Yet no
punishment
is imposed on the accused for collusion
with the accuser.
with the accuser.
Summa Theologica
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.
Accusatorum) that "the role of accuser must never be sanctioned without
the accusation be in writing. "
I answer that, As stated above ([2929]Q[67], A[3]), when the process in
a criminal case goes by way of accusation, the accuser is in the
position of a party, so that the judge stands between the accuser and
the accused for the purpose of the trial of justice, wherein it
behooves one to proceed on certainties, as far as possible. Since
however verbal utterances are apt to escape one's memory, the judge
would be unable to know for certain what had been said and with what
qualifications, when he comes to pronounce sentence, unless it were
drawn up in writing. Hence it has with reason been established that the
accusation, as well as other parts of the judicial procedure, should be
put into writing.
Reply to Objection 1: Words are so many and so various that it is
difficult to remember each one. A proof of this is the fact that if a
number of people who have heard the same words be asked what was said,
they will not agree in repeating them, even after a short time. And
since a slight difference of words changes the sense, even though the
judge's sentence may have to be pronounced soon afterwards, the
certainty of judgment requires that the accusation be drawn up in
writing.
Reply to Objection 2: Writing is needed not only on account of the
absence of the person who has something to notify, or of the person to
whom something is notified, but also on account of the delay of time as
stated above (ad 1). Hence when the canon says, "Let no accusation be
accepted in writing" it refers to the sending of an accusation by one
who is absent: but it does not exclude the necessity of writing when
the accuser is present.
Reply to Objection 3: The denouncer does not bind himself to give
proofs: wherefore he is not punished if he is unable to prove. For this
reason writing is unnecessary in a denunciation: and it suffices that
the denunciation be made verbally to the Church, who will proceed, in
virtue of her office, to the correction of the brother.
__________________________________________________________________
Whether an accusation is rendered unjust by calumny, collusion or evasion?
Objection 1: It would seem that an accusation is not rendered unjust by
calumny, collusion or evasion. For according to Decret. II, qu. iii
[*Append. Grat. ad can. Si quem poenituerit. ], "calumny consists in
falsely charging a person with a crime. " Now sometimes one man falsely
accuses another of a crime through ignorance of fact which excuses him.
Therefore it seems that an accusation is not always rendered unjust
through being slanderous.
Objection 2: Further, it is stated by the same authority that
"collusion consists in hiding the truth about a crime. " But seemingly
this is not unlawful, because one is not bound to disclose every crime,
as stated above [2930](A[1]; Q[33], A[7]). Therefore it seems that an
accusation is not rendered unjust by collusion.
Objection 3: Further, it is stated by the same authority that "evasion
consists in withdrawing altogether from an accusation. " But this can be
done without injustice: for it is stated there also: "If a man repent
of having made a wicked accusation and inscription* in a matter which
he cannot prove, and come to an understanding with the innocent party
whom he has accused, let them acquit one another. " [*The accuser was
bound by Roman Law to endorse (se inscribere) the writ of accusation.
The effect of this endorsement or inscription was that the accuser
bound himself, if he failed to prove the accusation, to suffer the same
punishment as the accused would have to suffer if proved guilty. ]
Therefore evasion does not render an accusation unjust.
On the contrary, It is stated by the same authority: "The rashness of
accusers shows itself in three ways. For they are guilty either of
calumny, or of collusion, or of evasion. "
I answer that, As stated above [2931](A[1]), accusation is ordered for
the common good which it aims at procuring by means of knowledge of the
crime. Now no man ought to injure a person unjustly, in order to
promote the common good. Wherefore a man may sin in two ways when
making an accusation: first through acting unjustly against the
accused, by charging him falsely with the commission of a crime, i. e.
by calumniating him; secondly, on the part of the commonwealth, whose
good is intended chiefly in an accusation, when anyone with wicked
intent hinders a sin being punished. This again happens in two ways:
first by having recourse to fraud in making the accusation. This
belongs to collusion [prevaricatio] for "he that is guilty of collusion
is like one who rides astraddle [varicator], because he helps the other
party, and betrays his own side" [*Append. Grat. ad can. Si quem
poenituerit. ]. Secondly by withdrawing altogether from the accusation.
This is evasion [tergiversatio] for by desisting from what he had begun
he seems to turn his back [tergum vertere].
Reply to Objection 1: A man ought not to proceed to accuse except of
what he is quite certain about, wherein ignorance of fact has no place.
Yet he who falsely charges another with a crime is not a calumniator
unless he gives utterance to false accusations out of malice. For it
happens sometimes that a man through levity of mind proceeds to accuse
someone, because he believes too readily what he hears, and this
pertains to rashness; while, on the other hand sometimes a man is led
to make an accusation on account of an error for which he is not to
blame. All these things must be weighed according to the judge's
prudence, lest he should declare a man to have been guilty of calumny,
who through levity of mind or an error for which he is not to be blamed
has uttered a false accusation.
