Duties of Advocates

735. An advocate (causidicus) is one who undertakes the defense of some party's cause in judgment. Similar is the office of the procurator, who in the name of the litigant protects the cause in judgment.

The obligations of an advocate as regards sufficient knowledge and due diligence in conducting causes agree with those things which were said above concerning the judge. Therefore if he undertakes a cause for conducting which he knows himself unequal, and by his lack of skill or care inflicts damage on his client, he is bound to restitution, unless the client, conscious of this lack of skill, nevertheless had recourse to him. There remain the obligations which refer to the justice of the cause, to fidelity toward the client, and to a just price.

736. On the justice of the cause to be defended. 1. Concerning a civil cause. a. He cannot undertake a civil cause which he certainly knows to be unjust; but he can undertake a doubtful cause, even that for which the lesser probability stands: for it often happens that a cause which at the beginning seemed doubtful or less probable is shown in the course of the process to be more probable or even certain.

b. If in the course of the process he certainly knows the injustice of the cause undertaken, he must abandon it; nor in this case can he advise a composition, which cannot have place except in a doubtful cause: for he would inflict damage on the opposing party. If from the will of the client he nevertheless pursues an unjust cause, he is bound to repair the damage inflicted on the other party, like a mandatary of an unjust action.

c. In defending a cause he cannot use anything except just means, lest he induce the judge to render a false sentence; but he can conceal those things by which his own cause could be impeded, because he does not deceive the other party but permits him to be deceived. If he wins by unjust means, for example by bringing false or abrogated laws, by producing false witnesses, by bringing false documents, etc., he is bound to repair the damage inflicted on the injured party; primarily indeed if he acted without the mandate of the client, but secondarily if he acted from the mandate of the client.

He can be bound from charity to warn the opposing party concerning circumstances which could help his cause but which he himself either does not know or does not attend to; by justice he is by no means bound.

2. In a criminal cause he can defend the defendant, even if he certainly knows him to be guilty, provided he abstains from all fraud, deceit, and illicit means: for since the defendant is not bound to punishment unless convicted, by the right of defense he can take care that the force of the proofs be weakened and that certain demonstration of the crime be impeded.

It is never lawful to use a false document in judgment. To determine the malice of this thing one must distinguish.

a. If the right of the client is not yet certain, it is a sin against truthfulness and against justice, because by an unjust means he impedes the other party from obtaining a sentence favoring him.

b. If the right of the client is certain and the document previously existing was lost, the substitution of a new document is a lie, but it is not a sin against justice. Indeed, if the right of the client is certain, even if the document which is brought forward to defend the certain right is wholly fabricated, a sin against justice is not committed, but against truthfulness by lying.

c. In either case, however, one can sin against charity, because those acting thus expose themselves to the danger of undergoing a most grave penalty if the fraud is detected;¹ indeed the lie, according to Lehmkuhl (I, n. 824), is gravely harmful against the public good.

¹ Ballerini-Palmieri IV, n. 608.

737. On fidelity toward the client. a. He is bound to examine the cause diligently and to warn the client about the cause, namely about its injustice, certainty, or probability, and to declare to him the state of the cause, if he himself demands this or if it changes notably, lest he be induced to useless expenses. If he omits this with grave fault, he is bound concerning the damages which come to the client from this omission.

An advocate who does not warn the client concerning a doubtful cause and loses it must repair the damage of the client if it is established that he would not have pursued the doubtful cause; but he is not bound to repair the damage if it is doubtful whether the client would have conducted the cause, because in this case the damage inflicted is not established.

b. He is bound to employ at least ordinary industry, both that he win in the cause and that he finish it quickly; and if from gravely culpable negligence damage arises to the client, he is bound to repair it.

c. It is not lawful in the same cause to help the opposing party, for example to communicate depositions of witnesses or other acts to him, or to manifest the secrets of the client to him.

738. On fees to be demanded. a. For a cause which he has conducted, he can receive a just stipend, but it is not lawful for him to demand anything beyond a just stipend. Wherefore if the stipend has been assessed by competent authority, one must stand by it; but if none has been assessed, it must be determined by the judgment of prudent men.

b. The law by which the stipend is assessed can be penal, or preceptive from legal justice, or preceptive from commutative justice. Only in this last case is he who violated the law by taking a fee greater than just bound to restitution.

c. He is bound to conduct the causes of the poor gratis according to the precept of charity; and therefore a. he is bound to help those who are in extreme necessity under grave obligation and with his own grave inconvenience; b. those who are in grave necessity, under grave obligation indeed, but not with grave inconvenience; c. finally those who are in common necessity, under light obligation, if he can conveniently do so. Therefore it suffices if he furnishes them some help or counsel when he is free from other labors.

d. He is not bound to provide help spontaneously, but only to those who implore his help; by repelling those asking he sins against charity if he foresees that because of this they will suffer grave damage.

AN advocate is one who undertakes to assist litigants by his advice and help and by pleading their case before the judge. For the purposes of moral theology we may neglect the technical differences between barristers and solicitors in English law.

As the advocate acts in the name of his client he may in general do what his client is allowed to do, and he must not do what it would be wrong for his client to do. He may not undertake a cause which is manifestly unjust; otherwise he will be guilty of sin, and bound to make restitution for all the damage that he causes. If in the course of the trial it becomes manifest that his client’s cause is a bad one, he must inform his client of the fact and refuse to proceed with the case. However, it is not necessary that the advocate should be certain that his client is right; it will be sufficient if his cause is probably just, for it may be expected that the doubtful rights of the parties will become clear in the course of the trial. In a criminal action the advocate may always defend the accused by lawful means whether he be guilty or not. If he is guilty, the defence of his advocate cannot do any serious harm, and will at least help toward the merciful administration of justice. The prosecution of an accused person may not be undertaken unless his guilt is practically certain, for otherwise there will be danger of injuring the character of an innocent person and of exposing him to vexation without just cause.

From the decree of the Holy Office, December 19, 1860, in answer to the Bishop of Southwark, it is clear that in England an advocate may undertake a case where there is question of judicial separation between husband and wife. Even in an action for divorce in a civil court he may defend the action against the plaintiff. If the marriage has already been pronounced null and void by competent ecclesiastical authority, a Catholic advocate may impugn its validity in the civil courts. Moreover, for just reason, as, for example, to obtain a variation in the marriage settlement, or to prevent the necessity of having to maintain a bastard child, a Catholic lawyer may petition for a divorce in the civil court, not with the intention of enabling his client to marry again while his spouse is still living, but with a view to obtaining the civil effects of divorce in the civil tribunal. This opinion at any rate is defended as probable by many good theologians. The reason is because marriage is neither contracted nor dissolved before the civil authority; in the formalities prescribed for marriage by civil law there is only question of the civil authority taking cognizance of who are married, and of the civil effects which flow therefrom.

With reference to the duties of the advocate toward his client, he must, of course, have the requisite knowledge and skill to undertake the case according to the reasonable expectations of his client, and he must exercise due care and diligence in the execution of the duty which he has undertaken. If in these respects he is culpably negligent, he will be guilty of injustice and bound to make restitution for the harm he does. Furthermore, if his client has no case, and no chance of success in the suit, the advocate must make this known to him; he must avoid useless delays, keep the strictest faith with his client, and use only just means to gain his cause.

English law will not enable a barrister to institute legal proceedings for the recovery of his honorarium if it is withheld. This, however, does not prevent the obligations of a contract existing between an advocate and his client, so that as the former is bound in justice to do his part for the latter, so is the client bound in justice to recompense his lawyer according to the terms which were explicitly or implicitly agreed upon, With regard to solicitors the law sufficiently provides against extortion in the matter of fees.

By the general law of charity a lawyer should be prepared to give his assistance for the love of God to the poor who cannot pay the usual fees. Indeed, if an accused person has no one to defend him, the judge will usually request someone to undertake the office.

English solicitors frequently fulfil the functions of notaries public, and as such receive all acts and contracts which must or are wished to be clothed with an authentic form, confer on such acts the required authenticity, establish their date, and prepare and attest instruments going abroad.

V. Mode of fulfilling the obligation. 1. The thing which the poor person needs can be given as a loan for use or as a loan for consumption: 1. if the poor person needs only the use of the thing; 2. if indeed he needs dominion over the thing, but is not simply poor. It is otherwise if he needs dominion over the thing and is simply poor, that is, he possesses nothing either in fact or in hope from which he may repay. For, if ever, at least in that case the precept of almsgiving, that is, of gratuitous donation, ought to urge (St. Alphonsus, III, 520, question 5).¹

2. Alms must be made from one's own goods, but not from another's, unless in extreme necessity, if then one's own are not at hand. Hence: 1. "It is not lawful for boys, children of families, male servants, female servants, or wives to give alms except slight alms, in which the will of parents and husbands is presumed. But for particular cases in which a wife can give, see in its own place.... 2. Tutors and curators, and those who have care of another's goods, can make moderate alms from the goods which they administer: namely such as those persons themselves, whose goods they are, would be bound to make" (St. Alphonsus, II, 33).

3. The obligation, insofar as it arises especially from common necessity, can partly be satisfied by paying taxes, insofar as these are imposed for relieving the necessities of the poor. Indeed, the aforesaid obligation can almost be fulfilled by contributing a certain sum to a beneficent association. I have said partly and almost, because one who acted thus could nevertheless not be excused from every fault if he were to send away all who beg from door to door, and all the more if he were to send away all constituted in grave necessity.

Corollary I. Physicians and advocates must help the poor gratuitously, unless provision has been made for them through public expenses. But if special physicians or advocates have been named for the poor, it is lawful to refer the poor to them.

Corollary II. Often there is no obligation of giving alms to poor persons begging in public ways: "although from nakedness, disease, etc., they may seem to show signs of extreme necessity, rarely is one bound by precept to help, even from superfluous goods: both because that necessity is commonly exaggerated for moving spectators, and because they are presumed to be helped by others" (St. Alphonsus, II, 32). But alms should be denied to those who are in need from laziness and idleness.

¹ Hence the doctrine seems to have to be rejected which generally teaches that there is no obligation of giving alms if, by the thing being given as a loan for use or for consumption, or sold, sufficient provision is made for the neighbor's necessity.

(St. Thomas, II-II, q. 71; St. Alphonsus, Theologia Moralis, book IV, nn. 218-226; Homo Apostolicus, tract 13, nn. 69-72.)

Under the name of advocates come: 1° those who in a civil or commercial matter argue the client's cause before a judge, and in a criminal matter defend the accused; 2° those who before a tribunal act in place of the litigating parties, by petitioning, concluding, etc., for them; the latter are more often called procurators. Therefore:

I. An advocate ought, by justice, to have or to acquire for himself knowledge congruent with the cause which he undertakes.

II. He can undertake causes as follows:

1. With respect to criminal causes, he can defend the accused even if he is certain concerning the crime committed, for "the accused is not bound to the penalty unless convicted; therefore he can by himself or by another avert it until he is convicted" (St. Alphonsus IV, 220). Nevertheless it is lawful to use only just means; therefore he cannot defend depraved theories, for example determinism, by which all freedom and guilt would be taken away. He can, however, in individual cases gather together whatever could lessen responsibility or even show irresponsibility.

2. As regards civil causes:

a) He can also undertake a doubtful cause, even though perhaps less probable, provided there is a prudent hope of winning, and the client is warned about the doubt (St. Alphonsus IV, 222). "The reason: both because an opinion less probable can in the course of time become more probable, and because many times an opinion which appears less probable to the advocate seems more probable to the judge himself" (St. Alphonsus IV, 222).

b) He cannot undertake a manifestly unjust cause. If, in the course of the lawsuit, he comes to know that the cause is certainly unjust, he is bound to abandon it. If he does not warn the client about the injustice of the cause, he sins against justice toward him; if he has warned him and goes on, he sins by furnishing him counsel and recourse (St. Thomas, II-II, q. 71, a. 3; St. Alphonsus IV, 220).

III. An advocate is bound by justice to treat diligently the cause undertaken; not to abandon it against the will of the client, except in the case just assigned under b); nor to draw it out longer, so that he may receive a greater fee. Finally, he should not demand a richer honorarium than law or custom, with account taken of the labor, permits. If he excels in skill, he can ask what the most skilled would ask in circumstances of this kind; for the service furnished can be said to be worth so much, and the client is to be said to have consented to such a price. If the client departs from the lawsuit for a just cause, the advocate does not have a right except to the price of the labor performed. If without sufficient reason he abandons it, the advocate can demand the whole fee about which they agreed; but commonly the price is not customarily established from the beginning for the whole lawsuit (St. Alphonsus IV, 225; Homo Apostolicus, tract 13, n. 70).

To what extent he is sometimes bound to defend a cause gratuitously was said in the treatise on charity (n. 535; cf. St. Thomas, II-II, q. 71, a. 1 and 4, ad 1).

IV. An advocate who has failed in his office is bound to restore the damages that followed, if he was gravely culpable and insofar as he foresaw them at least confusedly.

Here note well that an advocate sometimes sins against justice with respect to the adversary of his client, for example: 1° if he undertakes a manifestly unjust cause; in which case, if he wins, he is bound to restore all damages to the defeated party (St. Thomas, II-II, q. 71, a. 3; St. Alphonsus IV, 223); if he is defeated, he ought at least to restore the expenses which the victor cannot recover from the party; 2° if he produces false writing or false witnesses, or adulterates harmful instruments. One who would bring forward truthful instruments, yet drawn up either to supply ones that had been lost or to pursue a certain right, would not act against commutative justice, although he would sin;¹ 3° if, convinced of the injustice of the cause undertaken by him, he drives the adversary to a settlement (St. Alphonsus IV, 226).

¹ Sweens, n. 610.

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.

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.).

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.

(c) A lawyer should not refuse a just cause, merely because the person 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.

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. (c) As to persons, charity does not require that help be given to all 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.

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;

(c) if distress is ordinary (e.g., an accused will be unjustly 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.

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.

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.

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.

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.

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.

(c) After the case he should be honest in his charges and true to the 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.

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.

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.

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.

(c) Commutative justice is offended by this form of dishonesty, if the 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.

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.

What is an advocate, a procurator, a referendary? - An advocate is he who gives his assistance to litigants by counsel and by defense undertaken before the judge. But a procurator is he who, by mandate and in the name of the litigant, prosecutes the case in judgment. Finally, a referendary, or relator, is he to whom the acts of litigants are committed to be discussed, so that afterward he may report their foundations to the judges as if reduced into a compendium. L. 14 de Advoc. divers. iudicior. C.; L. 1 de Procur. ff.; L. 18 de Procur. C.; S. Th. 2. 2. q. 71. a. 1, 2. "To undertake the defense of another is a manly office, and it is established that it is beyond the female sex." L. 18 de Procurator. C. "Women will sometimes be permitted to act for parents, the cause having been known, if perhaps sickness or age impedes the parents, and they have no one who may act." L. 41 de Procurator. ff.

The procurator concerning whom we are treating here is an office well distinguished from a public or fiscal procurator, who is a person legitimately deputed to defend rights concerning the public good. Hence he acts sometimes for the plaintiff, sometimes for the defendant, sometimes for both. Such a procurator is, in matrimonial causes, the Defender of the bond; in causes of ordination and religious profession, the Defender of the validity of each; in causes of Saints, the Promoter of the faith.

The proper and native advocates of the S. Rota are consistorial advocates. Cf. Proper Law of the S. R., canon 44. Advocates of the S. C. of Rites for causes of Saints must be endowed with the regular title of rotal advocate, and are subject to other formalities prescribed by the same S. C.

What are the obligations of advocates in the defense of cases? - Advocates are bound first of all to have competent knowledge of laws, of the form of judgments, and of the manner of preparing instruments. Then they must diligently examine the case, manifest its justice or injustice and the certitude or probability of winning or losing it, guard against damaging delays, preserve fidelity, and finally defend the case, and only a just one, without lies, frauds, or other unjust means. The reason is that by legal justice toward society, and by commutative justice toward the client, they are obliged to defend his rights and guard against his damage, but toward the contrary party, lest they become cooperators in injustice. Wherefore, acting otherwise, they are held concerning damages. C. Si culpa ult. de Iniur.; L. 14 de Iudic. C.

S. Th. 2. 2. q. 71. a. 3.

You will resolve: Advocates sin against justice toward the client if, when they do not have due knowledge of the laws, they undertake cases to be defended; if they reveal the foundations or secrets of the case to the adverse party, or if they serve both parties; if, because they seem to themselves to bring forward peremptory arguments, they neglect others not to be despised, because perhaps the judges would be moved by those neglected motives; if they do not sufficiently prepare themselves to plead the case, etc. The same persons sin against justice toward the adverse party if they cite false or abrogated laws, or turn them aside into a foreign sense with damage to the adversary; if they use deceit or lies, from which judges or jurors are drawn away into an unjust sentence or vote; likewise if they impose false crimes or vices on the adverse party, etc. Wherefore they do not seem to sin if they ingeniously twist laws from their obvious sense so that the defendant may escape punishment. L. 226; S. Th. 2. 2. q. 71. a. 3; Kenrick 144.

Note: St. Thomas, l. c. ad 3, teaches that "it is lawful for an advocate defending a just case prudently to conceal those things by which its process could be impeded," because this would not be to deceive the adversary, but to allow him to deceive himself.

Is it lawful for an advocate to defend an unjust case? - In civil matter an advocate cannot licitly sustain a certainly unjust case. Wherefore if the laws favor one doing injustice, on account of some defect, for example, of a document or instrument, the advocate cannot patronize him, unless perhaps so that he may free him from useless and damaging vexation, for instance if a debtor cannot pay, nevertheless with him warned that for this reason he is not released from the natural obligation, and unless for that reason he is no longer going to fulfill it.

Much more, in criminal matter he cannot undertake the parts of an evidently unjust accuser. The reason is that, as St. Thomas says, 2. 2. q. 71. a. 3, "it is unlawful for someone to cooperate in doing evil, whether by counseling or by helping, or by consenting in any way whatever; because one counseling and aiding is in some way doing. And the Apostle says, Rom. 1, 32, that they are worthy of death, not only those who do sin, but also those who consent to those doing it. Hence all such persons are bound to restitution. But it is manifest that an advocate furnishes help and counsel to him whose case he patronizes. Hence, if he knowingly defends an unjust case, without doubt he sins gravely and is bound to restitution of that damage which the other party incurs against justice through his help. But if he ignorantly defends an unjust case, thinking it to be just, he is excused according to the mode by which ignorance can be excused." L. 14 C. de Iudiciis; Kenrick 141.

