Duties of Certain Laymen

¹ Manual labor, which pagans in general contemned as a dishonorable thing, is not at all contemptible, but rather prescribed by the law of nature, ennobled by the example of Christ and the Apostles, and therefore is for everyone a highest ornament.

¹ St. Thomas, II-II, q. 187, a. 3. Encyclical letters of Leo XIII concerning the condition of workers: Rerum novarum, 15 May 1891. Ed. Genicot, Theologiae moralis institutiones, Louvain: Polleunis and Ceuterick, 1902, I, n. 365. S. Weber, Evangelium und Arbeit, Freiburg: Herder, 1898.

67. Preliminary notions.* 1. The name of labor is taken in a broader and a stricter sense: in the broader sense it is understood as any occupation, whether it is exercised by body or mind, whether it is useful to others or useless; in the stricter sense it is understood as human activity, both bodily and spiritual, by which goods in some way profitable are produced.

In the former sense even prayer, both vocal and mental, exercises of piety, works of mercy toward the neighbor, and things of this kind are counted by the name of labor, in general any human activity, with only that excluded which is undertaken merely for the sake of delight. In the latter sense only productive and gainful labor is called labor, which is useful to the laborer himself or to others or to society, and therefore is also called "social labor."

2. There are some who contend that on all and individual men who are fit for this there has been imposed a natural and divine precept of laboring, not indeed always with productive and gainful labor, but nevertheless with serious and constant labor, ordinarily undergone through the greater part of the day. Although there does not exist a divine precept directly obliging all and individual men to labor, nevertheless there exists a universal precept of labor for the human race, so that labor pertains to the duties of human life; but indirectly labor is prescribed more or less to all and individual men.

3. To labor there belongs a. social moment, since it begets temporal prosperity, perfects culture, and increases the comforts of life; b. moral moment, since it is a means of exercising virtue and self-denial; c. supernatural moment, since it renders us like Christ our Savior, who was in labors from His youth.

68. Whence the obligation of labor arises. 1. From several reasons there exists a true obligation of laboring, which binds each one more or less.

a. From the precept of conserving life. The obligation of laboring certainly arises from the duty of conserving life by ordinary means: for since most men lack the means necessary for preserving life either simply or fittingly unless they acquire them for themselves by continual labor, and since labor is a means equally ordinary and necessary for this end, all who from another source do not have a sufficient abundance of goods by which they can honorably nourish themselves are bound by the obligation of undertaking labor.

a. The precept of laboring indeed requires that man by labor proportioned to his powers acquire for himself the necessary means by which he can lead a life fitting to the dignity of human nature; but it by no means requires that he procure for himself a more abundant supply of things, by which he can also enjoy the comforts and luxuries of those nations which are chiefly praised for material culture and progress.

b. Just as those who already have the things necessary for conserving life are immune from the precept of laboring insofar as it arises from this head, so those are immune from the same who are nourished by the piety of others, even if they could acquire the necessary livelihood for themselves by their own labor, as religious who live by begging: for labor is not prescribed for its own sake, but as a means necessary for preserving life; therefore for those who receive the necessities of life from elsewhere and do not indulge idleness, the precept of seeking them by their own labor ceases.

c. Besides the obligation of preserving one's own life, other precepts induce a necessity of labor in many men, which cannot be observed without manifold labor, such as duties of piety of parents and children, duties of religion of clerics, etc.

b. From the obligation of avoiding idleness. Idleness exposes man to the imminent danger of falling into various sins: for with experience as witness, this is the condition of corrupted human nature, that an idle life is defiled by very many vices, which Sacred Scripture signifies by these words: idleness has taught much malice;¹ but the only means of avoiding idleness is labor; therefore man is bound, for avoiding the dangers of sinning which arise from idleness, to apply himself to some honorable labor.

It is clear that any labor whatever suffices for fulfilling this obligation, even if it is useful to no one, as the anchorites teach us by their example. But certainly occupation which consists in mere games and recreations does not suffice: for with experience as witness, those who are intent upon hunting merely after delights and pleasures are no less defiled by vices than those who are given to idleness.

2. Whether from positive divine precept. Although labor is especially fitting to human nature² and ennobles and perfects it, while on the contrary idleness and sloth are unbecoming to man, nevertheless it cannot be affirmed that a divine precept of labor, especially gainful labor, independent of all other obligations, has been enjoined in Sacred Scripture upon absolutely all men.

a. A natural precept of laboring is demonstrated neither from the innate inclination to working, nor from the destination of the human race to culture, which otherwise it cannot attain except by tireless labor of men, nor from tranquility of soul, which labor produces, while on the contrary idleness generates disgust. But the highest fittingness and utility of labor and the natural destination of men for working are rightly inferred from these reasons.

b. There are indeed many testimonies of Sacred Scripture, both of the Old and New Testament, by which labor is extolled with the highest praises and earnestly commended,³ but none by which labor itself as such is strictly prescribed.

a. The words of Genesis: In the sweat of your face you shall eat bread⁴ do not signify that no man can licitly obtain those things which are necessary for life except by arduous labor, but indicate the punishment imposed upon the human race because of sin: namely, that the human race, which before sin in the earthly paradise would have obtained in abundance the necessities for nourishing life by easy and pleasant labor, afterwards as punishment for sin would obtain them only by arduous labor. In a similar way the words are to be understood: in sorrow you shall bring forth children.⁵

b. The words in Job (5:7), man is born to labor, and the bird to flight, have an entirely different sense; for labor from the context signifies hardships and pain, so that the sense is either this: as the bird is born for flight, so man is born for pain; or this: as the bird is incited by nature to fly, so man by the inclination of nature is incited to sin, from which hardships and pains arise.⁶ Outside the context, the cited words have this sense: as the bird is incited by natural instinct to flying, so man is incited by natural inclination to motion and labor.

c. But the words of St. Paul: If anyone is not willing to work, neither let him eat,⁷ are to be understood concerning those who, since they were doing nothing but indulging idleness, wished to live at another's expense, namely that these are not even worthy of food.⁸

3. Whether from the obligation of contributing to the common good. Serious labor of men, especially that which is expended in cultivating arts and sciences, indeed contributes much to promoting the prosperity and culture of human society; wherefore to those who enjoy an abundance of necessary things, labor of this kind can never be commended enough. But man is not held by strict obligation to contribute by his labor to the progress of culture. Nor can any argument be brought forward by which it is demonstrated that individual men are strictly obliged, according to their powers, to contribute to promoting social progress. For the rest, what individual members of society ought to contribute from obligation to the common good and therefore to procuring and promoting the temporal prosperity of society, the precepts of charity and the precepts enacted by public authority for the common good determine.

¹ Ecclus. 33:29.

² Gen. 2:15.

³ Prov. 22:29; 31:13 ff.; Eccles. 11:6; 9:10; Eph. 4:28; 1 Thess. 4:10; 2 Thess. 3:10, 12.

⁴ Gen. 3:19.

⁵ Gen. 3:16.

⁶ Cf. Knabenbauer, Commentarius in librum Iob, Paris: Lethielleux, 1886.

⁷ 2 Thess. 3:10.

⁸ B. Justiniani, Explanationes in omnes B. Pauli Ap. epistolas, on this place. C. Estius, Commentaria in omnes B. Pauli epistolas, on this place.

69. On the right to labor. With the obligation of laboring is connected the right to labor, which socialists interpret badly. The social and economic conditions of our time bring it about that from time to time very many workers lack labor and therefore also necessary sustenance. Therefore socialists proclaim a right to labor, by which right either private men or the republic are held to provide for workers lacking labor at any time the occasion of laboring and of gaining wages by which they can live. Concerning this matter it is useful to note these things:

a. Each one has a right of laboring, that is, he has a right of seeking licit labor for himself by just means and of exercising it, and therefore he has the right of demanding that he not be impeded by others in the exercise of this right. This right is founded on another right, that of conserving and perfecting life, for which end economic labor in general is altogether necessary.

Therefore an injury is inflicted upon one willing to labor if he is impeded from seeking and exercising labor as he wishes, which is done by socialists especially in strikes. But upon civil power falls the obligation of protecting the right of laboring of him who does not voluntarily yield his right.

b. No one has a right to labor, that is, a right of demanding that another, whether a private person or the republic, provide or procure labor for him, even if he lacks the means necessary for sustenance. For he who lacks labor and at the same time sustenance cannot by right demand from the neighbor that he provide labor for him, though from charity the neighbor can sometimes be bound to this: the obligation of supplying gainful labor in every case is opposed to the right of property. But neither is the political power bound to provide or procure labor for him, since it does not pertain to its office to procure the temporal good of individuals.

c. But if the multitude of those who lack labor is so great that from it the common good suffers detriment, the public power is bound from legal justice, lest the common good be brought into danger, to procure for them the occasion of laboring.

Note. To the right and obligation of laboring corresponds the right and obligation to religious days of rest. For neither can the life of the body be preserved safe, nor the salvation of the soul be placed in safety, unless at stated times rest is granted to the body, so that the soul through prayer and contemplation of religious truths may look after eternal salvation. For this reason God prescribed: Six days you shall work ... but on the seventh day is the Sabbath of the Lord your God; you shall not do any work on it.¹

¹ Ex. 20:9-10.

A JUDGE is defined to be a public person appointed by lawful authority to apply the laws to the settling of disputes between litigants and to the punishment of criminals.

He is said to be a public person because he is appointed by public authority, not chosen like an arbitrator by the litigants themselves, and, moreover, he is guided in his official capacity not by his private knowledge and ideas but by the evidence given in the case and by the laws which he administers. Case law, or judge-made law, in English jurisprudence, is no exception to this rule, for it is but the authentic interpretation and application of the common and statute law to concrete cases made in court by the judges of the superior courts.

A cause in which the private rights of the litigants are to be adjudicated upon is called a civil case or action; if the cause is one in which an offender is tried for the commission of a crime it is called a criminal case or action.

By his very position and the nature of his office a judge is bound to pass a just sentence according to law in the cases brought before him, and so he must possess the requisite qualifications for this and set about it in the right manner, He must have a competent knowledge of the law which is to be his guide and which he is called upon to apply, and he must use at least ordinary diligence to get at the merits of the case before him. He must not allow his judgement to be influenced by such improper motives as fear or favour; his sentence must be dictated by a sense of even-handed justice. He must observe the rules of judicial procedure applicable to the case, and he must have the requisite authority or jurisdiction for dealing with it.

If in any of these points the judge is culpably at fault, he sins against justice and is bound to make good the damage which he causes. Moreover, inasmuch as judges ordinarily take an oath of office, he will also sin against the sanctity of his oath. A judge who should allow himself to be bribed to give an unjust sentence would not only be bound in conscience to repair the injustice done, but he would be liable to severe punishment for his offence. Even if he were to take a bribe for delivering a just sentence, he is bound in conscience to restore what he received. For, as his office binds him in justice to give sentence according to the merits of the case, such a service is no ground for special reward or-payment, nor a just title for retaining a special reward or payment if he has received any.

The judge, as we have seen, must pass sentence according to the evidence before the court, not according to his own private knowledge or views. He may know privately that an accused man is guilty, but he must not condemn him unless his guilt has been proved by the evidence. But what if the judge knows for certain that an accused man is innocent, and yet, according to the evidence available, he has been proved guilty? In such a case as this the judge must, of course, use all the means in his power to bring out the innocence of the accused party, or remit the case to another court, But supposing that he has done all in his power to avoid condemning the innocent man, and nevertheless the jury have found him guilty, and by law it only remains for the judge to pass sentence according to the verdict. Is he allowed to do so?

This question was disputed among theologians. Some, with St Thomas, taught that he might condemn the innocent man, for the witnesses were then guilty of injustice, not the judge, who did his duty in passing sentence according to law. Others denied that this is lawful, for to condemn the innocent, especially if there is question of a death sentence, is intrinsically wrong. Others distinguished, and taught that it is indeed unlawful to condemn an innocent man to death even when, by judicial process, he has been proved to all appearances guilty, but that when there is question of a fine or imprisonment which may be suffered without sin, the judge may pass sentence according to the law, for this is for the public good. Practically, therefore, according to the principles of English jurisprudence the judge may lawfully pass sentence even of death in such a case, but he is bound afterward, by making representations to the proper authority, to do what he can to clear the innocent party.

When the evidence in a criminal trial is not conclusive, the defendant must not be condemned, for a man is presumed to be innocent until he has been proved conclusively to be guilty.

In a civil action, when the rights of the parties are not certain, but only probable, the judge is bound to adjudicate in favour of him who has the more probable right, taking into account possession and all the other circumstances in the case.

If there is equal probability on either side, the parties should come to a compromise, or, as some hold, the judge may decide in favour of either party.

The judge is bound to pass sentence according to law, for this is presumed to be just. It may, however, happen that particular laws are unjust, as when the seal of confession is not respected or divorce is permitted. May a Catholic judge pass sentence in accordance with such laws as these ¹ The judge may sometimes obtain permission to pass sentence according to a law which is unjust merely because it is against the laws and rights of the Church. In order to make the position of Catholic judges tenable the Church will sometimes cede her rights in such cases or grant jurisdiction to try a case which of itself belongs to the ecclesiastical courts.

Thus Cardinal Gasparri deduces from a decree of the Holy Office, December 19, 1860, that jurisdiction has been granted to judges in England to try cases where there is question of judicial separation of married people.

If the law commands what is contrary to the natural or divine law—as, for example, to give evidence as to what has been declared in confession—it is intrinsically wrong to obey such a law, and no Catholic judge may apply it.

If the unjust law only imposes a fine or imprisonment, some theologians maintain that even then it may not be applied by a Catholic judge. Others, however, hold that for grave reason—as, for example, if no Catholic could otherwise accept the office of judge—sentence may be passed according to such a law. The person unjustly condemned must patiently submit for the public good, especially as he would not escape even if Catholic judges refused to execute the law.

The unjust sentence of a judge imposes no obligation in conscience, and of course the aggrieved party may have recourse to all available remedies which the law allows for redress. If none is available the public good will usually require patient submission to the wrong. If there is a doubt about the justice of a sentence, presumption favours the judge, and obedience must be yielded, as in the case of a just sentence, which has the force of the law which it applies.

¹ Gasparri, De Matrim. 2, n. 1165.

What has been said concerning the moral obligations of judges is applicable in due proportion to those who have similar functions, such as arbitrators, referees, and jurymen. An arbitrator differs from a judge in that he is chosen by the parties to the dispute to settle their claims. If the submission to arbitration and the decision of the arbitrator be in writing, the sentence is final, and will be upheld by English courts unless it is evidently corrupt or obtained by unlawful means.¹

Referees are officials or experts to whom the-court entrusts some special question for inquiry or decision, and sometimes the cause itself, if it be complicated and not suitable for trial in the ordinary way. They are bound to act according to the terms of their commission and the rules drawn up for their guidance, ‘The report or award of a referee, unless set aside by the court, has the force of a jury’s verdict.

A jury is a body of men selected and sworn to inquire into certain matters of fact, and to declare the truth upon evidence to be laid before them. They are therefore bound to form the best judgement in their power as to the facts of the case laid before them, and truthfully and fearlessly to give their verdict. If any one of them has any private knowledge of the facts of the case, he is not precluded from communicating it to the others, and he should do this if justice or charity require it.

¹ Cf. Can. 1930.

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.

THERE are other persons connected with the administration of justice besides judges and lawyers, and they have special moral obligations of their own. A word must be said about the moral duties of prosecutors, defendants, and witnesses. By canon law the accusation of delinquents in an ecclesiastical criminal trial is reserved to the Promotor of Justice, but as a general rule anyone who has full use of his senses may prosecute according to English law. Nobody should undertake a prosecution when greater evil than good would follow from it, or when there is not moral certainty as to the guilt of the accused. Otherwise it may be done for the sake of the public good, and there may be an obligation to do it, as when one’s office compels one to undertake the task, or the defence of the innocent or the public good require it, or a precept of obedience command it. Thus by ecclesiastical law heretics and priests guilty of solicitation in the sacred tribunal are to be denounced to the Ordinary.

