproach him by himself. in so far as the
speaker acts unjustly against the respect due to the hearer.
Reply to Objection 2: One man slights another by deeds in so far as
such deeds cause or signify that which is against that other man's
honor. In the former case it is not a matter of reviling but of some
other kind of injustice, of which we have spoken above (QQ[64],65,66):
where as in the latter case there is reviling, in so far as deeds have
the significant force of words.
Reply to Objection 3: Railing and taunts consist in words, even as
reviling, because by all of them a man's faults are exposed to the
detriment of his honor. Such faults are of three kinds. First, there is
the fault of guilt, which is exposed by "reviling" words. Secondly,
there is the fault of both guilt and punishment, which is exposed by
"taunts" [convicium], because "vice" is commonly spoken of in
connection with not only the soul but also the body. Hence if one man
says spitefully to another that he is blind, he taunts but does not
revile him: whereas if one man calls another a thief, he not only
taunts but also reviles him. Thirdly, a man reproaches another for his
inferiority or indigence, so as to lessen the honor due to him for any
kind of excellence. This is done by "upbraiding" words, and properly
speaking, occurs when one spitefully reminds a man that one has
succored him when he was in need. Hence it is written (Ecclus. 20:15):
"He will give a few things and upbraid much. " Nevertheless these terms
are sometimes employed one for the other.
lower authority departs from the order of the higher, we ought not to
submit to it, for instance "if the proconsul order one thing and the
emperor another," according to a gloss on Rom. 13:2. Now when a judge
oppresses anyone unjustly, in this respect he departs from the order of
the higher authority, whereby he is obliged to judge justly. Hence it
is lawful for a man who is oppressed unjustly, to have recourse to the
authority of the higher power, by appealing either before or after
sentence has been pronounced. And since it is to be presumed that there
is no rectitude where true faith is lacking, it is unlawful for a
Catholic to appeal to an unbelieving judge, according to Decretals II,
qu. vi, can. Catholicus: "The Catholic who appeals to the decision of a
judge of another faith shall be excommunicated, whether his case be
just or unjust. " Hence the Apostle also rebuked those who went to law
before unbelievers (1 Cor. 6:6).
Reply to Objection 2: It is due to a man's own fault or neglect that,
of his own accord, he submits to the judgment of one in whose justice
he has no confidence. Moreover it would seem to point to levity of mind
for a man not to abide by what he has once approved of. Hence it is
with reason that the law refuses us the faculty of appealing from the
decision of judges of our own choice, who have no power save by virtue
of the consent of the litigants. On the other hand the authority of an
ordinary judge depends, not on the consent of those who are subject to
his judgment, but on the authority of the king or prince who appointed
him. Hence, as a remedy against his unjust oppression, the law allows
one to have recourse to appeal, so that even if the judge be at the
same time ordinary and chosen by the litigants, it is lawful to appeal
from his decision, since seemingly his ordinary authority occasioned
his being chosen as arbitrator. Nor is it to be imputed as a fault to
the man who consented to his being arbitrator, without adverting to the
fact that he was appointed ordinary judge by the prince.
Reply to Objection 3: The equity of the law so guards the interests of
the one party that the other is not oppressed. Thus it allows ten days
for appeal to be made, this being considered sufficient time for
deliberating on the expediency of an appeal. If on the other hand there
were no fixed time limit for appealing, the certainty of judgment would
ever be in suspense, so that the other party would suffer an injury.
The reason why it is not allowed to appeal a third time on the same
point, is that it is not probable that the judges would fail to judge
justly so many times.
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Whether a man who is condemned to death may lawfully defend himself if he
can?
Objection 1: It would seem that a man who is condemned to death may
lawfully defend himself if he can. For it is always lawful to do that
to which nature inclines us, as being of natural right, so to speak.
Now, to resist corruption is an inclination of nature not only in men
and animals but also in things devoid of sense. Therefore if he can do
so, the accused, after condemnation, may lawfully resist being put to
death.
Objection 2: Further, just as a man, by resistance, escapes the death
to which he has been condemned, so does he by flight. Now it is lawful
seemingly to escape death by flight, according to Ecclus. 9:18, "Keep
thee far from the man that hath power to kill [and not to quicken]"
[*The words in the brackets are not in the Vulgate]. Therefore it is
also lawful for the accused to resist.
Objection 3: Further, it is written (Prov. 24:11): "Deliver them that
are led to death: and those that are drawn to death forbear not to
deliver. " Now a man is under greater obligation to himself than to
another. Therefore it is lawful for a condemned man to defend himself
from being put to death.
On the contrary, The Apostle says (Rom. 13:2): "He that resisteth the
power, resisteth the ordinance of God: and they that resist, purchase
to themselves damnation. " Now a condemned man, by defending himself,
resists the power in the point of its being ordained by God "for the
punishment of evil-doers, and for the praise of the good" [*1 Pet.
2:14]. Therefore he sins in defending himself.
