1916. There are various opinions on the _Moral theology

matter in the case of petty thefts that coalesce. (a) If all the thefts

are against the same person, the usual opinion fixes grave matter at

one and one-half times or twice the amount fixed for large thefts.

Some authors limit this to cases wherein the thief had not the purpose

from the beginning to steal a great amount (see 1915), and some state

that the amount for large thefts which is considered is the relative,

not the absolute sum. (b) If the thefts are against different persons,

some think that grave matter is the same as the absolute matter of one

large theft, while others make it one and one-half times or twice that

amount. Here again some moralists limit these increases in the sum for

grave matter to cases wherein there was no purpose from the beginning

to steal a notable amount.

1917. Theft from Joint Owners.--Is it a grave sin to steal a

considerable amount of property that belongs to joint owners? (a)

If the amount taken is absolutely grave, the sin is serious for the

reasons given in 1898 sqq.; (b) if the amount taken is relatively grave

(e.g., because a community is very poor, or because the owners are only

two or three and the individual loss is heavy), the sin is serious;

organization is not poor and has many members or when the loss will

be so distributed among the joint owners as to be little felt by them

individually, the sin is not serious.

1918. Restitution in Cases of Theft.--(a) Restitution is owed for the

property stolen. He who stole a serious amount but gave back part,

retaining only what is light matter, is bound under venial sin to

restore the rest. Confessors should urge restitution even of small

amounts, when possible, in order to deter men from theft, and it may

sometimes be useful to require children to seek a condonation from

their parents for a similar reason. (b) Restitution is owed also for

damage caused by the theft (see 1895). Thus, if one steals the tool of

a poor farmer, which is of little value in itself but which brings on

him a serious loss, one is responsible for the loss as well as for the

tool.

1919. Cases of Doubt.--(a) Doubts of Law.--The rules given by moralists

on grave matter in thefts are not to be regarded as certain and

authentic, since they are only the opinions of theologians, and have

no obligatory sanction from the Church. They are reasonable and well

founded, indeed, but in spite of them there will occur cases wherein

it is doubtful whether a theft is mortal or venial (see 1896). It is

no disgrace to be ignorant in such difficult cases, for St. Augustine

himself admitted that he did not always know where to draw the line.

Hence, confessors should not feel obliged to decide with finality in

every instance whether the sin committed was in itself grave or light;

on the contrary, it will sometimes be necessary to avoid a definite

answer, while calling attention to the sinfulness of all theft and the

duty of restitution. But the obligation of restitution should not be

imposed as certain, where the doctors disagree.

(b) Doubts of Fact.--The application of the rules for grave matter

will also be at times very difficult on account of uncertainties

about circumstances of time, person, etc. In such cases one must have

recourse to the systems for decision in the presence of a doubtful

conscience. If a thief does not know from whom he stole, it may be

doubtful whether the matter is relatively grave or only light; but the

presumption then will be that the loser was a person of average means.

Again, when there is a strong likelihood that an owner was not greatly

unwilling, one must insist that the thefts cease for the future, but

one cannot always impose restitution. If a petty thief does not know

how much he stole, or whether all the thefts were from the same person,

or whether the intervals between the thefts were great or small, or

whether he had the intention from the outset to take a large sum, the

confessor will have to form an opinion by questioning the penitent on

the time of his last confession, the amounts he generally took, the

general frequency of the thefts, etc.

1920. Conversion of Others’ Property.--The conversion of property owned

by others or held by them may be permitted, or at least tolerated, when

the owner or possessor would be unreasonable if he objected as in the

following cases:

(a) in extreme necessity, for according to natural law each one has the

right to preserve his life by using the temporal things of the earth

(see 1571). In danger of death things necessary for escaping the danger

become common property, and no injury is done by the person in danger

if he uses the goods of another person to save his own life;

(b) in certain cases when occult compensation is the only way in which

one can defend or secure one’s right to property, for it is not wrong

to take what is one’s due, if this is done without harm to the rights

of others.

1921. Conditions for Lawful Occupation of the Goods of Others in

Extreme Need.--(a) The occupation must be necessary for securing one’s

own or another’s natural right to some supreme good, such as life

or what is almost the equivalent of life (e.g., freedom from cruel

restraint, escape from fearful disease). A supreme good is at stake,

then, when one is in extreme, quasi-extreme, or most grave need (see

1236), that is, exposed to the certain or very probable peril of losing

life, limbs, liberty, sight, chastity, etc.; occupation is necessary

when there is no other way (e.g., by begging) to avert the danger.

(b) The occupation must be made without detriment to the rights of

others. Hence, one may not occupy more than is really necessary to

escape the danger; one may not occupy at all if the owner is situated

in an equal danger (e.g., one may not take the plank from a man in

danger of drowning in order to save oneself); one may not retain the

thing taken, if the danger has passed (e.g., one who commandeered his

neighbor’s car in order to escape from a thug must return the car). The

neglect to ask permission, however, does not exceed a venial sin and

does not impose the duty of restitution, if there is a real reason for

occupation. One may not take the goods without permission, if this can

be obtained without too much difficulty; nor forcibly, if possession

can be had peaceably.

1922. Restitution for Occupied Goods.--Is the occupier bound to

restitution for occupied goods that were consumed (e.g., food and

drink), if he afterwards becomes able to pay for them?

(a) If the occupier had no prospect at the time of ever being able

to pay for what he took, he is not bound to restitution--not because

of possession, since the thing has perished, nor because of the

taking, since there was no onerous contract, nor because of injury,

since he acted within his rights. The owner cannot complain at this,

since charity obliges him to give of his own free will to one who is

in supreme need and not to expect that the alms be paid back, while

justice forbids that he impede the appropriation of what is needed

by the person in distress. It seems, however, that a case of this

character would rarely happen, and, if it did happen, the more decent

thing would be to pay for what was used. Some moralists think that more

probably there would be an obligation of justice to do this, since

occupation is lawful only in so far as it is necessary.

(b) If the occupier had the prospect at the time of being able to

pay for what he took, he is bound to restitution; for one should not

occupy more than is necessary, and, if a loan suffices to tide one over

a difficulty, it is not right to expect a gift. Hence, men who raid

bakery shops in times of food shortage, are bound to make restitution

to the bakers when able.

1923. Occupation in the Case of Merely Grave Necessity.--Is it lawful

to occupy in merely grave or ordinary necessity?

(a) This is not lawful, for otherwise the doors would be opened to

thefts without number, and both the security of property and the peace

of the public would be at an end. Innocent XI condemned the proposition

that it is permissible to steal in great need (Denzinger, n. 1186). (b)

Such occupation is less sinful than to occupy without necessity, and

indeed the theft may be only venial if one is in grave need and has

vainly sought work or charity to relieve the difficulty, as when a poor

man who is not able to give his children all the food they need steals

provisions now and then.

1924. Occupation of a Large Sum by One in Dire Need.--(a) One opinion

holds that even for the sake of avoiding death this is not permissible,

for one has no right to extraordinary means for the protection of one’s

life.

(b) A second opinion maintains that this occupation is lawful, under

the conditions given in 1921; for life is more precious than even a

large sum of money, and in such extreme need property right yields to

the right to life.

necessity is proximate or urgent (e.g., an unarmed Watchman is

threatened with instant death if he does not hand over at once the

money he has in charge) and the case in which it is only remote (e.g.,

the doctor tells a poor man that he will die shortly from tuberculosis

unless he goes to a more healthy altitude, but the patient is too poor

to follow these instructions). In the former case the person in need

may take what is necessary (on account of the reasons for the second

opinion and also because the civil laws allow this), but he is not

bound to do so (on account of the reasons for the first opinion); in

the latter case, more probably he has no right to occupation, for this

would be prejudicial to the public welfare and is moreover strictly

forbidden by civil laws (see 1571, 1253).

1925. Duty of the Owner towards One in Dire Need.--(a) In charity

the owner is bound to come to the aid of the needy person; but, if

he neglects this duty, he does not offend justice and is not held to

restitution (see 1240, 1753). (b) In justice the owner is bound not

to prevent the needy person from taking or using what he is entitled

to; but should the owner do this and the necessity cease, there is no

duty of restitution, for the right of the needy person ends with the

necessity.

1926. Lawfulness of Receiving Support from a Thief.--Is it lawful for

the wife and family to receive support from the head of the family,

when he is a thief?

(a) It is lawful when the persons stolen from are not thus deprived of

their goods or of the prospect of restitution. This happens when the

actual support does not come from the stolen property, and the thief is

able to make restitution from other property that belongs to him, or

the wife and children earn as much for the family by their work as they

receive in support. In this case the family may take from the thief

even things that are not necessary for their support.

(b) It is lawful when the persons stolen from are deprived of

restitution, but the obligation of restitution has ceased on account

of grave necessity (see 1797). This happens when the support does not

actually come from the stolen property, but the thief is unable to make

restitution from his own property without depriving his own family who

are in grave need. In this case the family may take from the thief only

such things as are necessary for them according to their station in

life.

goods, but the right to occupy these goods has arisen on account of the

extreme necessity of the family (see 1920 sqq.). This happens when the

support comes from the stolen property itself. But the family may use

only what is really necessary for the relief of their dire distress.

1927. Compensation.-Compensation is of two kinds, strict or legal and

wide or extra-legal.

(a) In a strict sense, compensation is counterclaim, or the comparison

of the debts of two persons to one another with a view to the

cancellation of one or of both debts. This method of extinction of

debt is allowed by law in order to reduce the amount and expenses of

litigation. It is known as recoupment or offset when a defendant brings

a cross-action against a plaintiff for non-fulfillment by the latter

of some part of the contract in controversy, and as set-off when the

defendant introduces the debt owed to him over against the debts sued

for by the plaintiff. Counterclaim is just when no injury is done to

one party (e.g., it would be unjust to keep the horse of Titus which

you had borrowed, simply because Titus owed you a debt equal to the

value of the horse, for the horse might be worth more to Titus); it is

legal when recognized by the law (cfr. 1797, 1798).

(b) In a wide sense, compensation is the summary recovery by a creditor

of the thing or the debt owed him by the debtor. The recovery is

summary in the sense that the creditor does not go to law, or proceed

according to law, but takes from the debtor either openly (open

compensation) or secretly (occult compensation) what is owed.

1928. Lawfulness of Occult Compensation.--(a) Ordinarily, or _per

se_, it is not lawful; for it contains such evils as disregard of due

process of law, scandal, infamy, public disturbance, the menace that

the common good will be harmed by frequent abuse, the danger that the

debtor will suffer loss through a second payment of the same debt,

etc. Innocent XI condemned the proposition that domestic servants may

practise occult compensation when they decide that their services are

worth more than the salary they are receiving (Denzinger, n. 1187).

(b) Exceptionally, or _per accidens_, it is lawful; for under certain

conditions it offends neither public nor private welfare and it is

necessary for the vindication of a right. Just as the natural law gives

authority to occupy the goods of another in case of extreme need, so

does it justify occult compensation in the special cases just mentioned.

1929. Unlawful Occult Compensation and Restitution.--Does unlawful

occult compensation oblige one to restitution?

(a) If the compensation is not only unlawful but also injurious

(e.g., a servant takes what is not due her under the pretext of

compensation), it is not rightly called compensation, but is really

theft, and restitution is due. (b) If the compensation is unlawful but

not injurious (e.g., a servant takes what is really due her, but she

could have obtained it by asking for it), there is no theft or duty of

restitution, since the property of another was not stolen.