Reply to Objection 2: Not everyone who hides the truth about a crime is
guilty of collusion, but only he who deceitfully hides the matter about
which he makes the accusation, by collusion with the defendant,
dissembling his proofs, and admitting false excuses.
Reply to Objection 3: Evasion consists in withdrawing altogether from
the accusation, by renouncing the intention of accusing, not anyhow,
but inordinately. There are two ways, however, in which a man may
rightly desist from accusing without committing a sin ---in one way, in
the very process of accusation, if it come to his knowledge that the
matter of his accusation is false, and then by mutual consent the
accuser and the defendant acquit one another---in another way, if the
accusation be quashed by the sovereign to whom belongs the care of the
common good, which it is intended to procure by the accusation.
__________________________________________________________________
Whether an accuser who fails to prove his indictment is bound to the
punishment of retaliation?
Objection 1: It would seem that the accuser who fails to prove his
indictment is not bound to the punishment of retaliation. For sometimes
a man is led by a just error to make an accusation, in which case the
judge acquit the accuser, as stated in Decret. II, qu. iii. [*Append.
Grat. , ad can. Si quem poenituerit. ] Therefore the accuser who fails to
prove his indictment is not bound to the punishment of retaliation.
Objection 2: Further, if the punishment of retaliation ought to be
inflicted on one who has accused unjustly, this will be on account of
the injury he has done to someone---but not on account of any injury
done to the person of the accused, for in that case the sovereign could
not remit this punishment, nor on account of an injury to the
commonwealth, because then the accused could not acquit him. Therefore
the punishment of retaliation is not due to one who has failed to prove
his accusation.
Objection 3: Further, the one same sin does not deserve a twofold
punishment, according to Nahum 1:9 [*Septuagint version]: "God shall
not judge the same thing a second time. " But he who fails to prove his
accusation, incurs the punishment due to defamation [*Can. Infames,
caus. vi, qu. 1], which punishment even the Pope seemingly cannot
remit, according to a statement of Pope Gelasius [*Callist. I, Epist.
ad omn. Gall. episc. ]: "Although we are able to save souls by Penance,
we are unable to remove the defamation. " Therefore he is not bound to
suffer the punishment of retaliation.
On the contrary, Pope Hadrian I says (Cap. lii): "He that fails to
prove his accusation, must himself suffer the punishment which his
accusation inferred. "
I answer that, As stated above [2932](A[2]), in a case, where the
procedure is by way of accusation, the accuser holds the position of a
party aiming at the punishment of the accused. Now the duty of the
judge is to establish the equality of justice between them: and the
equality of justice requires that a man should himself suffer whatever
harm he has intended to be inflicted on another, according to Ex.
21:24, "Eye for eye, tooth for tooth. " Consequently it is just that he
who by accusing a man has put him in danger of being punished severely,
should himself suffer a like punishment.
Reply to Objection 1: As the Philosopher says (Ethic. v, 5) justice
does not always require counterpassion, because it matters considerably
whether a man injures another voluntarily or not. Voluntary injury
deserves punishment, involuntary deserves forgiveness. Hence when the
judge becomes aware that a man has made a false accusation, not with a
mind to do harm, but involuntarily through ignorance or a just error,
he does not impose the punishment of retaliation.
Reply to Objection 2: He who accuses wrongfully sins both against the
person of the accused and against the commonwealth; wherefore he is
punished on both counts. This is the meaning of what is written (Dt.
19:18-20): "And when after most diligent inquisition, they shall find
that the false witness hath told a lie against his brother: then shall
render to him as he meant to do to his brother," and this refers to the
injury done to the person: and afterwards, referring to the injury done
to the commonwealth, the text continues: "And thou shalt take away the
evil out of the midst of thee, that others hearing may fear, and may
not dare to do such things. " Specially, however, does he injure the
person of the accused, if he accuse him falsely. Wherefore the accused,
if innocent, may condone the injury done to himself, particularly if
the accusation were made not calumniously but out of levity of mind.
But if the accuser desist from accusing an innocent man, through
collusion with the latter's adversary, he inflicts an injury on the
commonwealth: and this cannot be condoned by the accused, although it
can be remitted by the sovereign, who has charge of the commonwealth.
Reply to Objection 3: The accuser deserves the punishment of
retaliation in compensation for the harm he attempts to inflict on his
neighbor: but the punishment of disgrace is due to him for his
wickedness in accusing another man calumniously. Sometimes the
sovereign remits the punishment, and not the disgrace, and sometimes he
removes the disgrace also: wherefore the Pope also can remove this
disgrace. When Pope Gelasius says: "We cannot remove the disgrace," he
may mean either the disgrace attaching to the deed [infamia facti], or
that sometimes it is not expedient to remove it, or again he may be
referring to the disgrace inflicted by the civil judge, as Gratian
states (Callist. I, Epist. ad omn. Gall. episc. ).