I answer that, A man may be condemned to death in two ways. First
justly, and then it is not lawful for the condemned to defend himself,
because it is lawful for the judge to combat his resistance by force,
so that on his part the fight is unjust, and consequently without any
doubt he sins.
Secondly a man is condemned unjustly: and such a sentence is like the
violence of robbers, according to Ezech. 22:21, "Her princes in the
midst of her are like wolves ravening the prey to shed blood. "
Wherefore even as it is lawful to resist robbers, so is it lawful, in a
like case, to resist wicked princes; except perhaps in order to avoid
scandal, whence some grave disturbance might be feared to arise.
Reply to Objection 1: Reason was given to man that he might ensue those
things to which his nature inclines, not in all cases, but in
accordance with the order of reason. Hence not all self-defense is
lawful, but only such as is accomplished with due moderation.
Reply to Objection 2: When a man is condemned to death, he has not to
kill himself, but to suffer death: wherefore he is not bound to do
anything from which death would result, such as to stay in the place
whence he would be led to execution. But he may not resist those who
lead him to death, in order that he may not suffer what is just for him
to suffer. Even so, if a man were condemned to die of hunger, he does
not sin if he partakes of food brought to him secretly, because to
refrain from taking it would be to kill himself.
Reply to Objection 3: This saying of the wise man does not direct that
one should deliver a man from death in opposition to the order of
justice: wherefore neither should a man deliver himself from death by
resisting against justice.
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OF INJUSTICE WITH REGARD TO THE PERSON OF THE WITNESS (FOUR ARTICLES)
We must now consider injustice with regard to the person of the
witness. Under this head there are four points of inquiry:
(1) Whether a man is bound to give evidence?
(2) Whether the evidence of two or three witnesses suffices?
(3) Whether a man's evidence may be rejected without any fault on his
part?
(4) Whether it is a mortal sin to bear false witness?
__________________________________________________________________
Whether a man is bound to give evidence?
Objection 1: It would seem that a man is not bound to give evidence.
Augustine say (QQ. Gn. 1:26) [*Cf. Contra Faust. xxii, 33,34], that
when Abraham said of his wife (Gn. 20:2), "She is my sister," he wished
the truth to be concealed and not a lie be told. Now, by hiding the
truth a man abstains from giving evidence. Therefore a man is not bound
to give evidence.
Objection 2: Further, no man is bound to act deceitfully. Now 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 always bound to give evidence,
especially on matters committed to him as a secret by a friend.
Objection 3: Further, clerics and priests, more than others, are bound
to those things that are necessary for salvation. Yet clerics and
priests are forbidden to give evidence when a man is on trial for his
life. Therefore it is not necessary for salvation to give evidence.
On the contrary, Augustine [*Can. Quisquis, caus. xi, qu. 3, cap.
Falsidicus; cf. Isidore, Sentent. iii, 55] says: "Both he who conceals
the truth and he who tells a lie are guilty, the former because he is
unwilling to do good, the latter because he desires to hurt. "
I answer that, We must make a distinction in the matter of giving
evidence: because sometimes a certain man's evidence is necessary, and
sometimes not. If the necessary evidence is that of a man subject to a
superior whom, in matters pertaining to justice, he is bound to obey,
without doubt he is bound to give evidence on those points which are
required of him in accordance with the order of justice, for instance
on manifest things or when ill-report has preceded. If however he is
required to give evidence on other points, for instance secret matters,
and those of which no ill-report has preceded, he is not bound to give
evidence. On the other hand, if his evidence be required by authority
of a superior whom he is bound to obey, we must make a distinction:
because if his evidence is required in order to deliver a man from an
unjust death or any other penalty, or from false defamation, or some
loss, in such cases he is bound to give evidence. Even if his evidence
is not demanded, he is bound to do what he can to declare the truth to
someone who may profit thereby. For it is written (Ps. 81:4): "Rescue
the poor, and deliver the needy from the hand of the sinner"; and
(Prov. 24:11): "Deliver them that are led to death"; and (Rom. 1:32):
"They are worthy of death, not only they that do them, but they also
that consent to them that do them," on which words a gloss says: "To be
silent when one can disprove is to consent. " In matters pertaining to a
man's condemnation, one is not bound to give evidence, except when one
is constrained by a superior in accordance with the order of justice;
since if the truth of such a matter be concealed, no particular injury
is inflicted on anyone. Or, if some danger threatens the accuser, it
matters not since he risked the danger of his own accord: whereas it is
different with the accused, who incurs the danger against his will.
Reply to Objection 1: Augustine is speaking of concealment of the truth
in a case when a man is not compelled by his superior's authority to
declare the truth, and when such concealment is not specially injurious
to any person.