1930. Conditions Required by Commutative Justice for Occult

Compensation.--(a) Before the Compensation.--There must be a strict

right to the thing taken; for, if there is no such right, one takes

what belongs to another against his will, or commits theft. Hence, if

an employer has freely promised to make a gift to his servant and then

fails to keep the promise, the servant has no right to take what was

promised, since it is owed from liberality or fidelity or gratitude,

but not from commutative justice. The same applies to a non-necessary

heir who has been left nothing in a will, since he had no strict right.

It is also unjust to take secret compensation for a debt that has not

yet fallen due.

(b) During the Compensation.--No wrong must be done to the debtor

(e.g., by taking more than is due, by taking an article which the

debtor needs for earning his living) or to third parties (e.g.,

by taking goods deposited by them with the debtor). If possible,

compensation should be made from goods of the same nature and kind as

those that were taken or damaged, for the debtor should not be forced

to part with things he wishes to retain and which are not necessary for

the creditor’s satisfaction.

the keeping of a payment which is now not owed by him and which one can

refuse or return to him) and to third parties (e.g., the casting of

suspicion on a servant in order to divert attention from one’s act of

occult compensation).

1931. Must the strictness of the right be morally certain, or, in other

words, must reasonable doubt of fact and of law be excluded?

(a) As to doubt of fact, it must be excluded; for in such doubt the

presumption is with the possessor, or at least it is certainly wrong

to perform an act that will probably be injurious to another person

(see 713). Moreover, everyone can see that the public good would suffer

greatly, if occult compensation were permissible when the existence of

a debt is uncertain. Hence, if it is only probable that one sold goods

to another person or that another person has not yet paid for services

received by him, occult compensation must be avoided.

(b) As to pure doubt of law, the question is controverted. Some think

that it also must be excluded, since the possessor should not be

deprived of possession unless it is certain that there is a right

to do this. Others think that occult compensation may be used in

spite of a mere doubt of law, if the doubt concerns only the mode

of making the compensation, or if the probability in favor of the

creditor is so strong that a judge could conscientiously decide for

him against the possessor. Examples of doubts of law here are three

cases that are in dispute among authors, namely, whether one may take

money as compensation for defamation that will not be repaired by

restoration of fame (see 1802, 1803), whether one may deny reparation

for defamation when one has been defamed by the other party and has

not received restitution, whether one has rights to a legacy of which

one is deprived on account of a mere informality in the document. In

these cases the right is held by some authorities to be probable,

but the decision in a particular instance should be made only on the

advice of a learned and conscientious person, since the matter is very

complicated and there is great danger of self-deception.

1932. Some Cases in Which There Is a Strict Right to Compensation.--(a)

Employees (i.e., servants, workingmen, artisans, officials, etc.) have

a strict right when they are injured by the employer’s non-observance

of the contract (e.g., the stipulated salary is not paid; unjust

subtractions are made from the salary, as by fines for the inadvertent

and infrequent breaking of tools, etc., about which there was no

agreement in the contract; labors not contracted for are exacted), or

when an unjust contract is imposed on them (e.g., they are induced by

force or threats to accept less than a living wage; advantage is taken

of their grave necessity to wring from them agreement to such a wage).

(b) Merchants have a strict right when a debt which they cannot collect

is certainly owed them, or when they sold below the minimum just price,

because forced to this unjustly, or because they made a mistake in

charging. They may compensate themselves by diminishing weights or

measurements.

sentence manifestly unjust, because the law is certainly unjust or

because the judge clearly gave a wrong decision in a matter of fact

(e.g., he erroneously presumed that a debt had been contracted, or that

it had not been paid).

1933. Some Cases in Which There Is No Right to Compensation.--(a)

Employees have no right to compensation for subtractions from their

salary, if they culpably injure the property of their employer, or

if they agreed to such subtractions; nor for the smallness of their

wage, if they freely accepted it (e.g., if they regarded it as a favor

to be employed, and the employer did not really need them), or if it

is made up for by presents, board or lodging, opportunity for good

tips, etc.; nor for unusual labors, if they hired themselves out for

general service (unless they are asked to perform work of an entirely

unforeseen kind, such as a very perilous mission), or if they undertook

these labors freely without the knowledge or wish (express or tacit) of

the employer.

(b) Merchants have no right to compensation for goods sold by them

below the minimum just price, if they freely agreed to sell at that

price.

1934. Children and Employees and Compensation.--Some special questions

arise for consideration in case of parents who employ their own

children, and of employers who are forced to underpay on account of the

dishonesty of their help.

(a) Children who work for their parents and who are entitled to a

salary, by agreement or from the law, have the same rights as other

employees, but injustice against them would be less frequent. In

this country the father has a right to the services and wages of his

unemancipated child, but the child becomes independent of the father

when it reaches the age of majority or when the father relinquishes his

right.

(b) Employees who are underpaid because the employer is cheated by his

help have the right to occult compensation, if they are forced to take

less than a living wage (1932); otherwise this is not permissible,

unless it be certain that the employer is not unwilling that the honest

employees receive more than their pay. In practice, on account of the

great peril of injustice, it is advisable that such workers seek better

pay through their organizations or else look for employment elsewhere.

1935. Conditions Required by Legal Justice for Occult

Compensation.--(a) Occult compensation must not be used if payment can

easily be obtained through suit at law or agreement; for the order of

law and the public welfare require that one should not have recourse

to the extraordinary means of occult compensation if ordinary means

will suffice and not cause notable difficulties. But as a rule it seems

this obliges only under venial sin, since ordinarily the departure from

normal procedure in this matter is not seriously detrimental to public

morals or order; and it does not impose a duty of restitution, since he

who takes only what belongs to him does not offend against commutative

justice. Indeed, if it is certain that other means will be futile

(e.g., because one has not sufficient evidence to win or because the

decision would he biased) or harmful (e.g., because great dissensions

will be aroused, or heavy expenses incurred in litigation), occult

compensation is not even venially unlawful.

(b) Occult compensation, according to law, should not be used by a

bailee, for he has a lien for his services and proper expenditures in

caring for the object bailed, but not for any other debt the bailor may

owe him (Bolles, _Handy Law Book_). This is obligatory at least for the

external forum.

1936. Some Conditions Required by Charity for Occult Compensation (see

1165, 1236, 1483).--(a) Charity towards the Debtor.--The creditor

should see, when possible, that the debtor suffers no loss by occasion

of the compensation. Hence, in order to spare the debtor the evils of a

bad conscience in reference to the debt or of a second payment of the

debt, the creditor should, if possible, inform the debtor that the debt

is cancelled or that payment is not expected.

(b) Charity towards Third Parties.-The creditor should, if possible,

prevent any trouble or loss to others that might be occasioned by the

compensation, such as suspicion of theft that might fall on servants.

1937. The Lawfulness of Open Compensation.--(a) If one’s property is

being stolen or carried away, it is lawful to protect or recover it by

force; for this is only just defense.

(b) If one’s property has already been carried away but is still in

being and in a safe place, legal justice requires that one seek redress

from the courts. But it does not seem a serious fault if one recovers

goods by using moderate force, since the property is one’s own and the

public manner of seizing it enables the law to take cognizance of the

case. American law recognizes with certain restrictions the rights of

recaption and of entry whereby a person takes possession without legal

process of goods unlawfully taken or withheld from him (Robinson,

_Elementary Law_, Sec.239, 240).

to take payment from him by force, since this is against the law and

productive of scandal and disturbance, and moreover one is not the

owner of the goods which one thus takes by force.

1938. Notanda pro Confessariis.--(a) Ante factum, rarissime consulenda

est occulta compensatio, tum quia ut plurimum illicita est (1928)

utpote periculo injustitiae, scandali, perturbationis plena, tum quia

lex civilis non solet eam ut remedium agnoscere sed potius ut furtum

habet. Publice de occulta compensatione non expedit loqui, et praestat

ut qui privatim de ea interrogentur, etiam datis conditionibus ad

liceitatem necessariis, per modum tolerationis tantum annuant.

(b) Post factum, facilius in favorem utentis compensatione judicari

potest, in ordine ad restitutionem, sed prudenter, et quasi evasive

loquendum, ne praxis ita agendi ut per se et generaliter licita

approbari videatur.

1939. Judicial Injustice.--We pass now from injustices committed by

deed to those committed by words, and shall consider first unjust

words spoken in courts of law and next unjust words spoken in private

or outside of legal processes. Judicial injustice will be treated

under the following heads: (a) injustice in judges; (b) injustice in

plaintiffs or accusers; (c) injustice in defendants; (d) injustice in

witnesses; (e) injustice in lawyers.

1940. The Office of Judge.--Judgment is the proper act of justice

(1727) and therefore when exercised under due conditions it is not

only lawful, but virtuous. The exercise of public judgment belongs to

the judge, who is a person vested with authority to decide litigated

questions in civil or criminal cases.

(a) Thus, in the strict sense, a judge is the official who has public

authority to preside over tribunals of justice, in which major matters

are tried and a formal procedure is followed, and whose function it is

to direct the course of the proceedings and to settle questions of fact

or of law that arise.

(b) In the wide sense, a judge is any person who has lawful authority

to pass an obligatory sentence in criminal or civil matters. The

name may be applied, then, to those who preside over a tribunal in

which minor or urgent questions are considered and treated summarily

(justices of the peace, police magistrates, etc.); to those who do

not preside over a tribunal, but who are attorneys at law appointed

as officers of a court to pass on some issue of a pending proceeding

or suit (referees); to those who act as assistants of the presiding

judge, by determining the truth of alleged facts in civil cases,

or the innocence or guilt of an accused in criminal cases (trial

jurymen); to those who are chosen, by the parties to the dispute or by

a court, as substitutes for the ordinary courts provided by law, to

hear and settle, without legal formalities, the matter in controversy

(arbitrators).

1941. Classes of Courts.--There are various classes of courts and

therefore various kinds of judges.

(a) Thus, according to their relative dignity and jurisdiction there

are higher and lower courts, courts of the first, second and last

instance.

(b) According to the cases they try, courts are either civil (in which

redress of private injuries is sought) or criminal (in which the

community prosecutes public wrongs).

secular.

(d) According to the form of procedure used and the remedies applied,

courts in the United States are divided into courts of common law,

courts of equity, probate, admiralty, and military courts.

1942. Jurisdiction.--Authority is necessary in a judge, for judgment

is a binding decision that may be executed by force, and this supposes

that he who pronounces the judgment is the superior of the person on

whom the judgment is passed, Hence, he who acts as judge when he lacks

jurisdiction acts invalidly (unless jurisdiction is supplied, as in

common error for an ecclesiastical judge, in Canon 209), and offends

against the rights of another judge and of the person on whom he passes

sentence. Examples would be secular judges acting in ecclesiastical

cases or ecclesiastical judges acting in temporal cases.

1943. The Qualifications of a Judge.--(a) Mentally, he must be endowed

with knowledge of the law and with prudence, so as to be competent

to pronounce correctly on the questions that are brought to him for

decision; for, as being the authorized interpreter and custodian of the

law, he is bound by quasi-contract with the community and with those

who appear before him to be competent for these offices. If a judge

realizes that he is incompetent in these ways, he must either resign

his office, or make up for his deficiency by study or consultation with

those who are more learned than himself. A juryman, being a layman to

the law, is not expected to have the mental equipment of a lawyer; but

it is his duty to give his attention to the statements, arguments and

testimony and to the instructions of the judge.