You will resolve: An advocate who, after the case has already been undertaken, notices that it is unjust, must at once warn his client concerning the injustice of the case and abandon it. Otherwise he will be held for all damages coming to either party. If nevertheless the client is in bad faith, this client is bound first to restore, as commanding. But if he does not restore, then in the second place the advocate is bound to restore, namely as executor. "Nevertheless he ought not betray it, namely so that he helps the other party, or reveals the secrets of his own case to the other party." S. Th. l. c. ad 2. The first is against fidelity, the other against the strict obligation of secrecy. They except: unless for that reason the other party would have to suffer grave and unjust detriment. Cf. La-Croix l. 3, p. 2, n. 1231; Lugo d. 37, n. 183. But the advocate can induce his client to a settlement, yet, as St. Thomas says, l. c., without damage to the adversary. Wherefore he would sin gravely if he should induce him whose case he notices to be evidently unjust to a settlement. For in such a case no place is given to settlement. A general procurator sins against justice if from negligence, from precipitation or prejudice, from hatred or acceptance of persons, etc., he drags an innocent person into detention, into judgment, and into undergoing an unjust sentence. Likewise if he sustains an accusation after, in the course of the case, he has recognized innocence, or has gravely doubted concerning it; hence he is held concerning all damages subsequently coming to the accused.

Can advocates defend cases, even less probable ones, both of defendants and of plaintiffs? - R. Affirmatively in civil cases; because, as matters of this kind are litigious, there can reasonably be hope that the truth may shine forth. Besides, since the judge can divide the thing according to the proportion of greater or lesser probability, it is lawful for advocates to urge the probable reasons of clients, so that he may decree what is just according to the things alleged and proved. Cf. 18. Nevertheless the client must be warned of the doubtful outcome, lest perhaps he make the expenses of the lawsuit uselessly.

In criminal cases the defendant can always be defended, even if his culpability is established. The reason is that an advocate defending a defendant inflicts injury on no one, and from his office he protects the right of the defendant, lest he be condemned before the crime has juridically been fully proved, and at least so that the Prince may be moved to mercy. "In a doubtful criminal case it is not lawful to protect the parts of the plaintiff, who in such a case sins gravely against the defendant, therefore also the advocate; nor when the plaintiff acting against the possessor knows that he can prove nothing, but that the matter will always remain doubtful, because then the possessor is unjustly vexed, for whom the judge at last will have to judge." L. 220. Hence, if he patronizes the defendant, it suffices that the exception be just in the exterior forum; but if he patronizes the plaintiff, the case must be just also in the forum of conscience. Kenrick 145 judges otherwise, namely that he can defend the plaintiff if the matter is doubtful; but with no reason brought forward.

Whether and how does an advocate sin who defends a just case by unjust means, for example, if he substitutes a new promissory note in place of an earlier one that has been lost, etc.? - He sins against fidelity and truth. For it is an officious lie. And this lie is grave, because it is to the grave damage of public order, public faith, and security. Hence notaries who prepare such a document also sin gravely. "To say grave lies in judgment is against the common good, since it is to pervert the whole order of justice." L. 1. 5, n. 277. In itself he does not sin against justice if the right of the client is certain. For no injustice appears as to the substance of the case. Certain; for if that right is doubtful, and through the promissory note it is rendered certain, namely because a promissory note is supposed which never existed, he would indeed sin against justice. For since every probability is destroyed by certitude, the right of the adverse party would be injured. But accidentally he can sin against justice if from this damage comes either to the adverse party or to his client. Sometimes he can sin gravely against charity toward himself, if he exposes himself to proximate danger of the gravest penalties because the falsity is discovered. S. Th. 2. 2. q. 71. a. 4 ad 3.

To what is an advocate bound by reason of the honorarium or stipend? - An advocate, as also a physician and others, can licitly and justly exact an honorarium or stipend for his work. "Augustine says that an advocate licitly sells just patronage, and a jurist true counsel.... It must be said that those things which someone is not bound to furnish to another, he can justly receive compensation for furnishing them. But it is manifest that an advocate is not always bound to furnish patronage, or to give counsel to the cases of others. And therefore, if he sells his patronage or counsel, he does not act against justice. And the same reason holds concerning a physician bringing help for healing, and concerning all other persons of this kind, provided nevertheless that they receive moderately, with the condition of persons, and of affairs, and of labor, and the custom of the country considered. But if through improbitas they extort something immoderately, they sin against justice. Hence Augustine says to Macedonius that things extorted by these persons through immoderate improbitas are customarily demanded back, but things given through tolerable custom are not customarily demanded back." S. Th. 2. 2. q. 71. a. 4 c.

Moreover, generally speaking, he can receive nothing beyond the just honorarium, which is determined either by law, or by custom, or by the judgment of prudent men, or by agreement of the parties, with account had of the business, labor, and skill of the advocate. If he has an annual stipend, he can receive it, although lawsuits do not occur in that year. For it is as it were an aleatory contract, whether the lawsuits are many or none. If during the time of the lawsuit he is sick for a longer time, unless he substitutes another, he must renounce part of the stipend which was established by agreement. Those who make an agreement with clients that they will ask nothing beyond the expenses made, unless they win the case, and that a greater fee is to be given to them if they win, can exact this, especially if the case is of a very doubtful outcome, by reason of the aleatory contract. If, after agreement has been made concerning the stipend, the client abandons the case begun, the advocate can exact the whole, if it does not stand through him that he does not prosecute the lawsuit; not otherwise than one renting his work for some fee can exact this, if it stands through the hirer that the work is not completed. Except, however, if a just cause intervened for abandoning the lawsuit, since this condition is always understood in the agreement.

By positive Roman Law he cannot, while a case is being treated, establish a fee, nor establish as a fee a proportional part, for example, a third, a half, of the goods concerning which the lawsuit is conducted. This prohibition rests upon a presumption, not of fact, but of danger of fraud, namely of procuring victory even by illicit means. Hence it obliges even if the contrary has been done. But if injustice and fraud are absent, if there is an urgent and just cause for such an agreement, and if the advocate has asked an unjust fee, he is not obliged to restitution.

According to C. I. 1458, "judges, public officials of the ministry, chancellors, ushers, advocates, procurators or patrons, and notaries cannot be assignees of lawsuits, of reasons, and of litigious actions of the competence of the court, tribunal, or praetorship of which they are part, or in whose jurisdiction they exercise their functions, under penalty of nullity, damages, and expenses. Excepted is the case in which it concerns hereditary actions among coheirs, or assignments in satisfaction of creditors, or for defense of goods possessed. Moreover, advocates and procurators can neither by themselves nor through an interposed person establish any agreement with their own clients, nor make with them any contract of sale, donation, exchange, or another similar contract concerning the things comprehended in the cases in which they furnish their patronage, under penalty of nullity, damages, and expenses." C. G. 1597; C. H. 1459.

Although he spontaneously offers himself to treating the lawsuit of a relative or friend, nevertheless he can exact a just remuneration. Yet, if from charity he is bound to assist the poor, he is especially bound toward those joined to him, according to that saying 1 Tim. 5, 8: If anyone does not have care of his own, and especially of those of his household, he has denied the faith. As regards the poor in particular, he is bound to assist gratuitously, even with grave inconvenience to himself, those who are in extreme necessity. Likewise he is bound to patronize gratis those who are in grave necessity, and indeed under mortal sin, yet not with notable inconvenience to himself. Finally, even in common necessity he is bound from charity to protect the cases of the poor, yet not with grave inconvenience; namely, it suffices that he bestow something of his work on them when he is free from others. Then the judge provides for the defendant by commanding one of the advocates who act in that tribunal to defend the accused gratis. But the aforesaid necessity is present when the defendant, unless aided by patronage, is going to lose the case, or be punished with an unjust death, or be despoiled of his goods and reduced into grave poverty. The same also holds concerning physicians, notaries, procurators, and others who discharge a public office of this kind. L. 53 de Pact.; C. I. 1458; Lugo d. 41, n. 12; L. H. A. tr. 13, n. 69, 70; S. Th. 2. 2. q. 71. a. 1, 4; q. 32. a. 5.

Advocates before the S. Rota and the Apostolic Signatura are bound to furnish gratuitous patronage or gratuitous assistance to those to whom the S. Rota or Apostolic Signatura has granted this benefit. It is wicked for the same persons to buy a lawsuit, or to bargain concerning an extraordinary emolument or an immoderate part of the litigious thing vindicated to themselves. If they have done these things, besides the nullity of the agreement, they can be punished by the S. Rota with a suitable penalty. They can be marked with a note of reprehension, punished with a monetary penalty, suspended, or even struck from the register of advocates. Proper Law of the S. R. R., canon 45.

What are the qualities and obligations of a procurator? - As in an advocate, so also in a procurator there is required, besides knowledge, due diligence in the treatment of affairs, fidelity, and justice, which is also to be observed in exacting an honorarium. The reason is that, as the office of procurator is almost equated with the office of advocate, so also are the obligations.

You will resolve: Procurators of the parties sin against justice if they prolong cases, if they unduly obtain delays, if they do not procure in the first place the case previously accepted, if they lead the parties to an inequitable settlement, etc.

If a procurator has an advocate or a tabellion who serves him gratis, can he retain for himself the just stipend owed to them? - R. Negatively, if he serves for the sake of the client; affirmatively, if for the sake of the procurator himself. The first reason is clear, because he has no just title of acquiring that stipend. The second reason also is clear, because to do by oneself or by another is morally the same thing: if he did by himself the useful thing, he could indeed retain the just stipend; therefore also if he does it through friends. L. 239.

What are the qualities and obligations of relators? - Relators must first rightly know the things which pertain to their proper office; then they must apply the necessary diligence, so that they may satisfy them. Otherwise the damages that will come will deservedly be imputed to them, since they voluntarily undertook so great an office while unskilled, or exercised it negligently.

You will resolve: "A relator sins 1. if from lack of study or through carelessness he reports badly, or omits something substantial; 2. if he is partial and attempts to explain the justice of one party more than that of the other; 3. if he manifests the sentence to either party before it is published, from which grave inconveniences can follow, for example, the judge may be rejected, etc." L. 238.

Is baptism valid if the pastor or another minister places the infant under falling rain? - Resp. In the affirmative, for in that way he truly washes the infant. Yet it would be better to collect water in the palm of the hand and wash the infant's head with it. On the contrary, baptism would be invalid if conferred by snow, frost, or hail applied to the head and dissolved by natural heat; for washing would not be had from the action of the minister himself. L. 106.

1. Hipparcus, an advocate, undertook the defense of the case of a certain noble man, who, besides the ordinary honorarium, promised him besides a thousand lire, if he should obtain victory. Hipparcus without delay defended the case and in fact obtained victory with great applause.

It is asked: Can Hipparcus licitly receive, besides the ordinary honorarium, the thousand lire promised to him?

R. In the affirmative. For first, that extraordinary stipend is not demanded by the advocate, but is promised to him spontaneously. But no one is held to refuse what is spontaneously offered to him by others. Besides, since the advocate obtained the case with great applause, he must have applied extraordinary study and diligence; or at least he must be an advocate of no ordinary talent and name, and under this head he could also have received and demanded a non-ordinary stipend in comparison with other common advocates. Indeed, even for the victory alone he could have received and demanded a stipend beyond the customary one, even prescinding from his extraordinary study and diligence, from his name and reputation. The reason is, first, because if, with all circumstances considered, success had appeared very doubtful, so that equality between hope and fear was preserved, then the contract would have been aleatory in part. Gury observes this well, n. 9. A further reason is that, once victory has been obtained, the advocate furnishes to his client a thing most useful and estimable by price. Wherefore it is not true what the same Gury has in the place cited, namely that the advocate “cannot demand a stipend beyond the customary one, even for the case in which he is to obtain the cause. For victory adds nothing to his labor and cares, nor does he receive payment for victory, but for study and diligence. Therefore what he receives for victory obtained he receives unjustly, and he must restore it.” Certainly victory adds much to the work and labor of the advocate. It is victory which makes his work and labor truly useful and most estimable by price; victory is intimately connected with the defense itself. I. M. 40.

2. Homobonus, a Catholic notary, is compelled by reason of his office, under penalty of prison, to draw up the deed of sale and purchase of a certain house and small garden annexed, formerly the Convent of the Capuchin Fathers. A certain Tiburtius bought the house and garden from the State Domain, and now sells the aforesaid Convent to a certain Curtius. Homobonus anxiously asks his confessor whether he can draw up an act of this sort.

It is asked: What as to the Case?

R. It seems that Homobonus can draw up the aforesaid act. For certainly the matter, on the part of the notary himself, is not intrinsically evil; since Tiburtius and Curtius can very well seek due pardon in this matter, if they wish, from the Apostolic See. Besides, there is not question of a direct spoliation of the Church; since indeed the aforesaid goods, already usurped by the Government, have been sold. Rather, there is question of the mere transmission of the same goods from one possessor to another; and so that act of the notary is not as if consummating and perfecting the unjust spoliation, which has already been perfected; nor does he in any way confirm or increase it by transmission of possession, just as also the notary refusing to draw up the act does not remove or weaken it; for there will not be lacking another wicked notary who will draw up the act. Lastly, if there is still any difficulty, certainly in the Case the presumed consent of the Church is not lacking. For if, in a similar case, as regards the goods of private persons, the reasonably presumed consent of the owner is not lacking on account of the grave private harm to the notary and the grave injury to society, much more will the presumed consent of the Church not be lacking in the Case. It is certainly expedient to seek this explicitly, on account of public edification. But it is easily granted on account of the reasons already brought forward. — Cf. Gennari, Consultaz. Morali etc., p. 1, Cons. 16; I. M. 19.

3. Rutilius, a notary, clearly notices that in the contract of sale of a certain house the true price is not declared by the contracting parties, but a lesser one, namely so that they may pay less tax. Rutilius completes the deed and enters the aforesaid price in it.

It is asked: What as to the Case?

R. Rutilius does not seem to be disturbed. For he himself is not placed in charge of taxes, but is a public official appointed for drawing up acts. Besides, the contracting parties themselves probably do not sin against justice. For the act to be drawn up is only for confirming the contract and furnishing security for the thing in case of eviction, or of another judicial suit. Wherefore there is no obligation of conscience to declare the true price by force of that act to be drawn up. Nor indeed is there present an obligation, by force of the imposed tax, to declare spontaneously the true price of the thing, since the practice now is that taxes are not paid unless they are demanded. Nevertheless, there is an obligation to pay the fine, if the matter is detected, and not to tell a lie. — G. v. 1, nn. 744–756; v. 2, n. 23; I. M. v. 1, n. 232.

9. Principles. - I. Advocates and procurators are bound by commutative justice toward litigants to have competent knowledge, to undertake and pursue the cause with fitting diligence and study, and to forestall delays damaging to the litigants; otherwise they sin and are liable to restitution, as was said above about judges.

II. In civil matter neither the advocate of the accused nor the advocate general can licitly sustain a cause certainly unjust ¹; therefore if by defending it he obtains an unjust sentence, he is bound to repair all damages following from it, if they are not repaired by those in whose favor the unjust sentence falls. - St. Ligorius, n. 223.

¹ ** Note that these things are said about a civil cause; for it happens otherwise in criminal causes, when by the cares of an advocate the prince can at least be moved to mercy. See below, q. 1.

A fortiori in criminal matter neither can an advocate undertake the part of an evidently unjust accuser, nor can the procurator general pursue one unjustly accused, if he discovers his innocence either at the beginning or in the course or at the end of the cause; but each is bound to abandon the accusation begun.

III. An advocate, when consulted by a client, ought seriously to examine his cause, and with that diligence which the gravity of the matter demands, to keep faith with him, to disclose the justice or injustice of the cause, and scrupulously to indicate the probability of obtaining it or losing it; for otherwise he will impel the client to useless expenses, which he himself is bound to make good.

But in pleading a cause he must beware of frauds, false proofs, or other unjust means against the opposing party; for otherwise he is likewise bound to compensate all damages following from them.

10. Questions. - QUESTION 1º. Can advocates defend causes even less probable, both of the accused and of plaintiffs?

Resp. 1º In civil causes, yes, with the common and certain opinion, because they can have hope that the truth will come to light. - St. Ligorius, n. 222; Laymann; Sanchez, against a few ².

² ** The authors warn (p. 926, n. 78) that to this response of the Author there must be added an exception, which St. Alphonsus (Bk. 4, n. 222) indicates in these words: “Nevertheless Lugo, Malderus, Diana, and Lorca apud the Salmanticenses (tr. 29, app. De Offic., ch. 4, n. 36) note that this runs if the probability is of law; for if it is of fact, even in equal probability (because then the accused must altogether be favored) they commonly say that it is not lawful for an advocate to support the plaintiff.”

Resp. 1º To this exception, which is taken from Lugo (On Justice and Law, disp. 41, n. 7), the authors could usefully have added another part of the exception, which St. Alphonsus omits, but the Salmanticenses (l.c.) obscurely enough, and Lugo clearly enough (ibid.) had expressed thus: “The same proceeds in a civil cause; for a plaintiff, knowing that he cannot prove against the possessor, but that the matter remains doubtful, acts unjustly and vexes him, since in doubt the cause of the possessor is better; therefore an advocate knowing that the matter always remains doubtful, and therefore that the judge ought to judge for the accused, cannot justly help the plaintiff seeking an unjust sentence.” But it is manifest that Lugo here treats of a negative doubt; this is clearer from what has been said elsewhere (disp. 37, nn. 113 and 122).

Resp. 2º The authors also would not have uselessly noted that in the cited text of St. Alphonsus, Malderus, Diana, and Lorca are not well alleged. For Lugo (l.c., disp. 41, n. 7) adduces them not for his own opinion, but for the contrary opinion. And this the Salmanticenses also note, saying (l.c.): “In such a case,” says Lugo against Malderus, Lorca, and Diana, “the advocate cannot licitly,” etc. Wherefore from the cited text of St. Alphonsus the word “commonly” could be removed without loss; since the opinion of Lugo is not common to Malderus, or Lorca, or Diana. Lugo (l.c.) cites no one for himself except Salas, and the Salmanticenses followed him, and afterward Roncaglia, and any others there may be. But besides Malderus, Lorca, Diana, and Merolla, whom Lugo reports as dissenting from himself, you will see very many others, whom Sanchez follows, dissenting from the opinion of Lugo, in the same Sanchez (Dec., bk. 1, ch. 9, n. 51).