Reply to Objection 2: A man should by no means give evidence on matters
secretly committed to him in confession, because he knows such things,
not as man but as God's minister: and the sacrament is more binding
than any human precept. But as regards matters committed to man in some
other way under secrecy, we must make a distinction. Sometimes they are
of such a nature that one is bound to make them known as soon as they
come to our knowledge, for instance if they conduce to the spiritual or
corporal corruption of the community, or to some grave personal injury,
in short any like matter that a man is bound to make known either by
giving evidence or by denouncing it. Against such a duty a man cannot
be obliged to act on the plea that the matter is committed to him under
secrecy, for he would break the faith he owes to another. On the other
hand sometimes they are such as one is not bound to make known, so that
one may be under obligation not to do so on account of their being
committed to one under secrecy. In such a case one is by no means bound
to make them known, even if the superior should command; because to
keep faith is of natural right, and a man cannot be commanded to do
what is contrary to natural right.
Reply to Objection 3: It is unbecoming for ministers of the altar to
slay a man or to cooperate in his slaying, as stated above
([2938]Q[64], A[4]); hence according to the order of justice they
cannot be compelled to give evidence when a man is on trial for his
life.
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Whether the evidence of two or three persons suffices?
Objection 1: It would seem that the evidence of two or three persons is
not sufficient. For judgment requires certitude. Now certitude of the
truth is not obtained by the assertions of two or three witnesses, for
we read that Naboth was unjustly condemned on the evidence of two
witnesses (3 Kings 21). Therefore the evidence of two or three
witnesses does not suffice.
Objection 2: Further, in order for evidence to be credible it must
agree. But frequently the evidence of two or three disagrees in some
point. Therefore it is of no use for proving the truth in court.
Objection 3: Further, it is laid down (Decret. II, qu. iv, can.
Praesul. ): "A bishop shall not be condemned save on the evidence of
seventy-two witnesses; nor a cardinal priest of the Roman Church,
unless there be sixty-four witnesses. Nor a cardinal deacon of the
Roman Church, unless there be twenty-seven witnesses; nor a subdeacon,
an acolyte, an exorcist, a reader or a doorkeeper without seven
witnesses. " Now the sin of one who is of higher dignity is more
grievous, and consequently should be treated more severely. Therefore
neither is the evidence of two or three witnesses sufficient for the
condemnation of other persons.
On the contrary, It is written (Dt. 17:6): "By the mouth of two or
three witnesses shall he die that is to be slain," and further on (Dt.
19:15): "In the mouth of two or three witnesses every word shall
stand. "
I answer that, According to the Philosopher (Ethic. i, 3), "we must not
expect to find certitude equally in every matter. " For in human acts,
on which judgments are passed and evidence required, it is impossible
to have demonstrative certitude, because they a about things contingent
and variable. Hence the certitude of probability suffices, such as may
reach the truth in the greater number, cases, although it fail in the
minority. No it is probable that the assertion of sever witnesses
contains the truth rather than the assertion of one: and since the
accused is the only one who denies, while several witness affirm the
same as the prosecutor, it is reasonably established both by Divine and
by human law, that the assertion of several witnesses should be upheld.
Now all multitude is comprised of three elements, the beginning, the
middle and the end. Wherefore, according to the Philosopher (De Coelo
i, 1), "we reckon 'all' and 'whole' to consist of three parts. " Now we
have a triple voucher when two agree with the prosecutor: hence two
witnesses are required; or for the sake of greater certitude three,
which is the perfect number. Wherefore it is written (Eccles. 4:12): "A
threefold cord is not easily broken": and Augustine, commenting on Jn.
8:17, "The testimony of two men is true," says (Tract. xxxvi) that
"there is here a mystery by which we are given to understand that
Trinity wherein is perpetual stability of truth. "
Reply to Objection 1: No matter how great a number of witnesses may be
determined, the evidence might sometimes be unjust, since is written
(Ex. 23:2): "Thou shalt not follow the multitude to do evil. " And yet
the fact that in so many it is not possible to have certitude without
fear of error, is no reason why we should reject the certitude which
can probably be had through two or three witnesses, as stated above.
Reply to Objection 2: If the witnesses disagree certain principal
circumstances which change the substance of the fact, for instance in
time, place, or persons, which are chiefly in question, their evidence
is of no weight, because if they disagree in such things, each one
would seem to be giving distinct evidence and to be speaking of
different facts. For instance, one say that a certain thing happened at
such and such a time or place, while another says it happened at
another time or place, they seem not to be speaking of the same event.
The evidence is not weakened if one witness says that he does not
remember, while the other attests to a determinate time or place And if
on such points as these the witness for prosecution and defense
disagree altogether, and if they be equal in number on either side, and
of equal standing, the accused should have the benefit of the doubt,
because the judge ought to be more inclined to acquit than to condemn,
except perhaps in favorable suits, such as a pleading for liberty and
the like. If, however, the witnesses for the same side disagree, the
judge ought to use his own discretion in discerning which side to
favor, by considering either the number of witnesses, or their
standing, or the favorableness of the suit, or the nature of the
business and of the evidence
Much more ought the evidence of one witness to be rejected if he
contradict himself when questioned about what he has seen and about
what he knows; not, however, if he contradict himself when questioned
about matters of opinion and report, since he may be moved to answer
differently according to the different things he has seen and heard.