The defendant in a criminal trial is not himself subjected to examination according to English law, unless he offers himself voluntarily to give evidence, and then he may be examined like a witness. In canon law the accused is examined, and the question arises whether he is bound to tell the truth. According to Canon 1743: “ The parties are bound to answer the judge when he interrogates them legitimately, and to tell the truth unless there is question of a crime committed by themselves.”

The defendant may in self-defence make known the secret crime of a witness against him, if it really conduces to his defence; but of course he may never impute false crimes to anybody. A criminal may not defend himself against lawful arrest, for that would be to resist lawful authority, but he is not compelled to deliver himself up to justice, and it is not a sin to escape from justice if he can do so without violence, The law prescribes that he shall be kept in durance, not that he shall voluntarily remain in custody. A criminal lawfully condemned to death is not obliged to save his life by escape or other means if he can do so; he should submit to the execution of the sentence passed upon him, and may do so meritoriously.

Charity or obedience may impose an obligation to give evidence in a court of justice. If serious harm can be prevented by offering one’s self as a witness, there will as a rule be an obligation to do so, and obedience imposes the obligation when one is summoned by lawful authority.

A witness is bound by his oath and by obedience due to lawful authority to tell the truth in answer to the questions lawfully put to him. How far he is privileged when examined concerning what he knows under secret, we saw when treating of the Eighth Commandment of the Decalogue. He is not bound to incriminate himself, nor, of course, may the seal of confession ever be broken (cf. Can. 1755).

The canon law laid it down that two witnesses of unsuspected character were necessary and sufficient evidence of any fact alleged in a court of justice. A solitary witness was not usually sufficient or admissible evidence of a crime, and in keeping with this the theologians decided that a solitary witness should not declare what he knew of a crime, inasmuch as he was not lawfully interrogated. English law, however, with most modern systems, admits one witness, if credible, as sufficient evidence of a fact, and so as a rule there will be an obligation on such a one of answering according to his knowledge when questioned lawfully in a court of justice (cf. Can. 1791).

A doctor who holds himself out as ready to undertake the care of the sick must have competent knowledge of his profession and must exercise his office at least with ordinary care and diligence; otherwise he will sin against justice and charity in exposing himself to the risk of seriously injuring his neighbour. Unless he is bound by some special agreement he is not ordinarily obliged to undertake any particular case, for there are usually others who are willing and able to give the necessary assistance to the sick. Even in time of pestilence he will not commit sin if he leave the neighbourhood, unless he is bound to remain by some special contract. Of course, one who acted thus would show a mean spirit, and would be justly reprobated.

He should not make exorbitant charges for his services, nor multiply visits uselessly and thus increase his fees, nor call in other doctors without necessity. On the other hand, even at his own serious inconvenience, he should visit a patient whose case he has undertaken when called as far as is reasonable, and he should be ready to call in other doctors for consultation when necessary or when he is asked to do so. He is sometimes bound by the general law of charity to give his assistance gratis to the poor who cannot afford to pay the usual fees.

He may not neglect safer remedies in order to try those which are less safe, but there is nothing to prevent him from prescribing what will probably do good if it is certain that it will not do harm. In a desperate case, with the consent of the sick person and of his relations, he may make use of what will probably do good though it may also probably do harm, provided that there is nothing better to be done in the circumstances. It is altogether wrong to make experiments with doubtful remedies or operations on living human beings, fiat experimentum in corpore vili.

What has been said of craniotomy and other similar operations, the use of morphia, hypnotism, and other dangerous remedies, are questions which have been treated elsewhere.

When the patient is in danger of death, the doctor is bound out of charity to warn him or those who attend on him of his danger, in order that he may make all necessary preparations for death if it should come about.

A medical man should know how to administer baptism in case of necessity (Can. 743).

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, qq. 60, 67; St. Alphonsus, Theologia Moralis, book IV, nn. 192-217; Homo Apostolicus, tract 13, nn. 63-67.)

A judge is a public person constituted for this end, that he may pronounce right according to law. He differs from an arbiter, who is a private person to whom litigants commit a dispute to be settled, either according to the rules of law, or according to what is equitable and good, as it is said.

I. A judge, in order to carry out his office licitly, must be furnished with due knowledge, i.e. at least moderate knowledge, and even greater knowledge if he is sole judge. Besides, knowledge of the question being treated is required more than knowledge in general. If he lacks due knowledge, he is bound, even by commutative justice, either to resign the office or to acquire the due knowledge for himself; by commutative justice, I say, because otherwise he exposes himself to grave danger of wounding that virtue by his sentences (St. Alphonsus IV, 192, 195).

II. A judge, in order to act validly, must be furnished with jurisdiction both over the matter and over the persons whom the trial concerns.

1. With respect to the matter, note these things from the Code of Canon Law: The Church by her proper and exclusive right takes cognizance: 1° of causes which concern spiritual things and things annexed to spiritual things; 2° of the violation of ecclesiastical laws, and of all things in which there is a character of sin, as regards the definition of guilt and the infliction of ecclesiastical penalties (can. 1553, § 1, 1° and 2°) ... In causes in which both the Church and the civil power are equally competent, and which are called causes of the mixed forum, there is place for prevention (can. cited, § 2).

2. With respect to persons, according to can. 120, clerics in all causes, whether contentious or criminal, must be summoned before an ecclesiastical judge, unless something else has been legitimately provided for particular places. If nevertheless they are summoned by one who had no prior permission, they can, by reason of necessity and to avoid greater evils, appear, but with notice having been given to the Superior from whom permission was not obtained; these individual points are explained more fully in n. 1153.

III. A judge is bound to treat causes diligently, and, insofar as it can morally be done, to dispatch them promptly; nor can he ever refrain from judgment because of the silence or insufficiency of the law, but he must either draw out the mind of the legislator from the law, by arguing by analogy or from the contrary, or pronounce according to prevailing custom or according to natural equity. In a penal matter indeed there is no difficulty, since there the rule is applied: no penalty without law; and therefore, in silence or obscurity of law, the accused is to be absolved.

IV. A judge is bound to judge according to the things alleged and legally proved; and therefore he must rely only on proofs recognized by law, not on private knowledge. For "to judge belongs to the judge insofar as he exercises public power; and therefore in judging he ought to be informed not according to that which he knows as a private person, but according to that which becomes known to him as a public person" (St. Thomas, II-II, q. 67, a. 2). Hence, for example, "one whom the judge by private knowledge knows to be guilty, if he has been juridically proved innocent, cannot be condemned" (St. Alphonsus IV, 207).

V. A judge is bound to give sentence according to the laws, except in a case in which it is established that the law is iniquitous. The reason is that a judge has been constituted for this, that he may execute or apply the laws. With respect to right laws St. Thomas observes: "Even laws which have been rightly established fail in some cases; and if they were observed in those cases, they would be contrary to natural right; and therefore in such matters judgment is not to be made according to the letter of the law, but recourse is to be had to the equity which the legislator intends" (II-II, q. 60, a. 5, ad 2). But recourse to equity today is impossible, at least with respect to the substance of the sentence; in other words, it is not admitted that the judge gives a sentence not according to the law itself. But he can preserve equity in the penalty to be inflicted, and in this respect he enjoys a greater liberty than formerly, insofar as conditional condemnations are sometimes admitted, i.e. in the case of relapse within a determined space of time.

Corollary I. If someone has juridically proved that he has a right, while the judge holds as certain that this is false, the judge seems able to adjudge the right to him. For "the state has power over the goods of its citizens when the public good requires it, as in this case, lest the form of public trials be overturned with scandal to the people" (St. Alphonsus IV, 208). The same, for the same reason, holds if there is question of lesser penalties, for example of imposing a fine, or even of a penalty of imprisonment or chastisement (St. Alphonsus, loc. cit.).

But it is more disputed whether a judge can condemn to mutilation or death someone who has been juridically convicted of a crime, but whom the judge knows by private knowledge to be innocent. According to St. Thomas and others, the judge is bound to condemnation, because, as a public person, he must be led by public knowledge alone. Nor does he sin in giving sentence according to the things alleged, because "he himself does not kill an innocent man, but those who assert him to be guilty" (II-II, q. 64, a. 6, ad 3). They add, however, that the judge must attempt everything in order to free the innocent man. But others teach the contrary, because in their opinion to public right there does not belong the right of depriving someone of a primary right, i.e. of life and integrity, although there does belong, as was said, the right of depriving him of a secondary right, namely by force of high dominion. St. Alphonsus, loc. cit., holds each opinion to be sufficiently founded, so that the judge can, but is not bound to, condemn the accused. For the rest, in many kingdoms there is no difficulty, because according to the laws a judge cannot condemn someone unless he is inwardly convinced of his guilt. Therefore both legal proof and inward conviction are required.¹

Corollary II. If the cause is doubtful, the judge should proceed thus:

1. In a criminal cause, one must stand for the accused, whether the crime is doubtful or the law imposing the penalty seems obscure.

2. In a civil cause, a distinction must be made between doubt of fact and doubt of law.

a) In doubt of fact, i.e. if the fact on which the plaintiff's right rests - for example, a right of possession, ownership, etc.² - is doubtful, his cause falls; for it belongs to the plaintiff to prove the said fact, and to do so by legal proofs.

b) In doubt of law, i.e. if it is doubted whether the fact on which the plaintiff relies juridically founds a right of possession, ownership, etc., the judge cannot follow the opinion less probable to himself; since this was proscribed by Innocent XI, proposition 2: "I think it probable that a judge can judge according to an opinion even less probable."³ If the judge is strictly in doubt, he can either induce the parties to a settlement, or, if they refuse and the dispute is about possession, compel them to contend about ownership, or, if the litigation is about ownership, he can choose the party he prefers.

Corollary III. A judge, at least considering present-day morals, cannot use the means of hypnotism for investigating the truth - the means of hypnotism, I say, which inflicts force on the accused; nor can a confession so extorted be held as certainly true, although sometimes it can provide elements for further proving the matter.

¹ Thus, for example, the Dutch Code of Criminal Procedure, arts. 216, 391, 395.

² A twofold cause is distinguished, possessory and petitory. The former is when the plaintiff asks for possession of a thing; the latter, when he asks for ownership of the thing or another right.

³ Denzinger-Bannwart, n. 1152.

VI. A judge, in giving sentence, should be free from acceptance of persons; nor must he ever be bent by gifts. Indeed the acceptance of gifts must be altogether reprobated according to these words: "You shall not accept a person, nor gifts; because gifts blind the eyes of the wise, and change the words of the just."¹

Corollary. One who has accepted gifts: 1° if indeed from a liberal donation, is not bound to restitution before the sentence of a judge; 2° if by way of a price for giving sentence, is bound to restitution if he accepted it for giving a just sentence, for to this he is already obliged by strict justice; if he accepted it for giving an unjust sentence, he is bound to abstain from a sentence of this kind and to restore the gift. After an unjust sentence has been given, he can retain the gift accepted, as was said concerning a contract in a shameful matter (St. Alphonsus IV, 216, 196).

¹ Deut. XVI, 19.

VII. A judge who has failed in his office, whether by omitting the acquisition of due knowledge, or by treating causes negligently, or by delaying their treatment without a just cause, or by giving an unjust sentence, is bound to restore the damages following from his manner of acting, if he foresaw them at least confusedly and was gravely culpable. The reason is that by strict justice he is bound to perform his office rightly (St. Alphonsus IV, 195, 196, 214). But if the judge "has erred from human fragility, he is not obliged in conscience to restitution from his own goods ... since he did not commit theological fault" (St. Alphonsus IV, 214); if nevertheless afterwards "the judge recognizes an error committed by himself (even without grave fault) to the prejudice of a litigant, he is bound, if he can without infamy, to impede the error, for example by secretly warning the injured party to look after himself by appeal or otherwise" (St. Alphonsus IV, 195).

Whether he is bound to restore to the treasury a monetary fine which he has unlawfully not imposed on someone, see p. 657.

Finally I note with St. Alphonsus: "A judge is bound under grave sin to grant the accused sufficient time for confession ...; he is also bound to grant time for receiving Communion (unless grave harm is feared), since the accused is then at the article of death, in which the precept of Communion obliges by divine law ... But if the accused refuses to confess, after exhortation he can licitly be killed by the executioner, because then his damnation is attributed to his own fault" (III, 379).

I. Jurors are called citizens constituted for giving judgment concerning the guilt of some accused person, especially concerning a more serious crime. When this judgment has been given by the jurors, ordinarily judges properly so called (that is, if the jurors have declared someone culpable) determine the penalty according to law. They are called jurors from the oath which they must swear concerning faithfully carrying out their office.

II. The institution of jurors, though not to be condemned in itself, is nevertheless less recommended; both because they are not bound to bring forward the reason for the judgment given by them, and because generally they are more easily moved than constituted judges by political passions, gifts, etc.

III. Many of the things which have been said concerning judges apply to jurors. I observe especially: Jurors are bound to give judgment according to inward persuasion. Thus the law establishes in regions in which jurors are used. Therefore they are bound to absolve the accused of whose crime and guilt they are not inwardly convinced, even if according to the things alleged and proved the accused appears guilty. It is disputed, note, whether they can declare guilty one whom by private judgment they hold as guilty, but who was not convicted in court. Some deny it, because the law which orders them to judge according to inward persuasion certainly understands this of inward persuasion drawn from the things brought forward and proved. Others affirm it, because such a law in its obvious sense understands inward conviction obtained in any way whatever.

¹ Cf. Groeken, Lijkverbranding.

(St. Thomas, II-II, q. 68; St. Alphonsus, Theologia Moralis, book IV, nn. 234-254; Homo Apostolicus, tract 13, nn. 73-78.)

I. Judicial Accusation. 1. Judicial accusation is the denunciation of someone's crime to a competent judge, for the sake of public vindication, with the burden of proving the crime. It is said:

a) The denunciation of a crime; and thus the accuser is distinguished from the actor or petitioner, who moves a lawsuit against another in a civil matter. The one who is accused, or against whom a lawsuit is moved in a civil matter, is called the defendant.

b) With the burden of proving the crime; and thus the accuser is distinguished from the denunciator, and accusation from denunciation; for the latter does not carry with it the burden of proving (St. Alphonsus IV, 235).

2. Judicial accusation for the most part belongs to those officials to whom this has been committed by law; primarily indeed to those who are customarily called the public ministry (St. Alphonsus IV, 236). To whom besides them it has been committed, see in the law of one's country.

II. Denunciation. 1. Denunciation is the denunciation of a crime to officials deputed for this, without the burden of proving it.

2. The following are bound to denunciation:

a) By office, those who have been expressly deputed to this by law, and generally all who, while carrying out a public office, detect some delict in the exercise of their office.

b) By precept of law, in many kingdoms even private persons who perhaps have been witnesses of certain graver crimes are obliged.

c) By natural law, everyone is obliged who knows some crime whose denunciation is necessary for the common good or for averting grave harm from a private person (St. Alphonsus IV, 236).

3. From the obligation of denouncing, if indeed there is question of the common good, a private cause does not excuse; otherwise, a proportionately grave cause excuses. A graver cause is required for those who are bound by office than for those who are bound only by law or by natural right. The principal causes are notable harm to be feared for oneself or one's own from the denunciation, and connection with the delinquent himself. Finally, an entrusted secret not only excuses from the obligation, but even prohibits one from denouncing someone. Except if, from omitted denunciation, grave harm threatens either the common good - in which case there is an obligation not to preserve the secret - or the one accepting the secret (St. Alphonsus IV, 236); if from omitted denunciation grave harm threatens a third person, the things said on p. 720 hold.

4. One who has falsely denounced (or accused) is bound, if he was gravely culpable, to restitution of the damages that followed. Besides, he is obliged to retraction, even with equal harm to himself, but not with much greater harm. If he was not gravely culpable, he is not bound to restore damages; nevertheless he ought to retract the testimony, if this can be done conveniently enough (n. 994).

(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.

(St. Thomas, II-II, q. 69; St. Alphonsus, Theologia Moralis, book IV, nn. 272-290; Homo Apostolicus, tract 13, nn. 82-87.)

The discussion is only about the accused in criminal matters.