Resp. 2º But in criminal causes the accused can always be defended, even if his culpability were established, yet by honest and licit means, lies, frauds, etc., being excluded. The reason is that an advocate defending the accused inflicts injury on no one, and besides, from his office, he ought to patronize the accused as much as he can. - St. Ligorius, n. 220.

11. • QUESTION 2º. To what is an advocate bound by reason of his fee or stipend?

Resp. 1º Generally speaking, he can accept nothing beyond what is just, which either perhaps has been fixed by law, or must be determined by the judgment of prudent men, taking account of the business, the skill of the advocate, the labor which he expends, and received custom.

Resp. 2º With regard to the poor in particular, 1º he is bound to assist gratuitously, even with grave inconvenience to himself, those who are in extreme necessity; 2º likewise he is bound to plead gratis for those who are in grave necessity, and indeed under mortal sin, though not with notable inconvenience to himself; 3º finally, even in common necessity he is bound from charity to protect the causes of the poor, but not with grave inconvenience; namely, it suffices that he bestow on them some work when he is free from others. - Hom. apost., tr. 13, n. 69.

QUESTION 3º. What can an advocate demand if, after agreement has been made about the stipend, the client abandons the cause already begun?

Resp. He can demand the whole, if it does not stand through him that he does not pursue the lawsuit, no otherwise than one hiring out his work for some wage can demand this, if it stands through the employer that the work is not completed. Except, however, if a just cause for abandoning the lawsuit intervened, since this condition is always understood in the agreement. - St. Ligorius, Hom. apost., tr. 13, n. 69.

12. • QUESTION 4º. To what is an advocate bound who, when the cause has already been completed, notices that it is unjust?

Resp. He must at once warn about the injustice of the cause, lest he cooperate in unjust damage. Nor can he counsel a composition, since this ought to have place only in a doubtful matter. But if he has knowingly pursued an unjust cause, he will be bound to compensate all damages occurring to each party. For he must restore to the opposing party from the sin of commission, since he himself was the positive cause of the damage; but to his own client, if he was in good faith, from the sin of omission, since from his office he was bound to warn him about the injustice of the cause. Nevertheless an advocate, by abandoning a cause which he detects to be unjust, ought not help the other party, or reveal the secrets of his own cause to the other party, as is clear from natural law, and as St. Thomas expressly teaches, 2.2, q. 71, art. 3.

QUESTION 5º. To what is an advocate bound who, noticing that the cause is unjust, does indeed warn the client, but, with him willing it, pursues the cause?

Resp. 1º He is bound to nothing toward the client, if he loses the cause, because injury is not done to one who knows and wills.

Resp. 2º He is bound, by title of positive cooperation, to compensate all damages which the opposing party suffers.

13. • QUESTION 6º. Whether and how does an advocate sin who defends a just cause by unjust means, for example, if he substitutes a new bond in place of the previous one lost, etc.?

Resp. 1º He sins against fidelity and truth, more gravely indeed or less gravely according to the character of the unjust means employed ³. The advocate will be guilty of a greater sin if he not only substitutes a new bond for the previous one, but supposes one which never existed. Nor can he be excused from the good end which he intends; for evils are not to be done that goods may come.

³ ** It is supposed here that it is established both to the client and to the advocate that the right wholly favors them. But it cannot but seem very hard that they must lose the cause merely because of the misfortune of a lost bond. Otherwise, the remedy employed is indeed rejected by the laws, as liable to frauds; but as to the substance of the cause no injustice appears. Therefore of itself it will be an officious lie. See below, n. 28, q. 2.

Resp. 2º Of itself he does not sin against justice, since the cause is supposed just. Nevertheless accidentally he can harm justice and be obliged to restitution, namely if damage comes from this to his own party or to the opposing party; for if, for example, the fraud is detected, it can easily happen that a cause however good is brought into suspicion and collapses.

14. Resolutions. - 1º Advocates sin against justice toward the client if, when they are not sufficiently skilled and fit, they undertake causes to be defended; if they disclose the foundations or secrets of the cause to the opposing party, or if they serve each party; if, because they seem to themselves to bring forward peremptory arguments, they neglect other arguments not to be despised, because perhaps the judges would be moved by those neglected motives; if they do not prepare themselves sufficiently for pleading the cause, etc.

2º The same men sin against justice toward the opposing party if they cite false or abrogated laws, or bend them to an alien sense; if they employ deceit or lies, by which judges or jurors are drawn aside into an unjust sentence or vote; likewise if they impute false crimes or vices to the opposing party, etc.

3º Procurators of parties sin against justice if they prolong causes, if they obtain undue delays, if they do not procure in the first place a cause previously accepted, if they bring the parties to an unjust composition, etc.

4º The procurator general sins against justice if from negligence, from haste or prejudice, from hatred or acceptance of persons, etc., he brings an innocent man into detention, into trial, and into undergoing an unjust sentence. Likewise, if he has sustained the accusation after in the course of the cause he has recognized his innocence, or has gravely doubted of it; therefore he is bound for all damages subsequently suffered by the accused.

To this also pertains the office of the referendary, who is sometimes employed in explaining causes. Sometimes the acts of the litigants are committed to him to be discussed, so that afterward he may report their foundations, reduced as it were into a compendium, to the judges. From these things it is clear with how much knowledge, diligence, skill, and fidelity the referendary must excel, so that he may report causes in the due manner and rightly instruct the judges.

Notion and Division of Offices. 1. By a general and rather confused notion, any office designates certain parts to be carried out for the utility of others. These parts can be undertaken accidentally or permanently: office is more properly understood concerning parts stably undertaken; they can be of private character, which are undertaken and abandoned by those willing, as if someone offers himself for curing diseases, and be entrusted by public authority; i. e. there are private and public offices.

2. On public offices. In order that a perfect society may attain its end, the Church and the various states have many things to be done, both for their own immediate good and for the good of the citizens of whom they consist. To perform these things well society at once inviolably (or by right) can and ought. But a moral person, of itself altogether powerless, is compelled to do all things through legitimately deputed physical persons. Thus it happens that the immense province by which the Church and states are administered is divided into many partial procurations or ministries, to which rights and duties are attached. These are public offices. Therefore a public office expresses a certain sum of rights and duties committed to a physical person for exercising some part of public action; and it can be defined briefly: public procuration or administration.

The conferral of these offices, or the deputation of a physical person to exercise an office, can be made in various ways, concerning which there is not to be treated in this place. We know that, in the Church, the first deputation was made authoritatively by Christ, and then, from the power communicated through Christ to Peter and the Apostles, the erection and conferral of offices was ordered; while, in the state, the first possession of supreme jurisdiction has a much less definite origin. For our purpose it will be enough to have noted this: that public offices are for the most part undertaken voluntarily, and only when affairs are desperate are they committed to be carried out by the unwilling. Yet the faculty of enjoining the very undertaking of an office cannot be denied to the supreme public power; and by canon 128 itself there is sanctioned the obligation by which clerics are held to undertake and faithfully carry out the office which, in the necessity of the Church, the bishop has imposed on them.

II. Obligation. The general office of managing an office well follows the very undertaking of the office. When there is question of a private office, this obligation of justice is easily explained by an express or tacit contract. But from the very nature of the matter, he who undertakes a public office to be managed is held by justice toward society. For society has a strict right that it be well administered. To this right there corresponds an obligation of justice which has its seat in the deputed official: for no other seat can be thought up. When an office is undertaken voluntarily, there is added the character of a contract with the Superior who conferred the office.

Moreover, however, there is commonly affirmed an obligation of commutative justice also toward individual citizens to whom the proper action of the office is destined. Thus citizens can demand from justice that magistrates be willing to judge their causes. What proximate source shall we assign to that debt of justice?

Since no agreement has intervened between magistrates and individual citizens, the proximate source is the law itself, which imposed that office to be exercised from justice toward individuals.

III. Certain Sins to Be Avoided in the Undertaking, Exercise, and Resignation of Office.

1. He who does not know himself to be capable cannot, without injustice, undertake an office, whether private or public. He is a harmful deceiver who, without sufficient expertise, offers himself for exercising an art. Therefore parents sin who, with all consideration of capacity neglected, destine for a public office a son whom they have found less fit for private affairs; those sin who, though unskilled, have sought popular votes. Yet here account must be taken of the greater faculty which the people possesses of electing deputies acceptable to itself. He who has known how to catch the popular breeze, provided that afterwards, in exercising the office, he can and wishes to conduct himself according to the counsels of prudent men, can even do something useful for society, if by his election he has impeded the election of a worse person. All things at last fall back here: that nothing harmful to the republic be done, and that its utility be sufficiently provided for.

You should also observe that the notion of capacity is relative, so that here he must be judged most skilled who elsewhere would have to be rejected as unfit.

But what remains to be done by him who, not being suitable, has been affected with an honor? If he can, he ought to render himself capable, and meanwhile, with the help of advisers, perform his offices well; otherwise he ought to lay down the office.

2. An office once undertaken cannot be neglected without injustice, but it must be fulfilled with that diligence which the common or private good requires and which was expressly or tacitly promised. In vain you will allege private inconveniences. For not only, if there is question of a public office, must public utility be placed before private utility, but also by a tacit promise in the undertaking of the office the one managing the office is held to suffer all inconveniences, to enter into all dangers which are of themselves connected with the office.

These things hold also concerning the lowest administrators. Contrary to what is often thought, greater diligence is owed to public persons, such as the Church and the state, than to private persons.

3. To those who have long and well conducted themselves or have become incapable by sickness, pensions are customarily offered from the public treasury or from a constituted pension fund. Justice forbids that, by feigning sickness or incapacity for the matter, someone should obtain for himself a pension of this kind.

But today the minds of many must be healed from that harmful error by which public utility is made almost of no value, so that even public officials, especially civil ones, do not know how to serve the community itself, and, without scruple, squander public monies, while they carry moderate solicitude concerning true public utility.

I. Notions. 1. On the order of judgments. a) In canon law, although by force of c. 1573 every Bishop ought to constitute an official with ordinary power of judging, nevertheless the same person of the Bishop is legislator, judge, and administrator; while today, in temporal society, a perfect distinction flourishes between legislative, administrative, and judicial power. b) Both in the canonical and civil forum, there are distinguished civil causes, in which a lawsuit arisen between parties is extinguished by a definition of right, while no penalty is established, and criminal causes, in which coercion of delicts for the common good is principally intended through fitting penalties; principally, I say, because, both in the canonical and civil forum, in a criminal cause it is lawful accessorily to move a private complaint, for example to obtain repair of damages.

c) In the canonical forum, the tribunal of first instance for causes of seculars and non-exempt religious, and also for controversies between seculars and regulars or between regulars of different religions, is the Bishop, from whom appeal is made to the tribunal of the Metropolitan. But if the Metropolitan himself was judge of first instance, the tribunal of a suffragan Bishop, once chosen with the approval of the Holy See, is the court of appeal for him. The third grade of jurisdiction, which, with the Supreme Pontiff permitting, can also be the first, is the Roman Rota. But since there are twelve auditors of the Rota, who judge by a turn of three auditors, appeal from a sentence of the Rota is devolved to another turn of the Rota. Over all tribunals in some way presides the Supreme Tribunal of the Apostolic Signatura, consisting of some Cardinals, which judges concerning a complaint of nullity against a rotal sentence, concerning conflict of competence between inferior tribunals, etc. (cf. c. 1603, 1604). When the nullity of a sentence has been declared, or restitution has been conceded, or recourse admitted, it remits the cause to the Sacred Rota, unless the Most Holy otherwise provides (c. 1604).

In the civil forum there is distinguished, for lesser controversies and delicts, the conciliating judge (pretore, juge de paix); then, for civil causes, the ordinary tribunal, which among us is called of first instance, which at the same time is the tribunal of appeal from the sentences of the conciliating judge. Often special tribunals exist, such as the tribunal of commerce for controversies among merchants, of upright men (prud'hommes) for controversies between masters of works and workmen, of guardianships, which in some regions supplies the family council. From the tribunal appeal is given to the Court of Appeal. By a like reason a double grade is had in causes of delicts. But here, for graver delicts, and also, not rarely, for delicts of the political order and of the press, there is customarily an assize court in which citizens, designated by lot among the foremost, with oath omitted (whence they are called jurors), answer affirmatively or negatively to questions posed by the magistrates who are present at the same time, and thus judge the accused guilty or innocent. Having heard these responses, the magistrates who compose the assize court establish the penalty according to law, if the accused has been judged guilty, and pronounce the sentence. If, however, some part of the votes dissents from the other, the magistrates themselves ought to declare what they think concerning the accused, and join their vote with either part.

Above the tribunals and Courts of Appeal or of assizes there exists a Court (one or multiple) of Cassation, which judges concerning defects of form and concerning a violated law of judgments; but it is not accustomed to examine the intrinsic merit of the cause, but remits it to a different court to be judged.

In Roman law the magistrate (praetor) spoke the law and wrote the formula according to which the judge, after examination of the fact, had to give sentence, whence procedure was distinguished in iure and in iudicio. If you except what we just said concerning the Supreme Tribunal of the Signatura and concerning the Court of Cassation, in both canonical and civil forum the same judge pronounces concerning fact and concerning law.

In the canonical forum, besides the judge or judges (if the tribunal is collegial), auditors can be designated, who, abstaining from sentence, cite and hear witnesses, and instruct judicial acts; an actuary ought to be present to draw up the acts or at least to subscribe them. There is also a promoter of justice, to whom now the criminal action or accusation is reserved (c. 1934), and who also, in contentious causes, where the public good requires it, carries a part; and the defender of the bond, for protecting the bond of sacred ordination or marriage.

In the civil forum there are distinguished judges properly so called, who, sitting, bring sentence, and officials (the royal or republican procurator or his substitute, or the advocate general or procurator general) who, standing, in certain civil causes express what they think, or in criminal causes carry the parts of accuser.

But, while in the canonical forum the beginning of action and inquiry also pertains to the judge, in the civil forum the judge cannot legitimately bring sentence unless asked, either by the parties in a civil matter, or by the public procurator in a criminal matter.

In the canonical forum, parties can act by themselves or choose for themselves a procurator (avoué) by whom they are represented, and an advocate by whom they are defended. This latter, moreover, is given from office in criminal causes. In the civil forum, when the cause is not criminal, sometimes the parties cannot appear by themselves but must choose some procurator.

In the canonical forum, the defense must be made in writings; "nevertheless a moderate disputation before the judge sitting for the tribunal is admitted for illustrating something, if, either party or both parties requesting it, the judge judges it useful and admits it." Cf. c. 1863 and 1866, § 2. On the contrary, in the civil forum, the defense is made orally and causes are of themselves conducted publicly.

In both forums, canonical and civil, there are declaratory sentences and decisory or decretory sentences. A declaratory sentence authentically promulgates either the nullity of a juridical act or (this in the canonical forum alone) a contracted penalty; a decisory or decretory sentence, as a particular law, contains the proximate title by which the right of the parties is constituted or the penalty is to be sustained by the accused. And, while the cause is deliberated, the judge issues several mandates and orders as a true Superior.

II. The requisites for a legitimate judgment are these three: jurisdiction, right process, and right intention. It is necessary that the cause be duly introduced and ended. In the present-day civil forum, the judge must always observe the solemnities required by law, nor is he accustomed to have the faculty of bringing an arbitrary penalty, but only within certain limits, according to the variety of cases, can he increase or diminish the penalty. He enjoys an unequal power of composing controversies in various laws.

Defect of right intention is opposed to charity but not to justice.

A secular judge does not have jurisdiction over ecclesiastical persons or causes; for settling these he can validly be delegated by the Supreme Pontiff alone.

Wherefore he who uses lay jurisdiction against ecclesiastical persons or in ecclesiastical causes violates justice toward ecclesiastical society and toward the person whom he compels without right; he sins besides against religion, from whose motive the privilege of forum was introduced. This is of itself grave. Yet derogation from this privilege is made through Concordats and also through custom, at least centenary; which custom the Secretariat of State, in the year 1911, recognized for Belgium, Germany, and Holland (cf. Per. VI, 190).

By this recognition, which seems to savor of some toleration rather than a formal abdication of right, sacrilege and injury toward ecclesiastical society seem to be removed. But has penal jurisdiction over ecclesiastical persons also therefore been conceded; has a lay magistrate been made truly competent in a criminal matter? We doubt it. Wherefore, at least where a graver cause is being conducted and an express concordat or indult is lacking, we judge it should be advised that the formal faculty, concerning which c. 120, § 2, if it can be done, be sought where the privileged forum has merely become obsolete. And also by persons who draw priests and prelates before a lay judge, the natural law must be attended to, which commands that we show due observance to Superiors and avoid scandal.

Penalties of One Violating the Privileged Forum. From c. 120, Cardinals, Legates of the Apostolic See, higher Officials of the Roman Curia on account of business pertaining to their office, or one's proper Ordinary cannot be brought before a lay judge without permission of the Apostolic See; and he who has dared to draw a person of this kind without such permission to a lay judge contracts by the fact itself an excommunication reserved to the Apostolic See in a special manner (c. 2341); the rest who enjoy privilege of forum cannot be brought before a court without permission of the Ordinary of the place in which the cause is conducted; which license, however, the Ordinary, especially if the plaintiff is a layman, is not to deny without a just and grave cause, especially when he has in vain given labor to composing the controversy between the parties (c. 120, § 2); and he who has dared to draw another Bishop, even merely titular, or an Abbot or Prelate nullius, or someone from the supreme Superiors of religions of pontifical right, before a lay judge, contracts by the fact itself an excommunication latae sententiae simply reserved to the Apostolic See; finally, if he has dared without license to bring before a layman another person enjoying the privilege, a cleric indeed incurs by the fact itself suspension from office reserved to the Ordinary; but a layman is to be punished by his own Ordinary with suitable penalties according to the gravity of the fault (c. 2341). But, because daring is required, no one contracts the penalty who, compelled by office, draws a privileged person to a lay judge; and, by the very text of the canon, judges are excluded from this delict, since they draw no one to their tribunal. Cf. Epitome, III, n. 540.

III. Obligations of the Public Procurator. Besides competent knowledge: 1. he ought to guard the reputation of citizens. Wherefore, unless indications have preceded which suffice according to laws and received customs, he cannot inquire specially concerning some person whether he has committed some crime. Nor in canon law can he be cited as accused unless he is one against whom half-proof has existed; 2. since he is a promoter of justice and not of condemnation, he ought to speak sentence according to the merit of the cause, nor, by a prejudged reason, urge condemnation beyond what the proofs permit; 3. he ought to strive that causes, especially criminal ones, be judged quickly, and that citizens perhaps innocent not be detained too long in preventive prison. (Concerning that infamy to be avoided, cf. Ball.-Palm., Op. theol. IV, 559.)