__________________________________________________________________
OF SINS COMMITTED AGAINST JUSTICE ON THE PART OF THE DEFENDANT (FOUR ARTICLES)
We must now consider those sins which are committed against justice on
the part of the defendant. Under this head there are four points of
inquiry:
(1) Whether it is a mortal sin to deny the truth which would lead to
one's condemnation?
(2) Whether it is lawful to defend oneself with calumnies?
(3) Whether it is lawful to escape condemnation by appealing?
(4) Whether it is lawful for one who has been condemned to defend
himself by violence if he be able to do so?
__________________________________________________________________
Whether one can, without a mortal sin, deny the truth which would lead to
one's condemnation?
Objection 1: It would seem one can, without a mortal sin, deny the
truth which would lead to one's condemnation. For Chrysostom says (Hom.
xxxi super Ep. ad Heb. ): "I do not say that you should lay bare your
guilt publicly, nor accuse yourself before others. " Now if the accused
were to confess the truth in court, he would lay bare his guilt and be
his own accuser. Therefore he is not bound to tell the truth: and so he
does not sin mortally if he tell a lie in court.
Objection 2: Further, just as it is an officious lie when one tells a
lie in order to rescue another man from death, so is it an officious
lie when one tells a lie in order to free oneself from death, since one
is more bound towards oneself than towards another. Now an officious
lie is considered not a mortal but a venial sin. Therefore if the
accused denies the truth in court, in order to escape death, he does
not sin mortally.
Objection 3: Further, every mortal sin is contrary to charity, as
stated above ([2933]Q[24], A[12]). But that the accused lie by denying
himself to be guilty of the crime laid to his charge is not contrary to
charity, neither as regards the love we owe God, nor as to the love due
to our neighbor. Therefore such a lie is not a mortal sin.
On the contrary, Whatever is opposed to the glory of God is a mortal
sin, because we are bound by precept to "do all to the glory of God" (1
Cor. 10:31). Now it is to the glory of God that the accused confess
that which is alleged against him, as appears from the words of Josue
to Achan, "My son, give glory to the Lord God of Israel, and confess
and tell me what thou hast done, hide it not" (Joshua 7:19). Therefore
it is a mortal sin to lie in order to cover one's guilt.
I answer that, Whoever acts against the due order of justice, sins
mortally, as stated above ([2934]Q[59], A[4]). Now it belongs to the
order of justice that a man should obey his superior in those matters
to which the rights of his authority extend. Again, the judge, as
stated above ([2935]Q[67] , A[1]), is the superior in relation to the
person whom he judges. Therefore the accused is in duty bound to tell
the judge the truth which the latter exacts from him according to the
form of law. Hence if he refuse to tell the truth which he is under
obligation to tell, or if he mendaciously deny it, he sins mortally.
If, on the other hand, the judge asks of him that which he cannot ask
in accordance with the order of justice, the accused is not bound to
satisfy him, and he may lawfully escape by appealing or otherwise: but
it is not lawful for him to lie.
Reply to Objection 1: When a man is examined by the judge according to
the order of justice, he does not lay bare his own guilt, but his guilt
is unmasked by another, since the obligation of answering is imposed on
him by one whom he is bound to obey.
Reply to Objection 2: To lie, with injury to another person, in order
to rescue a man from death is not a purely officious lie, for it has an
admixture of the pernicious lie: and when a man lies in court in order
to exculpate himself, he does an injury to one whom he is bound to
obey, since he refuses him his due, namely an avowal of the truth.
Reply to Objection 3: He who lies in court by denying his guilt, acts
both against the love of God to whom judgment belongs, and against the
love of his neighbor, and this not only as regards the judge, to whom
he refuses his due, but also as regards his accuser, who is punished if
he fail to prove his accusation. Hence it is written (Ps. 140:4):
"Incline not my heart to evil words, to make excuses in sins": on which
words a gloss says: "Shameless men are wont by lying to deny their
guilt when they have been found out. " And Gregory in expounding Job
31:33, "If as a man I have hid my sin," says (Moral. xxii, 15): "It is
a common vice of mankind to sin in secret, by lying to hide the sin
that has been committed, and when convicted to aggravate the sin by
defending oneself. "
__________________________________________________________________
Whether it is lawful for the accused to defend himself with calumnies?
Objection 1: It would seem lawful for the accused to defend himself
with calumnies. Because, according to civil law (Cod. II, iv, De
transact. 18), when a man is on trial for his life it is lawful for him
to bribe his adversary. Now this is done chiefly by defending oneself
with calumnies. Therefore the accused who is on trial for his life does
not sin if he defend himself with calumnies.
Objection 2: Further, an accuser who is guilty of collusion with the
accused, is punishable by law (Decret. II, qu. iii, can. Si quem
poenit. ).
Yet no punishment is imposed on the accused for collusion
with the accuser. Therefore it would seem lawful for the accused to
defend himself with calumnies.