I. The accused, according to present-day law,¹ is not bound to confess the crime. Therefore, even if he is questioned about it by the judge, he can answer, with a broad mental restriction, that he did not commit it, understanding: in such a way that I am bound to confess it. Likewise, using the same restriction, he can deny those things which could harm him, i.e. could lead to proof of the crime, provided he does not inflict injury on others. Nor is an oath now demanded from the accused; and if it were demanded, he could confirm by oath the broad mental restriction used by him, or to be used in the course of the trial. The things said do not prevent the accused, if the common good requires it, from being able and obliged to betray his associates (St. Alphonsus IV, 278).

According to ancient law, these things held: The accused, legitimately questioned, is bound to confess the truth; for it belongs "to the debt of justice that someone obey his superior in those matters to which the right of prelation extends. But the judge ... is superior with respect to the one who is judged; and therefore from debt the accused is bound to set forth to the judge the truth which he demands from him according to the form of law" (St. Thomas, II-II, q. 69, a. 1; St. Alphonsus IV, 274). Moreover, in order that he be legitimately questioned, at least probable indications of the crime must have preceded. The accused is excused: 1° if the judge "indeed questions the accused juridically, but only from a false presumption of delict" (St. Alphonsus IV, 273), as if someone is questioned about a homicide which he committed because of just defense of himself; 2° quite probably, if otherwise a most grave penalty threatens him (St. Alphonsus IV, 274).

¹ Cf. Staatslexikon, word Strafprocess, V, 604.

II. The accused can break the force of testimonies brought forth against him by disclosing the crimes of the witnesses, provided the revelation of the crimes is both necessary and efficacious for his defense. But "to oppose a false crime to a witness or accuser for defending one's own cause is always unlawful and a grave fault" (St. Alphonsus IV, 277).

III. The accused can decline the penalty as follows:

1. If he is innocent, he can flee both before and after sentence; he can also resist positively, for example by driving away the officers, frightening them, wrenching himself from their hands, indeed even by going further. The reason is that in the case the execution of the sentence involves an unjust aggression. Nevertheless, accidentally, positive resistance, especially graver resistance, is for the most part unlawful, because commonly it is not only useless, but also causes greater evils and gives occasion for scandal (St. Thomas, II-II, q. 69, a. 4; St. Alphonsus IV, 279).

2. If he is guilty, he can flee: 1° before he has been condemned; 2° after he has been condemned, if prison has been assigned not for punishment but for custody - that is, until the execution of the sentence. "The reason: because the sentence does not condemn the accused to not fleeing, but only to not resisting the ministers when they execute the sentence" (St. Alphonsus IV, 280, question 2; St. Thomas, II-II, q. 69, a. 4, ad 2). "But if prison has already by the sentence been assigned as a punishment, even perpetually, then one must deny that it is lawful for the accused to flee from prison; because in the execution of a just sentence the accused is certainly bound to obey ... Some except, however, if in prison necessities for sustenance are not given to him ..., or if the prison were excessively grievous, because it seems beyond human strength that someone should be obliged not to free himself, when he can do so without force and resistance, from a very hard penalty" (St. Alphonsus, loc. cit.; cf. St. Thomas, II-II, q. 69, a. 4, ad 2).

Besides, one who can flee can also remove impediments which stand in the way of flight, for example by breaking the prison. But if damage comes to the guards from this, that can be permitted. He can also deceive the guard by artifice, or make him drunk or put him to sleep when he is not paying attention. But he cannot corrupt him if he has been justly condemned, since there would be formal cooperation in the guard's sin (St. Alphonsus IV, 282).

IV. The accused, as is clear, is not bound per se by an unjust sentence, whether because of a neglected order of law or because of the intrinsic character of the cause. Accidentally, commonly it must be observed, namely lest public order be disturbed and scandals arise (St. Alphonsus IV, 215).

In doubt concerning the justice of the sentence, it is to be presumed just; nevertheless it is lawful to appeal to a higher tribunal.

Note. With respect to ecclesiastical law, observe these things:

1° The accused, legitimately summoned, ought to respond (can. 1646); to respond, i.e. as juridical interpretation has it, is to present himself before the judge.

2° The accused is not bound to confess his own crime, according to these things: Parties are bound to respond to a judge legitimately questioning them and to confess the truth, unless there is question of a delict committed by themselves (can. 1743, § 1).

(St. Thomas, II-II, q. 70; St. Alphonsus, Theologia Moralis, book IV, nn. 255-271; Homo Apostolicus, tract 13, nn. 79-81.)

I. The Obligation of Testifying. The following are bound to testify and to confess the truth:

1. By charity one is bound if his testimony "is necessary for averting a great evil of a neighbor or of the state" (St. Alphonsus IV, 264).

2. By office, and by justice, the same persons are bound who by reason of office are bound to denunciation (n. 1140).

3. By precept, one is bound who is legitimately cited and questioned. One who flees when legitimately cited, or who does not confess the truth when legitimately questioned, sins, but does not wound commutative justice, and therefore is not bound to restore to him in whose favor he could have testified (St. Alphonsus IV, 264).

To what extent a cleric can be cited and questioned by a civil judge, see n. 1153.

II. Excusing Causes. A witness is excused from testifying and manifesting the truth (or even, according to circumstances, is bound to abstain from them):

1. If he has known the matter under sacramental secrecy, or has acquired knowledge of the matter for himself through injury, for example by opening letters. If he has received knowledge of the matter under an entrusted secret, the things said concerning denunciation hold (n. 1140; St. Alphonsus IV, 268). For the rest, the law itself also commonly exempts doctors, advocates, priests, etc., from testifying with respect to those things which have been manifested to them in view of their office.

2. "If from the testimony notable harm threatens you or yours, unless nevertheless public harm or another's private harm prevails" (St. Alphonsus, loc. cit.).

3. "If you received it from men not sufficiently worthy of faith; for then you can conduct yourself as if you knew nothing" (St. Alphonsus, loc. cit.).

4. If someone is brought before the judge without probable indications of a crime. For injury is done to such an accused person (cf. St. Thomas, II-II, q. 69, a. 2; St. Alphonsus, loc. cit.), which the witnesses should not increase by testifying against him; but this excusing cause will scarcely obtain.

5. If the accused is probably immune from grave theological fault (St. Alphonsus, loc. cit.); in which case the witness ought to respond that he knows nothing, or even that the accused did not commit the crime. If, however, there is question of a civil cause, the witness ought to confess the fact, even if only juridical fault was present.

6. A spouse and near blood relatives are often excused because of grave inconvenience; indeed civil laws generally exempt them.

Corollary I. One who is exempted or excused can also licitly use a restriction that is not purely mental. Moreover, the more obvious restriction is that by which the witness, when questioned, says that he knows nothing, understanding: which I am bound to manifest. And this holds even if he has sworn an oath to tell the whole truth; nevertheless he should proceed prudently.

Corollary II. A witness who is bound to testify and to confess the truth sins by merely concealing the truth: 1° against a just precept, which is grave from its kind; 2° against religion, if he swore that he would tell the whole truth. If, after this oath has been sworn, he lies or uses a purely mental restriction, he is guilty of perjury; if he is silent or uses a broad mental restriction, he is not indeed guilty of perjury, but he wounds the oath insofar as it is promissory; this is a sin grave from its kind (n. 689); 3° against commutative justice, if he is bound by reason of office; otherwise not, if he is bound only either by charity or by reason of the precept of the judge (St. Alphonsus IV, 270).

Corollary III. A witness "who knowingly has testified falsely, through which he was an efficacious cause of harm to another, is bound to the prevention or reparation of all damages which are caused. Likewise he is bound to retract with equal harm to himself, and even with danger of life, if the accused is endangered in it and he is thought by retracting to be about to accomplish something" (St. Alphonsus IV, 269). If he was not gravely culpable, he is not bound to restitution; nevertheless he ought to retract the testimony, if this can be done conveniently enough (St. Alphonsus, loc. cit.; n. 994).

III. With respect to ecclesiastical causes to be treated before an ecclesiastical judge, observe these things:

1. A witness duly cited ought to appear or make known to the judge the cause of his absence (can. 1765, § 1).

2. A disobedient witness, namely one who without legitimate cause does not appear, or even if he appears refuses to respond or to take an oath or to sign the attestation, can be coerced by the judge with suitable penalties and moreover fined in proportion to the harm which comes to the parties from his disobedience (can. 1765, § 2).

3. Witnesses must respond to a judge legitimately questioning them and confess the truth (can. 1755, § 1).

4. From the obligation assigned under 3 are exempted: 1° pastors and other priests as regards those things which have been manifested to them by reason of the sacred ministry outside sacramental confession; magistrates of states, doctors, midwives, advocates, notaries, and others who are bound to secrecy of office even by reason of counsel furnished, as regards matters subject to this secret; 2° those who fear that from their testimony infamy, dangerous vexations, or other very grave evils will come upon themselves or upon blood relatives or relatives by affinity in any degree of the direct line and in the first degree of the collateral line (can. 1755, § 2).

(St. Alphonsus, Theologia Moralis, book IV, nn. 291, 230 and 231.)

I. A physician is bound to possess sufficient knowledge, and in the exercise of his office to apply diligence proportionate to the gravity of the illness or operation. Hence he ought to furnish the sick person the remedy which seems safer to him. "But if there is no hope concerning the health of the sick person, nor is there present any remedy except a doubtful one, namely one concerning which it is doubted whether it will be useful or harmful, they can, indeed they ought to, apply it. The reason is that thus the business of the sick person is managed usefully; and if death follows, it will not be imputed to them, since otherwise he has no hope of life" (St. Alphonsus IV, 291).

Corollary. It is unlawful to use a means solely for the sake of experiment, except in the case in which the means to be applied is certainly not going to be harmful, and the consent of the sick person is added.

II. A physician should abstain from useless visits and remedies. Observe, however, that those are not plainly useless if they conduce in some way to consoling the sick person or alleviating his pains; nevertheless he should take care that the expenses do not become greater than is just.

III. He can ask the honorarium which, considering the labor and condition of the sick person, is customary to be asked in those regions. If he excels in skill, he can ask what the most skilled are accustomed to ask in circumstances of this kind. The reason is that the service furnished is deservedly said to be worth so much, and that those whose interest it is consent to an honorarium of this kind.

IV. Finally, the physician is also bound, either by himself or through another, to warn the sick person in a timely way concerning danger to life, so that he can provide for the salvation of his soul, receive the sacraments rightly, and arrange temporal affairs. If, however, he is morally certain either that the sick person is in the state of grace, or that the warning will not be useful, at least a grave obligation under this heading is not had (St. Alphonsus VI, 664).

I add these grave words of St. Alphonsus: "O how miserable it is to see so many sick persons (and especially you who are of distinguished dignity) reduced to the final straits of death, so that they may prepare the accounts of life soon to be rendered to God, at a time when they are almost lifeless, when they can scarcely then form words, scarcely hear others, scarcely conceive the state of their own conscience and sorrow for their sins! And all this happens through the fault of those physicians who, lest they displease the sick or their relatives, do not make them certain concerning the danger; indeed they go on flattering them until they themselves altogether despair of life" (Praxis Confessarii, n. 57).

V. With respect to notaries it suffices to treat the question insofar as a notary is bound to restitution toward the treasury if, with the parties consenting explicitly or implicitly, he writes down a price of the thing lower than the true one for this end, that the tax to be paid may be diminished.

Response 1. If there is a custom of writing down a lesser value, and the notary follows that custom, he is not bound to restitution, nor does he sin; indeed, by oath he can affirm that all things have been duly declared.

Response 2. If the notary goes beyond the custom, and deprives the treasury of a tax to which the client is not obliged, likewise he is not bound to restitution; nor does he sin by writing down the lesser value, because he can use a broad mental restriction: Such is the value, insofar as it is subject to a just tax.

Response 3. If the notary goes beyond the custom, and deprives the treasury of a tax (or part of a tax) to which the client is bound, he is obliged to restitution, because by an unjust means, namely a lie, he impedes the state from a good legitimately to be obtained (n. 996). Note, however, that the obligation of restoring belongs primarily to those in whose name the notary acted.

IV. The Privileges of Clerics. Privileges are those things which have been added to rights by positive law. They are: the privilege of the canon, the privilege of the forum, the privilege of exemption, and the privilege of competency.

1. The privilege of the canon is that by which a cleric is protected against every real or bodily injury by the penalties established against those who commit them. It is called the privilege of the canon because it was contained in the celebrated canon of Lateran Council II (1139).

2. The privilege of the forum is that by which a cleric is exempted from lay jurisdiction according to the norm of can. 120, soon to be cited. It is called the privilege of the forum, for forum (from fero or foris) according to the first imposition of the name signifies a public place to which goods for sale are brought; here, however, it chiefly signifies the place in which lawsuits and trials are carried on. Therefore, according to can. 120, clerics in all causes, whether contentious or criminal, must be summoned before an ecclesiastical judge, unless something else has been legitimately provided for particular places, or special permission has been obtained to summon them before a lay judge. If nevertheless they are summoned by one who had no prior permission, they can, by reason of necessity and to avoid greater evils, appear, but with notice having been given to the Superior from whom permission was not obtained. It is said:

a) In all causes; whether contentious or criminal, whether civil or ecclesiastical. Moreover, exemption from the jurisdiction of secular judges with respect to ecclesiastical causes is rather from native right than from privilege, even taken broadly; with respect to civil causes, exemption is from privilege. Nevertheless that privilege does not prevent clerics from generally being subject to civil laws; but if a cause is instituted, for example if there is question of punishing a transgression of civil law, the matter is to be referred to the ecclesiastical judge. Hence it is also said that clerics are subject to civil laws with respect to the directive part, but not with respect to the coercive part.

b) Must be summoned, i.e. cited as defendants, not as witnesses.

c) Unless something else has been legitimately provided for particular places. Thus, for example, in Austria, Bavaria, and Colombia, by concordats, the privilege of the forum has partly been derogated. Whether this privilege can also be derogated by way of custom, at least centenary custom, is disputed among canonists.

d) Or special permission has been obtained to summon them before a lay judge. Moreover, Cardinal Fathers, Legates of the Apostolic See, Bishops even titular, Abbots or Prelates nullius, supreme Superiors of religions of pontifical right, and major Officials of the Roman Curia, on account of affairs pertaining to their office, cannot be summoned before a lay judge without permission of the Apostolic See; others enjoying the privilege of the forum cannot be summoned without permission of the Ordinary of the place in which the cause is conducted. Yet the Ordinary should not deny this license without a just and grave cause, especially when the plaintiff is a layman, and most of all when he has fruitlessly given effort to settling the controversies between the parties (can. 120, § 2).

3. The privilege of exemption.¹ All clerics are immune from military service, from offices and public civil duties alien to the clerical state (can. 121). Duties and offices are understood: 1° those which are repugnant to the dignity of the clerical state, such as sordid duties; 2° those which can be composed with difficulty with the duties of the clerical state, such as offices for preserving public security, for keeping watches, for averting fires, and similar things.

4. The privilege of competency. It is the privilege by which a cleric burdened with debt and called into court by creditors cannot be deprived of those goods which are required for his honorable support; according to these words of can. 122: Clerics who are compelled to satisfy creditors are to have safe those things which, by the prudent judgment of the ecclesiastical judge, are necessary for their honorable support, while nevertheless their obligation of satisfying the creditors as soon as possible remains firm.

A cleric cannot renounce the privileges mentioned; but he loses them if he is reduced to the lay state,² or is punished with perpetual privation of the right of wearing ecclesiastical habit, according to the norm of can. 213, § 1 and can. 2304. But he recovers them if this penalty is remitted or he himself is again admitted among clerics (can. 123).

¹ Cf. Damen, Vrijdom der Geestelijken van krijgsdienst.

² Cf. scholion.

Question 1. Whether it is ever licit to petition for civil divorce.¹

Response 1. If the marriage is invalid from any cause whatever and has been declared such by competent ecclesiastical authority, it is licit, by petitioning, to intend and obtain civil liberty.²

Response 2. If the marriage is valid, the things to be posited having been posited, it is likewise licit if the law in force does not intend the dissolution of the bond. If it intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it, because the petitioner can abstract from the intention of the legislator, and as a Catholic, for we are speaking of such a person, must be judged to abstract from it. This being posited, the petitioner, as we will immediately say, does not seek something which cannot be furnished by the judge without sin. I said "the things to be posited having been posited," that is, with the approval of the competent ecclesiastical authority first had, insofar as this is required according to what was said in n. 842. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage.