IV. Obligations of the Instructing Judge. 1. He himself ought to be diligent in examining causes; and because public knowledge must be acquired, and by that reason which is expedient for the common good, the judge can employ only those means of investigation which are approved by usage, and do not furnish occasion for many abuses, or which are not repugnant to the judge's own dignity. A confession extorted by unjust means the judge cannot use for condemning the accused. And the same seems to have to be said if he has known the fault by unjust interrogations whose injustice the accused did not know. (Cf. Palm., Opusc. Theol. IV, 556, who thinks this more probable.) But if, by unjust interrogations, the fault of another has been detected, since the action was not unjust to the other, that fault can be publicly vindicated, i. e. judicially punished.

2. Among means plainly foreign to the character of present-day criminal process, the use of hypnotism seems to have to be placed. For it approaches a certain kind of torture, since it extorts the confession of a delict by insuperable force; and this not without harm to a perhaps innocent subject and diminution of his liberty for the future. Wherefore, unless perhaps a special necessity of averting a public evil should require it, we judge it unlawful to employ means of this kind. But it is clear that a confession made in that sleep can never be held as a certain argument, but indications thus given must be proved by ordinary means.

V. Obligations of the Judge of the Cause. 1. In examining and dispatching causes he ought to employ the usual diligence of a prudent judge. "For from office he is held to render to each his own: which he does not do if he defers sentence without a just cause." (Busembaum, De iudice.) He is held to refund to the injured party damages and expenses proceeding from gravely culpable negligence.

2. In criminal causes this holds: "the delict not being proved, the accused is absolved." And because the judge puts on a public person, the delict ought to be established for him from public knowledge. Public knowledge, however, is that which is gathered according to the acts in the trial. - If by private knowledge he has known an innocent man who nevertheless is publicly convicted, he ought to free the accused in every way, if he can, for example by offering himself as a witness and withdrawing from the cause as judge. If he can do nothing, some, with St. Thomas, think that here also merely public knowledge must be attended to. Others simply deny this, since it is the right of the innocent person not to be condemned. More rightly, with Lugo, Iust. d. 37, n. 41 ff., you will distinguish greater criminal causes and lesser causes in which there is question only of monetary penalties. For over these goods the public power has eminent dominion by force of which, on account of a proportionate public cause, it can take them away from citizens. But it is of public interest that the order of judgments be preserved, since violation of it easily becomes scandalous. Then therefore the opinion of St. Thomas seems to have place, but not when the penalty of death or the like would have to be pronounced.

3. In a civil cause, doubts of fact are solved for the accused. For this is perpetual: the proof lies upon him who affirms, not upon him who denies. This reason is already enough for preferring the possessor, insofar as he merely repels the action of the other.

But what concerning a doubt of law?

With the rules of the older authors omitted, the civil judge should answer according to the opinion which, after study has been made, is more approved by him, unless he prefers to follow the opinion received in the tribunal of appeal, lest his own be reformed. For he can defer much to its authority.

This is the mind of our laws and the common reason by which the office of judge is understood. For a judge is not merely a private doctor, but by his authentic definition removes the doubt in a particular case. But since, in giving his solution, he ought to be solicitous concerning truth alone, he surely will have sinned if he has adjudged the matter to him whom the lesser probability favors. Lugo, Iust. d. 37, n. 117, excepts if the common good, for example of avoiding scandal, because by accident the choice of the more probable opinion would bring great public detriments, demands that sentence be brought for the less probable opinion; or if the cause is one which, from positive law, is to be favored in doubt.

Nor does justice stand in the way that, according as he can, he concede something to the lesser probability. In a morally equal doubt, others say that the thing is to be divided, if the judge can do this. (For example, in the U.S.A. this would be forbidden; he would rather have to leave the thing in its own state.) Nor do they condemn those who adjudge the thing to either party. But he should always be mindful of rule 11 of Law in 6°: "the accused is to be favored rather than the plaintiff." Concerning the cooperation of a judge with an unjust law, we treated above, n. 140.

Can a judge suggest to the other party what it could allege for itself?.

St. Alphonsus (L. 1, n. 210) reproves this, because he cannot act as an advocate. Reuter, Neo-confessarius, III, 465, judges that of itself it is lawful, and after him Lehmkuhl, I, 960, 5.

Indeed he says it must be done from charity, "if there is question of grave public damage, or danger of a soul, or the harming of a pious cause." But let the judge beware lest he seem to be carried away by zeal for parties, which would be scandalous. Nor do we think this lawful where there is question of means of law which cannot be supplied from office, but are valid only if they are appealed to by the litigant: thus prescription.

Moreover, juridical arguments the judge can and ought to allege in giving sentence.

What is lawful for a judge concerning gifts?.

With the law of nature considered, he can accept little gifts spontaneously offered, but not, before sentence, those which create danger of perverting judgment. Yet of those things which he has accepted he acquires dominion. - He ought to restore those things by which he obligated himself to doing that to which he is held from justice, for example to bringing a just sentence. But those things which compensate an honest and undue performance, for example extraordinary diligence, he by no means ought to return. Finally, before the iniquity has been committed, but not afterwards, he ought to return the price of iniquity. Cf. the things said concerning an illicit cause n. 412.

What therefore if, when the option is permitted to him, he has accepted a price so that he might examine some cause first? Laymann, L. 3, s. 5, tr. 4, c. 1, n. 9, does not dare to condemn this, while on the contrary Lugo, Iust. d. 37, n. 136, with St. Alphonsus approving, L. 1, n. 196, and Lehmkuhl, I, 969, think that it is not lawful to accept anything for the choice of some party whenever from justice you are held to do either gratis, nor is any labor added: for you perform nothing onerous which would be compensated by a price.

But every acceptance of gifts detracts not a little from the reputation of magistrates and from the honor of justice. Wherefore laws are entirely to be approved which gravely punish judges who have accepted such things. Every acceptance of gifts is prohibited by canon 1624 and 1911, § 2, both to judges and to the inquisitor; in causes of Beatification, moreover, they ought to emit an oath concerning gifts not to be accepted. Modest edible things, which before the Code, when offered liberally, were tolerated, do not seem to be contained in that prohibition.

VI. Effect of an Unjust Sentence. In a doubtful case the presumption favors the sentence. But where it is certainly unjust, it does not oblige conscience, although sometimes, in the external forum, it ought to be observed for avoiding scandals. The very party which has triumphed, when the error is known, ought to yield to the other and according to general rules restore what has been accepted. If the judge is to be blamed, he ought to repair damages. But unless there is question of laws which impose a compensatory fine of taxes, he will have to restore nothing on account of a fine not sought, because the end of penalties is not that the treasury be enriched.

I. Concerning Necessary Knowledge,. it is asked whether a juror lawfully performs an office which, without sufficient expertise, he often will have to exercise.

Resp. The question of fact alone is to be solved by jurors. The danger of error indeed is not to be denied, but it is not greatly to be feared lest an innocent citizen appear convicted, since the cleverness and arts of advocates bring it about that often the truly guilty man is absolved. But the legislator himself may ascribe to himself the detriment of the common good which is received from the absolution of the guilty. Therefore a juror seems immune from fault who firmly determines to condemn him alone whom he judges manifest of a true crime. There is added that, with this disposition of mind, he will act better than, according to the things which generally happen, he who would be substituted for him, so that he can judge himself at least relatively capable, which is enough.

II. On the Use of Private Knowledge. 1. Not even a juror can condemn him whom he has known to be innocent. For the arguments brought will never give him the intimate persuasion which, according to law, is necessary that he pronounce the accused guilty.

2. Nor, as it seems to us, can he condemn him whom he has known to be guilty by private knowledge alone. For the very order of justice requires that, for condemning a citizen, public knowledge be had.

Nor does positive law which some allege, for example concerning the law of Belgium, seem to us to have this sense. Yet there are those, as Ill. Waffelaert, Ius II, p. 433, who think that the use of private knowledge can be permitted by law. We will be able to concede this if it is specially of interest to the republic that the crime be punished. Cf. Genicot, II, 9.

What if the accused was a cleric, we have seen above, n. 142.

III. It happens today that jurors are scandalously lacking in their office, when, on account of reasons wholly extrinsic to the cause, such as political passion, or appetite for vengeance, or antisocial errors, they deny that manifest crimes have been committed.

Notion and Office. 1. Arbiters are persons, of themselves private, whom, by an agreement which is called compromise, the parties have voluntarily chosen to settle a lawsuit.

Of themselves they ought to bring sentence according to law, unless from the compromise they have had the faculty of compensating the matter according to equitable and good.

The parties ought to stand by the agreement. Moreover, with certain conditions observed, the sentence of arbiters obtains the force of a thing judged.

2. For certain questions of fact to be solved, the judges themselves are accustomed to designate arbiters (skilled persons, experts). They should then take care that they diligently fulfill their office, and not allow themselves to be drawn, to the detriment either of the treasury or of the private party, into deceitful conclusions.

I. Parts of the Office. This general rule can be handed down: for an advocate those things and only those things are lawful which are lawful for him whom he patronizes. For he undertakes to defend his cause.

2. He is forbidden under grave sin to undertake a cause which he knows to be unjust. But among civil causes which are probable and doubtful on both sides, he can defend either one, even the less probable, provided the client is warned concerning the lesser probability, and provided there is some hope of victory. For each party has the right of bringing forward his reasons in court; nor is that always truer which is more probable. But if there is no hope of victory, the matter would end in a useless vexation of the other party. Make exception, however, if there is a just and proportionately grave reason for prosecuting the suit: for example, if only from prejudices or from the dishonesty of the judges the cause has become desperate. In a criminal cause, he can defend even a guilty accused man, so that he may escape death or another penalty. For the accused is not bound to admit a penalty unless juridically convicted; therefore he can, by himself or through another, overthrow the proofs until he is convicted. But to impede public vindications by right and wrong means, and by abusing the ignorance or passions of jurors, can be opposed even gravely to various virtues; and it socially offends due piety and charity toward the fatherland.

Even in a just cause he cannot employ illicit means, such as false witnesses, spurious documents. Yet if the cause is manifestly just, this will not be opposed to commutative justice.

3. If in the progress of the cause he recognizes its iniquity, he ought at once to warn the client and persuade him to desist. For since he has been hired for a fee, justice itself obliges him to this warning insofar as this care was tacitly promised: this will have to be gathered from customs and from the honesty of the client. Nor can he persuade a composition by which something is remitted from right, because composition has no place except when the matter is doubtful. Yet he does injury to no one if he induces him to a transaction without damage, deception, force, and fear, or to redeem by composition the unjust obstinate vexation of the other party. Even of an unjust cause which he deserts he ought to keep the secrets. Make exception if revelation were the only means of averting a gravest damage from an innocent person. But even then, on account of the prohibition of positive law or the greatest inconveniences, for the most part he will not be held to make that revelation. Cf. the things to be said concerning secrecy in the treatise on truth.

4. An advocate in an unjust cause ought to repair to the contrary party all damages following from the unjust action; and indeed as principal cause, if he has concealed the injustice from his own party; of himself as secondary cause, if the injustice of the cause was clear to the client. Then toward his own client he of himself is held to nothing. The client, from a just cause, for example by friendly composition, can desert the lawsuit; in which case it is enough that he furnish the equitable price of the labor done. But if without a just cause he renounces the suit, and the fee was fixed from the beginning, not a few, with St. Alphonsus himself, L. 4, n. 225, permit that he exact this whole fee. Why, however, unlike another hired laborer, he could exact more than emergent damage and ceasing gain, we confess this escapes us.

II. On the Patronage of the Poor. The law of charity obliges an advocate to give patronage gratis to a poor man in grave necessity, yet without notable inconvenience to himself; in extreme necessity, he would have to patronize the poor man even with grave inconvenience to himself. Generally, however, today, since those who are to defend the cause gratis, pro Deo, as they say, are designated from office, that obligation is lightened for him. But a cause of the poor committed to him cannot be neglected, with justice preserved. For it is part of the office undertaken, and by social authority it is imposed as some office. Yet even in favor of the poor no one ought or can undertake a cause against the obligation of his conscience. It happens, however, that from lamentable ignorance Catholic advocates undertake causes, for example of civil divorce, with an equal mind, as if they could defend all almost indiscriminately. Hence refusal of causes of this kind becomes inconvenient for younger advocates, who must be employed in the office of gratuitous consultations. It is necessary that upright men, instructed, be able themselves to enjoy liberty of conscience. What is to be said concerning the cooperation of advocates we saw in the work On Chastity, 132, 287. This is the summary. Grave causes on account of which it is lawful to seek perfect civil divorce are to be approved by ecclesiastical authority; those causes, however, which the client is permitted to conduct, those same causes, and no others, advocates can undertake.

Today not rarely syndicates have hired advocates who must assist members with counsels. Although they have not contracted with individuals, the agreement seems to have been made in such a way that toward individuals they ought from justice to employ the promised diligence. Under this aspect they have an office, and find a place in this chapter.

Several other officials have a part in administering justice. Others, the more important, are the reporter or relator, who from office summarily exhibits to the judges the true state of the question, as, for example, in criminal matters, the instructing judge; the secretary or actuary, who notes the acts in writing. Others, inferior, are apparitors (uscieri, huissiers), public guards (gendarmi). To this their various obligations return: that, being sufficiently skilled, they execute the office with due diligence; that they preserve fidelity toward clients and therefore not open their secrets; that they consult their utility; that they not cooperate in illicit acts, according to the things said in the chapter on cooperation; that they not demand a stipend beyond the just price which is fixed by law or approved custom.

It is asked whether apparitors can ask a whole salary for individual summonses (exploits) or acts, when they carry several on the same occasion. The matter is to be judged from received usage and the practice of those who fear God. From the law of nature this can be permitted, since the price is not a mere compensation for the inconvenience of the journey. But positive law, received by usage, can stand in the way.

Can they execute an unjust sentence?.

Unless that injustice is manifest, the ministers do not sin by executing it. For the common good itself demands that they not discuss the sentence of a Superior (2, 2, q. 61, art. 6, ad 3).

If it was manifestly unjust, of themselves they cannot execute it. Wherefore they cannot inflict that evil with which even to cooperate materially is always illicit: such as killing, mutilation. For evils to be inflicted in goods, the rules concerning cooperation are to be applied. D'Annibale, II, 592, judges this to be lawful "because the damage of the republic and the damage of those themselves who otherwise would be removed from office prevails." There is not one opinion of the doctors. Cf. the things said, n. 141.

I. Notion. Under the name of notary comes an official who writes authentic acts for the parties and attributes to them a certain date.

II. Obligations. He ought to be skilled and assiduous in dealing both with civil and with fiscal laws, because by prudent counsel he can avoid for the parties not only causes of nullity and litigation, but also not moderate expenses. Wherefore he ought to warn the parties concerning suitable clauses which are to be inserted into acts, and concerning the mode by which superfluous expenses may be prevented. In dispatching affairs he ought to be diligent, and not by his delay increase expenses; and in affairs to be conducted he ought to look out for the utility of the parties by whom he is consulted.

Since he is not instituted to defend the interests of the treasury, of himself in the instruments which he writes he can admit those things which are lawful for the client in defrauding taxes. But let him beware lest he rashly offer himself into danger of having to undergo a grave penalty.

I. Notion. Formerly an accuser was a private person who, on account of the good of public vindication, accused another before the judge of a crime, after undertaking the burden of proving the crime. If proof was lacking, the accuser himself had to pay the penalty. Almost everywhere, in civil law, and now also in canon law, judicial accusation having been suppressed, private persons sometimes must perform only the office of denouncing. The general rules concerning denunciation were handed down in n. 117. Here certain things seem to have to be added concerning the obligation alone of judicial denunciation. The obligation can flow from a threefold source: from the law of nature, from an undertaken office, and from the precept or law of the Superior.

a) From the law of nature judicial denunciation is to be made when it is the sole and probably apt means of impeding public damage or great damage of a neighbor. Cf. Lugo, Iust. d. 38, n. 14. This will be the case of a pending crime, or one which is prudently judged will be repeated. The greater the damage feared, the more certain and imminent it is, the greater the hope of impeding it, the graver becomes the obligation, which is of charity, and, when public damage is at issue, is urged more gravely by legal justice.

From this obligation one's own grave and proportionate inconvenience excuses, also equal damage of the denounced person, if it is done to avert the damage of a neighbor, unless piety besides drives you to consult more for a neighbor who is closely joined with you.

b) From an undertaken office, these ought to denounce harmful persons: fiscal promoters, public and also private guards, insofar as this pertains to the office to be fulfilled.

For all who have been set over persons or things to be guarded ought, both by their own vigilance and by judicial denunciation, to protect persons and things, even with danger and inconvenience promised in undertaking the office, from injuries according to the reasonable will of the masters. Wherefore sometimes, from the highest rigor, without the oath being injured, guards can turn aside. This holds also concerning those who have been set over the exaction of tolls. Cf. Lehmk., I, 987. They are held from commutative justice, so that they ought to repair damages flowing from neglected office; nevertheless they probably are not held to repay fines lost.

c) From the precept or law of a Superior. From the new Code, an express obligation of denouncing is not imposed except of denouncing clerics or religious who have given their name to the Masonic sect and similar associations (c. 2336, § 2) and soliciting confessors (c. 904 and 2368, § 2). The principle of the obligation is expressed in c. 1935, § 2.

From this obligation there excuses: a) perfect amendment of the delinquent, if satisfaction has been made to the injured party and no danger threatens others (but cf. the things said concerning denouncing a soliciting confessor); b) a secret committed from office, unless from the persevering malice of someone grave damage of an innocent person arises, or religion or the fatherland is gravely interested that it be revealed (cf. Lugo, Iust. d. 38, n. 37); c) if from this grave danger of honor, life, or your goods threatens. Wherefore you are not held to denounce yourself, nor, of itself, the associates of the crime when thus you would equivalently denounce yourself.

N.B. Concerning the witness and the accused, cf. the Treatise on Truth.

I. Offices. 1. From contract, physicians and surgeons ought to help the sick man in the best way they can.

Wherefore they ought to administer the safer remedy which is at hand. Yet with the health of the sick man desperate, they can try a remedy of ambiguous outcome, which perhaps will be useful, perhaps will hasten death, provided the sick man has consented to it explicitly or implicitly, and has been made more certain of the matter, so that he can provide for himself, unless he has already provided for his conscience and his affairs. But if no hope of prudence of this kind is present, that warning does not seem to have to be imposed. If the sick man himself is lacking, those nearest to him seem able to answer for him, as interpreters of his will.