(b) Morally, the judge must be a lover of justice, whether commutative,

distributive or legal; for the proper office of the judge is to apply

the law to particular cases and to declare officially the mutual

rights and obligations of litigants who are before him. He must not

be a respecter of persons, one who is moved for or against a man on

account of rank, position or wealth, nor one who is swayed by fear or

favor, by popular outcry or personal ambition. Not only legal but also

commutative justice obliges him to perform his duties conscientiously;

for in taking his office he enters into a quasi-contract with the

community to execute his functions faithfully and well, and similarly

by trying a case he engages that those before him will receive

evenhanded justice. A juror should be a conscientious person who is

openminded and free from prejudice for or against those on whom he has

to vote.

1944. Conduct of a Judge.--A judge must be above suspicion, since

respect for the courts is the very life of the State. But there is good

reason to suspect a judge who judges in his own case, or in a case in

which he will be naturally inclined to favor one side. Hence the duty

of abstaining from certain things.

(a) Thus, he should avoid business, social and political activities

that will give ground for belief that he uses his office for the

promotion of private interests.

(b) He should not act in a case in which his own advantage or the

advantage of his friends might appear to conflict with the duty of

strict impartiality, as when he has personal litigation in the court,

or when a near relative of his is party in a controversy, or when one

of the contestants is his personal or political friend or enemy, etc.

Canon 1613 of the Code forbids a church judge to act in the case of a

person related by blood or marriage in the direct line or in the first

and second degrees of the collateral line, or of a person for whom he

is guardian or administrator, or in cases in which he had previously

acted as advocate or proxy, or from which he stands to profit or lose.

his impartial attitude, such as incivility to counsel or witnesses,

unexplained rulings that have the appearance of arbitrariness, private

interviews or dealings with one of the parties before him in ways

calculated to influence his action.

1945. Accepting Gifts from Litigants or Others.--May a judge take money

or other goods from those whose interests are submitted to him, such as

litigants or lawyers in his court or their friends?

(a) If the goods are extorted by threats or pressure or unjust

vexation, the judge is guilty of robbery, since he forcibly takes that

to which he has no right.

(b) If the goods are given as payment for the judge’s services during

the trial, the judge sins against commutative justice in receiving

payment for services already due, since his salary comes from the

community and obliges him to administer justice without charge to

those who seek it. Neither is it lawful to take money as compensation

for trying one case before another, or for hastening a case, or for

giving unusual diligence to a complicated case, or for deciding for

one side when the evidence is equal on both sides. But the law could

permit a judge to collect his expenses from both parties if the trial

necessitated a personal outlay of money (e.g., for travel or hire of

assistants) and there was no public fund to defray these costs.

influenced to act against justice, it is clear that grave injustice is

done both to the community and to the party who is injured.

(d) If the goods are given as free gifts, with no condition attached,

some think they may be lawfully accepted, if there is little

probability that they will influence the judge (e.g., because they

are small or given after the trial has ended). But others hold, and

it seems more correctly, that both natural and positive law forbids

this. Natural law forbids because of the danger (“Presents and gifts

blind the eyes of judges, and make them dumb in the mouth, so that they

cannot correct,” Ecclus., xx. 31), and because of the mistrust and

scandal that will result. It is incorrect to suppose that small gifts

and gifts offered after sentence would not have influence, for the

contending parties would soon come to vie with one another in making

gifts, while judges would begin to think about the gratuities that

might be looked for at the conclusion of a trial. Canon Law forbids all

ecclesiastical judges and all who assist in court to accept any gifts

whatever that are offered in connection with the trial (Canon 1624),

and the civil law provides severe penalties for bribes offered as gifts.

(e) If goods are given as a mere alms or from civility or hospitality

(e.g., food and drink such as is usually offered to a guest or

visitor), it does not seem unlawful in itself to accept them, but,

since there is a danger of suspicion and scandal, even this should be

avoided.

1946. Obligation of a Judge to Restore Goods Received in the

Above-Mentioned Ways.--(a) If retention of the goods is contrary to

the reasonable wishes of the person who gave them, restitution is

necessary. Hence, the judge must give back money that was extorted and

the payments made by private parties for the exercise of his official

duties.

(b) If retention of the goods is contrary to law, restitution is also

necessary. Hence, if a judge has taken a bribe, he must give it back,

because the agreement is null, and he cannot lawfully keep his part of

the compact by acting contrary to justice. The same is true when the

law voids the contract whereby he received the goods, or when a court

decree obliges him to return a free gift bestowed upon him.

nor to the law, restitution is not necessary. Hence, if a judge has

received a pure gift and no corruption was intended or practised,

he sinned in taking it, but the donation was valid and there is no

obligation to return it. And even though he has taken a bribe, and in

consideration of it has acted against justice, it seems there is no

natural obligation to make restitution to the party who gave the bribe,

since the latter has received a consideration for his payment, but the

judge is held to indemnify the injured party.

1947. Duties of a Judge in the Course of a Trial.--(a) The purpose of

the investigation is to discover the truth in the matter before the

court, and consequently it is the duty of a judge to give a case the

study and attention it deserves.

(b) The method of procedure is intended to secure a fair hearing for

both parties and so to expedite business that the litigants will not

be harmed by needless delays. The judge should therefore observe the

necessary and customary forms of law, while avoiding waste of time

and unnecessary interruptions. “It is not the custom of the Romans,”

said Festus to the Jews who asked him to condemn Paul, “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 things laid to his

charge” (Acts, xxv. 15).

1948. Duties of a Judge at the Conclusion of a Trial.--(a) The sentence

must be just, that is, it must be based on the law and the evidence.

Even though a judge does not personally approve of a law, thinking it

unwise or unnecessary or over-severe, he should nevertheless enforce

it; for he is appointed, not to change or reform, but to apply the law,

yet so, however, that the spirit is not sacrificed.

(b) Sentence must not be relaxed as a rule, for otherwise the rights of

the State or of the party winning the case will be harmed. But there

are times when the public good or some other sufficient reason calls

for relaxation, and in such cases judges have the power to refrain from

passing sentence or to suspend or respite a sentence already announced.

The defeated party should be allowed the opportunity which the law

grants him for seeking a reversal of the judgment.

1949. Sentence Passed under a Law Manifestly Unjust.--(a) If the law is

manifestly opposed to divine or natural law and sentence under it would

command the commission of an act intrinsically evil (e.g., cohabitation

of those who are not really married, “mercy killing” of the physically

or mentally incapacitated, eugenic sterilization of defectives or

criminals), the judge should resign rather than give such a sentence.

(b) If the law is manifestly opposed to divine or natural law and

sentence under it would inflict a grievous penalty (e.g., death or

long imprisonment) on the transgressor of the law, sentence would be

unlawful. But if only a light penalty would be inflicted (e.g., a small

fine or short confinement), it seems that sentence might be tolerated;

for the person condemned might be considered to yield his rights in

such a case for the sake of the public good, which suffers from the

loss of conscientious officials. The act of the judge in giving the

sentence would be only material cooperation, which is lawful for grave

reasons (see 1515 sqq.).

may be given lawfully, if scandal is avoided and the Church yields her

right in the case, as is sometimes done in favor of Catholic judges,

lest they be deprived of their positions.

1950. May a Catholic Judge Grant a Decree of Divorce?---Apart from

scandal or a positive ecclesiastical prohibition:

(a) The judge may grant a divorce to a couple not married validly

although they have had a marriage ceremony recognized by civil law.

This would occur in the case of Catholics married before a civil

magistrate or non-Catholic minister. Also, when the Church has

pronounced a marriage invalid, civil divorce may be granted for the

sake of civil effects.

(b) Divorce may be granted if the judge knows that one of the parties

will invoke the Pauline privilege.

remarriage and that the divorce is being sought merely for the sake of

civil effects, he may grant the divorce. In the case of Catholics the

consent of Church authorities would be required for this procedure.

(d) If the marriage is valid and it is known that the parties will

attempt a new marriage, some consider that a decree of divorce is

intrinsically evil, since it but applies a law that attempts, contrary

to divine right, to dissolve the marriage bond. Others (and this is

the more common view today) distinguish and think that the decree of

divorce does not concern the religious obligation of the petitioners,

but is simply an official declaration that the state regards the

civil effects of the marriage as no longer existing. Under certain

circumstances, (e. g., loss of office for refusal to accept a divorce

case, loss of prestige, antagonism, etc.), such a decree, in itself

morally indifferent, may be permitted.

(e) If there is question of partial divorce (i.e., separation from

bed and board) of Catholic spouses, a decree is lawful, the Church

consenting, for a reason recognized by ecclesiastical authority, such

as adultery.

1951. When Evidence Is Contrary to Personal Knowledge of Judge.--(a)

In a civil case, the judge should follow the public evidence rather

than his private knowledge; for he acts as a public, not as a private,

person. Moreover, the State has the power to transfer property from one

to another, when the common good requires this, and the common good

requires that civil decisions be based on public evidence rather than

on private information. Some moralists deny this conclusion on the

ground that it is intrinsically wrong to force a person to pay who does

not owe, even though the evidence is against him.

(b) In a criminal case, the judge should follow the evidence rather

than his own knowledge, if the evidence calls for acquittal of the

accused; for it is better for the public welfare that a guilty man

escape than that the judicial order be neglected and a rule admitted

that might convict the innocent as well as the guilty.

judge’s private knowledge assures him of the innocence of the accused,

the judge must not condemn, if there is any legal way to avoid it. But

if the evidence stands and the judge has to pronounce sentence, it is

not easy to determine the course that should be followed. According to

St. Thomas, the judge should condemn, since he is a public official and

must therefore be guided by the allegations and proofs offered during

the trial, especially since public order and respect for law depend on

the good reputation of the courts. If judges could disregard at will

the evidence offered on account of private knowledge they claimed to

have, the confidence of the public in the integrity of courts would

be shaken, men would take the law into their own hands, and peace and

order on which the happiness of the community depend would be at an

end. Moreover, the judge is not guilty in sentencing in this case,

since he does not intend evil and acts according to the principle of

double effect (see 103 sqq.). According to a second opinion attributed

to St. Bonaventure, the judge should acquit, since it is intrinsically

wrong to condemn to death a person about whose innocence one is

certain. According to a third opinion, which St. Alphonsus considers

as probable, the judge should condemn in minor criminal cases in which

only pecuniary penalties are imposed (for the State has the right to

exercise eminent domain in order to safeguard an important public good

like that of respect for the law and the courts); but he should acquit

in major cases in which personal punishments are inflicted, for society

has no right to deprive an innocent person of life or liberty.

1952. When the Judge Is the Unjust Cause of Damaging Evidence.--In some

cases the judge may be the unjust cause of the evidence that convicts

an innocent man, as when the judge has committed a crime and thrown

suspicion on the accused (Dan, xiii), or when the judge has moved

others to testify falsely against a man he knows to be innocent.

(a) One opinion holds that the judge would be obliged to condemn, on

account of the reasons just given for the opinion of St. Thomas, if the

judge were unable to overcome the evidence. But those who hold this add

that this is purely speculative, for in a concrete case there would

be many ways by which the judge could extricate both himself and the

accused from the difficulty.

(b) Another opinion says that in no case could the judge of the present

hypothesis condemn. Those who favor this opinion declare that St.

Thomas is to be understood only of the case in which the judge is not

the cause of the unjust accusation; for one who has culpably placed

a cause of damage is bound to remove that cause before it acts, if

this is possible, and in the present instance it is possible for the

judge, if all other things have failed, to free the innocent person by

testifying for him, or even by acknowledging his own guilt.

1953. Practical Conclusions about the Three Controverted Opinions Given

Above in 1951.--(a) In a case tried according to Canon Law, it seems

that the opinion of St. Thomas should be followed, since Canon 1869, n.

2, declares that the ecclesiastical judge must not give sentence unless

he is certain about the matter of the sentence, and that his certainty

must be derived from the acts and proofs of the trial.