Objection 3: Further, it is written (Prov. 14:16): "A wise man feareth
and declineth from evil, the fool leapeth over and is confident. " Now
what is done wisely is no sin. Therefore no matter how a man declines
from evil, he does not sin.
On the contrary, In criminal cases an oath has to be taken against
calumnious allegations (Extra, De juramento calumniae, cap.
Inhaerentes): and this would not be the case if it were lawful to
defend oneself with calumnies. Therefore it is not lawful for the
accused to defend himself with calumnies.
I answer that, It is one thing to withhold the truth, and another to
utter a falsehood. The former is lawful sometimes, for a man is not
bound to divulge all truth, but only such as the judge can and must
require of him according to the order of justice; as, for instance,
when the accused is already disgraced through the commission of some
crime, or certain indications of his guilt have already been
discovered, or again when his guilt is already more or less proven. On
the other hand it is never lawful to make a false declaration.
As regards what he may do lawfully, a man can employ either lawful
means, and such as are adapted to the end in view, which belongs to
prudence; or he can use unlawful means, unsuitable to the proposed end,
and this belongs to craftiness, which is exercised by fraud and guile,
as shown above ([2936]Q[55], AA[3], seqq. ). His conduct in the former
case is praiseworthy, in the latter sinful. Accordingly it is lawful
for the accused to defend himself by withholding the truth that he is
not bound to avow, by suitable means, for instance by not answering
such questions as he is not bound to answer. This is not to defend
himself with calumnies, but to escape prudently. But it is unlawful for
him, either to utter a falsehood, or to withhold a truth that he is
bound to avow, or to employ guile or fraud, because fraud and guile
have the force of a lie, and so to use them would be to defend oneself
with calumnies.
Reply to Objection 1: Human laws leave many things unpunished, which
according to the Divine judgment are sins, as, for example, simple
fornication; because human law does not exact perfect virtue from man,
for such virtue belongs to few and cannot be found in so great a number
of people as human law has to direct. That a man is sometimes unwilling
to commit a sin in order to escape from the death of the body, the
danger of which threatens the accused who is on trial for his life, is
an act of perfect virtue, since "death is the most fearful of all
temporal things" (Ethic. iii, 6). Wherefore if the accused, who is on
trial for his life, bribes his adversary, he sins indeed by inducing
him to do what is unlawful, yet the civil law does not punish this sin,
and in this sense it is said to be lawful.
Reply to Objection 2: If the accuser is guilty of collusion with the
accused and the latter is guilty, he incurs punishment, and so it is
evident that he sins. Wherefore, since it is a sin to induce a man to
sin, or to take part in a sin in any way---for the Apostle says (Rom.
1:32), that "they . . . are worthy of death . . . that consent" to
those who sin---it is evident that the accused also sins if he is
guilty of collusion with his adversary. Nevertheless according to human
laws no punishment is inflicted on him, for the reason given above.
Reply to Objection 3: The wise man hides himself not by slandering
others but by exercising prudence.
__________________________________________________________________
Whether it is lawful for the accused to escape judgment by appealing?
Objection 1: It would seem unlawful for the accused to escape judgment
by appealing. The Apostle says (Rom. 13:1): "Let every soul be subject
to the higher powers. " Now the accused by appealing refuses to be
subject to a higher power, viz. the judge. Therefore he commits a sin.
Objection 2: Further, ordinary authority is more binding than that
which we choose for ourselves. Now according to the Decretals (II, qu.
vi, cap. A judicibus) it is unlawful to appeal from the judges chosen
by common consent. Much less therefore is it lawful to appeal from
ordinary judges.
Objection 3: Further, whatever is lawful once is always lawful. But it
is not lawful to appeal after the tenth day [*Can. Anteriorum, caus.
ii, qu. 6], nor a third time on the same point [*Can. Si autem, caus.
ii, qu. 6]. Therefore it would seem that an appeal is unlawful in
itself.
On the contrary, Paul appealed to Caesar (Acts 25).
I answer that, There are two motives for which a man appeals. First
through confidence in the justice of his cause, seeing that he is
unjustly oppressed by the judge, and then it is lawful for him to
appeal, because this is a prudent means of escape. Hence it is laid
down (Decret. II, qu. vi, can. Omnis oppressus): "All those who are
oppressed are free, if they so wish, to appeal to the judgment of the
priests, and no man may stand in their way. " Secondly, a man appeals in
order to cause a delay, lest a just sentence be pronounced against him.
This is to defend oneself calumniously, and is unlawful as stated above
[2937](A[2]). For he inflicts an injury both on the judge, whom he
hinders in the exercise of his office, and on his adversary, whose
justice he disturbs as far as he is able. Hence it is laid down (II,
qu. vi, can. Omnino puniendus): "Without doubt a man should be punished
if his appeal be declared unjust. "
Reply to Objection 1: A man should submit to the lower authority in so
far as the latter observes the order of the higher authority. If the
lower authority departs from the order of the higher, we ought not to
submit to it, for instance "if the proconsul order one thing and the
emperor another," according to a gloss on 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.
