Summa Theologica Part III (Secunda Secundae) Part 111

_I answer that,_ A judge is an interpreter of justice. Wherefore, as the Philosopher says (Ethic. v, 4), "men have recourse to a judge as to one who is the personification of justice." Now, as stated above (Q. 58, A. 2), justice is not between a man and himself but between one man and another. Hence a judge must needs judge between two parties, which is the case when one is the prosecutor, and the other the defendant. Therefore in criminal cases the judge cannot sentence a man unless the latter has an accuser, according to Acts 25:16: "It is not the custom of the Romans to condemn any man, before that he who is accused have his accusers present, and have liberty to make his answer, to clear himself of the crimes" of which he is accused.

Reply Obj. 1: G.o.d, in judging man, takes the sinner's conscience as his accuser, according to Rom. 2:15, "Their thoughts between themselves accusing, or also defending one another"; or again, He takes the evidence of the fact as regards the deed itself, according to Gen. 4:10, "The voice of thy brother's blood crieth to Me from the earth."

Reply Obj. 2: Public disgrace takes the place of an accuser. Hence a gloss on Gen. 4:10, "The voice of thy brother's blood," etc. says: "There is no need of an accuser when the crime committed is notorious." In a case of denunciation, as stated above (Q. 33, A. 7), the amendment, not the punishment, of the sinner is intended: wherefore when a man is denounced for a sin, nothing is done against him, but for him, so that no accuser is required. The punishment that is inflicted is on account of his rebellion against the Church, and since this rebellion is manifest, it stands instead of an accuser.

The fact that the judge himself was an eye-witness, does not authorize him to proceed to pa.s.s sentence, except according to the order of judicial procedure.

Reply Obj. 3: G.o.d, in judging man, proceeds from His own knowledge of the truth, whereas man does not, as stated above (A. 2). Hence a man cannot be accuser, witness and judge at the same time, as G.o.d is.

Daniel was at once accuser and judge, because he was the executor of the sentence of G.o.d, by whose instinct he was moved, as stated above (A. 1, ad 1).

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

Whether the Judge Can Lawfully Remit the Punishment?

Objection 1: It would seem that the judge can lawfully remit the punishment. For it is written (James 2:13): "Judgment without mercy"

shall be done "to him that hath not done mercy." Now no man is punished for not doing what he cannot do lawfully. Therefore any judge can lawfully do mercy by remitting the punishment.

Obj. 2: Further, human judgment should imitate the Divine judgment.

Now G.o.d remits the punishment to sinners, because He desires not the death of the sinner, according to Ezech. 18:23. Therefore a human judge also may lawfully remit the punishment to one who repents.

Obj. 3: Further, it is lawful for anyone to do what is profitable to some one and harmful to none. Now the remission of his punishment profits the guilty man and harms n.o.body. Therefore the judge can lawfully loose a guilty man from his punishment.

_On the contrary,_ It is written (Deut. 13:8, 9) concerning anyone who would persuade a man to serve strange G.o.ds: "Neither let thy eye spare him to pity and conceal him, but thou shalt presently put him to death": and of the murderer it is written (Deut. 19:12, 13): "He shall die. Thou shalt not pity him."

_I answer that,_ As may be gathered from what has been said (AA. 2, 3), with regard to the question in point, two things may be observed in connection with a judge. One is that he has to judge between accuser and defendant, while the other is that he p.r.o.nounces the judicial sentence, in virtue of his power, not as a private individual but as a public person. Accordingly on two counts a judge is hindered from loosing a guilty person from his punishment. First on the part of the accuser, whose right it sometimes is that the guilty party should be punished--for instance on account of some injury committed against the accuser--because it is not in the power of a judge to remit such punishment, since every judge is bound to give each man his right. Secondly, he finds a hindrance on the part of the commonwealth, whose power he exercises, and to whose good it belongs that evil-doers should be punished.

Nevertheless in this respect there is a difference between judges of lower degree and the supreme judge, i.e. the sovereign, to whom the entire public authority is entrusted. For the inferior judge has no power to exempt a guilty man from punishment against the laws imposed on him by his superior. Wherefore Augustine in commenting on John 19:11, "Thou shouldst not have any power against Me," says (Tract.

cxvi in Joan.): "The power which G.o.d gave Pilate was such that he was under the power of Caesar, so that he was by no means free to acquit the person accused." On the other hand the sovereign who has full authority in the commonwealth, can lawfully remit the punishment to a guilty person, provided the injured party consent to the remission, and that this do not seem detrimental to the public good.

Reply Obj. 1: There is a place for the judge's mercy in matters that are left to the judge's discretion, because in like matters a good man is slow to punish as the Philosopher states (Ethic. v, 10). But in matters that are determined in accordance with Divine or human laws, it is not left to him to show mercy.

Reply Obj. 2: G.o.d has supreme power of judging, and it concerns Him whatever is done sinfully against anyone. Therefore He is free to remit the punishment, especially since punishment is due to sin chiefly because it is done against Him. He does not, however, remit the punishment, except in so far as it becomes His goodness, which is the source of all laws.

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

13:11): "That all Israel hearing may fear, and may do no more anything like this." He would also inflict harm on the injured person; who is compensated by having his honor restored in the punishment of the man who has injured him.

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QUESTION 68

OF MATTERS CONCERNING UNJUST ACCUSATION (In Four Articles)

We must now consider matters pertaining to unjust accusation. Under this head there are four points of inquiry:

(1) Whether a man is bound to accuse?

(2) Whether the accusation should be made in writing?

(3) How is an accusation vitiated?

(4) How should those be punished who have accused a man wrongfully?

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

Whether a Man Is Bound to Accuse?