When, besides the good effect, certain harm will follow, and no other remedy is at hand, the cause is to be estimated from the proportion between the hoped-for good and the evil which is feared. But never, as has already been said, for the sake of exploration can dangerous remedies or "operations" be tried on the sick man, even consenting. Cf. Lehmkuhl, I, 1183, V.

Concerning the use of morphine and hypnotism, it was treated, I, 478, and above, 325.

They cannot cooperate in direct abortion. To give an obstinate woman a harmless potion is not illicit, provided, however, that the physician not simulate an evil action; but he ought to beware of scandal and also of the penalties of the law, if an abortion, following by chance, is attributed to him as author.

2. They ought to fulfill the offices of spiritual and temporal charity, frequent occasion of which is offered to physicians. Therefore they will take care that they themselves can in a case of necessity validly confer baptism, especially on fetuses; they will make a dying man aware of his state in time, so that he can provide for his salvation and also for temporal affairs. It is better that they perform this themselves, nor for the most part do they have grave inconveniences to fear for themselves from it. But if others can and will make the warning, it is enough that these be made more certain. They can be excused from grave obligation if either they know that all things have already been ordered, or they hold it certain that it will profit nothing because of the perverse disposition of men. Yet this will rarely happen.

3. They cannot institute more visits in number than the true utility of the sick man demands; or than the solace suggests which is expected from the reasonable will of the sick man or of his family. Say the same concerning remedies to be administered.

4. They cannot exceed the usual rate in fixing a price, yet with account taken also of his skill and reputation. From the poor they cannot exact except the lesser price which it is customary to concede to them: for that alone the poor have tacitly promised.

II. They sin against justice itself when they violate these offices. Nor can those physicians be excused from grave sin who, after making an agreement with a surgeon, persuade clients to operations which are not necessary, for which they themselves obtain from the surgeon a reward for the counsel. Say the same if they prescribe superfluous medicines to be taken.

III. A physician hired by a community: a) from justice is forbidden to desert the sick in time of plague; b) from justice ought diligently to care for those for whom he is hired. For a stipulation in favor of a third party is valid from the law of nature, and the third party, when he calls the hired physician, ratifies the stipulation. Physicians not hired, if they decline grave danger of life, can with difficulty be accused of grave violation of charity, unless probably, while plague raged, they would have saved many who now die.

It will be enough to say one thing: that they furnish good and accurately prepared remedies; and that they beware lest they offer for sale things which are destitute of every useful or honest use. Cf. n. 145.

Notion. Day by day more persons occur who are ready, after a fee has been obtained, either to do something for others or to assist others in some undertaking: to such an extent that catalogues of persons from whom alms for good works can be hoped are saleable for a price. If someone is considering a long journey, a society offers itself for procuring every convenience of the journey; if someone wishes either to sell or to buy some house, there is one who seeks out for him a buyer or a seller; if someone has a litigious cause, there is one who wishes to render the way of success more level for him; there is one who investigates unknown heirs concerning unclaimed inheritances so that he may warn them; nor are those lacking who are eager to have a part in concluding and dissolving marriages.¹

Let us call all these by the name of brokers.

From justice itself these ought: 1. to commend nothing which is not worthy of commendation; 2. to employ the promised diligence and not to desert an undertaken cause for a better one, in such a way, for example, that they cannot promise their labor at the same time to two parties whose utilities are contrary; 3. to abstain from every fraud; 4. to be content with an honest price.

Indeed the delicate cases of conscience to which the arts of brokers give place can scarcely be numbered.

¹ The German Code, art. 656, removes every obligation from the brokerage-price promised for a negotiation of this kind concerning marriage. Yet it denies repetition of the price paid.

General Matters. The same or a similar obligation and commutation of rights which a contract between private persons works, the undertaking of an office begets, except that a contract is always a voluntary juridic act, while an office can also be imposed on one unwilling, on account of the common good.

An office cannot be assumed by one incapable without injustice; nor can one, with justice preserved, offer himself for the exercise of an art without sufficient skill, unless lack of a suitable person or another public cause excuses the intervention or assumption of the office.

An office undertaken is then to be fulfilled from justice with the diligence promised expressly or tacitly. Nor does an inconvenience connected of itself with the office excuse from that diligence.

Only on account of true and just causes can someone, after abdicating an office, ask for a pension from the public treasury or from the pension fund.

II. On the Judge. The judge, or magistrate, not only declares the right, but speaks the right, i.e. constitutes the proximate title, as it were by a particular law, either of the right of the parties or of the penalty to be sustained by the accused.

In beginning and prosecuting a process, he ought to observe the order prescribed beforehand by law. Between the civil and canonical forum there is this difference: that a civil judge can judge only causes brought to him either by private persons or by the fiscal promoter, while an ecclesiastical judge often himself commands or executes the inquiry and instruction of a cause. Therefore he himself ought to attend to that rule of natural equity, that, without sufficient indications, he not begin an inquiry against someone in particular, nor without half-full proof order anyone to appear as accused.

For the reputation of the accused person is not accustomed to remain intact. I except a cause of prevailing public necessity.

A lay judge also ought to beware lest he usurp causes of the ecclesiastical forum, with the manner observed in which the privilege of the ecclesiastical forum is urged by the Church in his region.

Moreover, in a criminal cause he cannot condemn anyone unless from the acts it is established to him with moral certitude that he is guilty. If by private knowledge he has known as innocent someone who has been publicly convicted, it is the opinion of grave doctors, and of St. Thomas himself, that he indeed can condemn without injustice; nevertheless today in practice he can and ought to save the innocent man.

In a civil cause, he can and of himself ought to settle doubts of law according to his own founded opinion concerning the law; yet it is lawful for him also to assent to the jurisprudence of the superior court, as to a greater authority.

Doubts of fact for the most part will be solved by the rule which imposes the burden of proving on the plaintiff. But he does not violate justice who, in equal probability, while observing the laws, adjudges the whole to one party; yet he can also have the probable account of the right of the other party which the laws permit, for example in dividing the expenses of the suit.

He is not unjust who accepts gifts liberally offered, but observance of the law forbidding this is altogether to be commended. Those things, however, which he has exacted or stipulated for pronouncing a just sentence are to be restored; but not for an unjust sentence which he in fact brought: here, not there, some title seems to exist.

In general it pertains to the probity of a judge that he have no consideration of persons or causes, excepting those causes to which, from the law itself, favor is to be given in doubt.

III. On Jurors. Jurors can and ought always, by their negative answer, render free from penalty one whom they know to be innocent; nor can they pronounce as guilty anyone except one who has been convicted according to the acts.

But let them beware lest they be scandalously lacking in their office if, on account of reasons wholly extrinsic to the merit of the cause, such as political passion or appetite for vengeance, they deny that manifest crimes have been committed.

IV. On Arbiters. Freely chosen by the parties who have determined to settle a lawsuit by compromise, they ought to bring sentence according to law, unless they are permitted to compose the business from equity and good.

Those designated by a judge should willingly and without zeal for parties perform their office.

V. On Advocates or Patrons of Causes. A patron of causes, in a criminal cause, does not violate commutative justice if he strives to snatch even the truly harmful person from penalty; but those who, by right and wrong means, and by abusing the ignorance or passions of jurors, impede public vindications, can sin even gravely against various virtues, and socially offend due piety and charity toward the fatherland.

In civil process they cannot either undertake or prosecute a certainly unjust cause; they are permitted, with justice toward the other party preserved, to furnish doubtful causes with suitable arguments, provided they warn their own client concerning the uncertain success.

N.B. What is lawful for a witness and for an accused person will be said below, where truth is treated.

VI. On Other Ministers of Justice. Whether higher or lower, they ought to fulfill the office diligently and faithfully, sparing the reputation of persons and tenacious of secrecy.

A manifestly unjust sentence cannot be completed by execution, unless perhaps there is question of goods which someone can renounce.

VII. On Notaries. A notary ought to be skilled and diligent, so that he not only may compose valid acts according to the norm of law and write them faithfully according to the will of the parties, but also know how to compose them in that manner which spares considerable expenses for the parties. He ought usefully to manage the affair of his clients, for example in ordering an auction.

Since he is not an exactor of taxes, he violates justice no more than the parties themselves if he cooperates in defrauding certain taxes.

VIII. On Physicians and Pharmacists. Besides diligent care of the sick, physicians and pharmacists ought to abstain from those contracts by which, through non-necessary medicines or operations, they impose useless expenses on clients.

IX. On Guards of Persons or Things. He who, privately or publicly, has been set over guarding persons or things ought, both by his own vigilance and by judicial denunciation, to protect persons and things from injuries, even with the danger and inconvenience tacitly promised in undertaking the office, according to the reasonable will of the masters. Wherefore sometimes, from the highest rigor, without the oath being injured, guards can turn aside. This holds also concerning those who have been set over the exaction of tolls. Cf. Lehmk., I, 987.

X. On Brokers. Brokers, or mandataries today of manifold name, who, under some title, undertake to care for the affairs of other physical or moral persons, or in some way assist them, from justice itself owe: 1. to those who hired them, fidelity and diligence; 2. to all, the negative offices of justice, by which they are forbidden to commend things which are not to be commended, or to deceive someone by fraud.

162. Notion. 1. An advocate is he who in judgment defends the part of one or the other litigant. In several regions there are usually distinguished advocates who from office protect the matter of the treasury or of the common good (commonly Staatsanwalt, procureur général), and private advocates, who defend the causes of private persons. - In canon law several persons are barred from the office of advocating.²⁶⁶

2. The obligations of the advocate are chiefly the following: a) to have sufficient knowledge of law and to apply due diligence in causes to be handled; b) to defend just causes by just means; c) not to exact an exorbitant salary for labor to be furnished or already furnished.²⁶⁷ But the salary must be measured according to just laws; but if the law does not determine it, attention must be paid to the conditions both of the advocate and of the client and of the labor furnished and of the contract freely stipulated.²⁶⁸

3. The sins of the advocate are chiefly:

a) Knowingly to defend unjust causes. For this is illicit cooperation in evil. Hence St. Thomas teaches: "If [the advocate] knowingly defends an unjust cause, without doubt he sins gravely and is held to restitution of that damage which, against justice, the other party incurs by his help. But if unknowingly he defends an unjust cause, thinking it to be just, he is excused according to the mode by which ignorance can be excused."²⁶⁹ "If the advocate at the beginning indeed believed the cause to be just, but afterward in the process it appears that it is unjust, he ought not betray it, namely, so that he may help the other party or reveal the secrets of his own cause to the other party. Yet he can and ought to desert the cause, or induce him whose cause he is conducting to yield, or to settle without damage to the adversary."²⁷⁰ In criminal causes an advocate can always defend the accused by lawful means. Indeed, according to the discipline in force, a defender is conceded to any accused person.

When there is question of a cause of divorce before a civil judge, a Catholic advocate can always defend the bond of a legitimate marriage; but he cannot cooperate in obtaining the divorce of a true marriage, unless nevertheless he knows that this divorce of this kind will produce nothing except merely civil effects. But if, on the contrary, he foresees that one or the other spouse after the divorce obtained is going to contract new nuptials, then the advocate cannot act as patron in these causes unless a very grave cause is present.²⁷¹ In this sense the decree of the Holy Office of Dec. 19, 1860, seems to be understood: "Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as to bed and table, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics act in that forum in the parts of plaintiff and advocate, provided there are just causes of separation according to the judgment of the Bishop."

b) To treat negligently causes undertaken and thus cause damage to his client. This is evident of itself.

c) Not faithfully to manifest the dangers which can arise from a doubtful cause undertaken. Therefore the advocate sins and is held to restitution if he inspires too great confidence in the client, who thus, with notable damage, pursues a doubtful cause in court and finally loses.

d) To prolong too much a cause undertaken for extorting a greater salary.

e) To defend a just cause by unjust means.²⁷² Therefore the advocate sins by producing false witnesses, bringing forward false documents, etc. Then indeed he does not sin against justice, and therefore is not held to restitution, if the cause defended is certainly just - which indeed in practice quite often can be known clearly only with difficulty - but he sins against truth and other virtues. But it is never lawful to use a false document in judgment, even if perhaps the identical true document has been lost without fault. Thus, e.g., it is not lawful secretly to supply a purely formalistic defect in some testament which, on account of this defect, would be considered invalid in court.²⁷³

²⁶⁶ S. theol. 2, 2, q. 71, a. 2; Code of Canon Law c. 1657 sq.

²⁶⁷ S. theol. 2, 2, q. 71, a. 4.

²⁶⁸ For ecclesiastical tribunals it is established: "The advocate is forbidden to purchase the suit, or to bargain for himself concerning an immoderate emolument or concerning a part of the thing in litigation once vindicated. If he has done these things, the agreement is null, and by the judge or by the Ordinary he can be punished with a monetary penalty; besides, he can both be suspended from office and also, if he is a recidivist, be removed and deprived of his title" (Code of Canon Law c. 1665).

²⁶⁹ S. theol. 2, 2, q. 71, a. 3.

²⁷⁰ Ibid. ad 2.

²⁷¹ Cf. below in the treatise on marriage, III, n. 903.

²⁷² S. theol. 2, 2, q. 71, a. 3 ad 3.

²⁷³ Cf. below, on testaments, n. 277.

1060. • An advocate (Counsel, Counsellor, Advocate, Lawyer, Barrister) is called he who furnishes his assistance to litigants either by counsel, or voice, or writing.

A procurator - one is of the parties (Attorney, Attorney at Law, in chancery Solicitor) and appears in the name of his client, and prepares all instruments of the lawsuit by which the advocate can conduct the matter, - another is of the State (Attorney-General, State's Attorney, Solicitor) and represents the State in causes either civil or criminal.

Principles. - I. Advocates and procurators are held from legal justice toward society, and from commutative justice toward litigants, to have competent knowledge, to undertake and prosecute a cause with due diligence and study, and to prevent delays damaging to litigants; otherwise they sin, and are liable to restitution, as was said above concerning judges.

II. In civil matter neither the advocate of the defendant nor the procurator of the State can licitly sustain a certainly unjust cause; therefore if, by defending it, he obtains an unjust sentence, he is held to repair all damages following thence, if they are not repaired by those in whose favor the unjust sentence falls.¹

A fortiori in criminal matter neither can an advocate undertake the parts of an evidently unjust accuser, nor can the procurator of the State pursue one unjustly accused, if he detects his innocence either at the beginning, or in the course, or at the end of the cause, but each is held to abandon the accusation begun.

III. An advocate, when questioned by a client, must examine his cause seriously, and with that diligence which the gravity of the matter demands, preserve fidelity toward him, open the justice or injustice, and scrupulously indicate the probability of obtaining or losing it; otherwise he will impel the client to empty expenses which he himself is held to repair.

But in pleading the cause he must beware of frauds, false proofs, or other unjust means against the adverse party; for otherwise likewise he is held to compensate all damages following thence.

Query 1° In what sense must the INJUSTICE of a cause which an advocate cannot sustain be understood, namely MORAL, or only LEGAL?

Resp. Far more probably moral, and not only legal. Thus St. Alphonsus.² For to the question: "When the client has a good right in the cause of possession, yet not in ownership, whether it is licit for an advocate to defend him in a possessory cause?" he responds:¹ "Others say that it is licit for an advocate to defend such a client, because then he only permissively cooperates with the sin of the client, since in that case he exercises the function of a counselor before the judge. But Lugo Disp. 41" de Just. "n. 10 with Molina, Fagundez, Medina, etc., contradicts more truly. The reason, because just as the client sins by retaining the thing, so the advocate sins by cooperating with him in such retention; but the advocate does not stand on the part of the judge, but of the client."

Therefore an advocate sins by furnishing his service to a party whom he knows to elude the certain right of the adverse party by opposing to this either some vice, or defect of title or instrument, or prescription to which good faith is lacking. Yet an advocate is not held to inquire from the client concerning the moral justice of his cause, and he will be able to sustain this so long as he is ignorant of its moral injustice.

1061. Questions. - Query 2° Whether advocates can defend causes even less probable both of defendants and of actors?

Resp. 1° In civil causes of defendants, or, if it is a question of probability of law, also of actors, affirmatively, with the common and certain opinion, because they can have hope that the truth may shine forth. But if it is a question of probability of fact, even equal, it will not be licit to defend the cause of the actor.²

Resp. 2° But in criminal causes, the accused can always be defended, even if his culpability were clear, yet by honest and licit means, namely with lies, frauds, etc., excluded. The reason is that an advocate defending an accused person brings injury to no one, and besides from his office ought to patronize the accused as much as he can.³

1062. • Query 3° To what is an advocate held by reason of the honorarium or stipend?

Resp. 1° Generally speaking, he can accept nothing beyond the just amount, which either perhaps has been taxed by law, or is to be determined by the judgment of prudent men, with account had of the business, the skill of the advocate, the labor which he expends, and received custom.

Resp. 2° As to the poor in particular, 1° he is held to aid gratuitously, even with grave inconvenience to himself, those who are in extreme necessity; 2° likewise he is held to patronize gratis those who exist in grave necessity, and indeed under mortal sin, yet not with notable inconvenience to himself; 3° finally even in common necessity he is held from charity to protect the causes of the poor, yet not with grave inconvenience: namely it suffices that he bestow something of his work on them when he is free from others.

Query 4° What can an advocate exact if, after agreement has been made concerning the stipend, the client abandons the cause begun?

Resp. He can exact the whole if it does not stand through him that he does not prosecute the lawsuit, no otherwise than one renting his work for some wage can exact this if it stands through the conductor that the work is not completed. Yet except if a just cause of abandoning the lawsuit intervenes, since this condition is always understood in the agreement.¹

1063. • Query 5° To what is an advocate held who, after the cause has already been undertaken, notices that it is unjust?

Resp. He must at once warn concerning the injustice of the cause and abandon it, lest he cooperate with unjust damage. Nor can he advise settlement (n. 1051), for this is licit only in a doubtful matter. - But if knowingly he has prosecuted an unjust cause, he will be held to compensate all damages occurring to each party. For he must restore to the adverse party from the sin of commission, since he himself was the positive cause of the damage; but to his own client, if he was in good faith, from the sin of omission; since from office he was held to warn him concerning the injustice of the cause.