On the other hand if there be discrepancy of evidence in circumstances
not touching the substance of the fact, for instance, whether the
weather were cloudy or fine, whether the house were painted or not, or
such like matters, such discrepancy does not weaken the evidence,
because men are not wont to take much notice of such things, wherefore
they easily forget them. Indeed, a discrepancy of this kind renders the
evidence more credible, as Chrysostom states (Hom. i in Matth. ),
because if the witnesses agreed in every point, even in the minutest of
details, they would seem to have conspired together to say the same
thing: but this must be left to the prudent discernment of the judge.
Reply to Objection 3: This passage refers specially to the bishops,
priests, deacons and clerics of the Roman Church, on account of its
dignity: and this for three reasons. First because in that Church those
men ought to be promoted whose sanctity makes their evidence of more
weight than that of many witnesses. Secondly, because those who have to
judge other men, often have many opponents on account of their justice,
wherefore those who give evidence against them should not be believed
indiscriminately, unless they be very numerous. Thirdly, because the
condemnation of any one of them would detract in public opinion from
the dignity and authority of that Church, a result which would be more
fraught with danger than if one were to tolerate a sinner in that same
Church, unless he were very notorious and manifest, so that a grave
scandal would arise if he were tolerated.
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Whether a man's evidence can be rejected without any fault of his?
Objection 1: It would seem that a man's evidence ought not to be
rejected except on account of some fault. For it a penalty on some that
their evidence is inadmissible, as in the case of those who are branded
with infamy. Now a penalty must not be inflicted save for a fault.
Therefore it would seem that no man's evidence ought to be rejected
save on account of a fault.
Objection 2: Further, "Good is to be presumed of every one, unless the
contrary appear" [*Cap. Dudum, de Praesumpt. ]. Now it pertains to a
man's goodness that he should give true evidence. Since therefore there
can be no proof of the contrary, unless there be some fault of his, it
would seem that no man's evidence should be rejected save for some
fault.
Objection 3: Further, no man is rendered unfit for things necessary for
salvation except by some sin. But it is necessary for salvation to give
true evidence, as stated above [2939](A[1]). Therefore no man should be
excluded from giving evidence save for some fault.
On the contrary, Gregory says (Regist. xiii, 44): "As to the bishop who
is said to have been accused by his servants, you are to know that they
should by no means have been heard": which words are embodied in the
Decretals II, qu. 1, can. Imprimis.
I answer that, As stated above [2940](A[2]), the authority of evidence
is not infallible but probable; and consequently the evidence for one
side is weakened by whatever strengthens the probability of the other.
Now the reliability of a person's evidence is weakened, sometimes
indeed on account of some fault of his, as in the case of unbelievers
and persons of evil repute, as well as those who are guilty of a public
crime and who are not allowed even to accuse; sometimes, without any
fault on his part, and this owing either to a defect in the reason, as
in the case of children, imbeciles and women, or to personal feeling,
as in the case of enemies, or persons united by family or household
ties, or again owing to some external condition, as in the case of poor
people, slaves, and those who are under authority, concerning whom it
is to be presumed that they might easily be induced to give evidence
against the truth.
Thus it is manifest that a person's evidence may be rejected either
with or without some fault of his.
Reply to Objection 1: If a person is disqualified from giving evidence
this is done as a precaution against false evidence rather than as a
punishment. Hence the argument does not prove.
Reply to Objection 2: Good is to be presumed of everyone unless the
contrary appear, provided this does not threaten injury to another:
because, in that case, one ought to be careful not to believe everyone
readily, according to 1 Jn. 4:1: "Believe not every spirit. "
Reply to Objection 3: To give evidence is necessary for salvation,
provided the witness be competent, and the order of justice observed.
Hence nothing hinders certain persons being excused from giving
evidence, if they be considered unfit according to law.
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Whether it is always a mortal sin to give false evidence?
Objection 1: It would seem that it is not always a mortal sin to give
false evidence. For a person may happen to give false evidence, through
ignorance of fact. Now such ignorance excuses from mortal sin.
Therefore the giving of false evidence is not always a mortal sin.
Objection 2: Further, a lie that benefits someone and hurts no man is
officious, and this is not a mortal sin. Now sometimes a lie of this
kind occurs in false evidence, as when a person gives false evidence in
order to save a man from death, or from an unjust sentence which
threatens him through other false witnesses or a perverse judge.
Therefore in such cases it is not a mortal sin to give false evidence.
Objection 3: Further, a witness is required to take an oath in order
that he may fear to commit a mortal sin of perjury. But this would not
be necessary, if it were already a mortal sin to give false evidence.
Therefore the giving of false evidence is not always mortal sin.