Question 2. Whether a judge can ever render a sentence of divorce if there is question of a valid marriage.

Response 1. If the law intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it. For the judge can abstract from the intention of the legislator and, as a Catholic, for we are speaking of such a person, he is judged to abstract from it. This being posited, his action is not evil in itself; nor does it involve approval, and therefore neither formal cooperation, of the action of the petitioners, who perhaps do not abstract from the intention of the legislator or who intend the dissolution of the bond. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage. Besides, a just cause for admitting material cooperation is already had from the fact that otherwise good men would have to abstain almost entirely from an office of such great importance.

The controversy does not seem able to be settled by authority. Some favorers of the more benign opinion appeal to the response given by the Holy Office to the Apostolic Nuncio of Belgium, September 14, 1866. But if you admit that by Belgian law the dissolution of the bond was originally regarded, the sense of the law already for a long time seems to have been so changed by usage that the law rather permits one to act as if the bond were dissolved than itself intends to dissolve the bond. Favorers of the stricter opinion chiefly allege responses of the Holy Office, June 25, 1885 and May 27, 1886; but the adversaries respond that these were probably given by reason of peculiar circumstances.³

Corollary I. Advocates of themselves speak licitly for divorce only insofar as the spouses licitly petition for it. If they petition illicitly, the advocate is not excused except on account of a most grave cause.

Corollary II. Where separation from bed and cohabitation suffices for the intended end, divorce of itself cannot be petitioned. Nevertheless it is licit on account of a very grave cause; for instance if, when divorce is petitioned, the whole offspring will be entrusted to the religious spouse, but if it is not petitioned, a part of the children certainly or probably will be entrusted to the irreligious spouse.

Corollary III. Pastors and confessors should for the most part endeavor to turn the faithful away from the plan of obtaining divorce, and to exhort the separated to restore common life, namely on account of the danger of incontinence which rather often is imminent to each party. There is added the fact that the education of the offspring easily suffers detriment; indeed the fear that the offspring, wholly or in part, may be adjudged to a pernicious spouse can be a reason on account of which one must abstain from divorce or from a lesser separation.

¹ Cf. Duynstee, Burgerlijk Recht en zielzorg, n. 76.

² Holy Office, September 9, 1824.

³ De Smet, op. cit., n. 399.

Judges and Executioners in Canon Law.—According to the law of the Church (Canon 984, nn. 6, 7), those who pass the death sentence as judges and the executioners and their immediate and voluntary helpers become irregular (i.e., incapable of lawfully receiving Orders or of exercising their powers). The reasons for this ancient discipline are chiefly two:

(a) clerics are the ministers of Christ, and therefore they should be like their High Priest, whose sacrifice they offer at the altar. Now Christ “when He was reviled, did not revile, when He suffered, He threatened not, but delivered Himself to him that judged Him unjustly” (I Peter, ii. 23). Hence, it is unbecoming that clerics should condemn to death or kill their fellow-men, even criminals;

(b) clerics are the ministers of the New Testament, and therefore they should conform themselves to its spirit of mildness. The divine law itself declares that a bishop should not have private quarrels or inflict blows (I Tim., iii. 3), but the church law goes further and declares that a cleric should not even act as public judge or executioner in capital cases. The Old Testament inflicted corporal punishments and death, and hence we read that its priests and levites put sinners to death with their own hands (Exod., xxxii. 28; Num., xxv. 7, 8; I Kings, xv. 33; III Kings, xviii. 40; I Mach., ii. 24), but the law of Christ contains no sentences of death or of bodily chastisement.

The Office of Judge.—Judgment is the proper act of justice (1727) and therefore when exercised under due conditions it is not only lawful, but virtuous. The exercise of public judgment belongs to the judge, who is a person vested with authority to decide litigated questions in civil or criminal cases.

(a) Thus, in the strict sense, a judge is the official who has public authority to preside over tribunals of justice, in which major matters are tried and a formal procedure is followed, and whose function it is to direct the course of the proceedings and to settle questions of fact or of law that arise.

(b) In the wide sense, a judge is any person who has lawful authority to pass an obligatory sentence in criminal or civil matters. The name may be applied, then, to those who preside over a tribunal in which minor or urgent questions are considered and treated summarily (justices of the peace, police magistrates, etc.); to those who do not preside over a tribunal, but who are attorneys at law appointed as officers of a court to pass on some issue of a pending proceeding or suit (referees); to those who act as assistants of the presiding judge, by determining the truth of alleged facts in civil cases, or the innocence or guilt of an accused in criminal cases (trial jurymen); to those who are chosen, by the parties to the dispute or by a court, as substitutes for the ordinary courts provided by law, to hear and settle, without legal formalities, the matter in controversy (arbitrators).

Classes of Courts.—There are various classes of courts and therefore various kinds of judges.

(a) Thus, according to their relative dignity and jurisdiction there are higher and lower courts, courts of the first, second and last instance.

(b) According to the cases they try, courts are either civil (in which redress of private injuries is sought) or criminal (in which the community prosecutes public wrongs).

(c) According to the law which they use courts are ecclesiastical or secular.

(d) According to the form of procedure used and the remedies applied, courts in the United States are divided into courts of common law, courts of equity, probate, admiralty, and military courts.

Jurisdiction.—Authority is necessary in a judge, for judgment is a binding decision that may be executed by force, and this supposes that he who pronounces the judgment is the superior of the person on whom the judgment is passed, Hence, he who acts as judge when he lacks jurisdiction acts invalidly (unless jurisdiction is supplied, as in common error for an ecclesiastical judge, in Canon 209), and offends against the rights of another judge and of the person on whom he passes sentence. Examples would be secular judges acting in ecclesiastical cases or ecclesiastical judges acting in temporal cases.

The Qualifications of a Judge.—(a) Mentally, he must be endowed with knowledge of the law and with prudence, so as to be competent to pronounce correctly on the questions that are brought to him for decision; for, as being the authorized interpreter and custodian of the law, he is bound by quasi-contract with the community and with those who appear before him to be competent for these offices. If a judge realizes that he is incompetent in these ways, he must either resign his office, or make up for his deficiency by study or consultation with those who are more learned than himself. A juryman, being a layman to the law, is not expected to have the mental equipment of a lawyer; but it is his duty to give his attention to the statements, arguments and testimony and to the instructions of the judge.

(b) Morally, the judge must be a lover of justice, whether commutative, distributive or legal; for the proper office of the judge is to apply the law to particular cases and to declare officially the mutual rights and obligations of litigants who are before him. He must not be a respecter of persons, one who is moved for or against a man on account of rank, position or wealth, nor one who is swayed by fear or favor, by popular outcry or personal ambition. Not only legal but also commutative justice obliges him to perform his duties conscientiously; for in taking his office he enters into a quasi-contract with the community to execute his functions faithfully and well, and similarly by trying a case he engages that those before him will receive evenhanded justice. A juror should be a conscientious person who is openminded and free from prejudice for or against those on whom he has to vote.

Conduct of a Judge.—A judge must be above suspicion, since respect for the courts is the very life of the State. But there is good reason to suspect a judge who judges in his own case, or in a case in which he will be naturally inclined to favor one side. Hence the duty of abstaining from certain things.

(a) Thus, he should avoid business, social and political activities that will give ground for belief that he uses his office for the promotion of private interests.

(b) He should not act in a case in which his own advantage or the advantage of his friends might appear to conflict with the duty of strict impartiality, as when he has personal litigation in the court, or when a near relative of his is party in a controversy, or when one of the contestants is his personal or political friend or enemy, etc. Canon 1613 of the Code forbids a church judge to act in the case of a person related by blood or marriage in the direct line or in the first and second degrees of the collateral line, or of a person for whom he is guardian or administrator, or in cases in which he had previously acted as advocate or proxy, or from which he stands to profit or lose.

(c) He should refrain from conduct that would tend to arouse doubts of his impartial attitude, such as incivility to counsel or witnesses, unexplained rulings that have the appearance of arbitrariness, private interviews or dealings with one of the parties before him in ways calculated to influence his action.

Accepting Gifts from Litigants or Others.—May a judge take money or other goods from those whose interests are submitted to him, such as litigants or lawyers in his court or their friends?

(a) If the goods are extorted by threats or pressure or unjust vexation, the judge is guilty of robbery, since he forcibly takes that to which he has no right.

(b) If the goods are given as payment for the judge’s services during the trial, the judge sins against commutative justice in receiving payment for services already due, since his salary comes from the community and obliges him to administer justice without charge to those who seek it. Neither is it lawful to take money as compensation for trying one case before another, or for hastening a case, or for giving unusual diligence to a complicated case, or for deciding for one side when the evidence is equal on both sides. But the law could permit a judge to collect his expenses from both parties if the trial necessitated a personal outlay of money (e.g., for travel or hire of assistants) and there was no public fund to defray these costs.

(c) If the goods are offered as bribes, in order that the judge may be influenced to act against justice, it is clear that grave injustice is done both to the community and to the party who is injured.

(d) If the goods are given as free gifts, with no condition attached, some think they may be lawfully accepted, if there is little probability that they will influence the judge (e.g., because they are small or given after the trial has ended). But others hold, and it seems more correctly, that both natural and positive law forbids this. Natural law forbids because of the danger (“Presents and gifts blind the eyes of judges, and make them dumb in the mouth, so that they cannot correct,” Ecclus., xx. 31), and because of the mistrust and scandal that will result. It is incorrect to suppose that small gifts and gifts offered after sentence would not have influence, for the contending parties would soon come to vie with one another in making gifts, while judges would begin to think about the gratuities that might be looked for at the conclusion of a trial. Canon Law forbids all ecclesiastical judges and all who assist in court to accept any gifts whatever that are offered in connection with the trial (Canon 1624), and the civil law provides severe penalties for bribes offered as gifts.

(e) If goods are given as a mere alms or from civility or hospitality (e.g., food and drink such as is usually offered to a guest or visitor), it does not seem unlawful in itself to accept them, but, since there is a danger of suspicion and scandal, even this should be avoided.

Obligation of a Judge to Restore Goods Received in the Above-Mentioned Ways.—(a) If retention of the goods is contrary to the reasonable wishes of the person who gave them, restitution is necessary. Hence, the judge must give back money that was extorted and the payments made by private parties for the exercise of his official duties.

(b) If retention of the goods is contrary to law, restitution is also necessary. Hence, if a judge has taken a bribe, he must give it back, because the agreement is null, and he cannot lawfully keep his part of the compact by acting contrary to justice. The same is true when the law voids the contract whereby he received the goods, or when a court decree obliges him to return a free gift bestowed upon him.

(c) If retention of the goods is not contrary to the will of the giver nor to the law, restitution is not necessary. Hence, if a judge has received a pure gift and no corruption was intended or practised, he sinned in taking it, but the donation was valid and there is no obligation to return it. And even though he has taken a bribe, and in consideration of it has acted against justice, it seems there is no natural obligation to make restitution to the party who gave the bribe, since the latter has received a consideration for his payment, but the judge is held to indemnify the injured party.

Duties of a Judge in the Course of a Trial.—(a) The purpose of the investigation is to discover the truth in the matter before the court, and consequently it is the duty of a judge to give a case the study and attention it deserves.

(b) The method of procedure is intended to secure a fair hearing for both parties and so to expedite business that the litigants will not be harmed by needless delays. The judge should therefore observe the necessary and customary forms of law, while avoiding waste of time and unnecessary interruptions. “It is not the custom of the Romans,” said Festus to the Jews who asked him to condemn Paul, “to condemn any man, before that he who is accused have his accusers present, and have liberty to make his answer, to clear himself of the things laid to his charge” (Acts, xxv. 15).

Duties of a Judge at the Conclusion of a Trial.—(a) The sentence must be just, that is, it must be based on the law and the evidence. Even though a judge does not personally approve of a law, thinking it unwise or unnecessary or over-severe, he should nevertheless enforce it; for he is appointed, not to change or reform, but to apply the law, yet so, however, that the spirit is not sacrificed.

(b) Sentence must not be relaxed as a rule, for otherwise the rights of the State or of the party winning the case will be harmed. But there are times when the public good or some other sufficient reason calls for relaxation, and in such cases judges have the power to refrain from passing sentence or to suspend or respite a sentence already announced. The defeated party should be allowed the opportunity which the law grants him for seeking a reversal of the judgment.

Sentence Passed under a Law Manifestly Unjust.—(a) If the law is manifestly opposed to divine or natural law and sentence under it would command the commission of an act intrinsically evil (e.g., cohabitation of those who are not really married, “mercy killing” of the physically or mentally incapacitated, eugenic sterilization of defectives or criminals), the judge should resign rather than give such a sentence.

(b) If the law is manifestly opposed to divine or natural law and sentence under it would inflict a grievous penalty (e.g., death or long imprisonment) on the transgressor of the law, sentence would be unlawful. But if only a light penalty would be inflicted (e.g., a small fine or short confinement), it seems that sentence might be tolerated; for the person condemned might be considered to yield his rights in such a case for the sake of the public good, which suffers from the loss of conscientious officials. The act of the judge in giving the sentence would be only material cooperation, which is lawful for grave reasons (see 1515 sqq.).

(c) If the law is manifestly opposed to ecclesiastical law, sentence may be given lawfully, if scandal is avoided and the Church yields her right in the case, as is sometimes done in favor of Catholic judges, lest they be deprived of their positions.

May a Catholic Judge Grant a Decree of Divorce?—-Apart from scandal or a positive ecclesiastical prohibition:

(a) The judge may grant a divorce to a couple not married validly although they have had a marriage ceremony recognized by civil law. This would occur in the case of Catholics married before a civil magistrate or non-Catholic minister. Also, when the Church has pronounced a marriage invalid, civil divorce may be granted for the sake of civil effects.

(b) Divorce may be granted if the judge knows that one of the parties will invoke the Pauline privilege.

(c) If the judge is morally certain that neither party will attempt remarriage and that the divorce is being sought merely for the sake of civil effects, he may grant the divorce. In the case of Catholics the consent of Church authorities would be required for this procedure.

(d) If the marriage is valid and it is known that the parties will attempt a new marriage, some consider that a decree of divorce is intrinsically evil, since it but applies a law that attempts, contrary to divine right, to dissolve the marriage bond. Others (and this is the more common view today) distinguish and think that the decree of divorce does not concern the religious obligation of the petitioners, but is simply an official declaration that the state regards the civil effects of the marriage as no longer existing. Under certain circumstances, (e. g., loss of office for refusal to accept a divorce case, loss of prestige, antagonism, etc.), such a decree, in itself morally indifferent, may be permitted.

(e) If there is question of partial divorce (i.e., separation from bed and board) of Catholic spouses, a decree is lawful, the Church consenting, for a reason recognized by ecclesiastical authority, such as adultery.

When Evidence Is Contrary to Personal Knowledge of Judge.—(a) In a civil case, the judge should follow the public evidence rather than his private knowledge; for he acts as a public, not as a private, person. Moreover, the State has the power to transfer property from one to another, when the common good requires this, and the common good requires that civil decisions be based on public evidence rather than on private information. Some moralists deny this conclusion on the ground that it is intrinsically wrong to force a person to pay who does not owe, even though the evidence is against him.

(b) In a criminal case, the judge should follow the evidence rather than his own knowledge, if the evidence calls for acquittal of the accused; for it is better for the public welfare that a guilty man escape than that the judicial order be neglected and a rule admitted that might convict the innocent as well as the guilty.