Yet an advocate, by abandoning a cause which he detects to be unjust, ought not to aid the other party, or reveal the secrets of his own cause to the other party, as is clear from natural law, and St. Thomas expressly teaches.² A certain exception, which however will be present very rarely, see, if you wish, in St. Alphonsus.³

Query 6° To what is an advocate held who, noticing that a cause is unjust, indeed warns the client, but, with him wishing it, prosecutes the cause?

Resp. 1° He is held to nothing toward the client if he loses the cause, because no injury is done to one knowing and willing.

Resp. 2° He is held to compensate all damages which the adverse party suffers by title of positive cooperation.

1064. • Query 7° Whether and how an advocate sins who defends a just cause by unjust means, for example if he substitutes a new note in place of a former lost one, etc.?

Resp. 1° He sins against fidelity and truth, more gravely indeed or less gravely according to the measure of the unjust means applied, and according to the gravity of the matter about which there is question, and likewise according to the gravity of the effect which follows upon the use of the unjust means. The advocate will be guilty of a greater sin if he not only substitutes a new note for the former one, but supplies that which never existed. Nor can he be excused from the good end which he intends; for evil things are not to be done that good things may come.

Resp. 2° Of itself he does not sin against justice, since the cause is supposed just. Yet accidentally he can injure justice and be obliged to restitution, namely if from this damage comes to his own party or to the adverse party; for if, for example, the fraud is detected, it can easily happen that a cause good in some way is brought into suspicion and collapses.

1065. You will resolve. - 1° Advocates sin against justice toward the client if, when they are not sufficiently skilled and suitable, they undertake causes to be defended; if they detect the foundations or secrets of the cause to the adverse party, or if they serve each party; if, because some arguments seem to them peremptory, they neglect to bring forward others not contemptible, because perhaps judges would be moved by those neglected motives; if they do not prepare themselves sufficiently for pleading the cause, etc.

2° The same sin against justice toward the adverse party if they cite false or abrogated laws, or bend them aside to an alien sense, apply deceit or lies, from which judges or jurors are drawn aside into an unjust sentence or vote; likewise if they impose false crimes or vices on the adverse party, etc.

3° They sin likewise "by advising the client to swear falsely, or by as it were casting him into the necessity of perjuring, by indicating that otherwise there is no hope of victory, or by seeking out false witnesses, and instructing them to perjure by a certain discipline and training before the public examination, as is sometimes done."¹

4° Procurators of the parties sin against justice if they draw out causes, if they obtain undue delays, if they do not procure in the first place a cause earlier accepted, if they lead the parties to an unjust composition, etc.

5° The procurator of the State sins against justice if from negligence, from haste or prejudice, from hatred or acceptance of persons, etc., he brings an innocent person into detention, into judgment, and into undergoing an unjust sentence. Likewise if he sustains an accusation after in the course of the cause he has recognized innocence, or has gravely doubted concerning it; therefore he is held concerning all damages following upon the accused. Likewise if he delays the exercise of his office with injury to citizens, by hope of greater profit; but what he has procured by arts of this kind he is held to restore.

To help litigants there intervene witnesses, advocates, procurators.

2313. • WITNESSES in general are suitable persons who are employed for establishing faith in some matter.

Preliminary Notes. For testifying in judgment, some are never assumed, some only in certain causes; nor is the same number of witnesses always required in all causes. - We have said 1. Some never; for several are excluded by the laws. Thus, in canon law,⁵ the insane, the immature, the blind, those corrupted by money, infamous persons, criminals, perjurers, the excommunicated, vile persons, parents, spouses against each other, servants, women, an associate in crime, etc. are excluded: all of whom, however, have their own proper exception.⁶ - 2. Some only in certain causes; for, from canon law, lay persons are regularly not admitted against clerics in a criminal cause; and from civil law, in some regions, witnesses are regularly not admitted concerning an agreement concerning a thing exceeding the value of 300 francs, but authentic writings are required. - 3. The same number of witnesses is not always required; for sometimes one witness suffices: for example, if there is question of lighter penalties to be inflicted, e.g. in theft from woods; or of an expert in his art, e.g. if a physician testifies that someone's death is natural. Regularly, one witness also suffices in favorable causes: e.g. if it is asked whether someone was baptized, whether a church was consecrated, etc.⁷ - Sometimes more than two or three are required, as happens for a solemn testament in several kingdoms; and from canon law, if there is question of a criminal process against a Bishop.⁸ - Yet:

Regularly, TWO suitable WITNESSES are required and suffice for full proof in every judgment, both civil and criminal; provided that they have perceived by external sense what they testify, depose with oath, and agree among themselves, not only in the substance of the fact, but also in the principal circumstances of person, place, time.⁹ Hence that saying of Matt. 18:16: In the mouth of two or three let every word stand, and the axiom of Law: One witness, no witness. The reason is, because for proving human actions moral and probable certitude suffices.

2314. • Principles. I. Anyone is held TO TESTIFY: 1. from charity, namely when this is necessary for averting a great evil of the neighbor or of the Republic; - 2. from precept, when the judge legitimately interrogates; for a just precept obliges in conscience (n. 2307).

Moreover, the judge legitimately interrogates (as was said above), when either half-full proof of the crime, infamy, evident indications, are present, or also when the accuser offers himself to prove the offense by several witnesses. If these things are at hand, and become known to the witness through the judge, the judge interrogates legitimately, and the witness is held to reveal the truth.¹⁰

But he is NOT HELD to reveal it: 1. If he knows the matter from sacramental secret, or under natural or committed secret; provided that from observance of the natural or committed secret, there does not threaten the republic or an innocent person great damage, which cannot be averted by another way; - 2. if he cannot testify without grave damage to himself or his own, provided that public damage, or another's private damage, does not prevail; - 3. if he has heard the matter from men worthy of no faith; for then he can hold himself as if he knew nothing; or by an unjust manner, for example by force or fraud, e.g. by opening letters; 4. if he knows that the defendant did not sin in conscience, e.g. because of ignorance; because the mind of the judge is to inquire concerning an offense.¹¹

2315. • II. A witness legitimately interrogated, and not excused from the obligation of testifying, is held TO SPEAK THE TRUTH integrally, and nothing besides the truth, by responding to the questions simply, according to his conscience. Thus all.

Hence: 1. The witness sins, and is held to restitution: 1) if he receives a price for speaking the truth, since by every law he is held to speak it freely; - 2) if knowingly he affirms what he is ignorant of, or opens things to be hidden, or testifies falsely; and he is obliged to reparation whenever, by acting thus, he has been the effective cause of damage. Whence, he is held to retract himself, even with damage equal to life or goods, provided that the retraction is foreseen to be profitable. - Mark the words knowingly, effective; for if grave fault is lacking, he is indeed held, insofar as lies in him, to impede the damage, but not to repair what he did in ignorance. Likewise, if by his false testimony he effected nothing, he is held to nothing¹² (cf. 948 and 949).

2. He also sins, but without the burden of restitution: 1) if, in a case in which he is held to testify, he hides himself, lest he be cited by the judge; because he injures charity; 2) if he flees after citation; 3) if, legitimately interrogated, he hides the truth: because he injures obedience, indeed also religion, if he has furnished an oath. - In these things, however, since he is only a negative cause, he does not sin against justice: unless he entered into a special pact, with a party, concerning manifesting the truth.¹³

2316. • An ADVOCATE (patron, pleader) is he who is called to assist a litigant in pleading, or defending, a cause.

A PROCURATOR (caretaker for another) is he who by legitimate mandate conducts and administers the affairs of another (cf. n. 1091). - A judicial procurator can be: 1. on the part of the State or republic, and is called fiscal or royal (cf. n. 2303); 2. on the part of the advocate, namely he who is the helper of the advocate in the defense of the suit, or the second advocate; 3. on the part of the litigant, whose place he bears in judicial acts.¹⁴

2317. • Principles. I. Not all indiscriminately can exercise the office of judicial ADVOCATE or PROCURATOR. - For some are excluded by civil law: such as women, minors, infamous persons, judges in the same cause, etc.; others by canon law, namely: the excommunicated, monks, clerics constituted in Sacred orders, beneficiaries, unless there is question of certain causes which we have designated above, n. 2226. - By natural law itself those lacking necessary knowledge are prohibited, who consequently are held concerning damages that followed from ignorance.¹⁵

2318. • II. An advocate or procurator cannot assume ALL CAUSES; but only those which, after diligent examination, he has judged to be JUST and LAWFUL. This is clear through itself. But now, in an unjust cause, the advocate is held to repair the damages both of the opposing party and of his own client, if he has concealed from the latter the injustice of his own cause. But if the client also is in bad faith, he himself is held, in the first place, to make restitution to the opposing party, as one commanding; but in the second place, the advocate, as executor.

Hence: 1. An advocate questioned by a client is held to examine the cause with diligence proportioned to the gravity of the matter, to preserve fidelity to the same, and finally to declare the quality and state of the cause, lest there be proceeding to vain expenses.¹⁶

2. If he has assumed the cause in good faith, at least as probable, and notices its injustice in the course of the process, he is held to abandon it, and to advise the client to desist. Nor in this case can he advise a composition with damage to the other party; because there is no place for composition, except when the matter is doubtful.

2319. • Questions. QUAER. 1. Whether an advocate or procurator can defend a LESS PROBABLE cause?

Resp. 1. In a civil cause, according to the more probable and more common opinion, if the doubt is of law, the advocate (or procurator) can assume and defend the slightly less probable parts, whether of the plaintiff or of the defendant, yet with the litigant warned concerning the quality of his right. "The reason is, both because an opinion less probable in the course of time can become more probable; and because many times the opinion which appears less probable to the advocate seems more probable to the judge." But if the doubt is of fact, he cannot, whether in lesser or even equal probability, defend the cause; because in such a cause the defendant, or possessor, is altogether to be favored; and therefore if a suit were brought against him, he would be vexed unjustly, and the plaintiff would be compelled to useless expenses.¹⁷

2. In a criminal cause the defendant, even truly culpable, can always be defended, provided that it is done without fraud and lying; because he is not held to the penalty unless convicted. But the accuser or denouncer cannot, in a doubtful criminal cause, be helped by the fiscal procurator or by another, because these would sin, just as the accuser himself, by cooperating with his illicit denouncement.¹⁸

QUAER. 2. To what is an advocate held by reason of HONORARIUM or STIPEND?

Resp. 1. He can receive nothing beyond the just price, namely that taxed, where it exists, or determined by the judgment of the prudent, account being taken of the business, of his own skill, of the labor which he expends, and of approved custom. - Yet if the client, without just cause, abandoned the lawsuit begun, he could contend for the whole salary.¹⁹

Resp. 2. As to the poor: 1) He is held, even with grave inconvenience to himself, to assist gratuitously those who are in extreme necessity, and have no other recourse; 2) likewise, but short of his own grave inconvenience, those who are in grave necessity; 3) finally, to those who are in common necessity, it suffices if he bestows some of his work.²⁰

2320. • From these things you resolve: - I. An advocate SINS: 1. If he defends or prosecutes a cause certainly unjust as to ownership, although it were just as to possession; for just as the defendant then cannot retain the thing, so neither can the advocate protect him. 2. If he prosecutes a just cause by unjust means, by bringing forward, e.g., false writings, or abrogated laws. 3. If, after the lawsuit has been begun, he makes an agreement concerning stipend; for concerning this an agreement must be made either before or after; because if he were to agree during the course of the suit, the client could easily be compelled to acquiesce in every stipend, however immoderate; and he sins much more gravely by agreeing concerning a proportional part of the suit, e.g. concerning a third part, if the cause is won; for such a pact casts him into proximate danger of employing every device, that by right and wrong the suit may be obtained. Nevertheless, if the price were certainly just, and deceit were absent, he would not be held to restore what he had received. - 4. If he undertakes more causes than he can conveniently handle, the client not having been warned. - 5. If he patronizes each party; because it is repugnant that he defend each party equally, at least in the same cause. - 6. If he opens the secrets of his client to the opposing party. There are indeed some who except the case in which another, because the secret is observed, would unjustly suffer grave damage; but others with St. Thomas do not admit this limitation, except in the very rare case in which the defendant would be punished capitally, and the accuser proceeded unjustly. - 7. If he uses deceits or delays not making for the matter; finally if by negligence or grave imprudence of his own he loses the cause¹ (cf. n. 974).

2321. • II. The fiscal procurator (or his substitute) SINS AGAINST justice: 1. If from negligence, from precipitation, or prejudice, from hatred or acceptance of persons, etc. he drags an innocent person into detention, into judgment, into an unjust sentence to be undergone. 2. If he sustains an accusation after in the course of the cause he has recognized the innocence of the accused, or has gravely doubted concerning it. 3. If he defers the exercise of his office with injury to citizens. But what he has acquired for himself by arts of this kind, he is held to restore.²

2322. • III. The procurator of the parties SINS against justice: "1. If he procures an unjust suit; 2. if he undertakes more causes than he can dispatch; - 3. if he receives more pay than is just; - 4. if he persuades the defendant or party to deny the truth unjustly; - 5. if by his carelessness, negligence, or other fault, he is the cause that the suit is lost; - 6. if in the name of the party he swears, without particular information from him, with danger of perjury; - 7. if culpably he is not present at the tribunal, from fear of future inconvenience, etc.; - 8. if he brings the parties to an inequitable agreement; - 9. if he defers the cause, or perverts the judge, asks for impertinent terms or superfluous delays; - 10. if he induces false witnesses."³

IT IS ASKED. What of him who substitutes or adulterates WRITINGS, for supplying lost acts, or for prosecuting a certain right?

Resp. 1. He sins, at least venially by reason of lying, because, however the matter stands, the note of hand which is exhibited is diverse from that which makes faith in judgment. It can also happen that he sins against prudence, namely if he exposes himself to the danger of incurring most grave penalties.

Resp. 2. He does not sin against justice, since he prosecutes a certain right; and consequently he is not held to restitution. Except, if he conducts the cause of another, as an advocate, and from the discovery of the fraud damage comes to his client or to the opposing party.⁴

NB. What is lawful for an ADVOCATE and PROCURATOR in a cause of Divorce, see n. 2126, 2.

III. Advocates sin especially:

1. Those who undertake to defend civil causes openly unjust, or, after they have known them to be unjust, continue to defend them: but if they have been victorious in the cause, they are bound to the defeated party as to damage; if they have been defeated, they can be bound as to the expenses of the client, if he was ignorant of the injustice and pursued the cause from ignorance.

2. If they do not faithfully teach their clients the conditions of the cause.

3. If they do not preserve fidelity and secrecy for their clients.

4. If in defending a just cause they commit negligence, or employ bad arts.

5. If by their negligence they are at fault that clients have fallen from the cause, when otherwise, all things being duly and aptly brought forward, they would have prevailed.

6. If they demand a salary too exaggerated.

In all these things, if the advocate has inflicted unjust damage, he is bound to repair it.

S. Th. II-II, q. 71.

643. The duties of an advocate as regards the cause. An advocate or pleader is one who has undertaken the cause of litigants to be defended in judgment. He furnishes this both by giving suitable counsels and by pleading the cause before the judge, whether orally or in writings, according as the custom of the region bears. Hence he must excel in competent knowledge, in the same way as was said concerning the judge; otherwise he would expose himself to the danger of inflicting damage upon him whose cause he defends.

Now, as regards the cause, he has a threefold duty:

1. He cannot undertake a cause to be defended unless he has competent knowledge for this; otherwise he exposes himself to the danger of harming the cause and the client;

2. He cannot defend a cause unless it is just; otherwise he exposes himself to the danger of harming and inflicting damage at least upon the other party; and therefore he cannot be absolved who is prepared to defend any causes whatever;

3. He cannot defend even a just cause except by just means; otherwise he exposes himself to the danger of inflicting damage both upon the client and upon the other party.

Hence A. in a civil matter, an advocate:

a) Cannot undertake a cause which he certainly knows to be unjust: for if he wins, he unjustly cooperates in the damage which is inflicted upon the opposing party; if he is defeated, he inflicts damage upon his client, who incurs useless expenses (a. 3 and ad 1).

b) Therefore, if in the course of a judicial process he certainly knows that the cause which he had undertaken in good faith to defend is unjust, he must abandon it and warn the client concerning this (ad 2).

c) But if the cause is doubtful from the beginning, the advocate can undertake it, with the client having been warned, since tribunals have been instituted precisely for settling controversies; and elsewhere a cause which at the beginning seemed doubtful can in the course of the process become certainly just.

d) While the cause remains doubtful, the advocate can advise a friendly settlement; but when it appears certainly unjust, he cannot settle at least with damage to the adversary, but nothing now remains except that the cause be abandoned (ibid.).

B. In a criminal cause, an advocate:

a) Can licitly defend the accused, even if it is certain that he is harmful and culpable; indeed, among civilized peoples the custom has prevailed that an advocate be assigned to every accused person. Hence such a cause is just, if not by reason of the matter, at least by reason of the precept of law, by which the accused has a right to an advocate: for the common good demands that an apt defense be procured for anyone cited into judgment. And therefore the advocate can help the accused by the legitimate means which are available to him, but not by unjust or dishonorable means.

b) But he cannot licitly protect the parts of the accuser, if the accused is certainly or very probably innocent: for thus he would unjustly cooperate in the unjust condemnation of an innocent person, or expose himself to this danger.

C. In a cause both civil and criminal, an advocate:

a) Can hide those things by which his cause is impeded, indeed in a criminal matter he can also deny in the same way as the accused (n. 641), whose parts he plays and whom he represents (ad 3).

b) But he cannot licitly use unjust or dishonorable means, such as frauds, false witnesses or documents, indeed neither can he use lies, because fraud and deceit ought to patronize no one (ibid.).

c) Hence he cannot insist upon these if they are produced; but in a civil matter he cannot fail to produce those things which must be produced.

d) And if an authentic document has been lost, he cannot substitute for it a fraudulent copy: for this is a lie, which is also forbidden by law, lest a way be opened to all frauds with great public detriment.

An advocate who has unjustly inflicted damage, whether upon the client or upon the opposing party, is held to repair it.

644. The duties of an advocate toward the client. An advocate, by force of his office, is held to plead diligently and faithfully the cause which he undertakes.

1. Before he undertakes the cause, he must:

a) Diligently examine whether he is capable of patronizing it; otherwise let him take care to refer it to one more expert;

b) Examine the cause itself with that diligence which the gravity of the matter requires, then sincerely warn the client concerning the justice or injustice of the cause, and also concerning the probability of winning or losing, so that the client, thus duly instructed, can avoid useless expenses.

But if the advocate culpably omits these things, he is held to repair the damages which certainly followed from this.