On the contrary, It is written (Prov. 19:5): "A false witness shall not
be unpunished. "
I answer that, False evidence has a threefold deformity. The first is
owing to perjury, since witnesses are admitted only on oath and on this
count it is always a mortal sin. Secondly, owing to the violation of
justice, and on this account it is a mortal sin generically, even as
any kind of injustice. Hence the prohibition of false evidence by the
precept of the decalogue is expressed in this form when it is said (Ex.
20:16), "Thou shalt not bear false witness against thy neighbor. " For
one does nothing against a man by preventing him from doing someone an
injury, but only by taking away his justice. Thirdly, owing to the
falsehood itself, by reason of which every lie is a sin: on this
account, the giving of false evidence is not always a mortal sin.
Reply to Objection 1: In giving evidence a man ought not to affirm as
certain, as though he knew it, that about which he is not certain and
he should confess his doubt in doubtful terms, and that which he is
certain about, in terms of certainty. Owing however to the frailty of
the human memory, a man sometimes thinks he is certain about something
that is not true; and then if after thinking over the matter with due
care he deems himself certain about that false thing, he does not sin
mortally if he asserts it, because the evidence which he gives is not
directly an intentionally, but accidentally contrary to what he
intends.
Reply to Objection 2: An unjust judgment is not a judgment, wherefore
the false evidence given in an unjust judgment, in order to prevent
injustice is not a mortal sin by virtue of the judgment, but only by
reason of the oath violated.
Reply to Objection 3: Men abhor chiefly those sin that are against God,
as being most grievous and among them is perjury: whereas they do not
abhor so much sins against their neighbor. Consequently, for the
greater certitude of evidence, the witness is required to take a oath.
__________________________________________________________________
OF INJUSTICE IN JUDGMENT ON THE PART OF COUNSEL (FOUR ARTICLES)
We must now consider the injustice which takes place in judgment on the
part of counsel, and under this head there are four points of inquiry:
(1) Whether an advocate is bound to defend the suits of the poor?
(2) Whether certain persons should be prohibited from exercising the
office of advocate?
(3) Whether an advocate sins by defending an unjust cause?
(4) Whether he sins if he accept a fee for defending a suit?
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Whether an advocate is bound to defend the suits of the poor?
Objection 1: It would seem that an advocate is bound to defend the
suits of the poor. For it is written (Ex.
23:5): "If thou see the ass
of him that hateth thee lie underneath his burden, thou shalt not pass
by, but shall lift him up with him. " Now no less a danger threatens the
poor man whose suit is being unjustly prejudiced, than if his ass were
to lie underneath its burden. Therefore an advocate is bound to defend
the suits of the poor.
Objection 2: Further, Gregory says in a homily (ix in Evang. ): "Let him
that hath understanding beware lest he withhold his knowledge; let him
that hath abundance of wealth watch lest he slacken his merciful
bounty; let him who is a servant to art share his skill with his
neighbor; let him who has an opportunity of speaking with the wealthy
plead the cause of the poor: for the slightest gift you have received
will be reputed a talent. " Now every man is bound, not to hide but
faithfully to dispense the talent committed to him; as evidenced by the
punishment inflicted on the servant who hid his talent (Mat. 25:30).
Therefore an advocate is bound to plead for the poor.
Objection 3: Further, the precept about performing works of mercy,
being affirmative, is binding according to time and place, and this is
chiefly in cases of need. Now it seems to be a case of need when the
suit of a poor man is being prejudiced. Therefore it seems that in such
a case an advocate is bound to defend the poor man's suit.
On the contrary, He that lacks food is no less in need than he that
lacks an advocate. Yet he that is able to give food is not always bound
to feed the needy. Therefore neither is an advocate always bound to
defend the suits of the poor.
I answer that, Since defense of the poor man's suit belongs to the
works of mercy, the answer to this inquiry is the same as the one given
above with regard to the other works of mercy ([2941]Q[32], AA[5],9).
Now no man is sufficient to bestow a work of mercy on all those who
need it. Wherefore, as Augustine says (De Doctr. Christ. i, 28), "since
one cannot do good to all, we ought to consider those chiefly who by
reason of place, time, or any other circumstance, by a kind of chance
are more closely united to us. " He says "by reason of place," because
one is not bound to search throughout the world for the needy that one
may succor them; and it suffices to do works of mercy to those one
meets with. Hence it is written (Ex. 23:4): "If thou meet thy enemy's
ass going astray, bring it back to him. " He says also "by reason of
time," because one is not bound to provide for the future needs of
others, and it suffices to succor present needs. Hence it is written (1
Jn. 3:17): "He that . . . shall see his brother in need, and shall put
up his bowels from him, how doth the charity of God abide in him? "
Lastly he says, "or any other circumstance," because one ought to show
kindness to those especially who are by any tie whatever united to us,
according to 1 Tim. 5:8, "If any man have not care of his own, and
especially of those of his house, he hath denied the faith and is worse
than an infidel. "
It may happen however that these circumstances concur, and then we have
to consider whether this particular man stands in such a need that it
is not easy to see how he can be succored otherwise, and then one is
bound to bestow the work of mercy on him. If, however, it is easy to
see how he can be otherwise succored, either by himself, or by some
other person still more closely united to him, or in a better position
to help him, one is not bound so strictly to help the one in need that
it would be a sin not to do so: although it would be praiseworthy to do
so where one is not bound to. Therefore an advocate is not always bound
to defend the suits of the poor, but only when the aforesaid
circumstances concur, else he would have to put aside all other
business, and occupy himself entirely in defending the suits of poor
people. The same applies to a physician with regard to attendance on
the sick.