(b) In a case tried according to civil law, it seems that the whole

controversy is today very often of little practical importance; for

court decisions are now frequently left to jurymen, and these men

must either have no private certainty before they are admitted to

their office (as is the case in the United States), or they have the

obligation of using private knowledge in casting their vote and of

communicating it to fellow-jurors during the deliberations (as is

the case in some other countries). Hence, the moral question whether

it is lawful to decide according to private knowledge against the

public evidence largely disappears. But when a case of the kind now

considered does occur, the position of the civil law also agrees, it

seems, with that of St. Thomas: “Neither the judge nor the jury can

consider a private fact of which they have a merely personal knowledge,

however important may be its bearing on the issue, unless it has been

brought to their attention by evidence properly produced in open

court” (Robinson, Elementary Law, Sec. 334). But the lightest penalty

allowed by the law should be imposed in such a case. If a judge were

privately certain that a jury verdict was unjust, he could offer his

own testimony or appeal to the pardoning power.

1954. The principle that a judge must be guided only by his public

knowledge applies also to other officials who are required to follow

the results of a public investigation, but not to those who are

required to act according to their best knowledge, whether public or

private.

(a) Thus, public knowledge must be the guide of those who are ministers

of a court and on whom it falls to execute its decrees; for they are

the instruments and subjects of the president of the court. If they

have private information of a material and relevant kind, they should

disclose it as witnesses.

(b) Private knowledge that is opposed to and more reliable than public

knowledge must be the guide of those who are supposed to act according

to the most trustworthy knowledge they have. Hence, a superior who has

the power to make appointments to office should disregard the votes of

his advisors, if he can prove that they are wrong in their opinions

about a nominee for office. He may confirm or annul their choice

according to his honest conscience.

1955. When Guilt Is Doubtful in Criminal Cases.--In a criminal case or

a case in which punishment is inflicted, if the guilt of the accused is

doubtful, the sentence should be for acquittal; for no one should be

condemned unless his guilt is morally certain (see 1728 sqq.).

(a) Thus, according to Canon Law, an ecclesiastical judge who is not

certain that sentence for the plaintiff will be just, must declare that

the latter has not established his case and must dismiss the defendant,

though exception is made for cases that have the favor of law (such

as marriage, liberty, testaments, Canon 1869, n. 4). Canon Law places

the burden of proof on him who makes an assertion, and it rules that

the defendant is to be acquitted if the plaintiff or accuser fails to

prove, even though the person on trial says nothing (Canon 1748).

(b) According to the civil law the rules on evidence also favor the

accused in cases of doubt. He must not be held guilty unless the State

has proved affirmatively and beyond reasonable doubt every material

allegation in the indictment. In capital cases the evidence of guilt

must be equivalent in weight and conclusiveness to the direct testimony

of two competent and reliable witnesses. A reasonable doubt in the

mind of a juryman is one for which he can give himself an adequate and

satisfactory reason (Robinson, Elementary Law, Sec. 608).

1956. Doubt in Civil Cases.--In civil cases, if it is uncertain after

the investigation for whom the decision should be given, the following

rules seem to be just:

(a) if the parties are unequal in claim, the decision should be for the

one whose claim is more weighty; for the judge is appointed by society

to investigate the truth of a controversy and to decide according to

the merits of the case. Thus, decision should be for the party Whose

arguments are of at least equal strength--but who has legitimate

possession (for “possession is nine points in law”), or whose case

enjoys the favor of the law (e.g., in Canon Law, the cases of widows,

wards, minors), or for the party whose case is stronger and more

probable. Innocent XI condemned the proposition that a judge may decide

for the side whose arguments are less probable (Denzinger, n. 1152);

(b) if the parties are equal in their claims, some think that property

in dispute should be equally divided between the contestants, others

that the parties should be persuaded to compromise, or, if this is

impossible, that the decision may be given for either one of them. But

if positive law regulates the manner of proceeding in such a case, its

provisions should be followed. Thus, in Canon Law, if a judge is in

doubt as to which one of two competitors has possession, he may grant

it to both of them indivisibly, or he may command them to deposit it

with a sequester, pending the settlement of the dispute (Canon 1697).

1957. What should be decided when the defendant has possession with

probable title and the plaintiff has more probable title?--(a) If the

possession is not certain, or not certainly legitimate, decision should

be for the plaintiff, for uncertain possession does not create any

presumption of right and hence the more probable case prevails.

(b) If the possession is certainly legitimate, the common opinion is

that decision should be for the defendant; for certain possession is

not overcome by more probable, but only by certain arguments for the

plaintiff. Some authors, however, believe that the judge should decide

for the plaintiff, since possession prevails only when the arguments

are of equal strength on both sides; or at least that he could decide

for him, since it is probable that the plaintiff by presenting a more

convincing case has sufficiently established his right to eject the

defendant.

1958. The Standard by Which a Judge Should Weigh the Evidence.--(a)

When the proving force of an argument is settled by the law itself,

the legal rule should be followed. Thus, in Canon Law certain kinds

of proofs are expressly declared to be demonstrative (e.g., a public

instrument not contested, Canon 1816), while other proofs are held

to be insufficient or only of partial value (e.g., certain kinds of

testimony, Canon 1756). Likewise in civil law public documents are

prima facie evidence, oral interpretation of a written document which

contradicts its language is not admitted, etc.

(b) When the proving force of an argument is left to the discretion of

the judge, he must follow his conscience, that is, he must sincerely

and impartially decide to the best of his ability the value of the

argument, whether it is decisive, or likely, or Weak. Thus, in judging

circumstantial evidence a juryman must use his own common sense and

intelligence in determining whether the premises are doubtful or the

inference illogical; in estimating testimony a judge must bear in mind

the quality of the witnesses and the character of their testimony.

1959. The Moral Obligation of a Judicial Sentence that Is Certainly

Just.--(a) It is binding in conscience; for it is merely the

application of law to a particular case, and law obliges (see 377). (b)

It obliges in virtue of legal justice when the case is only penal, and

hence he who is fined by court is held as a duty of obedience to pay

the fine; it obliges in virtue of commutative justice when the case is

about a strict right, and hence if the court requires an heir to pay a

legacy, the latter must make restitution for neglect of this duty (see

1728).

1960. The Moral Obligation of a Judicial Sentence that Is Certainly

Unjust.--(a) If the sentence is unjust because it is the application

of an unjust law, it produces no obligation in those cases in which

the judge cannot lawfully apply the law (see 1949); for an unjust law

does not oblige in conscience _per se_, but only _per accidens_ (see

377, 461). (b) If the sentence is unjust because it is not based on the

law or the evidence, or because the trial was not conducted fairly, it

produces no obligation _per se_, but there may be an obligation _per

accidens_, as when scandal or great public disturbance will otherwise

result. Hence, one who through plain injustice is deprived of an

inheritance has the right to occult compensation (see 1928), while the

other party is bound to restitution of the inheritance (unless he is in

good faith or has prescribed) and also to damages, if he went to law in

bad faith.

1961. The Moral Obligation of a Judicial Sentence in Case of

Doubt.--(a) If the doubt is about fact or law, not about the right

of the judge to give sentence (see 1955 sqq.), the sentence may be

safely followed; for it is the office of the judge to settle doubtful

matters, and to promote the common welfare by ending litigation. Thus,

in doubtful criminal cases the judge sometimes acquits a guilty man,

and in doubtful civil cases he sometimes awards property to one who

has no right to it; but these sentences are not unjust, since they are

based on rules which long experience has shown to be necessary for the

public welfare. (b) If the doubt is about the justice of the sentence,

there is an obligation of conscience to observe the judgment, since

the presumption favors the judge. Were this not so, the authority of

tribunals of justice would be at an end, for almost everyone who loses

a case thinks that he has been treated unjustly. But one may enter an

appeal, where this is allowed by law.

1962. When a Judge Is Bound to Restitution.--A judge is bound to

restitution when he causes unjust damage to the community or to

litigants (see 1762 sqq.), and hence he must either recall his unjust

act, or repair to the best of his ability the harm done. But the

conditions for unjust damage must be verified (see 1763).

(a) Thus, the judge’s act must be objectively unjust, that is, in

violation of a strict right under commutative justice. This happens

when he conducts the trial unjustly (e.g., when he neglects the

essential procedure, tries without an accuser, and the like) or when

he passes unjust sentence (e.g., condemns without proof of fact or

crime, or in spite of evidence for innocence, votes for acquittal when

there is no reasonable doubt of guilt, imposes penalties that are

insufficient or excessively severe, or awards property to one who to

his knowledge has no right to it).

(b) The judge’s act must be efficaciously unjust, that is, it must be

the real cause of the loss sustained by the other person. Hence, there

is no duty of restitution if loss does not result (e.g., if the party

who is in the right wins in spite of unfairness on the part of the

judge), or if loss cannot be traced to the judge’s action (e.g., when

a judge is not entirely impartial in his charge to the jury, but his

words do not influence them, as they would have given an unfair verdict

anyway).

must be seriously responsible for the damage on account of his

culpable ignorance, negligence, or malice. Even though he has made

mistakes through excusable inadvertence or error, he becomes seriously

responsible for damage, if, foreseeing it, he does not do what is in

his power to avert it (see 1769).

1963. When a Judge Is Not Bound to Restitution. A judge is not bound to

restitution, however, for violations of virtues other than commutative

justice.

(a) Thus, charity is offended, but not justice, if the judge has

personal hatred against a person before him, but does not permit this

to influence his conduct or decisions.

(b) Legal, but not commutative, justice is offended, if the judge is

negligent about exemplary damages, provided the common good does not

suffer; for there does not seem to be any strict right to the fine

before sentence has been given. This is disputed, however, by some

moralists, who hold that the judge is under contract with the community

in this matter, and hence that he offends commutative justice, if he is

habitually and to notable amounts indulgent about fines.

1964. Kinds of Accusation.--From injustice committed by judges we pass

now to that committed by accusers. It should be noted that there are

two kinds of accusation: (a) extrajudicial accusation is that which is

brought before a superior in order that he may correct or restrain,

without recourse to judicial process, a subject who is delinquent. This

is evangelical or canonical correction, which was discussed in 1293,

1289; (b) judicial accusation, with which we are now concerned, is that

which is brought before a judge, in order that redress may be obtained

through judicial process against an accused person.

1965. Judicial accusation is also made in two ways. (a) The accuser

sometimes does not act as one of the two antagonistic parties, and does

not assume the burden of proving his accusation. He makes an official

complaint or denunciation, and then drops out of the case, leaving it

to the magistrate or other officer to examine whether a process should

be instituted and the informer summoned as a witness. (b) The accuser

is sometimes one of the two antagonistic parties during the process,

and he then assumes the burden of proving his accusation. In Canon Law

there are two kinds of processual accusers, the actor in civil cases

and the accuser (an official known as the _promotor justitiae_) in

criminal cases. In American law, the accuser in cases of private wrong

is known as the plaintiff; in cases of public wrong he is the District

Attorney or public prosecutor.

1966. The Duty of Judicial Accusation or Denunciation.--(a) If a wrong

has been committed which is directly prejudicial to the common welfare

(e.g., treason, counterfeiting, banditry), there is an obligation to

make accusation, for each member of society is held to come to its

assistance when its peace and order are endangered, and this is done by

cooperating with the tribunals of justice. Duty to one’s family also

requires that one prosecute, when this is necessary in order to protect

its members against some great evil.

(b) If a wrong has been committed which is not immediately prejudicial

to the common welfare, there is not _per se_ an obligation of

accusation; for the purpose of accusation is to obtain punishment or

the correction of a wrong--an end that should not be waived when the

common good is at stake, but which may be waived when private interests

are concerned. But _per accidens_, or by reason of circumstances, there

is often an obligation of denouncing or accusing private wrongs.

