Whether an Accuser Who Fails to Prove His Indictment Is Bound to the
Punishment of Retaliation?
Objection 1: It would seem that the accuser who fails to prove his
indictment is not bound to the punishment of retaliation. For
sometimes a man is led by a just error to make an accusation, in
which case the judge acquit the accuser, as stated in Decret. II, qu.
iii. [*Append. Grat., ad can. Si quem poenituerit.] Therefore the
accuser who fails to prove his indictment is not bound to the
punishment of retaliation.
Obj. 2: Further, if the punishment of retaliation ought to be
inflicted on one who has accused unjustly, this will be on account of
the injury he has done to someone--but not on account of any injury
done to the person of the accused, for in that case the sovereign
could not remit this punishment, nor on account of an injury to the
commonwealth, because then the accused could not acquit him.
Therefore the punishment of retaliation is not due to one who has
failed to prove his accusation.
Obj. 3: Further, the one same sin does not deserve a twofold
punishment, according to Nahum 1:9 [*Septuagint version]: "God shall
not judge the same thing a second time." But he who fails to prove
his accusation, incurs the punishment due to defamation [*Can.
Infames, caus. vi, qu. 1], which punishment even the Pope seemingly
cannot remit, according to a statement of Pope Gelasius [*Callist. I,
Epist. ad omn. Gall. episc.]: "Although we are able to save souls by
Penance, we are unable to remove the defamation." Therefore he is not
bound to suffer the punishment of retaliation.
_On the contrary,_ Pope Hadrian I says (Cap. lii): "He that fails to
prove his accusation, must himself suffer the punishment which his
accusation inferred."
_I answer that,_ As stated above (A. 2), in a case, where the
procedure is by way of accusation, the accuser holds the position of
a party aiming at the punishment of the accused. Now the duty of the
judge is to establish the equality of justice between them: and the
equality of justice requires that a man should himself suffer
whatever harm he has intended to be inflicted on another, according
to Ex. 21:24, "Eye for eye, tooth for tooth." Consequently it is just
that he who by accusing a man has put him in danger of being punished
severely, should himself suffer a like punishment.
Reply Obj. 1: As the Philosopher says (Ethic. v, 5) justice does not
always require counterpassion, because it matters considerably
whether a man injures another voluntarily or not. Voluntary injury
deserves punishment, involuntary deserves forgiveness. Hence when the
judge becomes aware that a man has made a false accusation, not with
a mind to do harm, but involuntarily through ignorance or a just
error, he does not impose the punishment of retaliation.
Reply Obj. 2: He who accuses wrongfully sins both against the person
of the accused and against the commonwealth; wherefore he is punished
on both counts. This is the meaning of what is written (Deut.
19:18-20): "And when after most diligent inquisition, they shall find
that the false witness hath told a lie against his brother: they
shall render to him as he meant to do to his brother," and this
refers to the injury done to the person: and afterwards, referring to
the injury done to the commonwealth, the text continues: "And thou
shalt take away the evil out of the midst of thee, that others
hearing may fear, and may not dare to do such things." Specially,
however, does he injure the person of the accused, if he accuse him
falsely. Wherefore the accused, if innocent, may condone the injury
done to himself, particularly if the accusation were made not
calumniously but out of levity of mind. But if the accuser desist
from accusing an innocent man, through collusion with the latter's
adversary, he inflicts an injury on the commonwealth: and this cannot
be condoned by the accused, although it can be remitted by the
sovereign, who has charge of the commonwealth.
Reply Obj. 3: The accuser deserves the punishment of retaliation in
compensation for the harm he attempts to inflict on his neighbor: but
the punishment of disgrace is due to him for his wickedness in
accusing another man calumniously. Sometimes the sovereign remits the
punishment, and not the disgrace, and sometimes he removes the
disgrace also: wherefore the Pope also can remove this disgrace. When
Pope Gelasius says: "We cannot remove the disgrace," he may mean
either the disgrace attaching to the deed (_infamia facti_), or that
sometimes it is not expedient to remove it, or again he may be
referring to the disgrace inflicted by the civil judge, as Gratian
states (Callist. I, Epist. ad omn. Gall. episc.).
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