Reply to Objection 1: So long as the ass lies under the burden, there
is no means of help in this case, unless those who are passing along
come to the man's aid, and therefore they are bound to help. But they
would not be so bound if help were possible from another quarter.
Reply to Objection 2: A man is bound to make good use of the talent
bestowed on him, according to the opportunities afforded by time,
place, and other circumstances, as stated above.
Reply to Objection 3: Not every need is such that it is one's duty to
remedy it, but only such as we have stated above.
__________________________________________________________________
Whether it is fitting that the law should debar certain persons from the
office of advocate?
Objection 1: It would seem unfitting for the law to debar certain
persons from the office of advocate. For no man should be debarred from
doing works of mercy. Now it belongs to the works of mercy to defend a
man's suit, as stated above [2942](A[1]). Therefore no man should be
debarred from this office.
Objection 2: Further, contrary causes have not, seemingly, the same
effect. Now to be busy with Divine things and to be busy about sin are
contrary to one another. Therefore it is unfitting that some should be
debarred from the office of advocate, on account of religion, as monks
and clerics, while others are debarred on account of sin, as persons of
ill-repute and heretics.
Objection 3: Further, a man should love his neighbor as himself. Now it
is a duty of love for an advocate to plead a person's cause. Therefore
it is unfitting that certain persons should be debarred from pleading
the cause of others, while they are allowed to advocate their own
cause.
On the contrary, According to Decretals III, qu. vii, can. Infames,
many persons are debarred from the office of advocate.
I answer that, In two ways a person is debarred from performing a
certain act: first because it is impossible to him, secondly because it
is unbecoming to him: but, whereas the man to whom a certain act is
impossible, is absolutely debarred from performing it, he to whom an
act is unbecoming is not debarred altogether, since necessity may do
away with its unbecomingness. Accordingly some are debarred from the
office of advocate because it is impossible to them through lack of
sense---either interior, as in the case of madmen and minors---or
exterior, as in the case of the deaf and dumb. For an advocate needs to
have both interior skill so that he may be able to prove the justice of
the cause he defends, and also speech and hearing, that he may speak
and hear what is said to him. Consequently those who are defective in
these points, are altogether debarred from being advocates either in
their own or in another's cause. The becomingness of exercising this
office is removed in two ways. First, through a man being engaged in
higher things. Wherefore it is unfitting that monks or priests should
be advocates in any cause whatever, or that clerics should plead in a
secular court, because such persons are engaged in Divine things.
Secondly, on account of some personal defect, either of body (for
instance a blind man whose attendance in a court of justice would be
unbecoming) or of soul, for it ill becomes one who has disdained to be
just himself, to plead for the justice of another. Wherefore it is
unbecoming that persons of ill repute, unbelievers, and those who have
been convicted of grievous crimes should be advocates. Nevertheless
this unbecomingness is outweighed by necessity: and for this reason
such persons can plead either their own cause or that of persons
closely connected with them. Moreover, clerics can be advocates in the
cause of their own church, and monks in the cause of their own
monastery, if the abbot direct them to do so.
Reply to Objection 1: Certain persons are sometimes debarred by
unbecomingness, and others by inability from performing works of mercy:
for not all the works of mercy are becoming to all persons: thus it ill
becomes a fool to give counsel, or the ignorant to teach.
Reply to Objection 2: Just as virtue is destroyed by "too much" and
"too little," so does a person become incompetent by "more" and "less. "
For this reason some, like religious and clerics, are debarred from
pleading in causes, because they are above such an office; and others
because they are less than competent to exercise it, such as persons of
ill-repute and unbelievers.
Reply to Objection 3: The necessity of pleading the causes of others is
not so pressing as the necessity of pleading one's own cause, because
others are able to help themselves otherwise: hence the comparison
fails.
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Whether an advocate sins by defending an unjust cause?
Objection 1: It would seem that an advocate does not sin by defending
an unjust cause. For just as a physician proves his skill by healing a
desperate disease, so does an advocate prove his skill, if he can
defend an unjust cause. Now a physician is praised if he heals a
desperate malady. Therefore an advocate also commits no sin, but ought
to be praised, if he defends an unjust cause.
Objection 2: Further, it is always lawful to desist from committing a
sin. Yet an advocate is punished if he throws up his brief (Decret. II,
qu. iii, can. Si quem poenit. ). Therefore an advocate does not sin by
defending an unjust cause, when once he has undertaken its defense.