(c) In a criminal case in which the evidence points to guilt while the judge’s private knowledge assures him of the innocence of the accused, the judge must not condemn, if there is any legal way to avoid it. But if the evidence stands and the judge has to pronounce sentence, it is not easy to determine the course that should be followed. According to St. Thomas, the judge should condemn, since he is a public official and must therefore be guided by the allegations and proofs offered during the trial, especially since public order and respect for law depend on the good reputation of the courts. If judges could disregard at will the evidence offered on account of private knowledge they claimed to have, the confidence of the public in the integrity of courts would be shaken, men would take the law into their own hands, and peace and order on which the happiness of the community depend would be at an end. Moreover, the judge is not guilty in sentencing in this case, since he does not intend evil and acts according to the principle of double effect (see 103 sqq.). According to a second opinion attributed to St. Bonaventure, the judge should acquit, since it is intrinsically wrong to condemn to death a person about whose innocence one is certain. According to a third opinion, which St. Alphonsus considers as probable, the judge should condemn in minor criminal cases in which only pecuniary penalties are imposed (for the State has the right to exercise eminent domain in order to safeguard an important public good like that of respect for the law and the courts); but he should acquit in major cases in which personal punishments are inflicted, for society has no right to deprive an innocent person of life or liberty.

When the Judge Is the Unjust Cause of Damaging Evidence.—In some cases the judge may be the unjust cause of the evidence that convicts an innocent man, as when the judge has committed a crime and thrown suspicion on the accused (Dan, xiii), or when the judge has moved others to testify falsely against a man he knows to be innocent.

(a) One opinion holds that the judge would be obliged to condemn, on account of the reasons just given for the opinion of St. Thomas, if the judge were unable to overcome the evidence. But those who hold this add that this is purely speculative, for in a concrete case there would be many ways by which the judge could extricate both himself and the accused from the difficulty.

(b) Another opinion says that in no case could the judge of the present hypothesis condemn. Those who favor this opinion declare that St. Thomas is to be understood only of the case in which the judge is not the cause of the unjust accusation; for one who has culpably placed a cause of damage is bound to remove that cause before it acts, if this is possible, and in the present instance it is possible for the judge, if all other things have failed, to free the innocent person by testifying for him, or even by acknowledging his own guilt.

Practical Conclusions about the Three Controverted Opinions Given Above in 1951.—(a) In a case tried according to Canon Law, it seems that the opinion of St. Thomas should be followed, since Canon 1869, n. 2, declares that the ecclesiastical judge must not give sentence unless he is certain about the matter of the sentence, and that his certainty must be derived from the acts and proofs of the trial.

(b) In a case tried according to civil law, it seems that the whole controversy is today very often of little practical importance; for court decisions are now frequently left to jurymen, and these men must either have no private certainty before they are admitted to their office (as is the case in the United States), or they have the obligation of using private knowledge in casting their vote and of communicating it to fellow-jurors during the deliberations (as is the case in some other countries). Hence, the moral question whether it is lawful to decide according to private knowledge against the public evidence largely disappears. But when a case of the kind now considered does occur, the position of the civil law also agrees, it seems, with that of St. Thomas: “Neither the judge nor the jury can consider a private fact of which they have a merely personal knowledge, however important may be its bearing on the issue, unless it has been brought to their attention by evidence properly produced in open court” (Robinson, Elementary Law, Sec. 334). But the lightest penalty allowed by the law should be imposed in such a case. If a judge were privately certain that a jury verdict was unjust, he could offer his own testimony or appeal to the pardoning power.

The principle that a judge must be guided only by his public knowledge applies also to other officials who are required to follow the results of a public investigation, but not to those who are required to act according to their best knowledge, whether public or private.

(a) Thus, public knowledge must be the guide of those who are ministers of a court and on whom it falls to execute its decrees; for they are the instruments and subjects of the president of the court. If they have private information of a material and relevant kind, they should disclose it as witnesses.

(b) Private knowledge that is opposed to and more reliable than public knowledge must be the guide of those who are supposed to act according to the most trustworthy knowledge they have. Hence, a superior who has the power to make appointments to office should disregard the votes of his advisors, if he can prove that they are wrong in their opinions about a nominee for office. He may confirm or annul their choice according to his honest conscience.

When Guilt Is Doubtful in Criminal Cases.—In a criminal case or a case in which punishment is inflicted, if the guilt of the accused is doubtful, the sentence should be for acquittal; for no one should be condemned unless his guilt is morally certain (see 1728 sqq.).

(a) Thus, according to Canon Law, an ecclesiastical judge who is not certain that sentence for the plaintiff will be just, must declare that the latter has not established his case and must dismiss the defendant, though exception is made for cases that have the favor of law (such as marriage, liberty, testaments, Canon 1869, n. 4). Canon Law places the burden of proof on him who makes an assertion, and it rules that the defendant is to be acquitted if the plaintiff or accuser fails to prove, even though the person on trial says nothing (Canon 1748).

(b) According to the civil law the rules on evidence also favor the accused in cases of doubt. He must not be held guilty unless the State has proved affirmatively and beyond reasonable doubt every material allegation in the indictment. In capital cases the evidence of guilt must be equivalent in weight and conclusiveness to the direct testimony of two competent and reliable witnesses. A reasonable doubt in the mind of a juryman is one for which he can give himself an adequate and satisfactory reason (Robinson, Elementary Law, Sec. 608).

Doubt in Civil Cases.—In civil cases, if it is uncertain after the investigation for whom the decision should be given, the following rules seem to be just:

(a) if the parties are unequal in claim, the decision should be for the one whose claim is more weighty; for the judge is appointed by society to investigate the truth of a controversy and to decide according to the merits of the case. Thus, decision should be for the party Whose arguments are of at least equal strength—but who has legitimate possession (for “possession is nine points in law”), or whose case enjoys the favor of the law (e.g., in Canon Law, the cases of widows, wards, minors), or for the party whose case is stronger and more probable. Innocent XI condemned the proposition that a judge may decide for the side whose arguments are less probable (Denzinger, n. 1152);

(b) if the parties are equal in their claims, some think that property in dispute should be equally divided between the contestants, others that the parties should be persuaded to compromise, or, if this is impossible, that the decision may be given for either one of them. But if positive law regulates the manner of proceeding in such a case, its provisions should be followed. Thus, in Canon Law, if a judge is in doubt as to which one of two competitors has possession, he may grant it to both of them indivisibly, or he may command them to deposit it with a sequester, pending the settlement of the dispute (Canon 1697).

What should be decided when the defendant has possession with probable title and the plaintiff has more probable title?—(a) If the possession is not certain, or not certainly legitimate, decision should be for the plaintiff, for uncertain possession does not create any presumption of right and hence the more probable case prevails.

(b) If the possession is certainly legitimate, the common opinion is that decision should be for the defendant; for certain possession is not overcome by more probable, but only by certain arguments for the plaintiff. Some authors, however, believe that the judge should decide for the plaintiff, since possession prevails only when the arguments are of equal strength on both sides; or at least that he could decide for him, since it is probable that the plaintiff by presenting a more convincing case has sufficiently established his right to eject the defendant.

The Standard by Which a Judge Should Weigh the Evidence.—(a) When the proving force of an argument is settled by the law itself, the legal rule should be followed. Thus, in Canon Law certain kinds of proofs are expressly declared to be demonstrative (e.g., a public instrument not contested, Canon 1816), while other proofs are held to be insufficient or only of partial value (e.g., certain kinds of testimony, Canon 1756). Likewise in civil law public documents are prima facie evidence, oral interpretation of a written document which contradicts its language is not admitted, etc.

(b) When the proving force of an argument is left to the discretion of the judge, he must follow his conscience, that is, he must sincerely and impartially decide to the best of his ability the value of the argument, whether it is decisive, or likely, or Weak. Thus, in judging circumstantial evidence a juryman must use his own common sense and intelligence in determining whether the premises are doubtful or the inference illogical; in estimating testimony a judge must bear in mind the quality of the witnesses and the character of their testimony.

The Moral Obligation of a Judicial Sentence that Is Certainly Just.—(a) It is binding in conscience; for it is merely the application of law to a particular case, and law obliges (see 377). (b) It obliges in virtue of legal justice when the case is only penal, and hence he who is fined by court is held as a duty of obedience to pay the fine; it obliges in virtue of commutative justice when the case is about a strict right, and hence if the court requires an heir to pay a legacy, the latter must make restitution for neglect of this duty (see 1728).

The Moral Obligation of a Judicial Sentence that Is Certainly Unjust.—(a) If the sentence is unjust because it is the application of an unjust law, it produces no obligation in those cases in which the judge cannot lawfully apply the law (see 1949); for an unjust law does not oblige in conscience per se, but only per accidens (see 377, 461). (b) If the sentence is unjust because it is not based on the law or the evidence, or because the trial was not conducted fairly, it produces no obligation per se, but there may be an obligation per accidens, as when scandal or great public disturbance will otherwise result. Hence, one who through plain injustice is deprived of an inheritance has the right to occult compensation (see 1928), while the other party is bound to restitution of the inheritance (unless he is in good faith or has prescribed) and also to damages, if he went to law in bad faith.

The Moral Obligation of a Judicial Sentence in Case of Doubt.—(a) If the doubt is about fact or law, not about the right of the judge to give sentence (see 1955 sqq.), the sentence may be safely followed; for it is the office of the judge to settle doubtful matters, and to promote the common welfare by ending litigation. Thus, in doubtful criminal cases the judge sometimes acquits a guilty man, and in doubtful civil cases he sometimes awards property to one who has no right to it; but these sentences are not unjust, since they are based on rules which long experience has shown to be necessary for the public welfare. (b) If the doubt is about the justice of the sentence, there is an obligation of conscience to observe the judgment, since the presumption favors the judge. Were this not so, the authority of tribunals of justice would be at an end, for almost everyone who loses a case thinks that he has been treated unjustly. But one may enter an appeal, where this is allowed by law.

When a Judge Is Bound to Restitution.—A judge is bound to restitution when he causes unjust damage to the community or to litigants (see 1762 sqq.), and hence he must either recall his unjust act, or repair to the best of his ability the harm done. But the conditions for unjust damage must be verified (see 1763).

(a) Thus, the judge’s act must be objectively unjust, that is, in violation of a strict right under commutative justice. This happens when he conducts the trial unjustly (e.g., when he neglects the essential procedure, tries without an accuser, and the like) or when he passes unjust sentence (e.g., condemns without proof of fact or crime, or in spite of evidence for innocence, votes for acquittal when there is no reasonable doubt of guilt, imposes penalties that are insufficient or excessively severe, or awards property to one who to his knowledge has no right to it).

(b) The judge’s act must be efficaciously unjust, that is, it must be the real cause of the loss sustained by the other person. Hence, there is no duty of restitution if loss does not result (e.g., if the party who is in the right wins in spite of unfairness on the part of the judge), or if loss cannot be traced to the judge’s action (e.g., when a judge is not entirely impartial in his charge to the jury, but his words do not influence them, as they would have given an unfair verdict anyway).

(c) The judge’s act must be subjectively unjust, that is, the judge must be seriously responsible for the damage on account of his culpable ignorance, negligence, or malice. Even though he has made mistakes through excusable inadvertence or error, he becomes seriously responsible for damage, if, foreseeing it, he does not do what is in his power to avert it (see 1769).

When a Judge Is Not Bound to Restitution. A judge is not bound to restitution, however, for violations of virtues other than commutative justice.

(a) Thus, charity is offended, but not justice, if the judge has personal hatred against a person before him, but does not permit this to influence his conduct or decisions.

(b) Legal, but not commutative, justice is offended, if the judge is negligent about exemplary damages, provided the common good does not suffer; for there does not seem to be any strict right to the fine before sentence has been given. This is disputed, however, by some moralists, who hold that the judge is under contract with the community in this matter, and hence that he offends commutative justice, if he is habitually and to notable amounts indulgent about fines.

The Defendant.—The party who is required to make answer to the charges of the plaintiff or prosecutor is known as the defendant or the accused. We shall now speak of the ways in which he may be guilty of injustice, and shall consider the following cases: (a) the defendant in civil cases; (b) the accused in criminal cases who is innocent; (c) the accused in criminal cases who is guilty.

The Duties of the Defendant in Civil Cases.—(a) Before Sentence.—If the cause of the plaintiff is clearly just, the defendant as a matter of justice should recognize the claim and withdraw from the case. But a defendant may take exception to arguments offered by the plaintiff which, though actually valid, are not juridically made.

(b) After Sentence.—If the cause of the plaintiff is clearly just but loses in court, the defendant is obliged in conscience to pay the claim, even though the plaintiff does not appeal the case; he is also obliged in conscience to indemnify the plaintiff for the expenses of litigation, if the latter lost the case on account of unjust means employed by the defendant.

The Duties of One Who Has Been Arrested on a Criminal Charge.—(a) If the accused person is innocent, he may take to flight or even offer positive resistance, provided he does no injury to those who attack him, and public scandal or disorder does not result from the resistance. This is according to natural law, which permits one to use self-defense against unjust aggression; but since the positive law requires the accused to submit to arrest that is not manifestly unlawful and empowers the officers to employ force against those who resist, it seems that generally the accused should permit himself to be taken under protest, if he cannot escape.

(b) If the accused person is guilty, he may take to flight, since he has not yet been sentenced as guilty nor officially deprived of his liberty; but he may not offer resistance to those who are sent to apprehend him, since their aggression against him is not unjust. The accused person, if not yet convicted, may even use indifferent means to escape from prison, such as sawing his way out or eluding the vigilance of the guards; but he may not employ sinful means, such as bribery of officials.

Duty of the Accused to Plead Guilty, if Questioned by the Judge.—(a) If the accused is innocent, he may not plead guilty, as is clear. If to escape most grave evils he did plead guilty, he would be guilty of lying (if under oath, of perjury), but not of self-defamation; for, as the owner of his reputation, he has the right to sacrifice it in order to escape greater evils. Neither would he be guilty of suicide, according to some, if the death penalty were the consequence of the confession; for his purpose would be to avoid what he dreaded more than death.

(b) If the accused is guilty, he must reply truthfully, if the judge has the right to ask the question; for if the judge has the right to question, the accused has the obligation to answer, even though unpleasant things will befall him in consequence.

(c) If the accused is guilty, but the judge has no right to ask about his guilt (that is, if the judge does not question juridically or according to law, or if he questions from a false presumption of guilt), or if the accusation cannot be proved juridically, the accused is not obliged to answer. He may keep silence or evade the truth, but it is not lawful to lie.

Legal Right of a Judge to Question a Prisoner about His Guilt.—(a) According to older legislation a judge had this right, and could enforce it by torture, when the common good was involved and the guilt of the prisoner was likely on account of infamy or manifest indications of crime or half-proof of guilt. In itself, this practice was not opposed to natural law and had some good results; but it was open also to many abuses. Some moralists teach that a judge cannot impose a grave obligation of confessing guilt in capital or similar cases, if the accused has otherwise a hope of escape and no great evil is likely to befall the common interests by reason of an acquittal. They argue that human law cannot oblige so rigorously as a rule.

(b) According to modern civil legislation the right of exacting a confession is denied to a judge. Thus, according to American law no person may be compelled “in any criminal case to be a witness against himself” (Constitution, Article V). In American law the plea of not guilty is not a lie, even though the accused knows that he is guilty, for, as everyone understands, the plea means either that one is innocent or that one is using the privilege of not confessing. Neither is it considered a lie to say that an unprovable charge is a calumny, for an accusation that cannot be proved juridically is juridically a calumny.

(c) The general law of the Church rules for ecclesiastical processes that, when the judge questions the parties-litigant, they are obliged to answer and to confess the truth, unless the question is not legitimate (e.g., questions about irrelevant or privileged matters, or questions made in a captious or leading manner), or the answer would incriminate the parties themselves (Canon 1743). Neither is an ecclesiastical judge permitted to put an accused in a criminal case under oath to tell the truth (Canon 1744). An instruction of the Holy Office of 1866 required that the guilty party in a case of solicitation should confess, but the instruction was directive rather than preceptive. Particular law (e.g., the statutes of a Religious Institute) might perhaps prescribe confession by an accused, but most Constitutions of Religious Institutes bind only under penalty, and, as for the rest, an ecclesiastical superior could at most advise, but could not impose, confession by an accused.

Rights and Duties of Accused in Conducting His Own Defense.—(a) In Reference to Judge or Attorneys.—The accused, if questioned, may not conceal the truth by lies, ambiguities, or half-truths, since these are evil means, nor may he use evasion if he is lawfully interrogated. But if the question put to him is unlawful, he may evade an answer. It is commonly held that lies told in giving testimony or evidence are not necessarily mortal sins, as there may be no perjury committed or grave harm done another by reason of them (e.g., when an innocent man “doctors” a paper and thereby without harming anyone escapes from an unjust sentence).