__________________________________________________________________
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.
__________________________________________________________________
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.
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.
Accusatorum) that "the role of accuser must never be sanctioned without
the accusation be in writing. "
I answer that, As stated above ([2929]Q[67], A[3]), when the process in
a criminal case goes by way of accusation, the accuser is in the
position of a party, so that the judge stands between the accuser and
the accused for the purpose of the trial of justice, wherein it
behooves one to proceed on certainties, as far as possible. Since
however verbal utterances are apt to escape one's memory, the judge
would be unable to know for certain what had been said and with what
qualifications, when he comes to pronounce sentence, unless it were
drawn up in writing. Hence it has with reason been established that the
accusation, as well as other parts of the judicial procedure, should be
put into writing.
Reply to Objection 1: Words are so many and so various that it is
difficult to remember each one. A proof of this is the fact that if a
number of people who have heard the same words be asked what was said,
they will not agree in repeating them, even after a short time. And
since a slight difference of words changes the sense, even though the
judge's sentence may have to be pronounced soon afterwards, the
certainty of judgment requires that the accusation be drawn up in
writing.
Reply to Objection 2: Writing is needed not only on account of the
absence of the person who has something to notify, or of the person to
whom something is notified, but also on account of the delay of time as
stated above (ad 1). Hence when the canon says, "Let no accusation be
accepted in writing" it refers to the sending of an accusation by one
who is absent: but it does not exclude the necessity of writing when
the accuser is present.
Reply to Objection 3: The denouncer does not bind himself to give
proofs: wherefore he is not punished if he is unable to prove. For this
reason writing is unnecessary in a denunciation: and it suffices that
the denunciation be made verbally to the Church, who will proceed, in
virtue of her office, to the correction of the brother.
__________________________________________________________________
Whether an accusation is rendered unjust by calumny, collusion or evasion?
Objection 1: It would seem that an accusation is not rendered unjust by
calumny, collusion or evasion. For according to Decret. II, qu. iii
[*Append. Grat. ad can. Si quem poenituerit. ], "calumny consists in
falsely charging a person with a crime. " Now sometimes one man falsely
accuses another of a crime through ignorance of fact which excuses him.
Therefore it seems that an accusation is not always rendered unjust
through being slanderous.
Objection 2: Further, it is stated by the same authority that
"collusion consists in hiding the truth about a crime. " But seemingly
this is not unlawful, because one is not bound to disclose every crime,
as stated above [2930](A[1]; Q[33], A[7]). Therefore it seems that an
accusation is not rendered unjust by collusion.
Objection 3: Further, it is stated by the same authority that "evasion
consists in withdrawing altogether from an accusation. " But this can be
done without injustice: for it is stated there also: "If a man repent
of having made a wicked accusation and inscription* in a matter which
he cannot prove, and come to an understanding with the innocent party
whom he has accused, let them acquit one another. " [*The accuser was
bound by Roman Law to endorse (se inscribere) the writ of accusation.
The effect of this endorsement or inscription was that the accuser
bound himself, if he failed to prove the accusation, to suffer the same
punishment as the accused would have to suffer if proved guilty. ]
Therefore evasion does not render an accusation unjust.
On the contrary, It is stated by the same authority: "The rashness of
accusers shows itself in three ways. For they are guilty either of
calumny, or of collusion, or of evasion. "
I answer that, As stated above [2931](A[1]), accusation is ordered for
the common good which it aims at procuring by means of knowledge of the
crime. Now no man ought to injure a person unjustly, in order to
promote the common good. Wherefore a man may sin in two ways when
making an accusation: first through acting unjustly against the
accused, by charging him falsely with the commission of a crime, i. e.
by calumniating him; secondly, on the part of the commonwealth, whose
good is intended chiefly in an accusation, when anyone with wicked
intent hinders a sin being punished. This again happens in two ways:
first by having recourse to fraud in making the accusation. This
belongs to collusion [prevaricatio] for "he that is guilty of collusion
is like one who rides astraddle [varicator], because he helps the other
party, and betrays his own side" [*Append. Grat. ad can. Si quem
poenituerit. ]. Secondly by withdrawing altogether from the accusation.
This is evasion [tergiversatio] for by desisting from what he had begun
he seems to turn his back [tergum vertere].
Reply to Objection 1: A man ought not to proceed to accuse except of
what he is quite certain about, wherein ignorance of fact has no place.
Yet he who falsely charges another with a crime is not a calumniator
unless he gives utterance to false accusations out of malice. For it
happens sometimes that a man through levity of mind proceeds to accuse
someone, because he believes too readily what he hears, and this
pertains to rashness; while, on the other hand sometimes a man is led
to make an accusation on account of an error for which he is not to
blame. All these things must be weighed according to the judge's
prudence, lest he should declare a man to have been guilty of calumny,
who through levity of mind or an error for which he is not to be blamed
has uttered a false accusation.