2. After he has undertaken the cause, he must expedite and defend it diligently, with that diligence and fidelity which prudent men are accustomed to employ in a similar business. Hence he sins gravely:

a) Who is notably negligent in considering the cause, reading the documents, approaching the judges, developing the arguments, etc., and on this account exposes the client to the danger of incurring grave damage;

b) Who deliberately handles the cause badly, so that he may favor the other party, or deserts a lawsuit already begun so that he may patronize the opposing party (which is also prohibited by civil law), or reveals secrets to the other party, even if he now holds the cause deserted by him to be certainly unjust (ad 2).

An advocate who from culpable negligence or deliberately has inflicted damage must repair it.

3. After he has defended the cause or given counsel in it, he can exact a just stipend (a. 4). This is to be determined by prudent estimation, "with consideration of the condition of persons, and of affairs, and of labor, and of the custom of the fatherland" (a. 4); hence it can moderately increase with greater skill or labor of the advocate; on the contrary, if the client, even with a price agreed upon, desists from litigating for a just reason, it must now be diminished: for then the price is not owed, but only compensation for the labor already expended. But if the advocate extorts something immoderately through dishonesty, he sins against justice (a. 4).

As regards the mode of defining the rate of the due price, the principles handed down for assessing the stipend of physicians come to be applied here (n. 381), as also those things which we said there concerning the gratuitous assistance of the poor. Namely, in extreme necessity an advocate is held to defend a poor man gratuitously even with grave inconvenience; likewise in grave necessity with light inconvenience; but in common necessity under light obligation only, when another is lacking and it can be done without inconvenience.

I say 1st. Advocates are bound not only by legal justice toward society, but also by commutative justice toward litigants, to have competent knowledge, to undertake and pursue the case with due diligence and study, to guard against damaging delays, to examine the client's case seriously, to preserve fidelity to him, to reveal the justice or injustice, and scrupulously to indicate the degree of probability of gaining or losing it, and finally in pleading the case to guard against frauds, false proofs, and other unjust means against the adverse party.

I say 2nd. In civil matter, advocates of the accused cannot licitly sustain a certainly unjust case; wherefore if by defending it they obtain an unjust sentence, they are bound to repair all damages following from it, if these are not repaired by those in whose favor the unjust sentence falls. But a fortiori in criminal matter advocates cannot undertake the parts of an evidently unjust accuser. - Cf. St. Alphonsus, n. 223.

Question 1. Can advocates defend cases even less probable, both of defendants and of plaintiffs?

Resp. Affirmatively, in civil cases, according to the common opinion, because they can have hope that the truth will shine forth. But in criminal cases, the accused can always be defended, even if his culpability were openly established to all, provided this is done by honorable and licit means, with lies, frauds, etc., excluded. The reason is that an advocate defending the accused inflicts injury on no one; indeed also by his office he protects the right which the accused has, that he not be condemned before he has been convicted in judgment. - Cf. St. Alphonsus, nn. 220 and 222. - Sanchez, Decal., lib. 1, cap. 9, n. 51.

Question 2. To what is an advocate bound by reason of honorarium or stipend?

Resp. Nothing, generally speaking, can be accepted beyond what is just, which either perhaps has been taxed by law or is to be determined by the judgment of prudent men, with consideration had of the business, the skill of the advocate, the labor which he spends, and the received custom. But with regard to the poor in particular, 1st. he is bound to succor gratuitously, even with his own grave inconvenience, those who are in extreme necessity; 2nd. likewise those who are in grave necessity, he is bound to patronize gratuitously, and indeed under mortal sin, yet not with his own notable inconvenience; 3rd. finally, even in common necessity he is bound from charity to protect the cases of the poor, yet not with grave inconvenience; namely it suffices that he bestow upon them some of his work when he is free from others. - Cf. St. Alphonsus, Hom. Ap., n. 69.

Question 3. What can an advocate exact if, after agreement has been made about the stipend, the client abandons the case begun?

Resp. He can exact the whole if it does not stand through him that he does not pursue the suit, no differently than one hiring out his work for some wage can exact this wage, if it stands through the hirer that the work is not completed. Except, however, if a just cause intervenes for abandoning the suit, since this condition is always understood implicitly in the agreement. - Cf. St. Alphonsus, ibid.

Question 4. To what is an advocate bound who, when the case has already begun, notices that it is unjust?

Resp. He ought at once to warn the client concerning the injustice of the case and abandon it, lest he cooperate in unjust harm; nor can he persuade composition, since this ought to have place only in a doubtful thing. But if he knowingly pursued the unjust case, he will be bound to compensate all damages coming to each party. For he must restore to the adverse party from a sin of commission, since he himself was the positive cause of the damage; but to his own client, if he was in good faith, from a sin of omission, since by office he was bound to warn him concerning the injustice of the case. Nevertheless, by abandoning the case which he discovers to be unjust, the advocate ought not to help the other party, or to reveal the secrets of his own case to the other party, as is clear from natural law, and as St. Thomas expressly teaches, 2-2, q. 71, art. 3.

Question 5. Whether and how an advocate sins who defends a just case by unjust means, for example, if he substitutes a new promissory note in place of a prior lost one, etc.?

Resp. He sins against fidelity and truthfulness, more gravely indeed or less gravely according to the measure of the unjust means employed and the gravity of the thing of which there is question. Nor can he be excused from the good end which he intends; for evils are not to be done that goods may come. But of itself he does not sin against justice, since the case is supposed just, although by accident he can injure justice and be obligated to restitution, namely if damage comes from it to his own party or to the adverse party: for if, for example, the fraud is detected, it can easily happen that a case in some way good is led into suspicion and collapses. - And the same solution, as it seems, must be given if the advocate not only substitutes a new promissory note for the prior one, but supposes one which never existed; for although he then sins more gravely, nevertheless properly and of itself he does not violate commutative justice.

Question 6. Is it licit for an advocate to seek and vindicate dissolution of marriage according to the laws of each State?

Resp. Since, as St. Alphonsus says, "an advocate does not stand on the part of the judge but of the client," almost only that seems able to be conceded to him in this matter which is conceded to the client. Now in the cases enumerated at n. 559, Q. 4, recourse is permitted to the client; it is also permitted to the accused to defend his rights when the plaintiff wishes to obtain civil divorce. The client, the plaintiff, certainly cannot seek dissolution when his marriage is valid, so that he may enter new nuptials or obtain some temporal gain; but he seems able to have recourse for obtaining only civil effects, with the bond remaining, where civil law does not admit separation of bodies, or where this would not suffice and such circumstances are present which cry out that the thing is morally necessary: for example, the danger of the intrusion of adulterine offspring, or of the death of the wife, or of another most grave cause; but not even such recourse can be permitted without episcopal permission.

In all these cases where it is licit for the spouses to have recourse, the same is licit for advocates; where it is not licit for those, neither is it licit for these voluntarily to undertake a case for obtaining divorce. Indeed in the case of a spouse retained by a true bond but as if compelled to seek absolute civil divorce, the case ought, as it seems to me, to be proposed by the advocate in such a way that it is manifest to all that the client in no way wishes anything other than civil protection of himself and his family. - Wernz, v. 4, n. 750. - Collat. Brugen., v. 15, p. 649 et seq. - Haine, t. 4, q. 83. - Feije, n. 583. - Kenrick, tr. 8, n. 114. - St. Alphonsus, n. 223.

At the close of this book on justice and right it pleases me to touch upon certain things which regard men of the courts. In the Christian Theology I passed over this matter untouched, because there was not then time for adorning this province. At present I shall briefly illustrate the chief points. To the matter.

I. QUESTION I. What are the duties of a judge, that he may judge rightly? ANSWER. First of all, knowledge is necessary to a judge of those things concerning which he must pass judgment. Terrible are the oracles by which the Holy Ghost, Wisdom 6, inveighs against sluggish and ignorant judges. Wisdom is better than strength. … Hear therefore, ye kings, and understand … you that are judges of the ends of the earth … for a most severe judgment shall be for them that bear rule. … To you therefore, O kings, are these my words, that you may learn wisdom, and not fall away. God addresses not only inferior judges, but kings themselves. Upon these he threatens a most terrible judgment if they have not learned the knowledge by which they may govern and detect the errors of inferior judges. They are held in a fatal blindness if they believe themselves free from learning the wisdom necessary to government; if they flatter themselves that it is enough to choose good judges and ministers, to whom they commit the whole burden. These are helpers and auxiliary forces. But for the rest, kings and princes themselves will have to render God an account, and indeed a most severe one, both of the judges and of the people. It is a most enormous error by which they believe they have fulfilled their part as often as they have chosen the best ministers. This is one thing which they ought to furnish; but the chief thing is assiduous vigilance and study, by which they ought to assist the people committed to them and to transact the affairs of their princedom. He who wills the splendour of dignity and its revenues must needs will the most grave burdens which follow upon dignity.

II. To all judges, besides knowledge, there is necessary for the forming of a right judgment fortitude and constancy, by which they may make little of the powerful and fear no person. God says, Ecclesiasticus 7: Seek not to be made a judge, unless thou have strength enough to extirpate iniquities: lest thou fear the person of the powerful, and lay a stumblingblock for thy integrity.

III. Hence they gravely sin who, destitute of knowledge, fortitude, and the other necessary endowments, undertake the office of judge: these cannot be absolved unless they abdicate the magistracy. For they are engaged with the greatest peril of eternal salvation: for if a judge, reckoning that he judges rightly, from mere unskilfulness bring forth a false sentence, he is stained with a grave sin of ignorance, as failing in those things which by his office he is bound to know, and is bound to the restitution of all the losses which come to the litigants.

IV. Besides the endowments recounted, a judge must be furnished with authority of judging, either ordinary, or delegated, or from the consent of the parties. He ought also to have moral certainty of the cause which he decides. This moral certainty ought to be formed to the norm of the laws, and according to what is alleged and proved. For he cannot condemn him whom by private knowledge he knows to be guilty, if he be not juridically proved guilty. Since he judges not as a private person, but as a public person.

V. QUESTION II. How ought a judge to bear himself when the rights are doubtful? ANSWER. Note the proposition which Innocent XI condemned, no. 2: He probably judges that a judge can judge according to the less probable opinion. A judge is therefore bound to judge according to the truly more probable opinion in questions whether of right or of fact, every respect of persons being excluded, as God commands, Deuteronomy 1: Judge that which is just, whether he be one of your own country or a stranger. There shall be no difference of persons: you shall hear the little as well as the great: neither shall you respect any man's person, because it is the judgment of God. Nor ought a judge to attend to what the vulgar or the multitude say, but he himself ought to search the laws, and according to them to pass sentence, as God commands, Exodus 23: Neither shalt thou yield in judgment to the opinion of the most part, to stray from the truth. If on both sides equally probable reasons press, then the thing, such as it stands, is to be divided between the parties, if it be possessed by no one. In criminal causes nevertheless, when the rights are equal, the judge ought to favour the accused.

VI. Judges ought to despatch causes or suits quickly. If they be negligent in this, they sin against justice, and are bound to compensate the injured party. If they know advocates who craftily protract suits, let them busy themselves to expel them at once from the court.

VII. Authors keenly dispute whether a judge ought to punish with death one whom he certainly knows to be innocent, when according to what is alleged and proved he evidently appears guilty. All affirm that the judge is bound to enter upon all ways and to use all arts, both by deferring judgment and by remitting the cause to a superior, and by acting rightly with him that he may free the innocent man. What if all these be useless? If I must bring forth what I think, I judge that it can scarcely happen that a judge cannot bring it about that the innocent man should appear such. For if this man is innocent, the witnesses are false. But falsehood can with the greatest difficulty pass hidden through a third examination, if the judge be awake. A judge indeed is bound as a public person to judge according to what is alleged and proved; but in a most rare case care must be taken that the innocent do not perish. And because I judge that the case can scarcely happen in practice — namely that the accused be innocent, that this innocence be evidently known to the judge alone, and that no way is at hand of catching the false witnesses in their speech — therefore I abstain from a longer discussion.

VIII. A judge sins who condemns an accused man upon a confession unjustly extorted. Since a confession unjustly extorted affords no right, nor can a judge use it, since it is not lawful to use an unjust means. But a judge unjustly extorts a confession if he attempt it without congruous indications, or preceding infamy, or half-full proof; if by guile or by promise of impunity he allure the accused; if against the order of law he torture him.

IX. QUESTION III. Can a judge accept gifts from the parties? ANSWER. A judge cannot accept gifts for a sentence to be brought forth, whether just or unjust. Hence Alexander VII proscribed the following thesis: When litigants have on their side opinions equally probable, the judge may accept money for handing down sentence in favour of the one rather than the other. Severely does God disapprove and detest so great a depravity in several places of holy Scripture. Deuteronomy 16 says: Thou shalt not accept person nor gifts: for gifts blind the eyes of the wise, and change the words of the just. Thou shalt justly pursue that which is just. Here both great and small gifts are excluded. That light little gifts are accepted for the avoiding of the mark of discourtesy is an inept excuse. The peoples venerate judges when they see them reject such things, and receive them not as discourteous, but as strong men and upright administrators of justice.

X. QUESTION IV. How ought inquisition to be made by a judge? ANSWER. Inquisition is threefold. General, which inquires in general whether the laws are observed. Another peculiar, by which inquiry is made concerning a certain crime and a determinate person. The third mixed, by which inquiry is made in general concerning the person and singularly concerning the crime, or the contrary. General inquisition ought to be made by a judge with no occasion given. If the crime be public and the guilty man hidden, the judge ought to inquire in general. He cannot inquire against a determinate person unless there have gone before either infamy, or half-full proof, or grave indications. These same things are required for torturing an accused man. Torture was instituted for constituting by the accused's own confession a full proof, when most grave indications urge but do not suffice for pronouncing sentence. Once tortured, if he has confessed nothing, he cannot be tortured again for the same crime. If an accused man who confessed under torture retract the crime before the judge, he can be tortured again; if, having confessed a third time, he a third time retract before the judge, he is to be absolved, unless the indications be most vehement. But tribunals have their own prescribed rules as regards this.

XI. QUESTION V. Does a judge's just sentence oblige in conscience? ANSWER. All affirm it, because a lawful superior's precept is to be obeyed out of conscience. On the contrary, an evidently unjust sentence does not bind. Wherefore he who by force of an unjust sentence receives another's goods is bound to restore the same, when he recognizes the injustice of the sentence. If he receives the same in good faith, and before the time of lawful prescription detects the sentence to be unjust, he becomes a possessor of bad faith and liable to restitution. An unjust sentence nevertheless is to be observed by the injured litigant, for the avoiding of scandal and disturbance; nor is it lawful to act by force against the judge and his ministers; but for the public good a private evil is to be tolerated, and only, the order of law being observed, can an appeal be made or a review of the sentence be implored.

XII. A judge is bound to impose the penalties prescribed by law. Not rarely do judges at their discretion either remit or temper these penalties. When this can be done without detriment to the public good, I praise the kindness. But often judges, that they may be merciful toward the guilty, become savage and inhuman toward the innocent. Penalties of this kind are imposed not only for the punishment of offenders, but also for the terror of others. When wicked men see criminals unpunished, they snatch a handle for vexing the innocent. Therefore kindness toward the guilty opens a way to the oppression of the innocent.

I. QUESTION I. Is anyone bound to accuse or to denounce? ANSWER. This distinction between an accuser and a denouncer St. Thomas constitutes, II-II, q. 68, art. 1: that a denouncer intends a brother's amendment, an accuser the punishment of a crime. Those who by office are deputed to this duty, and who receive a stipend from the commonwealth, are bound in justice to accuse offenders inflicting public losses, such as are fiscal officers, watchmen, keepers of fields and woods, and so forth. If a crime turn to public loss, whether temporal or spiritual, even private persons are bound either to accuse or to denounce. Crimes which tend to public loss are the betrayal of one's country, the adulteration of coins, poisonings, heresy, and so forth. Wherefore Alexander VII proscribed the following thesis: Although it be evidently established that Peter is a heretic, one is not bound to denounce him, if one cannot prove it. A denouncer is not bound to prove, but only an accuser. For those who cannot prove a crime are not bound to accuse.

II. QUESTION II. If an offence be hidden and can be proved, ought an accusation to be made? ANSWER. If hope of amendment be given, fraternal correction is to be preferred: because a neighbour's reputation stands, and amendment is obtained, when, as I have said, the offender's amendment is prudently hoped for. If nevertheless the crimes are against the public good, whether temporal or spiritual, amendment can with difficulty be presumed. And therefore, speaking of these crimes, St. Thomas teaches, in Book 4, distinction 18, question 2, article 3, reply 4, that such offenders can be accused without a secret admonition first sent. An accuser ought to abstain from accusation as often as he perceives the crime to be doubtful, or that he cannot prove it.

I. QUESTION I. Is an accused man bound to confess the truth? ANSWER. An accused man is bound under grave fault to confess the truth to a judge juridically questioning him, as St. Thomas teaches, II-II, q. 69, art. 1, to whom theologians commonly subscribe. Since a judge in this case has a right of questioning and of exacting the truth for the public good of society. Therefore there is a debt in the accused of manifesting the truth. For the first cannot stand without the other. Besides, the accused cannot deny the truth without a lie, which is always unlawful. But to lie in judgment is a mortal sin, since it is in a grave matter, against justice, says St. Thomas, II-II, q. 69, art. 1, reply 3. He who lies in judgment, excusing himself, acts against the love of God and against the love of his neighbour: both on the part of the judgment, to which he denies its debt, and on the part of the accuser, who is punished if he fail in the proof. Moreover an oath is exacted from the accused concerning the truth to be manifested. Therefore he is a perjurer if he hide the truth. And thus the graver theologians commonly teach.

II. Authors dispute whether an accused man is bound to confess the truth after a capital sentence has been passed. Navarrus, Córdoba, Cabassutius, and others affirm it: because, says Navarrus, this is required for establishing the judge's reputation. You will reply that it is already well enough known that offenders are wont to deny the crimes committed by them. But it appears to me difficult that a Christian accused man is disposed for holily undergoing death who perseveres in the denial of the truth. Assuredly it is a lie: but as he publicly denied the truth, so publicly, as it seems to me, he ought to manifest it. All confess nevertheless that the accused is bound to confess the truth for the taking away of scandal, or of a neighbour's loss, or of the detriment of the public good which would threaten from the concealment of the truth.

III. An accused man is bound also to confess the truth when he is questioned by a judge concerning accomplices, because a superior lawfully commanding is to be obeyed. An accused man not juridically questioned is not bound to answer, yet he can never tell a lie. Mental reservations are inept for hindering a lie.

