Case XXI: Calumniating the Dead with Obligation of Restitution with Regard to Reputation

Case.—Rusticus grievously calumniated the deceased Strigonius in a newspaper article, and this article found many believers; it can not be said that the calumny has been forgotten; with many at least this is not the case. Rusticus had had few scruples about his action, as the honor and good name of the dead had been to him a matter of indifference; on his death-bed, however, he was much disturbed about the matter and told his confessor about it. The latter insists that the defamatory article be retracted, and that this take place publicly, because the calumny was a public one, and has not yet passed into oblivion; he grants, however, that this retraction may be so made as not to put the retractor in a bad light, if this can be done. Rusticus opines that it cannot be done without hurting his honor; and since in cases where they clash, the love of self, ceteris paribus, has precedence over the love of the neighbor, it appears here that restitution is a moral impossibility. In order however to do everything morally possible, Rusticus begged forgiveness of the son and the heirs of Strigonius, asking them at the same time to release him from formal retraction. All this was agreed to by the son of Strigonius.

Question.—Is the confessor to declare that this procedure of Rusticus satisfies the law?

Solution:

1. Defamation and calumny of deceased persons are not seldom regarded as something indifferent, because for the dead honor and good name are said to have no longer any value. But this is a lax and absolutely false view, for to calumniate the dead is for many reasons a serious wrong. The chief reason is the nature of calumny which is wicked and hence allowable under no circumstances, not even in the case of the deceased. The second reason is that every one desires to leave an honored memory after his death, and by death is not to be deprived of the rights to honor and good name. “The dead are not deprived by law of their reputation, although they have departed from among the living,” say the Moralists. Further reasons which here come into consideration are: It happens not infrequently that through such calumny the profession to which the departed belonged suffers injury and great scandal is given; the friends and relatives of the calumniated have a great sorrow put upon them, and under certain conditions may suffer injury in their temporal affairs. Such a calumny may be made the reason for cancelling a marriage engagement.

2. As concerns the departed himself, not only is his memory dishonored, but the zeal to remember him in prayer will be lessened, if not altogether abandoned. The edifying example he gave in life, the good teaching and exhortations that we heard from him, will lose their power and efficacy. To all this must be added that the departed is helpless against the malice of the calumniator, cannot protect or defend himself, cannot expose the calumniator, nor prove the untruth of the calumny. This is exactly the reason why evilspeaking about the dead has always been abhorred. Hence the old saying: De mortuis nil nisi bonum.

3. Calumny of the dead is, therefore, not only opposed to charity but also to justice, and consequently involves the duty of restitution. The honor of which we have robbed the dead—his honorable memory—must be restored, and if the calumny has been the causa efficax damni for a third party, for instance for the son or daughter of the departed, then also in this respect must the injury be made good. This is according to the unanimous teaching of the Moralists.

4. Let us consider in detail the obligation of restitution.

The teaching of all Moralists is that the calumniator of a dead person is obliged to retract, and that he must do so publicly if the calumny was public. Further, the Moralists go on to say, he is only released from this obligation when, and as long as, its fulfilment is a real moral impossibility, or if his calumny was not believed, or if in the meantime the same was shown to be false and was made known as such, or, finally, if the calumny has been forgotten, especially if the one defamed was little known, held no prominent position, etc. (S. Alph., nn. 997-999). The claim that the retraction of the calumny will injure the honor of the calumniator does not make the retraction a moral impossibility. If we would admit this, no calumniator would ever have to make restitution. It is true that in the case of a clash, other things being equal, precedence is given in the ordo caritatis to the love of self over love of the neighbor; but in considering this rule we must not forget the other rule: in pari conditione potior est conditio innocentis. Therefore the honor of slandered innocence, under equal or nearly equal conditions, has precedence over the honor of the defamer, whose malice caused his neighbor to suffer injury to his honor. If the defamer finds it difficult to act according to this rule he should remember that he himself created the situation. Only if it is a case of quite unequal circumstances, and if the injury to the honor of the defamer would be a much greater evil, might a moral impossibility be assumed. But this is an exceptional happening, and not to be presumed unless positively proved from the special conditions.

5. Can a calumniator of a dead person be released by the heirs from the obligation to retract?

The defamed person may release the defamer from retraction, and then the defamer is released from this obligation mentioned unless this release contained in itself a disadvantage to the defamed which the defamer was obliged to prevent ex iustitia. This cannot be applied to a case of calumniating a dead person, for in that case such a release cannot be ascertained. The son and the heirs of a dead person can, of course, remit restitution in regard to an injury which was caused them through calumniating their dead father, but not in regard to the honor of which the father after his death was unjustly deprived, for the son is not master of the honor of his departed father. “The obligation of making restitution presses even if someone has unjustly detracted from the dead, nor can the heirs remit it, since they are not masters of another’s reputation.”

6. The fact that in our times the restitution here in question is not much thought of, must not induce the confessor to take a course which would apply the Saviour’s words: “If the blind lead the blind, they both fall into the ditch.” In order, on the other hand, to burden no one with something he is not obliged to do, he will conscientiously, and without regard to person, investigate thoroughly whether or not there is good reason present here for releasing from restitution, namely from retraction.