1967. Cases in Which There Is a Duty of Making Complaint about Private

Wrongs.--(a) Such complaint is obligatory in virtue of commutative

justice, when by reason of his office, oath, or function a person

is under contract to accuse violators of the law; and hence serious

negligence in such a person entails the duty of restitution for any

damage caused through his fault. Examples here would be a watchman who

fails to report thefts, a man serving on the grand jury who does not

vote for an indictment when he should, a prosecutor who is careless.

The obligation is grave when the danger or injury to the common good is

serious.

(b) This complaint is obligatory in virtue of legal justice, when there

is a positive precept of the law which requires that accusation be

made. The civil law rarely obliges to this as a duty of conscience,

but there are a number of cases in Canon Law in which it is a duty of

conscience to denounce (e.g., when there has been a _sollicitatio ad

turpia_).

serious inconvenience one can thereby save a neighbor from a grave

evil, such as unjust sentence of death or infamy: “Deliver them that

are led to death” (Prov., xxiv. 11); “Rescue the poor, and deliver the

needy out of the hand of the sinner” (Psalm lxxxi. 4).

1968. Is a Malefactor Bound to Accuse Himself?--(a) As a rule, he is

not bound to confess guilt, either explicitly or implicitly, for this

is too much opposed to natural inclination, and hence is not demanded

by law (see 552). This seems to be true even though an accused has

unjustly declared himself innocent, and has not been questioned further

or has been acquitted; for legal justice obliges the accused to give a

true answer only when he is being questioned (see 1978). In Canon Law

those who would sustain damage from their own testimony are not bound

to take the witness stand, and hence persons who reasonably fear that

their evidence will subject themselves or their relatives to infamy,

vexation or other disadvantage cannot be forced to testify (Canon 1755,

n. 2). In civil law one may not be convicted on one’s own testimony

alone, unless the confession was voluntary, that is, made neither under

fear, nor with the hope of favor, nor as the result of any species of

coercion (Robinson, _Elementary Law_, Sec.608).

(b) In exceptional cases, one would be bound to accuse oneself, namely,

if there were a grave and urgent necessity of the community which

outweighed the loss that would follow from self-accusation (see 1576,

1577). Self-accusation is also a duty when one is the gravely culpable

cause of the punishment of an innocent person, if there is no other

lawful way of freeing him, and the self-accusation will not bring

on one a much more serious evil than that which the innocent person

suffers.

1969. Ethical Conditions for Lawful Accusation or Denunciation.--(a)

There must be no injury to the common welfare. Hence, if the order and

peace of society would be disturbed by the accusation of a crime which

was private and from which no further damage could be anticipated, it

would be better to leave this occult crime unpunished rather than bring

on greater evils to the public.

(b) There must be no injury to private welfare. Hence, if the accuser

does not believe that his accusation is just, or if he knows that

there is no suitable evidence for his charges, or if he is excluded

by law from making an accusation (e.g., when his knowledge has been

derived from the confessional or in other confidential ways), it would

be unjust to accuse; if the offender offers to make full satisfaction

for a private wrong and has already amended, or was not accustomed

to commit such wrongs, or if the loss he will suffer from the

accusation will be far in excess of the wrong he has done, it would be

uncharitable to make formal accusation (see 1200, 1201).

1970. Persons Who May Not Act as Accusers.--Generally speaking, the

following persons are naturally incapable of acting as accusers: (a)

those who are guilty of greater misdeeds or who are infamous, since

it is unbecoming for them to accuse; (b) those who are enemies of the

other party, since they are swayed by spite or revengefulness; (c)

those who are near relatives of the other party, since it is unnatural

for them to attack their own flesh and blood.

1971. In Whose Favor May One Denounce a Private Wrong?--(a) One may

denounce it in one’s own favor, for one is not obliged to sacrifice

one’s right to redress, and hence accusation is permissible (see 1199).

Those who are considered as one person with the injured party may

accuse for him, such as parents, husband, wife, children.

(b) One may denounce a private wrong in favor of an innocent third

party, as when an innocent person is being harassed by oppression, even

though one can defend him only with notable inconvenience to oneself

(see 1967).

himself, as when he is guilty of offenses that are harmful only to

himself (e.g., drunkenness, impurities), if he has a bad reputation

already or his delinquencies are manifest.

1972. Accusation and Fraternal Correction.--Whether obligatory or

permissible accusation should be preceded by a fraternal correction is

controverted among moralists. But perhaps the two opposite views may be

reconciled as follows:

(a) _per se_, that is, in view of the purpose of accusation

(punishment, vindication of justice, example), there is no duty of

previous fraternal admonition, since the purpose of the admonition is

the amendment of the wrongdoer (see above, 1289, 1293);

(b) _per accidens_, that is, in view of the circumstance that there

may be hope of correcting the wrongdoer and of averting evil, and that

punishment may not be very necessary to the public welfare, previous

fraternal correction for secret delinquencies may sometimes be a duty

of charity.

1973. Unjust Accusation.--Injustice in accusation is committed in

the following ways: (a) injury is done the accused when a crime is

falsely imputed to him through malice (calumny), or through a too

great readiness to believe rumors (rashness); (b) injury is done the

community if one whose duty it is to conduct a prosecution makes only a

sham attack or colludes with the defense (prevarication), or if without

good reason he abandons the prosecution (tergiversation).

1974. Cessation of Duty of Accusation.--The duty of accusation ceases:

(a) when accusation is found to be unjust, for example, when the

prosecutor discovers the accused is really innocent, etc. (see 1969);

(b) when accusation is found to be useless, for example, when one

discovers that the authorities are already aware of the fact about

which one intended to give information, or when one perceives that the

charge cannot be substantiated.

1975. The Defendant.--The party who is required to make answer to the

charges of the plaintiff or prosecutor is known as the defendant or the

accused. We shall now speak of the ways in which he may be guilty of

injustice, and shall consider the following cases: (a) the defendant in

civil cases; (b) the accused in criminal cases who is innocent; (c) the

accused in criminal cases who is guilty.

1976. The Duties of the Defendant in Civil Cases.--(a) Before

Sentence.--If the cause of the plaintiff is clearly just, the defendant

as a matter of justice should recognize the claim and withdraw from the

case. But a defendant may take exception to arguments offered by the

plaintiff which, though actually valid, are not juridically made.

(b) After Sentence.--If the cause of the plaintiff is clearly just

but loses in court, the defendant is obliged in conscience to pay the

claim, even though the plaintiff does not appeal the case; he is also

obliged in conscience to indemnify the plaintiff for the expenses of

litigation, if the latter lost the case on account of unjust means

employed by the defendant.

1977. The Duties of One Who Has Been Arrested on a Criminal

Charge.--(a) If the accused person is innocent, he may take to flight

or even offer positive resistance, provided he does no injury to those

who attack him, and public scandal or disorder does not result from

the resistance. This is according to natural law, which permits one

to use self-defense against unjust aggression; but since the positive

law requires the accused to submit to arrest that is not manifestly

unlawful and empowers the officers to employ force against those who

resist, it seems that generally the accused should permit himself to be

taken under protest, if he cannot escape.

(b) If the accused person is guilty, he may take to flight, since he

has not yet been sentenced as guilty nor officially deprived of his

liberty; but he may not offer resistance to those who are sent to

apprehend him, since their aggression against him is not unjust. The

accused person, if not yet convicted, may even use indifferent means to

escape from prison, such as sawing his way out or eluding the vigilance

of the guards; but he may not employ sinful means, such as bribery of

officials.

1978. Duty of the Accused to Plead Guilty, if Questioned by the

Judge.--(a) If the accused is innocent, he may not plead guilty,

as is clear. If to escape most grave evils he did plead guilty, he

would be guilty of lying (if under oath, of perjury), but not of

self-defamation; for, as the owner of his reputation, he has the right

to sacrifice it in order to escape greater evils. Neither would he be

guilty of suicide, according to some, if the death penalty were the

consequence of the confession; for his purpose would be to avoid what

he dreaded more than death.

(b) If the accused is guilty, he must reply truthfully, if the judge

has the right to ask the question; for if the judge has the right

to question, the accused has the obligation to answer, even though

unpleasant things will befall him in consequence.

his guilt (that is, if the judge does not question juridically or

according to law, or if he questions from a false presumption of

guilt), or if the accusation cannot be proved juridically, the accused

is not obliged to answer. He may keep silence or evade the truth, but

it is not lawful to lie.

1979. Legal Right of a Judge to Question a Prisoner about His

Guilt.--(a) According to older legislation a judge had this right, and

could enforce it by torture, when the common good was involved and

the guilt of the prisoner was likely on account of infamy or manifest

indications of crime or half-proof of guilt. In itself, this practice

was not opposed to natural law and had some good results; but it was

open also to many abuses. Some moralists teach that a judge cannot

impose a grave obligation of confessing guilt in capital or similar

cases, if the accused has otherwise a hope of escape and no great evil

is likely to befall the common interests by reason of an acquittal.

They argue that human law cannot oblige so rigorously as a rule.

(b) According to modern civil legislation the right of exacting a

confession is denied to a judge. Thus, according to American law no

person may be compelled “in any criminal case to be a witness against

himself” (Constitution, Article V). In American law the plea of not

guilty is not a lie, even though the accused knows that he is guilty,

for, as everyone understands, the plea means either that one is

innocent or that one is using the privilege of not confessing. Neither

is it considered a lie to say that an unprovable charge is a calumny,

for an accusation that cannot be proved juridically is juridically a

calumny.

that, when the judge questions the parties-litigant, they are obliged

to answer and to confess the truth, unless the question is not

legitimate (e.g., questions about irrelevant or privileged matters,

or questions made in a captious or leading manner), or the answer

would incriminate the parties themselves (Canon 1743). Neither is

an ecclesiastical judge permitted to put an accused in a criminal

case under oath to tell the truth (Canon 1744). An instruction of

the Holy Office of 1866 required that the guilty party in a case of

solicitation should confess, but the instruction was directive rather

than preceptive. Particular law (e.g., the statutes of a Religious

Institute) might perhaps prescribe confession by an accused, but most

Constitutions of Religious Institutes bind only under penalty, and,

as for the rest, an ecclesiastical superior could at most advise, but

could not impose, confession by an accused.

1980. Rights and Duties of Accused in Conducting His Own Defense.--(a)

In Reference to Judge or Attorneys.--The accused, if questioned, may

not conceal the truth by lies, ambiguities, or half-truths, since these

are evil means, nor may he use evasion if he is lawfully interrogated.

But if the question put to him is unlawful, he may evade an answer. It

is commonly held that lies told in giving testimony or evidence are

not necessarily mortal sins, as there may be no perjury committed or

grave harm done another by reason of them (e.g., when an innocent man

“doctors” a paper and thereby without harming anyone escapes from an

unjust sentence).

(b) In Reference to the Opponent or His Witnesses.--The accused has the

right to disclose secret but real crimes of the accusers, when this is

an exercise of his legal right of taking exception to the witnesses

as incompetent, or of his natural right of clearing himself of the

charge against him. It makes no difference whether the evidence of the

accusers is true or false, whether given according to the order of law

or not. But he must not go beyond the limits of moderate self-defense

(see 1826). Innocent XI condemned the proposition that it is probable

that calumny may be used without mortal sin as a defense of one’s

justice or honor (Denzinger, n. 1194).