Objection 3: Further, it would seem to be a greater sin for an advocate
to use unjust means in defense of a just cause (e. g. by producing false
witnesses, or alleging false laws), than to defend an unjust cause,
since the former is a sin against the form, the latter against the
matter of justice. Yet it is seemingly lawful for an advocate to make
use of such underhand means, even as it is lawful for a soldier to lay
ambushes in a battle. Therefore it would seem that an advocate does not
sin by defending an unjust cause.
On the contrary, It is said (2 Paralip. 19:2): "Thou helpest the
ungodly . . . and therefore thou didst deserve . . . the wrath of the
Lord. " Now an advocate by defending an unjust cause, helps the ungodly.
Therefore he sins and deserves the wrath of the Lord.
I answer that, It is unlawful to cooperate in an evil deed, by
counseling, helping, or in any way consenting, because to counsel or
assist an action is, in a way, to do it, and the Apostle says (Rom.
1:32) that "they . . . are worthy of death, not only they that do" a
sin, "but they also that consent to them that do" it. Hence it was
stated above ([2943]Q[62], A[7]), that all such are bound to
restitution. Now it is evident that an advocate provides both
assistance and counsel to the party for whom he pleads. Wherefore, if
knowingly he defends an unjust cause, without doubt he sins grievously,
and is bound to restitution of the loss unjustly incurred by the other
party by reason of the assistance he has provided. If, however, he
defends an unjust cause unknowingly, thinking it just, he is to be
excused according to the measure in which ignorance is excusable.
Reply to Objection 1: The physician injures no man by undertaking to
heal a desperate malady, whereas the advocate who accepts service in an
unjust cause, unjustly injures the party against whom he pleads
unjustly. Hence the comparison fails. For though he may seem to deserve
praise for showing skill in his art, nevertheless he sins by reason of
injustice in his will, since he abuses his art for an evil end.
Reply to Objection 2: If an advocate believes from the outset that the
cause is just, and discovers afterwards while the case is proceeding
that it is unjust, he ought not to throw up his brief in such a way as
to help the other side, or so as to reveal the secrets of his client to
the other party. But he can and must give up the case, or induce his
client to give way, or make some compromise without prejudice to the
opposing party.
Reply to Objection 3: As stated above ([2944]Q[40], A[3]), it is lawful
for a soldier, or a general to lay ambushes in a just war, by prudently
concealing what he has a mind to do, but not by means of fraudulent
falsehoods, since we should keep faith even with a foe, as Tully says
(De offic. iii, 29). Hence it is lawful for an advocate, in defending
his case, prudently to conceal whatever might hinder its happy issue,
but it is unlawful for him to employ any kind of falsehood.
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Whether it is lawful for an advocate to take a fee for pleading?
Objection 1: It would seem unlawful for an advocate to take a fee for
pleading. Works of mercy should not be done with a view to human
remuneration, according to Lk. 14:12, "When thou makest a dinner or a
supper, call not thy friends . . . nor thy neighbors who are rich: lest
perhaps they also invite thee again, and a recompense be made to thee. "
Now it is a work of mercy to plead another's cause, as stated above
(A[1] ). Therefore it is not lawful for an advocate to take payment in
money for pleading.
Objection 2: Further, spiritual things are not to be bartered with
temporal things. But pleading a person's cause seems to be a spiritual
good since it consists in using one's knowledge of law. Therefore it is
not lawful for an advocate to take a fee for pleading.
Objection 3: Further, just as the person of the advocate concurs
towards the pronouncement of the verdict, so do the persons of the
judge and of the witness. Now, according to Augustine (Ep. cliii ad
Macedon. ), "the judge should not sell a just sentence, nor the witness
true evidence. " Therefore neither can an advocate sell a just pleading.
On the contrary, Augustine says (Ep. cliii ad Macedon. ) that "an
advocate may lawfully sell his pleading, and a lawyer his advice. "
I answer that, A man may justly receive payment for granting what he is
not bound to grant. Now it is evident that an advocate is not always
bound to consent to plead, or to give advice in other people's causes.
Wherefore, if he sell his pleading or advice, he does not act against
justice. The same applies to the physician who attends on a sick person
to heal him, and to all like persons; provided, however, they take a
moderate fee, with due consideration for persons, for the matter in
hand, for the labor entailed, and for the custom of the country. If,
however, they wickedly extort an immoderate fee, they sin against
justice. Hence Augustine says (Ep. cliii ad Macedon. ) that "it is
customary to demand from them restitution of what they have extorted by
a wicked excess, but not what has been given to them in accordance with
a commendable custom. "
Reply to Objection 1: Man is not bound to do gratuitously whatever he
can do from motives of mercy: else no man could lawfully sell anything,
since anything may be given from motives of mercy. But when a man does
give a thing out of mercy, he should seek, not a human, but a Divine
reward. In like manner an advocate, when he mercifully pleads the cause
of a poor man, should have in view not a human but a Divine meed; and
yet he is not always bound to give his services gratuitously.