(b) In Reference to the Opponent or His Witnesses.—The accused has the right to disclose secret but real crimes of the accusers, when this is an exercise of his legal right of taking exception to the witnesses as incompetent, or of his natural right of clearing himself of the charge against him. It makes no difference whether the evidence of the accusers is true or false, whether given according to the order of law or not. But he must not go beyond the limits of moderate self-defense (see 1826). Innocent XI condemned the proposition that it is probable that calumny may be used without mortal sin as a defense of one’s justice or honor (Denzinger, n. 1194).

If the accused objects secret crimes of the opposition, he must beware of injustice or uncharitableness. (a) Thus, it is unjust to disclose crimes that cannot be proved, or that are irrelevant (e.g., it may be irrelevant to prove that the person who testifies that the accused committed murder is himself a fornicator, but it would be relevant to show that this witness is a liar, or dishonest, or an enemy of the accused), or that need not be revealed (e.g., if the witness’s testimony can be overcome by showing that the witness is weak-minded or under obligations to the opposition, it is not necessary to defame him).

(b) It is uncharitable to disclose a crime, if the witness will suffer far more from this defamation than the accused would suffer from the testimony. If, however, the witnesses are giving false evidence of their own accord, they take the risk of revelations by the defense.

Rights and Duties of an Accused Who Has Been Found Guilty.—(a) Appeals.—It is lawful to appeal from a sentence that is unjust (whether because of the innocence of the accused, or of the illegality of the process), because appeal is a means of self-defense granted to the innocent. It is not lawful to appeal from a sentence that is certainly just, merely in order to cause delay or to defeat an adversary; but one may make an appeal when there are just reasons (e.g., in criminal cases the hope of getting an easier sentence or of prolonging life, in civil cases the discovery of new proofs, or of probable arguments against the sentence given). But one who has pledged his word not to appeal from the decision of an arbitrator should abide by his promise, and there is no appeal from the final decision of the highest court, which in the Church is the Roman Pontiff (Canon 1880), and in the State the Supreme Court.

(b) Escape from Prison.—If the sentence was unjust, it is lawful to escape, unless the means employed are intrinsically evil (e.g., killing of guards), or the results will be more harmful than continuance in prison (e.g., the overthrow of public order, the too great risk of the attempt to escape). If the sentence was just, there are various opinions on the lawfulness of flight. Some think it is never lawful, because a just sentence is a precept of authority and should be obeyed; others think that flight is lawful in grave cases (e.g., when the prisoner has been sentenced to death or to life imprisonment, or when the conditions of prison life are unbearable, because human law cannot impose as a normal regulation what is too difficult for human nature); still others think that flight is always lawful, because the court sentence is that the prisoner be forcibly confined, not that he remain in prison voluntarily. But one is not necessarily bound to escape (see 1857).

(c) Resistance to Sentence.—If the sentence is unjust, resistance is not unlawful per se, because one has the right of self-defense against unjust aggression (Ezech. xxii. 27). Hence, if one were condemned to execute oneself (e.g., by taking poison), the common opinion is that the sentence would be unjust (see 1856), and therefore not obligatory. If the sentence is just, even though it be a capital sentence, resistance is not lawful, for the judge who duly pronounces sentence on a guilty man has the right to obedience (Rom., xiii. 1-5).

Jail-Breaking and Restitution.—If one does not sin by jail-breaking, is one bound to restitution for the damages connected with the escape?

(a) If the damages are not caused by, but only follow accidentally on the flight (e.g., escape of other prisoners, dismissal of guards), there is no obligation to make restitution for them; for the flight would not be the efficacious or the unjust cause of such damages.

(b) If the damages result from the flight as from their efficacious and unjust cause, there is an obligation of restitution (see 1763), as when a prisoner, in order to escape, does needless damage, or damage out of all proportion to the evil from which he seeks to escape. But ordinary property damage, such as a hole cut in a wall, does not seem unjust, if there is no other way to get out.

Reliability of Witnesses and Testimony.—A witness in court is a person who declares during a judicial proceeding that he knows some statement, deed or omission in reference to the matters at issue. The testimony of witnesses has proving force only in so far as these persons appear to have knowledge of the matters on which they testify and appear to be truthful. Hence, certain kinds of witnesses and certain kinds of testimony are unreliable.

(a) Thus, a witness is unreliable either through his own fault (e.g., if he is regarded in his community as below the standard in truthfulness, or has the reputation of being a calumniator) or without his own fault (e.g., if his powers of observation or his memory are subnormal, or he is devoted or hostile to or dependent on one of the contending parties). It is a duty, indeed, to presume good of a person in whom the opposite does not appear, if he is the only one whose interests are concerned; but when there is danger to a third party, one must be on one’s guard (see 1744). Hence, St. John admonishes not to believe every spirit (I John, iv. 1).

(b) Testimony is unreliable because of the number of the witnesses (e.g., one witness is often legally insufficient to prove, especially in graver matters), or the quality of their evidence (e.g., because in substantial points a witness contradicts himself or is contradicted by his co-witnesses, or because there are signs of collusion or conspiracy), or the counter-evidence of the opposition.

Obligation of Freely Appearing as a Witness.—(a) There is an obligation of commutative justice to offer testimony, if one is under contract to do this, as when one is hired as a detective or agent to gather evidence against lawbreakers.

(b) There is an obligation of legal justice to testify, even at the cost of serious inconvenience, if the testimony is necessary for averting a serious evil that threatens the common welfare. A person who knows of a plot against the peace of the State should bring this to the notice of the authorities, even at the risk of his life. But a person who knows that a crime has been committed, is not bound to give witness about it, if the escape of its author will not be a serious detriment to public or private welfare (e.g., if one knows that an apparent case of suicide was really a homicide committed by accident).

(c) There is an obligation of charity to testify (but not at the cost of serious inconvenience), if the testimony is necessary for averting a serious evil that threatens a private person. A person who can prove that the evidence which is about to hang an innocent man is false should testify for the accused, unless the testimony will bring an equal evil upon himself.

Obligation of Appearing under Lawful Citation to Give Testimony.—(a) He who avoids citation (e.g., by flight into another jurisdiction, by concealment of his person when the subpoena is being served), more probably does not violate legal justice by this act, since a precept that has not been received cannot be violated. (b) He who disregards citation offends legal justice, since the summons to appear has a claim on his obedience. But it does not seem that he violates commutative justice, unless the party for whom he could testify has a strict right to the testimony.

Obligation of Witness to Answer Truthfully.—A witness who is questioned legitimately (i.e., by one who has the authority to question him) and juridically (i.e., according to the form and order prescribed in law) is obliged per se to answer according to the truth as he knows it, for one is bound to obey a superior when he gives a lawful command. But there are exceptions to this rule per accidens, that is, when a higher law exempts one from the necessity of divulging a certain matter, or when the question asked refers only to what one knows juridically. In all these cases the witness may answer that he does not know, for he has no knowledge that he may, or should, or must use.

(a) Thus, the natural law permits reticence when a revelation would work notable damage to the witness or those closely related to him, for the command of a superior does not oblige under such great inconvenience. This supposes, of course, that the revelation is not required in order to prevent a great harm to the commonwealth or a far greater harm to a private person than that which threatens the witness. A person who knows that he will be assassinated if he testifies against a powerful criminal is not ordinarily bound to make the sacrifice. Canon and civil law excuse witnesses from making disclosures that would expose them to prosecution or penalties (see Canon 1755, Sec. 2, n. 2).

(b) The natural law commands reticence when a revelation would be injurious to divine, public or private rights.

Matters Regarding Which a Witness Should Not Testify.—There are certain cases in which natural law forbids a witness to make known a fact about which he is questioned.

(a) A witness may never testify to matters known to him only from Sacramental Confession, for to break the seal of confession is an injury to the rights of God. In an ecclesiastical process a priest may not testify from Sacramental knowledge, even though he has the penitent’s permission (Canon 1757, Sec. 3, n. 2).

(b) A witness may not testify as a rule to matters that are known to him only in a confidential way, such as the communications between lawyer and client, physician and patient; for the public interest as well as the interest of individuals requires that generally there be security against defamation for those who give their confidence to others, especially if they are in great need of professional assistance. Privileged communications are recognized both in Canon Law (Canon 1755, Sec. 2) and in civil law. But knowledge obtained as a secret may be used when this is necessary in order to avert a great evil that threatens the public welfare or the welfare of an innocent person, whether this person be the giver of the secret, or a third party, or oneself; for to oblige to secrecy in these cases would be to throw protection around crime. Thus, a lawyer may make disclosures of confidential knowledge, if this is necessary in order to defend himself against the false accusations of a client, or to prevent a crime which the client intends to commit.

(c) A witness may not testify to matters about which he has unjust knowledge (e.g., by wire-tapping, by unjust coercion, by intoxicating another person, by reading private papers without permission), for, as the knowledge was unjustly acquired, it cannot be justly used (see 2420).

There are also certain cases in which a question refers only to what the witness knows juridically, or in which he is called upon to answer according to the mind of the questioner.

(a) If the witness is asked to state what he knows about a case, he is not obliged to mention what he merely thinks or what he is uncertain about; and if he is asked what he has heard, he is not obliged to state what was told him by persons of poor authority.

(b) If he is asked whether the accused was to his knowledge guilty of a crime, he is not obliged to mention an act of the accused that was unlawful but done in good faith. But in a civil case, in which inquiry is made about juridical faults, the witness should testify even to the existence of delinquencies in which there was no element of theological fault.

(c) If he is the only one who has knowledge of a delinquency and it will be certainly useless for him to testify about the matter without corroboratory evidence, it seems that he may keep silence about what he knows. But if the testimony of one witness is sufficient according to law, then the witness should speak of the facts known to him.

What is a judge? - A judge, as regards his nominal definition, is the same as one saying the law. As regards his real definition, a judge is a public person, constituted by legitimate authority, so that according to the laws he may vindicate justice, by rendering judgment or sentence between two litigating parties, by an authentic declaration and application of the laws. By declaration and application, not merely speculative, which pertains to jurists, but practical and obligatory, and by compelling that it also be observed. S. Th. 2. 2. q. 60. a. 1, 6; q. 67. a. 3. "We think that he says sentence who pronounces something with that mind, that according to it he wishes them to depart from the whole controversy." L. 19. de Receptis etc. Dig.

There are several divisions of judgments, among which especially the following division is to be attended to: into civil, criminal, and mixed. Civil is that in which the plaintiff seeks what is of interest to himself. Criminal is that in which there is question of punishing a crime. Mixed participates in both, when, for example, by the crime of homicide or theft public justice is injured and damage is inflicted on private persons. Into petitionary and possessory. Petitionary is the judgment in which there is question of the property or ownership of a thing, or quasi-ownership, or of a right in the thing or to the thing. Possessory is the judgment in which there is question only of the possession or quasi-possession of a thing. Hence a twofold action is also distinguished, petitionary and possessory. Into summary and full or solemn. In a summary judgment only those things are to be observed which belong to natural law: namely that there be present a judge, plaintiff, and defendant, and that citation of the parties, necessary proofs, and legitimate defenses not be lacking. Clem. Saepe contingit de Verbor. significatione. But in a full judgment all formalities prescribed by positive law must be observed. Marchant, Inst. Can., l. 2, t. 1, note 2; Barbosa, de Iudiciis, n. 7.

And thus the Apostolic Signatura proceeds in a criminal case, with procedural rules observed. "In other judgments it can proceed, the truth of the matter alone having been inspected, nevertheless always with the adverse or defendant party, or the party whose interest it is, cited, and with a suitable peremptory term fixed for the parties to present their rights." Constitution Sapienti consilio, canon 41, title 2.

What qualities are required in a judge? - In a judge there are required knowledge of law and prudence, by which he may know how to discharge his office rightly. The first reason is that anyone, generally speaking, is bound to know those things which pertain to his proper office, and without knowledge of which he cannot exercise it rightly. Besides, speaking in particular about a judge, it belongs to a judge to define and determine that which is just. But this cannot be done without knowledge of natural and positive law. The second reason is that it belongs to the judge to apply the dictum of the law to a particular business; and consequently, for his judgment to be right, it must be rendered "according to the right reason of prudence." S. Th. 2. 2. q. 60. a. 2 and 1 ad 1; Lugo, de Iust. et Iur., d. 31, s. 1.

You will resolve: Not ordinary nor mediocre knowledge of laws and prudence is required in a judge, so that he may be able to weigh intricate cases and to examine by his consideration all circumstances both of law and of fact. One seeking or accepting the office of judge, the same is true of a physician, surgeon, etc., for which he is unworthy, so that it is probable that notable damage to the neighbor will follow from it, sins mortally. A judge lacking necessary knowledge ought not to be absolved, unless resignation of the office has been made, or unless he has a firm purpose of resigning, or at least of acquiring it by diligent study, and meanwhile abstains from judging, or at least uses the counsels and work of one more learned; for otherwise he would expose his neighbor to the danger of damage. But he must resign altogether if there is no hope that by studying he will ever become fit. He must diligently examine cases and weigh well the reasons of the adverse parties. L. 195; l. 1, n. 170.

How ought a judge to exercise his office? - A judge is bound to fulfill his office duly with incorruptible integrity, with no acceptance of persons. The reason is that one accepting the office of judge is obliged to this by quasi-contract with society. Wherefore, acting otherwise, he will be guilty of violated justice, both legal and also commutative. Eccl. 7, 6; Deut. 1, 16, 17; C. Cum aeterni 1. de Sent. et re iud. in the Sixth; R. 12 de R. I. in the Sixth; S. Th. 2. 2. q. 63. a. 4.

What must a judge furnish, so that he may fulfill his office duly? - He must furnish two things. The first is to judge cases and to expedite them quickly, nevertheless with the delay prescribed by the laws observed. For a judge is bound by office to render to each one his own right. But he rather injures right if he either omits to judge a case, or illegitimately hastens or delays sentence without a just and proportionate cause. Hence he sins mortally against his office by omitting the judgment of a case, or by very notably anticipating or delaying it without a sufficient excusing cause; and moreover he is bound to compensate the damages to the injured party which followed from the unjust omission, anticipation, and delay of judgment, because he is their unjust cause. C. Iurgantium 2. de Sent. et re iudic.; Trent, sess. 24, c. 20 de R., sess. 25, c. 10 de R.; L. 196. The other is to render legitimate judgment. For a judge is the interpreter of justice and animated justice. But judgment is the definition or determination of the just, or of right. And in Deut. 16, 18 it is said: You shall appoint judges and magistrates in all your gates, that they may judge the people with just judgment. R. 26 de R. I. in the Sixth; L. 13 de Iudic. C.; L. ult. de Iure Fisci C.; L. 44 de Decurion. et de fil. eor. C.; L. 58 de Excusat. ff.; Nov. 83; S. Th. 2. 2. q. 60. a. 1, 2.

What is required for rendering a legitimate judgment? - Three things are required. The first is jurisdiction, without which, speaking in itself, there is mortal sin, and the sentence is null, unless there is a colored title and the error is common. But by canon law someone obtains an external forum by reason of domicile, thing, contract, or delict. C. Licet 20. de For. comp.; C. Cum quidam section 1 de Except. in the Sixth; C. Novit de Iudic.; C. 35 Quicumque cause 11, q. 1; C. 1 cause 3, q. 7; L. Barbatius Dig. de Offic. praetor.; S. Th. 2. 2. q. 60. a. 6; q. 67. a. 1; Lugo d. 37, s. 2, 3; Sanchez, de Matr., l. 3, d. 22.

The second is right process, for example, that the defendant be cited and heard, unless perhaps sometimes it is expedient, when the crimes are public, atrocious, and there is danger in delay, to punish immediately those apprehended in the very act of crime. Testimonies and documents offered in judgment must be followed. Likewise all other formalities of public judgments established by the laws are to be observed. For as the judge proceeds by public authority, so also he proceeds by public knowledge. L. 193; S. Th. 2. 2. q. 67. a. 3; Lugo d. 37, s. 6, 7; C. In causis 19. de Sent. et re iud.; CC. Si legitimus 1, Evidentia 9 de Accusationibus; Clem. 2 de Sent. et re iud.; title de Ord. iudic. C.