1981. If the accused objects secret crimes of the opposition, he must

beware of injustice or uncharitableness. (a) Thus, it is unjust to

disclose crimes that cannot be proved, or that are irrelevant (e.g.,

it may be irrelevant to prove that the person who testifies that the

accused committed murder is himself a fornicator, but it would be

relevant to show that this witness is a liar, or dishonest, or an enemy

of the accused), or that need not be revealed (e.g., if the witness’s

testimony can be overcome by showing that the witness is weak-minded or

under obligations to the opposition, it is not necessary to defame him).

(b) It is uncharitable to disclose a crime, if the witness will suffer

far more from this defamation than the accused would suffer from the

testimony. If, however, the witnesses are giving false evidence of

their own accord, they take the risk of revelations by the defense.

1982. Rights and Duties of an Accused Who Has Been Found Guilty.--(a)

Appeals.--It is lawful to appeal from a sentence that is unjust

(whether because of the innocence of the accused, or of the illegality

of the process), because appeal is a means of self-defense granted

to the innocent. It is not lawful to appeal from a sentence that

is certainly just, merely in order to cause delay or to defeat an

adversary; but one may make an appeal when there are just reasons

(e.g., in criminal cases the hope of getting an easier sentence or of

prolonging life, in civil cases the discovery of new proofs, or of

probable arguments against the sentence given). But one who has pledged

his word not to appeal from the decision of an arbitrator should abide

by his promise, and there is no appeal from the final decision of the

highest court, which in the Church is the Roman Pontiff (Canon 1880),

and in the State the Supreme Court.

(b) Escape from Prison.--If the sentence was unjust, it is lawful to

escape, unless the means employed are intrinsically evil (e.g., killing

of guards), or the results will be more harmful than continuance in

prison (e.g., the overthrow of public order, the too great risk of

the attempt to escape). If the sentence was just, there are various

opinions on the lawfulness of flight. Some think it is never lawful,

because a just sentence is a precept of authority and should be obeyed;

others think that flight is lawful in grave cases (e.g., when the

prisoner has been sentenced to death or to life imprisonment, or when

the conditions of prison life are unbearable, because human law cannot

impose as a normal regulation what is too difficult for human nature);

still others think that flight is always lawful, because the court

sentence is that the prisoner be forcibly confined, not that he remain

in prison voluntarily. But one is not necessarily bound to escape (see

1857).

is not unlawful _per se_, because one has the right of self-defense

against unjust aggression (Ezech. xxii. 27). Hence, if one were

condemned to execute oneself (e.g., by taking poison), the common

opinion is that the sentence would be unjust (see 1856), and therefore

not obligatory. If the sentence is just, even though it be a capital

sentence, resistance is not lawful, for the judge who duly pronounces

sentence on a guilty man has the right to obedience (Rom., xiii. 1-5).

1983. Jail-Breaking and Restitution.--If one does not sin by

jail-breaking, is one bound to restitution for the damages connected

with the escape?

(a) If the damages are not caused by, but only follow accidentally on

the flight (e.g., escape of other prisoners, dismissal of guards),

there is no obligation to make restitution for them; for the flight

would not be the efficacious or the unjust cause of such damages.

(b) If the damages result from the flight as from their efficacious and

unjust cause, there is an obligation of restitution (see 1763), as when

a prisoner, in order to escape, does needless damage, or damage out of

all proportion to the evil from which he seeks to escape. But ordinary

property damage, such as a hole cut in a wall, does not seem unjust, if

there is no other way to get out.

1984. Reliability of Witnesses and Testimony.--A witness in court is

a person who declares during a judicial proceeding that he knows some

statement, deed or omission in reference to the matters at issue.

The testimony of witnesses has proving force only in so far as these

persons appear to have knowledge of the matters on which they testify

and appear to be truthful. Hence, certain kinds of witnesses and

certain kinds of testimony are unreliable.

(a) Thus, a witness is unreliable either through his own fault

(e.g., if he is regarded in his community as below the standard in

truthfulness, or has the reputation of being a calumniator) or without

his own fault (e.g., if his powers of observation or his memory are

subnormal, or he is devoted or hostile to or dependent on one of the

contending parties). It is a duty, indeed, to presume good of a person

in whom the opposite does not appear, if he is the only one whose

interests are concerned; but when there is danger to a third party, one

must be on one’s guard (see 1744). Hence, St. John admonishes not to

believe every spirit (I John, iv. 1).

(b) Testimony is unreliable because of the number of the witnesses

(e.g., one witness is often legally insufficient to prove, especially

in graver matters), or the quality of their evidence (e.g., because in

substantial points a witness contradicts himself or is contradicted

by his co-witnesses, or because there are signs of collusion or

conspiracy), or the counter-evidence of the opposition.

1985. Obligation of Freely Appearing as a Witness.--(a) There is an

obligation of commutative justice to offer testimony, if one is under

contract to do this, as when one is hired as a detective or agent to

gather evidence against lawbreakers.

(b) There is an obligation of legal justice to testify, even at the

cost of serious inconvenience, if the testimony is necessary for

averting a serious evil that threatens the common welfare. A person who

knows of a plot against the peace of the State should bring this to the

notice of the authorities, even at the risk of his life. But a person

who knows that a crime has been committed, is not bound to give witness

about it, if the escape of its author will not be a serious detriment

to public or private welfare (e.g., if one knows that an apparent case

of suicide was really a homicide committed by accident).

of serious inconvenience), if the testimony is necessary for averting a

serious evil that threatens a private person. A person who can prove

that the evidence which is about to hang an innocent man is false

should testify for the accused, unless the testimony will bring an

equal evil upon himself.

1986. Obligation of Appearing under Lawful Citation to Give

Testimony.--(a) He who avoids citation (e.g., by flight into another

jurisdiction, by concealment of his person when the subpoena is being

served), more probably does not violate legal justice by this act,

since a precept that has not been received cannot be violated. (b) He

who disregards citation offends legal justice, since the summons to

appear has a claim on his obedience. But it does not seem that he

violates commutative justice, unless the party for whom he could

testify has a strict right to the testimony.

1987. Obligation of Witness to Answer Truthfully.--A witness who is

questioned legitimately (i.e., by one who has the authority to question

him) and juridically (i.e., according to the form and order prescribed

in law) is obliged _per se_ to answer according to the truth as he

knows it, for one is bound to obey a superior when he gives a lawful

command. But there are exceptions to this rule _per accidens_, that

is, when a higher law exempts one from the necessity of divulging a

certain matter, or when the question asked refers only to what one

knows juridically. In all these cases the witness may answer that he

does not know, for he has no knowledge that he may, or should, or must

use.

(a) Thus, the natural law permits reticence when a revelation would

work notable damage to the witness or those closely related to him, for

the command of a superior does not oblige under such great

inconvenience. This supposes, of course, that the revelation is not

required in order to prevent a great harm to the commonwealth or a far

greater harm to a private person than that which threatens the witness.

A person who knows that he will be assassinated if he testifies against

a powerful criminal is not ordinarily bound to make the sacrifice.

Canon and civil law excuse witnesses from making disclosures that would

expose them to prosecution or penalties (see Canon 1755, Sec. 2, n. 2).

(b) The natural law commands reticence when a revelation would be

injurious to divine, public or private rights.

1988. Matters Regarding Which a Witness Should Not Testify.--There are

certain cases in which natural law forbids a witness to make known a

fact about which he is questioned.

(a) A witness may never testify to matters known to him only from

Sacramental Confession, for to break the seal of confession is an

injury to the rights of God. In an ecclesiastical process a priest may

not testify from Sacramental knowledge, even though he has the

penitent’s permission (Canon 1757, Sec. 3, n. 2).

(b) A witness may not testify as a rule to matters that are known to

him only in a confidential way, such as the communications between

lawyer and client, physician and patient; for the public interest as

well as the interest of individuals requires that generally there

be security against defamation for those who give their confidence

to others, especially if they are in great need of professional

assistance. Privileged communications are recognized both in Canon

Law (Canon 1755, Sec. 2) and in civil law. But knowledge obtained as

a secret may be used when this is necessary in order to avert a great

evil that threatens the public welfare or the welfare of an innocent

person, whether this person be the giver of the secret, or a third

party, or oneself; for to oblige to secrecy in these cases would be to

throw protection around crime. Thus, a lawyer may make disclosures of

confidential knowledge, if this is necessary in order to defend himself

against the false accusations of a client, or to prevent a crime which

the client intends to commit.

knowledge (e.g., by wire-tapping, by unjust coercion, by intoxicating

another person, by reading private papers without permission), for,

as the knowledge was unjustly acquired, it cannot be justly used (see

2420).

1989. There are also certain cases in which a question refers only to

what the witness knows juridically, or in which he is called upon to

answer according to the mind of the questioner.

(a) If the witness is asked to state what he knows about a case, he is

not obliged to mention what he merely thinks or what he is uncertain

about; and if he is asked what he has heard, he is not obliged to state

what was told him by persons of poor authority.

(b) If he is asked whether the accused was to his knowledge guilty of

a crime, he is not obliged to mention an act of the accused that was

unlawful but done in good faith. But in a civil case, in which inquiry

is made about juridical faults, the witness should testify even to the

existence of delinquencies in which there was no element of theological

fault.

will be certainly useless for him to testify about the matter without

corroboratory evidence, it seems that he may keep silence about what he

knows. But if the testimony of one witness is sufficient according to

law, then the witness should speak of the facts known to him.

1990. Sinfulness of False Testimony.--When we speak of false testimony,

we mean testimony which the witness knows to be false.

(a) By reason of his false oath, the witness is guilty of perjury,

which is a grave sin against the virtue of religion.

(b) By reason of the injury done by the testimony, the witness is

guilty of injustice, which from its nature is a grave sin. In the

Decalogue (Exod., xx. 16) false testimony is forbidden among the sins

against justice: “Thou shalt not bear false testimony against thy

neighbor.” Legal justice is offended, since false testimony is an act

of disobedience to lawful authority, and usually commutative justice is

also violated, since by false testimony one of the litigants as a rule

suffers loss.

lying, which, however, is not always a grave sin.

1991. It may happen then, though rarely, that false testimony is only

a venial sin, for example, when the witness is not under oath and he

gives false testimony in a matter of small importance, or without full

deliberation on what he is saying, or when he forges or corrupts a

document to supply for another that has been lost and from which his

certain right could be proved.

1992. Obligation of Witness to Make Restitution.--The obligations of

restitution by a witness on account of failure to perform his duties

properly are as follows:

(a) if the witness has not sinned against commutative justice, there

is no obligation of restitution (see 1753). Hence, if he has evaded

testimony to which he was bound in legal justice or charity alone, he

is guilty of sin, but he is not held to restitution. Similarly, if he

has given false testimony and thereby deprived the State of a fine

under a penal law, or saved a guilty party from punishment, he has

sinned against legal justice, but is not obliged to make good the fine

or pay damages;

(b) if the witness has sinned against commutative justice, materially

but not formally, he is not the gravely guilty cause of damage, and

hence is not obliged from justice (but there may be an obligation

from charity) to make restitution (see 1764). But if he perceives

that his testimony was materially or venially unjust and will cause

serious damage, he is obliged to recall his testimony, or in some other

suitable way prevent the damage, if this is possible (see 1769);

is the efficacious and culpable cause of the damage that results, and

hence is bound to restitution, unless there is an excusing cause (see

1797 sqq.). Thus, if false testimony, or testimony about matters which

the witness had no right to disclose, has led to the death sentence

for an innocent man, the witness who gave that testimony must retract,

even at the risk of his own life; for in equal danger the rights of the

innocent have the preference. Again, if Titus by false testimony has

saved Balbus from paying damages for injury done to public property,

Titus must make restitution for the loss caused, if Balbus will not

make reparation.