Objection 1: It would seem that a man is not bound to accuse. For no man is excused on account of sin from fulfilling a Divine precept, since he would thus profit by his sin. Yet on account of sin some are disqualified from accusing, such as those who are excommunicate or of evil fame, or who are accused of grievous crimes and are not yet proved to be innocent [*1 Tim. 1:5]. Therefore a man is not bound by a Divine precept to accuse.

Obj. 2: Further, every duty depends on charity which is "the end of the precept" [*Can. Definimus, caus. iv, qu. 1; caus. vi, qu. 1]: wherefore it is written (Rom. 13:8): "Owe no man anything, but to love one another." Now that which belongs to charity is a duty that man owes to all both of high and of low degree, both superiors and inferiors. Since therefore subjects should not accuse their superiors, nor persons of lower degree, those of a higher degree, as shown in several chapters (Decret. II, qu. vii), it seems that it is no man's duty to accuse.

Obj. 3: Further, no man is bound to act against the fidelity which he owes his friend; because he ought not to do to another what he would not have others do to him. Now to accuse anyone is sometimes contrary to the fidelity that one owes a friend; for it is written (Prov.

11:13): "He that walketh deceitfully, revealeth secrets; but he that is faithful, concealeth the thing committed to him by his friend."

Therefore a man is not bound to accuse.

_On the contrary,_ It is written (Lev. 5:1): "If any one sin, and hear the voice of one swearing, and is a witness either because he himself hath seen, or is privy to it: if he do not utter it, he shall bear his iniquity."

_I answer that,_ As stated above (Q. 33, AA. 6, 7; Q. 67, A. 3, ad 2), the difference between denunciation and accusation is that in denunciation we aim at a brother's amendment, whereas in accusation we intend the punishment of his crime. Now the punishments of this life are sought, not for their own sake, because this is not the final time of retribution, but in their character of medicine, conducing either to the amendment of the sinner, or to the good of the commonwealth whose calm is ensured by the punishment of evil-doers. The former of these is intended in denunciation, as stated, whereas the second regards properly accusation. Hence in the case of a crime that conduces to the injury of the commonwealth, a man is bound to accusation, provided he can offer sufficient proof, since it is the accuser's duty to prove: as, for example, when anyone's sin conduces to the bodily or spiritual corruption of the community. If, however, the sin be not such as to affect the community, or if he cannot offer sufficient proof, a man is not bound to attempt to accuse, since no man is bound to do what he cannot duly accomplish.

Reply Obj. 1: Nothing prevents a man being debarred by sin from doing what men are under an obligation to do: for instance from meriting eternal life, and from receiving the sacraments of the Church. Nor does a man profit by this: indeed it is a most grievous fault to fail to do what one is bound to do, since virtuous acts are perfections of man.

Reply Obj. 2: Subjects are debarred from accusing their superiors, "if it is not the affection of charity but their own wickedness that leads them to defame and disparage the conduct of their superiors"

[*Append. Grat. ad can. Sunt nonnulli, caus. ii, qu. 7]--or again if the subject who wishes to accuse his superior is himself guilty of crime [*Decret. II, qu. vii, can. Praesumunt.]. Otherwise, provided they be in other respects qualified to accuse, it is lawful for subjects to accuse their superiors out of charity.

Reply Obj. 3: It is contrary to fidelity to make known secrets to the injury of a person; but not if they be revealed for the good of the community, which should always be preferred to a private good.

Hence it is unlawful to receive any secret in detriment to the common good: and yet a thing is scarcely a secret when there are sufficient witnesses to prove it.

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

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

Objection 1: It would seem unnecessary for the accusation to be made in writing. For writing was devised as an aid to the human memory of the past. But an accusation is made in the present. Therefore the accusation needs not to be made in writing.

Obj. 2: Further, it is laid down (Decret. II, qu. viii, can. Per scripta) that "no man may accuse or be accused in his absence." Now writing seems to be useful in the fact that it is a means of notifying something to one who is absent, as Augustine declares (De Trin. x, 1). Therefore the accusation need not be in writing: and all the more that the canon declares that "no accusation in writing should be accepted."

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

_On the contrary,_ It is laid down (Decret. II, qu. viii, can.

Accusatorum) that "the role of accuser must never be sanctioned without the accusation be in writing."

_I answer that,_ As stated above (Q. 67, A. 3), when the process in a criminal case goes by way of accusation, the accuser is in the position of a party, so that the judge stands between the accuser and the accused for the purpose of the trial of justice, wherein it behooves one to proceed on certainties, as far as possible. Since however verbal utterances are apt to escape one's memory, the judge would be unable to know for certain what had been said and with what qualifications, when he comes to p.r.o.nounce sentence, unless it were drawn up in writing. Hence it has with reason been established that the accusation, as well as other parts of the judicial procedure, should be put into writing.

Reply Obj. 1: Words are so many and so various that it is difficult to remember each one. A proof of this is the fact that if a number of people who have heard the same words be asked what was said, they will not agree in repeating them, even after a short time. And since a slight difference of words changes the sense, even though the judge's sentence may have to be p.r.o.nounced soon afterwards, the certainty of judgment requires that the accusation be drawn up in writing.

Reply Obj. 2: Writing is needed not only on account of the absence of the person who has something to notify, or of the person to whom something is notified, but also on account of the delay of time as stated above (ad 1). Hence when the canon says, "Let no accusation be accepted in writing" it refers to the sending of an accusation by one who is absent: but it does not exclude the necessity of writing when the accuser is present.

Reply Obj. 3: The denouncer does not bind himself to give proofs: wherefore he is not punished if he is unable to prove. For this reason writing is unnecessary in a denunciation: and it suffices that the denunciation be made verbally to the Church, who will proceed, in virtue of her office, to the correction of the brother.

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