Reply to Objection 2: Though knowledge of law is something spiritual,
the use of that knowledge is accomplished by the work of the body:
hence it is lawful to take money in payment of that use, else no
craftsman would be allowed to make profit by his art.
Reply to Objection 3: The judge and witnesses are common to either
party, since the judge is bound to pronounce a just verdict, and the
witness to give true evidence. Now justice and truth do not incline to
one side rather than to the other: and consequently judges receive out
of the public funds a fixed pay for their labor; and witnesses receive
their expenses (not as payment for giving evidence, but as a fee for
their labor) either from both parties or from the party by whom they
are adduced, because no man "serveth as a soldier at any time at his
own charge [*Vulg. : 'Who serveth as a soldier,']" (1 Cor. 9:7). On the
other hand an advocate defends one party only, and so he may lawfully
accept fee from the party he assists.
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OF REVILING (FOUR ARTICLES)
We must now consider injuries inflicted by words uttered
extrajudicially. We shall consider (1) reviling, (2) backbiting, (3)
tale bearing, (4) derision, (5) cursing.
Under the first head there are four points of inquiry:
(1) What is reviling?
(2) Whether every reviling is a mortal sin?
(3) Whether one ought to check revilers?
(4) Of the origin of reviling.
__________________________________________________________________
Whether reviling consists in words?
Objection 1: It would seem that reviling does not consist in words.
Reviling implies some injury inflicted on one's neighbor, since it is a
kind of injustice. But words seem to inflict no injury on one's
neighbor, either in his person, or in his belongings. Therefore
reviling does not consist in words.
Objection 2: Further, reviling seems to imply dishonor. But a man can
be dishonored or slighted by deeds more than by words. Therefore it
seems that reviling consists, not in words but in deeds.
Objection 3: Further, a dishonor inflicted by words is called a railing
or a taunt. But reviling seems to differ from railing or taunt.
Therefore reviling does not consist in words.
On the contrary, Nothing, save words, is perceived by the hearing. Now
reviling is perceived by the hearing according to Jer. 20:10, "I heard
reviling [Douay: 'contumelies'] on every side. " Therefore reviling
consists in words.
I answer that, Reviling denotes the dishonoring of a person, and this
happens in two ways: for since honor results from excellence, one
person dishonors another, first, by depriving him of the excellence for
which he is honored. This is done by sins of deed, whereof we have
spoken above (Q[64], seqq. ). Secondly, when a man publishes something
against another's honor, thus bringing it to the knowledge of the
latter and of other men. This reviling properly so called, and is done
I some kind of signs. Now, according to Augustine (De Doctr. Christ.
ii, 3), "compared with words all other signs are very few, for words
have obtained the chief place among men for the purpose of expressing
whatever the mind conceives. " Hence reviling, properly speaking
consists in words: wherefore, Isidore says (Etym. x) that a reviler
[contumeliosus] "is hasty and bursts out [tumet] in injurious words. "
Since, however, things are also signified by deeds, which on this
account have the same significance as words, it follows that reviling
in a wider sense extends also to deeds. Wherefore a gloss on Rom. 1:30,
"contumelious, proud," says: "The contumelious are those who by word or
deed revile and shame others. "
Reply to Objection 1: Our words, if we consider them in their essence,
i. e. as audible sound injure no man, except perhaps by jarring of the
ear, as when a person speaks too loud. But, considered as signs
conveying something to the knowledge of others, they may do many kinds
of harm. Such is the harm done to a man to the detriment of his honor,
or of the respect due to him from others. Hence the reviling is greater
if one man reproach another in the presence of many: and yet there may
still be reviling if he reproach him by himself. in so far as the
speaker acts unjustly against the respect due to the hearer.
Reply to Objection 2: One man slights another by deeds in so far as
such deeds cause or signify that which is against that other man's
honor. In the former case it is not a matter of reviling but of some
other kind of injustice, of which we have spoken above (QQ[64],65,66):
where as in the latter case there is reviling, in so far as deeds have
the significant force of words.
Reply to Objection 3: Railing and taunts consist in words, even as
reviling, because by all of them a man's faults are exposed to the
detriment of his honor. Such faults are of three kinds. First, there is
the fault of guilt, which is exposed by "reviling" words. Secondly,
there is the fault of both guilt and punishment, which is exposed by
"taunts" [convicium], because "vice" is commonly spoken of in
connection with not only the soul but also the body. Hence if one man
says spitefully to another that he is blind, he taunts but does not
revile him: whereas if one man calls another a thief, he not only
taunts but also reviles him. Thirdly, a man reproaches another for his
inferiority or indigence, so as to lessen the honor due to him for any
kind of excellence. This is done by "upbraiding" words, and properly
speaking, occurs when one spitefully reminds a man that one has
succored him when he was in need. Hence it is written (Ecclus. 20:15):
"He will give a few things and upbraid much. " Nevertheless these terms
are sometimes employed one for the other.