1993. Is a witness guilty against commutative justice when he

unlawfully conceals facts and damage results thereby to another person?

(a) If by concealment is meant the destruction of evidence (e.g., the

burning of a will or letter or forging), the witness or other person

responsible is guilty of a positive act of commutative injustice and

is bound to restitution. (b) If by concealment is meant silence about

material facts that the witness is lawfully called on to disclose,

distinction has to be made between the witness who is not obliged from

contract to give evidence and the witness who is so bound. The former

witness is a negative cooperator and sins against legal justice and

charity; the latter witness is a negative cooperator and sins against

commutative justice (see 1780).

1994. Payment of Witnesses.--Is a witness permitted to accept pay for

giving true and lawful testimony?

(a) For the testimony itself a witness may not accept pay, for he is

bound to tell the truth freely, just as the judge is bound to dispense

justice freely.

(b) For the expenses he incurs and the time he loses by reason of his

assistance in court, he may accept pay; since, as St. Paul says, he

who does a service for another is not required to meet the expenses of

the service (I Cor., ix. 7). Both Canon and civil law make allowances

for suitable compensation to be granted to witnesses (see Canons 1787,

1788). But if a witness receives compensation in excess of what is

allowed by law, the court and the adverse party have a right to be

informed of this.

1995. Lawyers.--Lawyer is the general term used to designate all those

who are versed in the law and who give assistance to others in legal

ways during lawsuits or apart from them.

(a) Thus, apart from lawsuits a lawyer may act as legal adviser, giving

instruction, information or direction on rights and duties under the

law.

(b) During a lawsuit he advises about the case (jurisconsult) or

carries on for clients the prosecution or defense in a court of

justice. The lawyers who attend to only the more mechanical parts of a

suit are sometimes called attorneys, in distinction from counsellors

or counsel, who argue and plead in the courtroom, but generally

“attorney-at-law” and “lawyer” are synonymous terms. The counsellors

are known in England as barristers when they conduct cases in superior

courts; they are called solicitors in chancery, and advocates in Roman

law. Canon Law distinguishes between the advocate who defends, and

the procurator who represents, a litigant; the former argues for his

client by invoking the law in his favor; the latter acts merely as the

representative of his client and is restricted by his commission.

1996. The Qualifications of Lawyers.--(a) The mental and moral

requisites are competency in the knowledge of their profession and

devotion to justice, morality, the constitution, and law (see 1943). A

lawyer should be zealous for the dignity and reputation of the bar and

loyal to associates, but not afraid to take action against practices

that are detrimental to his honorable profession.

(b) The legal requisites for practising as a lawyer vary with the place

or government. In Canon Law, it is necessary that an advocate be a

doctor or expert in ecclesiastical jurisprudence, that he be twenty-one

years of age, duly approved, etc. (see Canons 1657 sqq.).

1997. The Duties of a Lawyer in Introducing Cases.--(a) He may not stir

up litigation, as a means of bringing himself occupation and gain. The

Catechism of the Council of Trent, Translated into English with Notes

(Joseph F. Wagner, Inc., New York City, 1923), p. 475, denounces this

practice as among the chief violations of the Tenth Commandment. Among

lawyers it is regarded as unprofessional, and at common law it is an

indictable offense.

(b) A lawyer may not take or assist an unjust cause--one, namely, that

is in opposition to moral or positive law, as when a party comes to

him with the request that he conduct a spite case whose purpose is to

harass or oppress an innocent person. He who defends injustice is a

cooperator, and is therefore guilty (see 1779). But if a case has a

good foundation in law, the lawyer is not bound to inquire into the

subjective dispositions or the conscience of the client in the matter,

and he may take the case even though he does not know that the client

is in good faith.

he is asked to assist is indigent or not in favor. Commutative justice

does not oblige him to offer his services to one in need of them; but

there is a duty of legal justice to give his best efforts if he is

appointed as counsel for a poor person, and also at times a duty of

charity to do this if he is asked for legal help by one who is in need.

1998. The precept about works of mercy, being affirmative, does not

oblige for every instance, but only when the due circumstances of time,

place, opportunity, etc., are present. Hence, a lawyer is not obliged

by charity to devote himself to every deserving case that is presented

to him (see 1227). (a) Thus, as to place, charity does not require that

one go about looking for the needy, but that one help those who are

at hand. (b) As to time, charity does not require that one take care

of future needs, but that one help those who are in present distress.

alike, for some have a greater claim on one’s charity than others (I

Tim., v. 8). (d) As to need, charity does not command that help be

given those who can easily help themselves, or who can obtain it from

third parties who are better fitted to bestow it.

1999. Charity does not oblige to works of almsgiving, if the

inconvenience to the donor is out of proportion to the distress

from which the donee is rescued (see 1158). The inconveniences that

correspond with the various degrees of distress are thus explained by

theologians:

(a) if distress is extreme (e.g., a prisoner is about to be sentenced

to death unjustly), a proportionate inconvenience is, according to

some, a grave loss, or, according to others, the loss of at least a

part of the necessaries of one’s state (see 1231, 1251);

(b) if distress is very grave or grave (e.g., an accused man will be

sentenced unjustly to a long and harsh imprisonment), the loss of goods

without which one’s state of life cannot be maintained so becomingly

is, according to one opinion, not excessive; but, according to another

view, any notable loss or inconvenience is excessive;

sentenced to a small fine), the loss of goods that are purely

superfluous is, according to some, a proportionate inconvenience, but

others think that only such assistance need be given as will cause no

inconvenience whatever, such as advice or other service given during

spare times.

2000. When Is a Cause to Be Regarded as Unjust?--(a) In civil cases

the suit or defense is unjust when it clearly has no moral right. A

lawyer who recommends litigation in a case of this kind is unjust to

the adverse party, if that party loses; he is unjust to his client,

if the client loses and is thus put to unnecessary expense. Generally

speaking, a Catholic lawyer ought not to accept a divorce case. The

lawyer’s position is different from that of a judge. Occasionally a

judge cannot refuse a case without serious inconvenience to himself

(see 1949, 1997); the lawyer, however, is free to accept or refuse

these cases. The general prohibition is founded on the fact that in

this country most divorce cases are means to an invalid remarriage.

Some theologians argue that since it is the remarriage, not the

divorce, that is intrinsically evil, a lawyer might accept a divorce

case for a very grave reason, e.g., to relieve desperate financial

conditions. In practice, however, owing to the danger of scandal,

the exception would be rare. Exceptions which are possible include

cases where divorce is sought for a marriage that is invalid _coram

ecclesiam_, e.g., civil marriage of Catholics, or simply for the

settlement of civil effects Where no danger of remarriage is involved.

In all cases involving Catholics, the lawyer should bear in mind the

necessity imposed upon Catholics by the Third Council of Baltimore to

consult ecclesiastical authorities before seeking civil separation from

bed [and board.]

(b) In criminal cases the prosecution is unjust if the accused is

clearly innocent. But the defense is not unjust, even though the

accused is known to be guilty, for both natural and positive law give

the accused a right of defense, and hence he may choose or may be given

an advocate, in spite of his guilt.

2001. Duty of a Lawyer When the Justice of a Cause Is Doubtful.--(a) In

a civil cause, the lawyer may act, whether for the plaintiff or for the

defendant. He may even take a case whose justice seems less probable,

for the purpose of the trial is to settle the doubt, and not

infrequently the cause that seemed doubtful or less probable at the

outset is vindicated by the examination. Some moralists distinguish for

cases in which the doubt is one of fact between the defendant and the

plaintiff: if the former’s case is less or equally probable, they say,

one may take it, but not so if this is true of the latter’s case.

(b) In a criminal case, when life, reputation or other grave issue is

involved, the common opinion is that a lawyer may not prosecute if the

case of the people is doubtful or less probable, but he may defend, as

was just said, even though he is certain that the accused is guilty.

The office of the prosecutor is not necessarily to secure a conviction,

but to see that justice is upheld, while the office of the defender is

to take care that an accused person is deprived of no right or

protection that he should have under the law.

2002. If a lawyer through ignorance takes an unjust case, thinking it

just, he is excused or not excused according to the character of his

ignorance (see 28, 249). (a) Thus, antecedent ignorance excuses from

sin and restitution; (b) concomitant ignorance excuses from

restitution, but not from sin; (e) consequent ignorance excuses from

neither sin nor restitution, if it is crass or affected, but it

diminishes responsibility, if it is only slightly sinful.

2003. Duty of a Lawyer Who Discovers that a Case Is Really Unjust.--(a)

A lawyer who took a case in the belief that it was just, but discovers

that it is really unjust, owes it to himself to abandon the case, for

he cannot honorably cooperate with iniquity. The same principle

applies, if a client insists upon unjust courses in the support of his

case, even though the cause itself be just.

(b) The lawyer owes it to his client in the hypothesis we are

considering to preserve the latter’s confidence inviolate (see 1988).

He should endeavor to persuade the client to abandon the case; but

since the client’s case is unjust, he may not recommend a compromise,

except perhaps in reference to expenses.

2004. Lawyer’s Duties towards Client.--Since every contract depends on

the mutual consent of the contractants, and since the purpose of the

person who retains a lawyer is to receive honest advice and assistance

and to give in return a fair compensation, it follows that the lawyer’s

duty to a client is to give what is thus expected and not to exact more

than this deserves.

(a) Before the case the lawyer should be perfectly candid with the

client as to the advisability of litigation or of the employment of

himself as counsel in the case. If there is a reason why he would be a

less desirable advocate in the case, he should speak of this, so that

his consultant may have freedom of choice. He should also study the

question presented to him, and give his honest opinion on the strength

of the case. If a fair and amicable adjustment outside of court can be

made, the lawyer should recommend that this be done, and if it is not

clear which party is right, he should advise a compromise.

(b) During the case the lawyer should be faithful to the interests of

his client and diligent in the affairs for which he is engaged. Loyalty

demands that the advocate give his undivided devotion to his client

(e.g., he may not give assistance to the adverse party, he may not

receive gifts or compensations from that party; see Code, Canons 1666,

2407), and that he respect the client’s confidences (e.g., he may not

use to the client’s disadvantage the information given him). Diligence

requires that the lawyer use his best ability and efforts to the end

that the client, no matter how poor or unpopular or persecuted, may

receive all the remedies or defenses that the law grants him, and that

his case may be terminated with all possible speed.

confidence that was reposed in him. The compensation for the lawyer’s

services should be just, that is, a fair return for what he gave. The

amount of the fee should be fixed, therefore, by such standards as the

law or custom, or by the value of that which the lawyer devotes to the

case (e.g., his time and labor, his loss of other employment or

prospects, the risk he takes in undertaking the case), or of that which

the client receives (e.g., the amount which he gains, the benefit he

receives). The wealth of a client does not justify an excessive charge,

but the poverty of the client makes it a duty of charity at times to

lessen the charges or to make no charges at all (see 1236-1239). It is

clear that a lawyer should not compensate himself from the client’s

business contrary to the latter’s just wishes.

2005. Lawyer’s Duties towards Other Parties.--The duties of the lawyer

to his client do not exempt him from certain duties to other persons

who have a part in the trial; for he is responsible to his own

conscience and cannot act on the principle that he must win at any

cost, or that the client takes all the blame for anything dishonorable

that is done.

(a) Thus, respect is due to the judge and politeness to the opposite

party, his lawyers and witnesses. Abusive language and improper

personalities, therefore, should not be resorted to, and customary

courtesies should be shown.