Reply to Objection 2: Not everyone who hides the truth about a crime is
guilty of collusion, but only he who deceitfully hides the matter about
which he makes the accusation, by collusion with the defendant,
dissembling his proofs, and admitting false excuses.
Reply to Objection 3: Evasion consists in withdrawing altogether from
the accusation, by renouncing the intention of accusing, not anyhow,
but inordinately. There are two ways, however, in which a man may
rightly desist from accusing without committing a sin ---in one way, in
the very process of accusation, if it come to his knowledge that the
matter of his accusation is false, and then by mutual consent the
accuser and the defendant acquit one another---in another way, if the
accusation be quashed by the sovereign to whom belongs the care of the
common good, which it is intended to procure by the accusation.
__________________________________________________________________
Whether an accuser who fails to prove his indictment is bound to the
punishment of retaliation?
Objection 1: It would seem that the accuser who fails to prove his
indictment is not bound to the punishment of retaliation. For sometimes
a man is led by a just error to make an accusation, in which case the
judge acquit the accuser, as stated in Decret. II, qu. iii. [*Append.
Grat. , ad can. Si quem poenituerit. ] Therefore the accuser who fails to
prove his indictment is not bound to the punishment of retaliation.
Objection 2: Further, if the punishment of retaliation ought to be
inflicted on one who has accused unjustly, this will be on account of
the injury he has done to someone---but not on account of any injury
done to the person of the accused, for in that case the sovereign could
not remit this punishment, nor on account of an injury to the
commonwealth, because then the accused could not acquit him. Therefore
the punishment of retaliation is not due to one who has failed to prove
his accusation.
Objection 3: Further, the one same sin does not deserve a twofold
punishment, according to Nahum 1:9 [*Septuagint version]: "God shall
not judge the same thing a second time. " But he who fails to prove his
accusation, incurs the punishment due to defamation [*Can. Infames,
caus. vi, qu. 1], which punishment even the Pope seemingly cannot
remit, according to a statement of Pope Gelasius [*Callist. I, Epist.
ad omn. Gall. episc. ]: "Although we are able to save souls by Penance,
we are unable to remove the defamation. " Therefore he is not bound to
suffer the punishment of retaliation.
On the contrary, Pope Hadrian I says (Cap. lii): "He that fails to
prove his accusation, must himself suffer the punishment which his
accusation inferred. "
I answer that, As stated above [2932](A[2]), in a case, where the
procedure is by way of accusation, the accuser holds the position of a
party aiming at the punishment of the accused. Now the duty of the
judge is to establish the equality of justice between them: and the
equality of justice requires that a man should himself suffer whatever
harm he has intended to be inflicted on another, according to Ex.
21:24, "Eye for eye, tooth for tooth. " Consequently it is just that he
who by accusing a man has put him in danger of being punished severely,
should himself suffer a like punishment.
Reply to Objection 1: As the Philosopher says (Ethic. v, 5) justice
does not always require counterpassion, because it matters considerably
whether a man injures another voluntarily or not. Voluntary injury
deserves punishment, involuntary deserves forgiveness. Hence when the
judge becomes aware that a man has made a false accusation, not with a
mind to do harm, but involuntarily through ignorance or a just error,
he does not impose the punishment of retaliation.
Reply to Objection 2: He who accuses wrongfully sins both against the
person of the accused and against the commonwealth; wherefore he is
punished on both counts. This is the meaning of what is written (Dt.
19:18-20): "And when after most diligent inquisition, they shall find
that the false witness hath told a lie against his brother: then shall
render to him as he meant to do to his brother," and this refers to the
injury done to the person: and afterwards, referring to the injury done
to the commonwealth, the text continues: "And thou shalt take away the
evil out of the midst of thee, that others hearing may fear, and may
not dare to do such things. " Specially, however, does he injure the
person of the accused, if he accuse him falsely. Wherefore the accused,
if innocent, may condone the injury done to himself, particularly if
the accusation were made not calumniously but out of levity of mind.
But if the accuser desist from accusing an innocent man, through
collusion with the latter's adversary, he inflicts an injury on the
commonwealth: and this cannot be condoned by the accused, although it
can be remitted by the sovereign, who has charge of the commonwealth.
Reply to Objection 3: The accuser deserves the punishment of
retaliation in compensation for the harm he attempts to inflict on his
neighbor: but the punishment of disgrace is due to him for his
wickedness in accusing another man calumniously. Sometimes the
sovereign remits the punishment, and not the disgrace, and sometimes he
removes the disgrace also: wherefore the Pope also can remove this
disgrace. When Pope Gelasius says: "We cannot remove the disgrace," he
may mean either the disgrace attaching to the deed [infamia facti], or
that sometimes it is not expedient to remove it, or again he may be
referring to the disgrace inflicted by the civil judge, as Gratian
states (Callist. I, Epist. ad omn. Gall. episc. ).