The third is that he proceed from an inclination and intention of justice, according to the laws and the right norm of prudence. For if he does not proceed from an inclination of justice and according to the laws and prudence, the judgment is unjust and depraved. C. Sententia 1 de Sent. et re iud.; L. 14 de Iudic. C.; S. Th. 2. 2. q. 60. a. 2; L. 194; Decretals l. 2; Trent, sess. 13, c. 17 ff. de R.; sess. 24, c. 20 de R.; sess. 25, c. 6, 10 de R.

Note: Cases to be treated are some ecclesiastical, concerning sacred things or things annexed to them; others civil, concerning profane things; others are mixed. The former are directly of the ecclesiastical forum, the latter of the secular forum, unless they are cases of clerics, and indirectly also of the ecclesiastical forum, and the latter are of mixed forum, when the rights are at once civil and ecclesiastical; and in these there is place for the Rota. To the Rota are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. As regards ecclesiastical cases, once a supplicatory petition for obtaining a matter, whether pertaining to grace or to justice, has been brought and received by some office of the Roman Curia, no one for any reason is permitted of his own accord to approach another office for the same end; but the consent of the office itself with which business has begun is necessary, or a decree of the Consistorial Congregation, by which permission is given for transferring the business. Matrimonial cases pertain to the Church; and except in the case of the Church's toleration, lay judges cannot take cognizance of them.

The process concerning the validity of marriage must be instituted according to the Constitution Dei miseratione of Benedict XIV, November 3, 1741, and the Instruction of the S. C. C., August 22, 1840, unless the impediment is clear, for example, the impediment of bond; for then the Bishop, with the intervention of the defender of the bond, will be able to declare the marriage null. The tribunal in matrimonial cases is constituted of the judge, the chancellor, and the defender of the bond. Besides the plaintiff and the defendant, there are present witnesses of the seventh hand, indicated by the husband and wife, and they are seven persons joined to them by blood or affinity, if they can be had; or otherwise seven neighbors of good reputation who can testify, seven on the part of the man and seven on the part of the woman. Nevertheless others are not excluded who know the matter and are worthy of trust.

A dispensation from a ratified but non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. In this cause the Bishop cannot, without a special faculty obtained from the S. C. of the Sacraments, institute the process in this cause. But in other causes the Bishop is the competent judge in first instance. Constitution Sapienti Consilio, A. A. S. v. 1, p. 7 ff.

Rota: To it are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. The Proper Law must be observed by the S. R. Rota, which is appended to the praised Constitution Sapienti consilio. In it are established the constitution of the Tribunal, its competence, and the mode of judging. Moreover, in judgments the Rules approved by the Supreme Pontiff Pius X on August 2, 1910, and promulgated on October 25 of the same year, are to be observed. Finally, those things also are to be observed which pertain to it in the Constitution Sapienti consilio and in the Order to be observed in the Roman Curia. "Each Auditor of the Sacred Rota, after nomination, before he undertakes the office of judge, before the whole College, with one of the notaries of the sacred tribunal standing by, who will draw up the act, will take an oath concerning the office to be fulfilled duly and faithfully." "The same oath will be taken by each of the assistants of the Auditors and the ministers of the tribunal before the Dean of the Sacred Rota, with one of the notaries likewise standing by." Canon 7, title 1, Proper Law, A. A. S. v. 1, p. 21. "In a criminal matter, in spiritual causes, and in others, when from the revelation of some act prejudice can come upon the parties, or secrecy has been imposed by the tribunal itself, the Auditors, assistants of the Auditors, and ministers of the tribunal are held to the secrecy of office." Canon 8, title 1, ibid. "Auditors who have violated secrecy, or who from culpable negligence or deceit have brought grave detriment to litigants, are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the Apostolic Signatura, confirmed by the Most Holy One, they can be punished. "The ministers of the tribunal and procurators who have done similar things likewise are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the rotal College, according to the measure of damage and fault, they can be punished." Canon 9, title 1, ibid. Moreover, according to the Rules to be observed in judgments of the S. R. Rota: If it concerns a criminal case, the Promoter of justice must assist the Instructor.... But in causes regarding the bond of marriage, or the validity of religious profession or of sacred ordination, the intervention of the Defender of the bond is required according to the norm of the Constitutions Dei miseratione and Si datam.... It will belong to the Instructor in criminal accusations to assign to the accused a defender, who is to assist him even in the period of instruction, if he does not have an advocate, nor can sufficiently attend to his own defense by himself. Title 4, c. 1, sections 108, 109. From the same Constitution Sapienti consilio, the Proper Law of the S. R. Rota and Apostolic Signatura, if, after a case has been introduced, the plaintiff wishes to renounce the instance, or the lawsuit, or the acts of the case, this will always be permitted to him. Canon 34, title 1.

Sacred Congregations: "In cases to be conducted before the Sacred Congregations by the path of administration and discipline, the joinder of issue having been removed, the hearing of witnesses excluded, and no writings of patrons received, the question will be held; nevertheless the parties whose interest it is will always be heard, and the documents produced by them will be examined." Order to be observed in the Roman Curia, Special Norms, chapter 3, article 2, number 7.

Once a question has been instituted in a disciplinary manner before one Sacred Congregation, it is no longer lawful to institute a strictly judicial action. Pius X, Constitution Sapienti consilio, Order to be observed, special norms, c. 3, a. 2, n. 10.

Council of Trent: Council of Trent, sess. 25, c. 6 de R., establishes that in exempt Chapters, at the beginning of any year, the Chapter is to choose two from the Chapter, by whose counsel and consent the Bishop, when he proceeds outside visitation, is bound to proceed both in forming the process and in the other acts against anyone from the capitulars. But one vote belongs to both adjuncts, and one of them can accede to the Bishop. Lugo, Resp. Mor., l. 5, d. 23.

How one must proceed in causes of those defecting from Religion you have in the Council of Trent, sess. 25, c. 19 de Reg.; in causes of clerics who are concubinarians, ibid., c. 14 de Ref.; in causes of exempt persons, ibid., sess. 7, c. 14 de R.; in criminal and civil causes, ibid., sess. 7, c. 14 de R., sess. 24, c. 5, 20. Cf. also various decrees issued concerning this matter, Ferraris, supplement, v. Processus in causis clericorum; E. M. "It is unlawful for clerics, even those having lay power, to condemn the guilty to the penalty of death, from C. Continentia 2 de Cler. percuss. Yet the Pope can dispense in this. And Bishops themselves, or similar persons, having temporal dominion of some place, can licitly commit their power to laymen for cases of blood." L. 1. 3, n. 378; l. 7, n. 566; S. Th. 2. 2. q. 64. a. 4. A lay judge cannot drag ecclesiastical persons before his own tribunal unless this is permitted by Canonical Dispositions, Concordats, approved custom, or at least toleration. For this would be against the privilege of forum.

A judge sins by fraudulently inducing the defendant, or contrary to the order of law, to betray himself, or by using some knowledge unjustly extorted.

How must right process be instituted? - In a civil case the process must be instituted at the petition of the plaintiff. Plaintiff is so called from action. Action is the right of pursuing in judgment what is owed to oneself. Hence he who proceeds in judgment by actions is called plaintiff.

But it is necessary that he be able to stand in judgment; that he have an action in judgment according to the laws; that he manifestly prove what he seeks. Proofs are made by examination of laws and facts, by sentences given in other similar cases, by presumptions, by sworn witnesses, by writings, by the sworn confession of the party. C. I. 1312 ff., 2142; C. G. 1315 ff., 2275; C. L. 2404 ff. But actions are repelled on the part of the defendant by exceptions, which he himself likewise is bound to prove. "Exception is so called as a certain exclusion, which is customarily interposed against the action of any matter in order to exclude that which has been brought into the intention or condemnation." L. 2 de Except. Wherefore one exception is of fact, another of law. By the former the fact is excluded, for example, the loan received. By the latter the law is excluded, for example, if a homicide, not criminal, was committed in order to defend oneself.

Other proofs having been omitted, either an interrogatory or an oath can be tendered to the defendant. If an interrogatory is tendered, the defendant must answer, and if he has not answered, it will be taken as confessed. C. I. civil procedure 216 ff. But an oath is twofold, decisory and supplementary. A decisory oath is a certain species of settlement for ending a lawsuit, and therefore it is tendered by one party to the other. Hence, if the defendant does not furnish the oath, he is condemned; likewise, if the plaintiff does not furnish the oath tendered to him, he is condemned. But if the defendant furnishes it, even if he is perjured, he is absolved. C. I. 1364 ff.; C. G. 1358 ff. Namely, he is absolved, even if perjured, in the external forum, but he is not freed from obligation in the forum of conscience; for the settlement was made by oath, not by perjury. The oath is tendered concerning one's own fact, and also concerning the fact of another, if there is a presumption that it is known by the one swearing, and if it is necessary for expediting the case to know that fact. A supplementary oath is one which is tendered by the judge to complete proofs, but not to the defendant himself in a criminal case. C. I. penal procedure 232. Cf. L. 11 de Act. rer. amot. ff. As regards the forum of conscience, the judge cannot tender it to one who probably will perjure himself, without injuring charity and justice. For it is in his power to tender it or not. C. I. 1314 ff.; C. G. 1366 ff. Cf. Rules of the S. R. Rota, title 4; L. fin. de Iureiur. ff.; C. L. 2520 ff.

In a criminal case from Roman Law, and also from more recent law as regards the very substance of the matter, the process can be instituted in three ways: 1. By way of accusation, when there is some accuser who promises that he will prove the crimes objected. 2. By way of denunciation, when the one reporting the crime does not wish to assume the burden of proving. 3. By way of inquisition, which the magistrate institutes.

In the accusatory process the whole case is conducted between the accuser and the accused. The accuser objects the crime; the accused responds, denies or confesses the fact, and if he confesses he is as condemned. Witnesses are all examined before both, and orally. For no one is to be condemned unheard and without witnesses. Formerly the defendant was tortured on the rack, so that full proof might be made from his confession. But by present laws no one can be compelled to bear testimony against himself. Then the sentence of innocence or guilt is pronounced, and punishment is imposed by law on the guilty person. If the accuser has failed in proof of the crime and from malice has brought someone into danger of grave penalty, formerly he suffered a similar or talion penalty. Today an action of calumny and defamation is granted against the accuser. S. Th. 2. 2. q. 68. a. 4; Deut. 24, 19 ff.; Decretal de Calumniator.

The way of denunciation falls back into inquisition. For when the matter has come to the knowledge of the magistrate through denunciation, either from one lodging complaint, or from an informer, or from ministers of public order, then he begins to inquire into the delict and the delinquent. He can inquire into the delict from the slightest indications, but into the delinquent only from grave ones. Once the inquisition has been completed, the delinquent is subjected first to summary examination, then to ordinary examination. Then the criminal process is instructed before him, and witnesses are examined in it. If from it the defendant is proved guilty, he is condemned; if he is proved innocent, he is absolved; if neither is established from the acts and proofs, he is dismissed.

Moreover, inquisition is threefold. The first is general, namely when it is asked in general whether the laws are observed, whether there are transgressors. The second is special, when inquisition is instituted concerning a certain crime and concerning a certain person as its author. The third is mixed, when either the person alone or the crime alone is special, for example, whether Titius is guilty, or who killed Caius. L. 197; S. Th. Quodl. 11, a. 13.

Therefore by whatever way the process is instituted, there is always some accuser, whether a private or public person, whether physical or moral. Accusation can be both formal and virtual. Hence the evidence of the fact, public infamy, or notoriety of the crime supplies the place of the plaintiff or accuser. In judgments three persons are required: judge, plaintiff, defendant. For judgment is an act of justice, which is not toward oneself, as are the other virtues by which man is ordered in himself, but is toward another, ordering man to another. S. Th. 2. 2. q. 67. a. 3.

By canon law a previous admonition of the defendant is often required, for example, in causes of clerics who are concubinarians, and where excommunication is to be inflicted. Trent, sess. 25, c. 3, 14 de R.

Decretals l. 2; L. Qui crimen C. de iis, qui accusare non possunt; L. ult. C. de Accusat. et inscript.; Sanchez, Cons., l. 6, c. 2, proem.; Lessius, l. 2, c. 29, n. 106; Lugo d. 27, n. 75; E. M.

The rack: It is a kind of torment, namely a wooden machine put together in the manner of a horse, cavalletto, upon which those concerning whom there was inquiry about some crime were stretched out and tortured, so that full proof might be made from their confession.

What concerning general inquisition? - A judge, without any special occasion having been given, from his office alone can institute a general inquisition, in which nevertheless his power does not extend to eliciting hidden delicts, concerning which there is no report, or which turn to the damage of no one. The reason for the former is that this is necessary for the republic, and no injury is done to anyone. And although the crimes of some persons may be uncovered, this occurs accidentally, beyond intention, and the common good prevails over that inconvenience. The reason for the latter is that otherwise the reputation of the neighbor would be injured directly and in itself; and this right, speaking in itself, neither the judge nor society itself has. Then the greatest inconveniences of scandals, quarrels, etc., would follow, and public peace would be disturbed. Wherefore, for the common good of society itself, always speaking in itself, it is more profitable that delicts remain hidden than that they be made public, so that scandal may be removed, lest others be stirred up by the example of others to perpetrating similar crimes. Nevertheless always except cases of imminent danger of common or private damage, in which the judge can and must inquire even concerning secret delicts. C. Perniciosa 1. de Off. iud. ord.; L. 198.

199; Lugo d. 38, s. 6; Lessius, de Iust. et Iur., l. 2, c. 29, dub. 13; S. Th. Quodl. 11, a. 13; 2. 2. q. 33. a. 7.

What concerning special inquisition? - "For a judge to make a special inquisition, there must, at least regularly, precede infamy, or something equivalent, which gives a just cause. The reason is both because otherwise he would defame without cause, and because a judge must proceed from public knowledge, which he does not have except through accusation, or the confession of the defendant, or evidence of the fact, or through infamy; for which two witnesses are not sufficient, who swear that they have seen the crime committed, because it is still hidden, but it is required that rumor be spread through the greater part of the community, that is, of the city, neighborhood, or monastery, and that it not have arisen from slanderers, although in this matter it is safe to follow the common practice of good men and republics." L. 801.

Regularly; for again there are excepted cases, namely if there is imminent danger of common damage, or of grave damage to another person, or if it concerns graver crimes, homicides, thefts, and other things disturbing the republic, and if there is some suspicion arising from indications not slight, lest delicts left unpunished provide occasion for wicked men to disturb the republic by their crimes and to injure the innocent. Wherefore the judge must then use great prudence, and have regard to persons, and until he sees whether the matter can be proved, he must take information in such a way that reputation is injured as little as possible. Hence, if he sees that it cannot be proved, he must desist. Lessius, l. 2, c. 29, dub. 15.

But lest meanwhile the defendant be able to corrupt witnesses or himself flee, the judge can command that he be enclosed in prison. But this cannot be done without grave delict and grave indications. Lev. 24, 12. Indeed by common Law it is provided that an innocent citizen not be enclosed in prison; and likewise to defendants the faculty is given, pledges having been furnished, of enjoying liberty until they have undergone judgment, unless they are accused of greater crimes with a great presumption of delict. S. Th. 2. 2. q. 14. a. 3; Quodl. 11, a. 13; Lugo, l. c.; CC. Accedens 23, Qualiter et quando 24, Cum oporteat 19, Inquisitioni 21 sections 1-2 de Accusationibus; Trent, sess. 25, c. 6 de R.; C. I. penal procedure, l. 1, title 1, c. 2, title 2, c. 1-4.

What concerning mixed inquisition? - Mixed inquisition also is licit; namely, when the crime is manifest and the author is unknown, it is lawful for the judge to ask in general who committed it; nevertheless not in particular, for example, whether Peter did it, unless some infamy and manifest indications have preceded. The former part is clear both from the practice of all even fearful judges and from the contrary inconveniences; for crimes and delicts would easily be multiplied. But the latter part is established from this, that this would be to defame the neighbor without legitimate cause. L. 189, 200.