IV. An accused man who lays a false crime upon himself, for which he is to be punished with death, that he may decline torments, sins mortally: because he directly and positively flows into his own death, and is a defamer of himself. Wherefore he cannot be absolved unless he reveal the calumny laid upon himself, since he is not lord of his own life. It is lawful for the accused to appeal to a superior judge, when he is persuaded of the injustice of the sentence, either because the order was not observed, or because the sentence is severer than is equitable. But the appeal is iniquitous when he knows the sentence to be just.

V. QUESTION II. Is it lawful for an accused man to flee, that he may avoid the penalty? ANSWER. An accused man condemned to death can go to the place of execution and submit his neck and fit his hands, when he cannot take to flight. And yet it is not lawful to inflict death upon himself, to take poison, to cast himself from a ladder, to pierce himself with a sword, or to hang himself with a noose: because these things must be done by the executioner.

VI. It is lawful for a guilty accused man to flee, that he may decline death, both before and after the judge's sentence, unless by a peculiar promise or oath he has bound himself to remain, as St. Thomas teaches, II-II, q. 69, art. 4, reply 2. If nevertheless the judge should command that he not flee, since the precept is absolutely just, the accused would have to obey. But since the observance of such a precept is difficult, since the preservation of life is innate from nature, therefore judges commonly abstain from such a precept: nor, as it seems to me, are they to be persuaded to impose it, on account of the difficulty of observance: since moreover flight can be hindered by a severer custody added.

VII. Hence authors commonly infer that it is lawful for an accused man, for the sake of avoiding death, to break his prison and the walls, that he may open a way of flight for himself. For if flight is lawful for him, it will also be lawful to carry out those things which are necessary for flight. But they dispute whether it be lawful for others to hold out to the accused instruments by which he may break the prison. Many deny it — Toletus, Navarrus, and others. But Cajetan, Salón, and others affirm it. Since, they say, if flight is lawful for him, why is it not lawful to afford the instruments by which the lawful end may be obtained? This matter is not of so great moment as to deserve severer discussion. All affirm that this is not lawful for keepers and ministers. Similarly all authors deny that it is lawful for others to help the accused by breaking the doors or walls of the prison. Because although this were lawful for the accused on account of the innate right of preserving life, it is not therefore permitted to others, who are not in the case of consulting their own life. If this were lawful, nothing would be firm and safe, and the supreme power would lack the means for preserving the public good.

VIII. To an accused man against whom a sentence of death has been passed it is not lawful to defend himself and to resist the judge, or the ministers and executors of the death. Similarly an innocent man condemned by a just sentence according to what is alleged and proved, but destitute of truth, is bound to bear with Christian patience the penalty inflicted, when by a lawful way and without public scandal he cannot avoid it; and he is bound to pay a pecuniary fine imposed by a lawful judge. Many contend that it is lawful to flee from the galleys, unless one's word has been given of remaining there, since the accused is condemned to be detained there, not to remain of his own accord. And indeed it seems difficult enough to determine that an accused man is bound in conscience to remain of his own accord in so exceedingly troublesome a prison.

I. For the confirming of some fact and the constituting of a full proof in judgment, two witnesses are required, as St. Matthew, chapter 18, testifies: That in the mouth of two or three witnesses every word may stand. This same St. Thomas teaches, II-II, q. 70, art. 2. In facts of lighter moment one witness suffices, as the testimony of a public keeper is enough for punishing thieves of wood in the forests or of fruits in the vineyards. One witness suffices for hindering a marriage. In testaments, as has been said, two witnesses absolutely do not suffice. It is required that the witnesses be of full age without any exception. By law some are excluded: first, women in criminal cases are excluded, in civil cases admitted; second, slaves; third, minors under twenty years are rejected in criminal cases, in civil cases the under-age; fourth, enemies; fifth, blood-relations and members of the household; sixth, the infamous; seventh, perjurers; eighth, accomplices in the crime; ninth, crimes of difficult proof excepted; tenth, the raving and the foolish.

II. QUESTION I. When are men bound to bear witness? ANSWER. St. Thomas turns over this question, II-II, q. 70, art. 1. When a grave evil, whether temporal or spiritual, whether public or private, threatens an innocent man, everyone is bound to bear witness, even if he be not required by a judge. For the charity of Christ urges us to free the innocent from unjust loss and from monstrous oppressions, as the Psalmist says: Rescue the poor; and deliver the needy out of the hand of the sinner. But in other matters no one is bound, unless required by a judge.

III. A witness is bound to bear witness to a judge lawfully questioning him. That a judge may lawfully question in respect of a witness, it is enough that an accusation, or a denunciation, or a complaint interposed have gone before. But these do not suffice that a judge may juridically question an accused man; but in respect of him it is necessary that there go before either infamy, or grave indications, or half-full proof, as has been said. More therefore is required that a man be bound to bear witness against himself than against a stranger.

IV. QUESTION II. Who are free from the obligation of bearing witness? ANSWER. Confessors, who know facts by force of sacramental confession. Likewise all those who know facts under a natural secret, or for the sake of giving counsel or aid, such as are advocates, physicians, midwives, surgeons, theologians, and so forth. Nor does the judge's intention regard this, that those things which are known by these ways be revealed. Because the observance of secrets is necessary to civil society and to the common good. All nevertheless except with St. Thomas testimony necessary for hindering a grave loss of the community. For then the secret is concerning an unlawful matter — the sacramental seal excepted, which in no case can be revealed. Those who saw an offence, and afterwards swore that they would not reveal it, ought to obey the precept of the superior, although it be not a question of a neighbour's loss to be averted, because that oath is against the right of the superior. As soon as a man knows a thing, there arises a right in the superior of questioning, and consequently that oath is concerning an unlawful matter in respect of the superior, although the sworn secret is to be kept in respect of others. Witnesses are immune from bearing witness when from the same a grave loss threatens themselves or their blood-relations, unless you are bound by the precept of charity to hinder either the public good or a neighbour's loss. For human laws absolutely, and certain cases excepted, do not oblige with a very grave detriment. A father, son, husband, wife, brothers, sisters, blood-relations, and connections of the offender, up to the second and according to many up to the fourth degree, are not bound to bear witness, that domestic concord may be preserved. There are always excepted the cases of heresy, of treason, of the betrayal of one's country, and so forth. In some places servants also are exempted from bearing testimony against their master.

V. QUESTION III. When does a witness gravely sin, and is bound to restitution? ANSWER. He sins: first, if he affirm as true what he did not certainly know; second, if he hide the truth known to him from one lawfully questioning; third, if he bear false witness, because, as is said in Proverbs 21, a lying witness shall perish; fourth, those who write false instruments, or tear up true ones; fifth, those who adulterate some bond or writing. All these, besides the grave sin, are bound to compensate all the losses which thence follow. Sixth, he who in good faith uttered false testimony is bound to retract it. Let this at last be the general rule. Judges are the keepers and defenders of society and of the public good. All subjects are bound to obey their own superiors when they lawfully command. Nor can private persons judge when they lawfully command, but they ought to obey them. Wherefore, when they are cited even in general, they cannot hide themselves or take to flight, but ought to stand before the tribunal.

I. QUESTION I. What are the obligations of advocates? ANSWER. First of all it is necessary that advocates have the knowledge and skill by which they may be able to exercise their profession. A precise rule of that knowledge cannot be designated. Advocates must be awake, of keen talent, and endowed with force of eloquence. Those who are slow of talent and barren of tongue expose themselves to a most grave danger, no otherwise than those who, by nature weak, fearful, and timorous, undertake a war.

II. The client's cause being heard, the advocate ought to manifest its equity or its injustice, no regard being had to his own gain. Would that those who undertake the profession of advocate had whereon to live without the profession, lest, compelled by money, they should accept any causes whatsoever that they may procure food and sustenance. Often not a few recognize the injustice of a cause, but if they lay it open and dismiss their clients, they have not whereon to live. Hence, bound by want, they easily paint for themselves as probable a cause which is openly unjust.

III. An advocate ought to apply study and diligence according to the quality of the cause, that he may obtain the victory of the cause before the judge; and this he is bound to carry out by his office, since he is hired at a stipend.

IV. Advocates must be sincere and ingenuous: strangers to frauds, to revilings, to protractions, to false proofs, to injuries against the adverse party. They ought not to accept save a just stipend fixed either by law or by just custom. It is forbidden to an advocate to bargain with his client concerning some part of the thing in controversy if he win. For hence he would snatch a handle of obtaining victory by fair means or foul, every respect for justice being taken away.

V. QUESTION II. Is it lawful for an advocate to defend a less probable cause? ANSWER. Some affirm it. In few words I shall settle the matter. An advocate sins: first, if he defend a cause known to be unjust; second, if he defend a less probable cause. If the civil cause be equally probable, he can treat it before the judge; but he ought sincerely to warn his client of the danger of losing the suit. For when the rights appear equal, then each party has a right of proposing its own reasons. This nevertheless is true when the client is the possessor. For if the adversary be the possessor, an advocate cannot defend his client against the possessor. Since when the rights are equal, and consequently the cause doubtful, the condition of the possessor is the better. That an advocate may lawfully defend his client against a possessor, he must judge his own cause to be certainly and evidently the more probable, and such as will appear to the judge. But while it appears doubtful, he cannot judge it the more probable, and indeed evidently. Advocates must beware lest greed and cupidity of gaining clothe an opinion which is to be defended with a degree of greater probability which it does not have.

VI. Hence advocates sin, and are held to restitution: first, if, unskilled and not sufficiently fit, they exercise such a profession; second, when they defend a cause known to be unjust; third, if they undertake causes indiscriminately to be defended, and without considering severely and maturely their justice; fourth, if in the progress of the suit, the injustice being known, they do not warn the client to desist from the suit; fifth, if they reveal the client's secret to the adverse party; sixth, if through their unskilfulness, negligence, or malice the client lose the cause, or make superfluous expenses; seventh, if they defer the despatch of the cause beyond what is just; eighth, if they do not clearly and plainly manifest to the client the danger of losing the suit, and much worse if they allure him by vain promises to bring the suit; ninth, if in defending the suit they use falsehood, fraud, false witnesses, or apocryphal or adulterated writings; tenth, if they undertake more causes than they can rightly despatch, and give to each the due study; eleventh, if they extend their writings beyond what is just, that they may receive a greater price; twelfth, if they lay false crimes upon the adverse party, or reveal true but hidden ones, or vex them with unjust cavils. Lastly they sin against charity if they do not defend gratis the causes of the poor labouring under grave or extreme necessity.

VII. The other procurators, scribes, notaries, and secretaries are all bound in justice to exercise their office diligently, since they receive a stipend. These also sin, according to the diversity of their office, if they persuade an unjust suit; if they multiply writings without necessity; if they violate the secrets of the parties; if they present false writings, or adulterate true ones.

VIII. I shall add a few things which regard physicians, apothecaries, and surgeons. Physicians and surgeons sin: first, if without opportune knowledge they exercise the art of healing; second, if they be negligent in curing diseases; third, if they undertake more sick persons to be cured than they are able opportunely to attend to; fourth, if they neglect to apply the safer, or at least the more probable, remedies; fifth, if they protract the care of a sick man, that they may multiply their fees; sixth, if they omit to cure the diseases of the poor; seventh, if they pass over warning those who lie gravely ill to receive the sacraments, since St. Pius V ordained that physicians should not visit a sick man after the third day unless it be established to them of his sacramental confession; eighth, if they publish the shameful and hidden diseases of the sick.

IX. What has been said of the professions recounted is to be applied to other craftsmen, proportion being preserved. For all apothecaries and the other craftsmen sin if, destitute of the necessary knowledge of their art, they exercise such an art; if they use frauds or guiles. For every art has its own peculiar frauds. Wherefore it will be the part of a skilled confessor severely to examine his penitents upon the right administration of their own art.

AFTER the Judge has occupied the supreme place in the tribunal, and the Defendant has been brought before him, and the witnesses examined openly (which, however, is not always required, since sometimes it is more expedient that it be done in secret), a fourth place is left to certain persons who contend from their office, for or against, by the allegation of laws and the discussion of arguments, so that the proceedings toward the Defendant's condemnation or absolution may go forward more clearly and securely; for the laws of almost all these places are so entangled in perplexities that some learned jurists are needed, by whose help they may be untangled, of whom we shall treat here.

Titius is a conscientious Catholic and a lawyer of considerable ability. In the practice of his profession, he is often called upon to defend persons who are being prosecuted in the courts for some crime. Now it sometimes happens that Titius knows, even before the case comes to trial, that his client is guilty and that he deserves to be punished; nevertheless Titius accepts the conduct of the case, because he has a special aptitude for such cases, and because he receives larger fees for them, than for the conduct of civil cases.

But on the other hand, he has serious scruples about defending such persons, because he thinks it is against the best interests of the community, tending to breed contempt for the law, and affording a more or less sure escape from the consequences of its transgression.

Question. How is he to be advised?

Answer. “In the interests of the proper administration of justice,” says William Lecky, “it is of the utmost importance that every cause, however defective, and every criminal, however bad, should be fully defended, and it is therefore indispensable that there should be a class of men entrusted with this duty. It is the business of the judge and of the jury to decide on the merits of the case, but in order that they should discharge this function it is necessary that the arguments on both sides should be laid before them in the strongest form. The clear interest of society requires this, and a standard of professional honor and etiquette is formed for the purpose of regulating the action of the advocate. Misstatements of facts or of law; misquotations of documents; strong expressions of personal opinion, and some other devices by which verdicts may be won, are condemned; there are cases which an honorable lawyer will not accept, and there are cases in which, in the course of a trial, he will find it his duty to throw up his brief.”

It can not be denied that the profession of an advocate is fraught with many moral dangers. It is more difficult and more dangerous than that of either judge or jury. Dr. Arnold thought that it led inevitably to moral perversion, involving as it does the indiscriminate defense of right and wrong, and in many cases the known suppression of the truth. It is said that on the feast of St. Yves, a saint of Brittany and a lawyer, that the people chant: Advocatus et non latro—Res miranda populo. Indeed, it was this aspect of the calling, that drove St. Liguori from the law to the Church. Volumes have been written, both by non-Catholics as well as Catholics, on the duties and obligations of advocates, some allowing him a large measure of freedom in the conduct of civil and criminal cases, and others restricting him to cases that he believes to be just.

Without entering into a discussion of the merits of these several views, as held by these authors, many of whom are men of great - ability and high character, we shall confine ourselves to a short statement of the accepted doctrine of Catholic moralists, regarding the duties and practices of advocates.

First of all, moral theology lays down the general principle that it is not lawful for a lawyer to accept any cases not founded in justice, nor to defend them by any other than just and honest means. If a lawyer were permitted in conscience to accept a dishonest case or to defend a just case by unjust means, then he would be permitted in conscience to do an injury to the party opposed to him. For the party opposed to him, whether it be the state or an individual, has a prior claim or right, rooted in the law of nature, that he shall not be injured in his person or in his goods, without just cause, nor by any other than just and honest methods.

After laying down this general principle, the moralists distinguish between civil and criminal cases, and they allow more freedom in the conduct of the latter than in that of the former. In regard to civil cases, no lawyer is allowed in conscience to accept a case which he knows for certain to be unjust. The reason is quite evident. An unjust case is an attempt to do another an injury. If the injustice of the case is known beforehand, then the plaintiff wilfully endeavors to do an unwarranted injury. The lawyer who accepts such a case, cognizant of its injustice, co-operates with the plaintiff. If he succeed in gaining his suit, he actually does the injury, knowingly and willingly, and is bound in conscience to make reparation. If he lose his case, he injures his own client by putting him to unnecessary expense, in prosecuting a case which he knew to be worthless.

If during the course of the trial the attorney discovers that the case is an unjust one, and if successful, will inflict an injustice on the defendant, he must secretly admonish his client to withdraw the case, or else he must throw up his brief. This is precisely the line of conduct followed by one of the most distinguished lawyers and conscientious Catholics in the United States. In the course of a trial, some time ago, he suddenly discovered that his client was endeavoring to cheat the defendant out of a large sum of money. He immediately informed his client in secret that he must compromise the case for one dollar, or he would expose him. We will say here, in passing, that we believe, with most theologians and many laymen, that a lawyer, like a physician, is justified in exposing a client or patient who is wilfully endeavoring to injure an innocent person, if after having been secretly admonished to desist, the client or patient still perseveres in his evil intent. If the justice of the case which the lawyer is asked to accept, is in doubt, the lawyer may accept it, after an understanding with his client. Because the courts exist for the purpose of settling controversies, and the justice of a case, that in the beginning seemed doubtful, may, during the progress of the trial, become altogether evident. Thus it is said that Sir Matthew Hale, the distinguished English barrister and judge, had determined never to accept a case which he did not believe to be just, but was led to relax this rule, having found in two instances that cases which at first sight seemed wholly worthless were in truth well founded.

In criminal cases, a lawyer may defend a guilty person, although he is fully advised beforehand of the guilt of his client. In fact, it is so necessary for the safeguarding of justice that a criminal be defended by counsel, that where the accused is not able to retain legal help, the same is assigned him by the court. The requirements of the law are thus better subserved and the accused is protected in his rights.;

It is a basic principle of our law, that every accused person is held to be innocent until proven guilty. Such a person is permitted by the law to defend himself against every accusation, be it ever so well founded in fact, provided only he make use of no lie or fraud or false document or other unjust means in his defense. And all this his counsel may do for him. Eventually the administration of justice is best promoted by this course.

Truth is best elicited and difficulties are most effectually disentangled by the opposite statements of able men. But under no circumstances is a lawyer in a criminal case allowed to use unjust means in defending his client. He is not allowed to tell lies to the judge, nor to produce false witnesses, nor to use spurious documents; because means that are dishonest in themselves are not made honest by reason of the end for which they are employed. Hence, if an authentic document, v. g. a will, is lost, the lawyer is not allowed to substitute a counterfeit document in its stead. While this would not be a sin against commutative justice, requiring restitution, it would be a grievous sin against the truth.

In the case of Titius therefore, we say that he is justified in accepting the defense of persons whom he knows to be guilty. And having engaged to defend them, he must defend them to the best of his ability. Only his methods of defense must be just and honest. It is the privilege of the accused under the law, that even though he be guilty, his interests be protected by able counsel, and the lawyer who defends him contributes to the better and more equitable administration of justice, and to the protection of the rights and interests of the citizens. “But necessary and honorable as the profession may be, there are sides of it which are far from being in accordance with an austere code of ideal morals.”