__________________________________________________________________
OF SINS COMMITTED AGAINST JUSTICE ON THE PART OF THE DEFENDANT (FOUR ARTICLES)
We must now consider those sins which are committed against justice on
the part of the defendant. Under this head there are four points of
inquiry:
(1) Whether it is a mortal sin to deny the truth which would lead to
one's condemnation?
(2) Whether it is lawful to defend oneself with calumnies?
(3) Whether it is lawful to escape condemnation by appealing?
(4) Whether it is lawful for one who has been condemned to defend
himself by violence if he be able to do so?
__________________________________________________________________
Whether one can, without a mortal sin, deny the truth which would lead to
one's condemnation?
Objection 1: It would seem one can, without a mortal sin, deny the
truth which would lead to one's condemnation. For Chrysostom says (Hom.
xxxi super Ep. ad Heb. ): "I do not say that you should lay bare your
guilt publicly, nor accuse yourself before others. " Now if the accused
were to confess the truth in court, he would lay bare his guilt and be
his own accuser. Therefore he is not bound to tell the truth: and so he
does not sin mortally if he tell a lie in court.
Objection 2: Further, just as it is an officious lie when one tells a
lie in order to rescue another man from death, so is it an officious
lie when one tells a lie in order to free oneself from death, since one
is more bound towards oneself than towards another. Now an officious
lie is considered not a mortal but a venial sin. Therefore if the
accused denies the truth in court, in order to escape death, he does
not sin mortally.
Objection 3: Further, every mortal sin is contrary to charity, as
stated above ([2933]Q[24], A[12]). But that the accused lie by denying
himself to be guilty of the crime laid to his charge is not contrary to
charity, neither as regards the love we owe God, nor as to the love due
to our neighbor. Therefore such a lie is not a mortal sin.
On the contrary, Whatever is opposed to the glory of God is a mortal
sin, because we are bound by precept to "do all to the glory of God" (1
Cor. 10:31). Now it is to the glory of God that the accused confess
that which is alleged against him, as appears from the words of Josue
to Achan, "My son, give glory to the Lord God of Israel, and confess
and tell me what thou hast done, hide it not" (Joshua 7:19). Therefore
it is a mortal sin to lie in order to cover one's guilt.
I answer that, Whoever acts against the due order of justice, sins
mortally, as stated above ([2934]Q[59], A[4]). Now it belongs to the
order of justice that a man should obey his superior in those matters
to which the rights of his authority extend. Again, the judge, as
stated above ([2935]Q[67] , A[1]), is the superior in relation to the
person whom he judges. Therefore the accused is in duty bound to tell
the judge the truth which the latter exacts from him according to the
form of law. Hence if he refuse to tell the truth which he is under
obligation to tell, or if he mendaciously deny it, he sins mortally.
If, on the other hand, the judge asks of him that which he cannot ask
in accordance with the order of justice, the accused is not bound to
satisfy him, and he may lawfully escape by appealing or otherwise: but
it is not lawful for him to lie.
Reply to Objection 1: When a man is examined by the judge according to
the order of justice, he does not lay bare his own guilt, but his guilt
is unmasked by another, since the obligation of answering is imposed on
him by one whom he is bound to obey.
Reply to Objection 2: To lie, with injury to another person, in order
to rescue a man from death is not a purely officious lie, for it has an
admixture of the pernicious lie: and when a man lies in court in order
to exculpate himself, he does an injury to one whom he is bound to
obey, since he refuses him his due, namely an avowal of the truth.
Reply to Objection 3: He who lies in court by denying his guilt, acts
both against the love of God to whom judgment belongs, and against the
love of his neighbor, and this not only as regards the judge, to whom
he refuses his due, but also as regards his accuser, who is punished if
he fail to prove his accusation. Hence it is written (Ps. 140:4):
"Incline not my heart to evil words, to make excuses in sins": on which
words a gloss says: "Shameless men are wont by lying to deny their
guilt when they have been found out. " And Gregory in expounding Job
31:33, "If as a man I have hid my sin," says (Moral. xxii, 15): "It is
a common vice of mankind to sin in secret, by lying to hide the sin
that has been committed, and when convicted to aggravate the sin by
defending oneself. "
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Whether it is lawful for the accused to defend himself with calumnies?
Objection 1: It would seem lawful for the accused to defend himself
with calumnies. Because, according to civil law (Cod. II, iv, De
transact. 18), when a man is on trial for his life it is lawful for him
to bribe his adversary. Now this is done chiefly by defending oneself
with calumnies. Therefore the accused who is on trial for his life does
not sin if he defend himself with calumnies.
Objection 2: Further, an accuser who is guilty of collusion with the
accused, is punishable by law (Decret. II, qu. iii, can. Si quem
poenit. ).
Yet no punishment is imposed on the accused for collusion
with the accuser. Therefore it would seem lawful for the accused to
defend himself with calumnies.