(b) Truth and fair dealing are due to those to whom or against whom the

pleading is directed. It is contrary to truthfulness to cite statutes

or decisions that are no longer in force, to misquote laws, testimony

or the language of opponents, to assert as a fact what has not been

proved, to introduce false witnesses or documents, to coach clients or

witnesses in untrue stories, to resort to quibbles or sophistry, etc.;

it is unfair to attempt to gain special favor from a judge or a jury,

to make improper statements or remarks with a view to influencing the

jury or the bystanders or the public; to conceal the arguments upon

which one relies until the opposition has no opportunity to reply; in a

word, to practise any of the tricks of pettifoggery.

2006. Concealment of Truth in Presenting a Case.--Is concealment of the

truth in the presentation or defense of a case sinful?

(a) If concealment is not unjust or mendacious, it is lawful. Indeed, a

lawyer should conceal such facts as would be harmful to his own case

(e.g., incidents that are really of no moment, but that would create

prejudice against his client), or as he has learned in confidence. This

is not unjust, since the opposite party has no right to the knowledge,

and it is not deception, since it does not cause but merely permits

others to draw erroneous conclusions. Neither is an advocate bound in

justice to point out to the opposition matters favorable to their case,

of which they are ignorant or which they do not notice.

(b) If concealment is unjust or mendacious, it is unlawful. Thus, if a

lawyer discovers that serious fraud has been practised or that the

court or the opposition has been harmfully imposed upon, he is unjust

if he takes advantage of this through silence. Similarly, a prosecutor

is unjust if he suppresses facts or testimony or papers that would

establish the innocence of an accused person.

2007. The Sinfulness of Introducing False or Corrupted Documents.--(a)

Truthfulness is sinned against by this practice, whether the document

be entirely fictitious or a copy substituted for an original that has

been lost, or an authentic instrument has been changed or interpolated

(see 1980 a, 1991).

(b) This practice is also against legal justice, since the law requires

that no misrepresentations be made about the evidence produced. Indeed,

this is a very serious matter, for, if it were ever permissible to

tamper with documentary evidence, a way would be opened to frauds

innumerable to the great detriment of the public.

cause defended is not certainly just; for the opposite party, since

justice is perhaps on his side, has the right that he be not defeated

by untruthful means. But if the cause defended is certainly just, there

is not _per se_ any violation of commutative justice, since the adverse

party is not deprived of anything that is his, but is rather prevented

from doing injustice; _per accidens_, though, there might be

commutative injustice (e.g., if the use of a forged exhibit was known

to be risky and did actually lose the case for a client).

(d) Charity to self is violated by this deception, since a lawyer

should not value his client’s interests above his own conscience,

reputation and prospects.

2008. When a Lawyer Is Bound to Restitution.--(a) Unjust damage obliges

to restitution (see 1763), and hence a lawyer must indemnify his client

or the opposite party for the losses either one suffers through his

unjust conduct. The client has a right to restitution if he was put to

unnecessary expense because his lawyer did not tell him the case was

hopeless or too risky, or if he lost a case because the lawyer was very

incompetent or negligent or helped the opposite party, or if he was

injured in his reputation or prospects by the violation of his

confidences. The opposite party is entitled to restitution if he lost a

right or was condemned because the lawyer unjustly took the case

against him, or if he suffered other injuries because the lawyer

employed foul means to his disadvantage. If a lawyer acts as the

mandatary of his client in the use of injustice, the duty of

restitution rests primarily on the client and secondarily on the lawyer

(see 1783); if the lawyer alone is guilty, he is responsible for all

the damage done. There is no duty of restitution if only legal justice

is violated (e.g., if some deception is practised in order to win for

the side that is in the right), or if charity is wronged (e.g., if one

refuses to take the case of a person who is in need).

(b) Unjust possession also obliges to restitution (see 1770), and hence

a lawyer who appropriates goods of his client against the latter’s

right, or who charges exorbitant rates for his services, or who drags

out a case for lucre’s sake, or who has not refunded when he withdrew

from a case, should restore his ill-gotten goods. If the amount of a

fee is settled by law, an attorney who takes more than the legal sum

does not necessarily incur the duty of restitution. All will depend on

the character of the law, whether it is penal or preceptive, and if

preceptive, whether it obliges in virtue of legal or of commutative

justice.

2009. Unjust Words.--We shall now take up the injustice that is done

through words spoken outside of a judicial process, or the classes of

verbal injustice that are not peculiar to courts, but are committed on

all sorts of occasions, public and private. The principal sins here are

distinguished according to the different injuries intended by the

sinful speaker, and are as follows:

(a) sinful words that signify or effect in another person the evil of

guilt, thereby depriving him of benefits that are connected with

virtue. Some evil speakers deprive their neighbor of tributes that are

paid to virtue by others, such as honor (injury by contumely), fame

(injury by defamation), friendship (injury by whispering); while other

evil speakers deprive a person of the tribute of virtue paid by his own

conscience, namely, self-respect and peace of mind (injury by

derision);

(b) sinful words that signify or effect against another person the evil

of punishment. The words are known under the general name of cursing.

2010. Contumely.--Contumely is unjust dishonor shown to a person in his

presence.

(a) It is unjust, and hence those are not guilty of contumely who speak

words that are not honorable to persons deserving of reproof (e.g., in

Luke, xxiv. 25, Our Lord calls the two disciples “foolish and slow of

heart”; in Gal., iii. 1, St. Paul addresses the Galatians as

“senseless”). Similarly, it is not contumelious to call another person

by a name that sounds somewhat disrespectful, if this is done in banter

or pleasantry and will be taken in good part by the other and do no

harm. Thus, to send a comic valentine or good-naturedly to ridicule

some of the spectators at a farce is not contumelious as a rule, since

most persons are not galled by these gibes, nor are the jokes taken

seriously as a rule by the public. But care must be exercised both in

serious and playful rebukes to keep within moderation. St. Augustine

declares that even in corrections one should use reproachful terms

sparingly and only in case of great necessity.

(b) Contumely is dishonor, and so it is distinguished from injurious

words that offend some other right (e.g., detraction offends

reputation). Honor is an external manifestation of the respect felt for

another’s excellence or superiority in some natural or supernatural

perfection given by God, such as virtue, authority, nobility, rank,

wealth, etc. Contumely, therefore, is either negative, as when one

ostentatiously refuses to show another the honor due him (e.g., the

salute or title or deference which custom allows him), or positive, as

when one manifests signs of disrespect (e.g., names derogatory to

virtue or intelligence, or which mean that the person addressed is vile

and contemptible).

affront directed to his person immediately (e.g., the mockery of

Eliseus by the little boys near Bethel, in IV Kings, ii, 23), or

mediately (e.g., the dishonor of David’s ambassadors by the Ammonites,

in II Kings, x), or at least to his knowledge (e.g., the enemies of St.

Paul in Phil., i. 17, who spoke of him insultingly in the expectation

that their words would be carried to him).

2011. Are all persons deserving of honor? (a) If honor be taken in its

strictest sense for reverence shown to a person who is one’s superior

in some good quality, or for veneration for the proper excellence of

mankind (viz., virtue), then honor cannot be shown except to those who

are more exalted than oneself or to those who are virtuous. (b) If

honor be taken in its wider and more usual sense for respect for a good

quality, natural, moral or supernatural, in which a neighbor is more

worthy at least than some others, then honor can be shown to every

rational creature (except the damned, who are irretrievably wicked and

outside the pale of friendship); for there is no one, however bad or

lowly, in whom there is not something that deserves respect. St. Paul

exhorts Christians to be beforehand in honoring one another (Rom., xii.

10), and he urges that each esteem the other as better than himself

(Philip., ii. 3).

2012. Various Forms of Contumely.--(a) By reason of the signs used or

the external form it takes, contumely is either in words (e.g., the

names “thief,” “lunatic,” “bastard”) or in deeds that are equivalent to

word (e.g., offensive cartoons or caricatures, insulting valentines or

postcards, “poisoned pen” letters, lampoons, scurrilous or opprobrious

gestures or acts, sardonic grins, mimicry).

(b) By reason of the thing signified or the contemptible quality that

it ascribes to another contumely is also distinguished into reproach,

which accuses another of sin (e.g., of drunkenness), revilement

(_convicium_), which ascribes to another either a fault or its

consequences (e.g., drunkenness or imprisonment, or diseases of

alcoholism), taunting (_improperium_), which twits another with

misfortunes or inferiority (e.g., his lowly origin or poverty or the

favors one formerly showed him).

2013. Manner of Confessing Contumely in the Sacrament of Penance.--(a)

Circumstances that are of an essential kind, that is, those that change

the species or add a new species, must be mentioned (e.g., the fact

that contumely was blasphemous or calumnious or scandalous or directed

against a cleric or parents). (b) Circumstances that are merely

accidental, such as those given in the previous paragraph, need not be

mentioned, for they are merely various ways of committing the same sin

of contumely.

2014. The Sinfulness of Contumely.--(a) From its nature contumely is a

grave sin of injustice, for it robs one of honor, which is more prized

than any other external possession, since it is a testimony to virtue

and to the esteem of fellowmen honestly earned. Hence, men will often

sacrifice health or wealth or life itself to save honor. He who calls

his brother a fool is deserving of hell (Matt., v. 22), and the

contumelious are classed with those who are delivered over to a

reprobate sense (Rom., i. 30). But, as sins of the tongue are imputable

only in so far as they express the mind of the speaker, contumelious

words are gravely sinful only when they proceed from a direct purpose

to inflict serious disgrace (e.g., Titus applies to Balbus an epithet

that is not regarded as very abusive, but his purpose is to manifest

his supreme contempt), or from an indirect intention to effect this

(e.g., Claudius jokingly addresses Sempronius by a very disgraceful

title, not meaning any great harm, but knowing that Sempronius will

feel this deeply or that in the eyes of the bystanders he will be

greatly dishonored).

(b) From the imperfection of the act or the smallness of the matter,

contumely is made a venial sin. Thus, if one who is suddenly carried

away by anger or who is not thinking of what he says calls another

person a very vile name, there is not sufficient advertence for a grave

offense; and if one who is acting with full deliberation addresses

another in language that is only slightly disrespectful, there is not

sufficient harm done to constitute a mortal sin.

2015. The gravity of the matter in contumely depends, not only on the

character of the signs of disrespect, but also on the persons concerned.

(a) Thus, the less the respect which the offender owes the offended

party, the less the offense. Hence, for a subordinate to call his

superior a liar or an ass is a more grievous fault than for a superior

to give the name to his subordinate.

(b) The less authoritative the word of the person who utters contumely,

or the less evil animus that attaches to his speech, the less the

dishonor and the sin. Thus, fishwomen were once notorious for

vituperation, but little attention or weight was given to their words.

A person of that character, then, might commit only a venial sin by a

very abusive word, whereas a person of more respectable character would

sin mortally by using the same expression. Similarly, when parents or

teachers berate their subjects as fools, blockheads, dunces, etc.,

there is generally no bad spirit behind these exclamations, and hence

the use of such expressions is not very sinful, even when correction is

not being made.

2016. Is the gravity of contumely lessened by the fact that the

offended person feels the injury less?

(a) If the contumely is felt less because the dishonor itself is less,

the gravity of the sin is of course lessened, for example, if the

person offended is less deserving, or the person who offends is not

taken seriously (see 2015).

(b) If the contumely is felt less only because the person dishonored is

very meek and patient, the gravity is not lessened, but is rather

increased (see 1725). If the person offended does not feel the injury

at all (e.g., because he is very thick-skinned or is very fortunate),

less damage is done, but the wrong remains, otherwise, theft from the

rich could be excused on the plea that they will not miss what is

stolen.

1916. There are various opinions on the amounts required for grave