Objection 3: Further, it is written (Prov. 14:16): "A wise man feareth
and declineth from evil, the fool leapeth over and is confident. " Now
what is done wisely is no sin. Therefore no matter how a man declines
from evil, he does not sin.
On the contrary, In criminal cases an oath has to be taken against
calumnious allegations (Extra, De juramento calumniae, cap.
Inhaerentes): and this would not be the case if it were lawful to
defend oneself with calumnies. Therefore it is not lawful for the
accused to defend himself with calumnies.
I answer that, It is one thing to withhold the truth, and another to
utter a falsehood. The former is lawful sometimes, for a man is not
bound to divulge all truth, but only such as the judge can and must
require of him according to the order of justice; as, for instance,
when the accused is already disgraced through the commission of some
crime, or certain indications of his guilt have already been
discovered, or again when his guilt is already more or less proven. On
the other hand it is never lawful to make a false declaration.
As regards what he may do lawfully, a man can employ either lawful
means, and such as are adapted to the end in view, which belongs to
prudence; or he can use unlawful means, unsuitable to the proposed end,
and this belongs to craftiness, which is exercised by fraud and guile,
as shown above ([2936]Q[55], AA[3], seqq. ). His conduct in the former
case is praiseworthy, in the latter sinful. Accordingly it is lawful
for the accused to defend himself by withholding the truth that he is
not bound to avow, by suitable means, for instance by not answering
such questions as he is not bound to answer. This is not to defend
himself with calumnies, but to escape prudently. But it is unlawful for
him, either to utter a falsehood, or to withhold a truth that he is
bound to avow, or to employ guile or fraud, because fraud and guile
have the force of a lie, and so to use them would be to defend oneself
with calumnies.
Reply to Objection 1: Human laws leave many things unpunished, which
according to the Divine judgment are sins, as, for example, simple
fornication; because human law does not exact perfect virtue from man,
for such virtue belongs to few and cannot be found in so great a number
of people as human law has to direct. That a man is sometimes unwilling
to commit a sin in order to escape from the death of the body, the
danger of which threatens the accused who is on trial for his life, is
an act of perfect virtue, since "death is the most fearful of all
temporal things" (Ethic. iii, 6). Wherefore if the accused, who is on
trial for his life, bribes his adversary, he sins indeed by inducing
him to do what is unlawful, yet the civil law does not punish this sin,
and in this sense it is said to be lawful.
Reply to Objection 2: If the accuser is guilty of collusion with the
accused and the latter is guilty, he incurs punishment, and so it is
evident that he sins. Wherefore, since it is a sin to induce a man to
sin, or to take part in a sin in any way---for the Apostle says (Rom.
1:32), that "they . . . are worthy of death . . . that consent" to
those who sin---it is evident that the accused also sins if he is
guilty of collusion with his adversary. Nevertheless according to human
laws no punishment is inflicted on him, for the reason given above.
Reply to Objection 3: The wise man hides himself not by slandering
others but by exercising prudence.
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Whether it is lawful for the accused to escape judgment by appealing?
Objection 1: It would seem unlawful for the accused to escape judgment
by appealing. The Apostle says (Rom. 13:1): "Let every soul be subject
to the higher powers. " Now the accused by appealing refuses to be
subject to a higher power, viz. the judge. Therefore he commits a sin.
Objection 2: Further, ordinary authority is more binding than that
which we choose for ourselves. Now according to the Decretals (II, qu.
vi, cap. A judicibus) it is unlawful to appeal from the judges chosen
by common consent. Much less therefore is it lawful to appeal from
ordinary judges.
Objection 3: Further, whatever is lawful once is always lawful. But it
is not lawful to appeal after the tenth day [*Can. Anteriorum, caus.
ii, qu. 6], nor a third time on the same point [*Can. Si autem, caus.
ii, qu. 6]. Therefore it would seem that an appeal is unlawful in
itself.
On the contrary, Paul appealed to Caesar (Acts 25).
I answer that, There are two motives for which a man appeals. First
through confidence in the justice of his cause, seeing that he is
unjustly oppressed by the judge, and then it is lawful for him to
appeal, because this is a prudent means of escape. Hence it is laid
down (Decret. II, qu. vi, can. Omnis oppressus): "All those who are
oppressed are free, if they so wish, to appeal to the judgment of the
priests, and no man may stand in their way. " Secondly, a man appeals in
order to cause a delay, lest a just sentence be pronounced against him.
This is to defend oneself calumniously, and is unlawful as stated above
[2937](A[2]). For he inflicts an injury both on the judge, whom he
hinders in the exercise of his office, and on his adversary, whose
justice he disturbs as far as he is able. Hence it is laid down (II,
qu. vi, can. Omnino puniendus): "Without doubt a man should be punished
if his appeal be declared unjust. "
Reply to Objection 1: A man should submit to the lower authority in so
far as the latter observes the order of the higher authority. If the
lower authority departs from the order of the higher, we ought not to
submit to it, for instance "if the proconsul order one thing and the
emperor another," according to a gloss on 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.