Hence the same Holy Doctor, 201, says that "it must be noted that prelates cannot inquire against religious in doubt whether sufficient indications are present... for inquisition, because in doubt their reputation possesses, which would then be stained by inquisition. Understand, however, unless danger of common damage is imminent; for then the right of religion prevails"; or also if grave damage of a private person is imminent, whose certain right prevails. This, as is clear, is general and not proper only to religion. Lugo, l. c.

Note: If it concerns inquisition that is not judicial, unto penalty, but paternal, unto the amendment of the defendant, there is indeed a broader faculty in this matter, as is established from common practice itself. For Bishops and regular superiors in visitation, which ordinarily they make only paternally, are accustomed to investigate even in particular concerning clerics and religious: how they conduct themselves, how they themselves are content with others and others with them, whether they observe the laws, etc. But even this paternal inquisition, if it is not made about all according to custom, but about one or another in particular, cannot be made unless some special reason is present and due caution is observed, lest anyone thereby be defamed. Otherwise an investigation of this kind becomes vicious and reprehensible, because it degenerates into detraction, "and because it generates scandals and provides occasion for hatreds and dissensions. For men bear it with difficulty when their deeds are scrutinized by others, and by its very nature such an inquisition inflicts injury on the neighbor, whose honor it opposes, and the estimation which all desire to have as best concerning themselves." Diana t. 7, tr. 4, res. 25, n. 3.

Can a judge condemn a defendant whom by private knowledge alone he knows to be guilty, or an innocent person who is juridically proved guilty? - R. To the first: Negatively. For a judge judges as a public person, and therefore he must follow public knowledge and proceed according to the things alleged and proved, especially in favor of the defendant. Besides, the judge would then proceed without an accuser, which is against justice and against the order of public judgments. S. Th. 2. 2. q. 67. a. 2, a. 3; L. 207. But, speaking not of an inferior judge, but of the Prince himself, and of civil causes and the removal of offices, etc., Lugo observes, d. 37, s. 5, n. 54: "perhaps the Prince has greater power for this, that from private knowledge he can sometimes condemn a defendant not convicted; for since the republic has greater dominion over these things and can dispose of them in order to the public good, it can more easily happen that it is expedient for the public good to take goods or an office from someone because of the testimony of the Prince alone. But an inferior judge cannot do the same; "for he cannot dispense in the law of a superior, especially in a matter of such great moment." Lugo, l. c., n. 50.

R. To the second: "One whom the judge privately knows to be innocent, if he has juridically been proved guilty, the judge is bound by every means to free, if he can, for example, by impeding the accusation, drawing out the judgment, opening the prison, if he can do so without a greater evil, or remitting the case to a superior." L. 208; S. Th. 2. 2. q. 64. a. 6 ad 3; q. 67. a. 2 c.

But if the judge by acting thus can accomplish nothing toward freeing the innocent person, then there are three opinions, all probable. The first opinion, of the Angelic Doctor, teaches that the judge can always in any case whatsoever render sentence according to the things alleged and proved. The reason is that the judge does not judge as a private person, but as a public person. Therefore in judging he must follow not private knowledge, but public knowledge. "He must follow them (the proofs introduced) in judging." 2. 2. q. 67. a. 2 c. Moreover, the common good requires that the order of law be preserved intact in judgments. Finally, "if a judge knows that someone is innocent who is convicted by false witnesses... he does not sin by rendering sentence according to the things alleged, because he himself does not kill the innocent man, but those who assert him to be guilty." 2. 2. q. 64. a. 6 ad 3.

The second opinion, very probable to St. Alphonsus, denies that in any case whatsoever the judge can render sentence against him whom he certainly knows to be innocent. The reason is "because to condemn the innocent is intrinsically evil; just as it would be to compel a woman to live with him whom she privately knows not to be her husband." L. 208.

The third opinion, of Lessius and Lugo, distinguishes between criminal cases in which there is question of the penalty of life or mutilation, and civil cases or criminal cases in which there is question of a monetary penalty, or of simple detention, or of exile or deprivation of offices. In the former it denies that it is lawful for the judge to condemn the innocent. In the latter, however, it grants that this is lawful. The reason for the former part is that it is evil in itself to kill or command someone to be killed without authority. But the judge has no authority over the life of an innocent person, since society itself lacks such authority. The reason for the latter is "because the republic has authority of disposing concerning the fortunes of its citizens and transferring them from one to another, as it has been expedient for the public good; as is clear from the laws of usucaption. But here there seems to be a just cause, both lest the form of public judgments be perverted with scandal of the people, and because a reason does not offer itself for averting the inconvenience of this man. Therefore it can establish that the judge in such a case follow the public form of judgments, even if from this it happens that he must despoil of fortunes one whom privately he knows to be innocent or to have a good case." Lessius, l. 2, c. 29, dub. 10, n. 84; Lugo d. 37, s. 4, n. 42 ff.; C. Inquisitionis suae de Sent. exc.; Ithur. Cas. 34; L. 1. 6, n. 999, 1502; E. M.

Moreover, in modern Codes jurors judge concerning the crime, and the judge only renders the sentence of the law by which the penalty is sanctioned. If the judgment of the jurors does not rest upon the acts and proofs, Carriere, de Iust. et Iure, n. 2, n. 753, thinks that the judge can render sentence against the innocent man, "since he does not have to pronounce concerning the innocence or guilt of the accused, but only concerning the application of the penalty." But if the judgment of the jurors has evidently been rendered not from the acts and proofs, but rashly from malice or from ignorance, the judge cannot render sentence against an innocent man; for although he has been declared guilty, nevertheless he has not been proved guilty. C. Italian Penal Procedure, a. 509.

Does the sentence of a judge oblige in conscience; and to what is the judge bound who has rendered an unjust sentence? - R. To the first: Affirmatively, if it is certainly just. The reason is that a legitimate precept of a superior obliges in conscience. But the sentence of a judge is compared by law to the precept of a superior, commanding or prohibiting some matter in a certain particular case. "The sentence of a judge is as it were a certain particular law in some particular fact." S. Th. 2. 2. q. 67. a. 1 c. From this the Angelic Doctor deduces that "just as a general law must have coercive force... so also the sentence of a judge must have coercive force." Similarly, as a general law must have the force of obliging, so also the sentence of a judge must have the force of obliging.

R. Negatively, if it is certainly unjust. For just as one is not bound to obey him who does not have authority of commanding, so much more one is not bound to obey him who abuses authority by commanding unjust things. C. Inter ceteras 9 de Sent. et de re iud.; S. Th. 2. 2. q. 60. a. 6 c. ad 4. Wherefore someone can secretly compensate himself, unless the other has justly prescribed. It is said negatively, that is, not to oblige in conscience, "because in the external forum, where not so much the truth of the fact as juridical proof is regarded, the sentence pronounced is to be observed, in order to avoid scandals and inconveniences (if indeed they are present and cannot otherwise be avoided); nor, after the term has elapsed within which it was lawful to appeal, is an action granted to him, the law so establishing, both as a penalty for sluggishness and on account of the public good, that there be an end of lawsuits." L. 215.

R. Affirmatively, if it is doubtfully just. The reason is that presumption favors the superior or judge, and in practice there would be very grave inconveniences, and there would never be an end of lawsuits. Besides, obedience must be given to a superior legitimately commanding. But in the case of the aforesaid doubt and probability, the superior or judge still commands legitimately. Moreover, he certainly possesses the right of urging execution, of which he cannot be despoiled unless the opposite certainty of injustice is present.

But it is permitted to appeal from the sentence of an inferior judge to a superior judge, even if the sentence is only probably unjust; and once appeal has been interposed, the sentence rendered ceases meanwhile. The reason is that that inferior sentence of itself is neither absolute nor simply definitive, but only if it is accepted as such and no appeal is interposed. But after the sentence has passed into a matter adjudged, it is now absolute and definitive, and it must be stood by even in the forum of conscience, even in doubt whether it is just. C. Cum super 17 de Sent. et re iud.; C. L. 2502 ff.; Lugo d. 37, s. 15, n. 185 ff.; S. Th. 2. 2. q. 69. a. 3; Quodl. 4, q. 8, a. 14. Cf. n. 86.

The sentence of a judge is one thing when interlocutory, concerning an incidental question; another when definitive, concerning the principal controversial case. And one is a sentence of absolution of the defendant, another of condemnation of the defendant, another of dismissal because the crime has not been proved. But a condemnatory sentence is one thing simply condemnatory, another declaratory of crime and penalty.

The commands of the praetor, spoken between two parties, are called interdicts. In several cases interdicts were given by the Praetor, but especially the Praetor interposed his authority in ending lawsuits concerning possession or quasi-possession. Inst. 4 de Interdictis.

Generally speaking, appeal in suspensive effect is not given as regards merely disciplinary decrees, but only in devolutive effect. Benedict XIV, Constitution Ad militantis, March 30, 1742.

R. To the second: If the judge from inculpable error has rendered an unjust sentence, he is bound to revoke it, if he can do so without grave inconvenience. The reason for the assertion is that he is bound by office to impede the evil of the neighbor, "otherwise, if, while he can, he does not impede his error, that will now be imputed to him as conserving it, which before, because of inculpable inadvertence, was not imputed." Lugo d. 37, n. 3. Nevertheless he is not bound to sustain grave inconvenience, since justice was not formally injured, nor in the quasi-contract of accepting an office or munus is anyone judged to be obliged also that he correct inculpable errors with notable inconvenience to himself. R. 23 de R. I. in the Sixth. If by deceit, or by culpable great imperitia, he rendered an unjust sentence, he must revoke it, if he can, even with grave inconvenience to himself; and he is bound to repair all damages coming from it to the injured party. For he is the unjust, efficacious, culpable cause of such damage, and therefore he is bound to reparation. L. 195, 214; C. Tum ex litteris 5 de In integr. restit.; C. B. 839; C. L. 2401 ff.

14 bis. Note: There are various grades of judgments. Three grades are regularly constituted in judgments: first instance, appeal, and recourse to the supreme Curia.

From the Constitution Sapienti consilio, the Sacred Roman Rota judges in first, in second, and in last instance. Cf. canon 14. Moreover, "it also sees concerning recourses for restitution in entirety from any sentences whatever which have passed into a matter adjudged and cannot find a remedy before the judge of second instance, according to the title de Rest. in integr.; provided nevertheless that it does not concern a matter adjudged from a sentence of the Sacred Roman Rota: and in these it judges both concerning form and concerning the merit." Canon 14, section 4, title 1.

Besides the Sacred Roman Rota there is the Supreme Tribunal of the Apostolic Signatura, which takes cognizance and judges concerning suspicion against some Auditor, concerning violation of secrecy, concerning damage inflicted by Auditors from an act of theirs null or unjust in judging, concerning a complaint of nullity against a rotal sentence, concerning a petition for restitution in entirety against a rotal sentence which has passed into a matter adjudged. Canons 35, 37, title 2.

Is a judge, gravely negligent or unjust in executing a case and rendering sentence, bound to restore not only to the injured party, but also to the treasury, for example, if without cause he remitted a monetary fine which by law he ought to have imposed on the defendant? - Busembaum and others probably affirm. The reason is that he is the unjust cause of the damage which the treasury suffers. But others also probably deny this, if the defendant has not yet been condemned to the fine. "The reason is that before sentence no right to the penalty is acquired by the treasury; hence, if the judge unjustly absolves the defendant, he sins against legal justice, not commutative justice." L. 196, 238. That is, the judge from his office must coerce the guilty, but so that others not offend, not so that the treasury or private persons may become richer. Except if from the unjust remission of penalty damage would come to a private person or to the republic; for by force of his office he is bound to impede that. S. Th. 2. 2. q. 67. a. 4 ad 3; L. l. c. and n. 237; Lugo d. 37, s. 8, n. 97. Cf. 61.

Must a judge judge according to written laws? - R. Affirmatively. "Augustine says: In these temporal laws, although men judge concerning them when they institute them, nevertheless when they have been instituted and confirmed, it will not be lawful for judges to judge concerning them, but according to them.... Judgment is nothing other than a certain definition or determination of that which is just. But something becomes just in two ways. In one way from the very nature of the thing, which is called natural right; in another way from a certain agreement among men, which is called positive right.... But laws are written for the declaration of each right, yet in different ways. For the writing of law indeed contains natural right, but does not institute it; for it does not have force from law, but from nature. But the writing of law both contains and institutes positive right, giving to it the force of authority. And therefore it is necessary that judgment be made according to the writing of law; otherwise judgment would fall short either of the naturally just or of the positively just." S. Th. 2. 2. q. 60. a. 5; Inst. l. 3, t. 17; L. Rem non novam C. de Iudiciis; C. 1 de Sent. et de re iudic.

You will resolve: An inferior judge, speaking in itself, ordinarily cannot relax or diminish a penalty, even if the plaintiff or accuser consents, unless sometimes epikeia dictates that something else is necessary for the good of the republic, or unless the judge justly interprets the will of the superior, or unless another just cause is present, in which the end of the law rather than the bark of the words is to be attended to. The supreme judge himself cannot do this without a just cause, whence, acting otherwise gravely, he would sin, because he would render delinquents more bold, and thus would concur in sin. Nevertheless in all things the chief account is of justice and equity rather than of strict law. L. 8 de Iudic. C.; S. Th. 2. 2. q. 66. a. 6 ad 2; q. 67. a. 4; q. 60. a. 5 ad 2; 4 d. 46, q. 1, a. 2, q. 2; Lugo d. 37, s. 8.

Speaking in itself; for practically today penalties are determined by the laws themselves, and their limits, of maximum and minimum penalty, are defined, which judges cannot exceed. C. I. penal 1.

A judge can supply those things which have been omitted by the litigating parties and their advocates, and which are of law. But those things which are of fact he regularly ought not supply, for otherwise he would assume to himself the office of the contending parties. But he can supply even these if the fact is known from the public acts of the judgment, or if the fact is both manifestly and publicly known, if it concerns public good, miserable persons, the good of the soul, or a pious and religious cause. L. 1 Ut quae desunt adv. part. etc. C.

What must the judge do when the law is not clear, but obscure, and on both sides there are opposed probable opinions? In criminal matters the defendant is to be favored, both as regards the existence of the crime and as regards the infliction of penalties. The reason is that according to the rules of Law: In doubt no one is presumed evil unless it is proved; when the rights of the parties are obscure, the defendant is to be favored rather than the plaintiff; hates should be restricted and favors should be expanded; in obscure things the minimum is to be followed; in penalties the more benign interpretation is to be made; it is more satisfactory that the crime of the guilty be left unpunished than that an innocent man be condemned. R. 49 de Reg. Iur. in the Sixth; L. Absentem 5 de Poenis; L. 25 de Probat.; S. Th. 2. 2. q. 60. a. 4; Elbel, de Actib. human., 197 ff.; C. L. 2515.

In civil cases, probability of fact and probability of law must be distinguished. A doubt of fact, for example, is: whether the man was master of himself when he made the testament; whether Titius committed such a delict, falsified writings, etc. In such a doubt sentence must be rendered according to the Rules of natural and positive Law: In doubt a fact is not presumed, but must be demonstrated; in doubt the deed is presumed, or presumed to have been rightly done, which had to be done by law; in doubt one must stand for the validity of the act; in doubt one must stand for him for whom presumption stands; once evil, always presumed evil; ignorance of fact, not of law, excuses; in obscure things we inspect what is more likely, or what is usually accustomed to happen, etc., de Reg. Iur. in the Sixth.

A doubt of law is when it is doubted what the law commands in such a case, whether the law is extended or not extended to it, etc.; and on both sides there are probable opinions. In such a doubt of law, either no one possesses the thing, or someone is possessor of the thing.

In the first case, that no one possesses the thing, if it is doubtful to which of the parties the law favors more, or if, without doubt, the law equally favors the parties, there is a twofold opinion. The first opinion holds that the thing must be divided. The reason is that the judge is not the master of things, but the declarer of law in a particular case, and consequently the distributor of things not according to his pleasure, but according to the rights of the parties; and therefore, if the rights are equal, he must divide the thing equally between them. The other opinion holds that "the judge indeed does better by trying to reduce the parties to concord, yet absolutely he can choose one from among them (equally more probable opinions)... because the judge by the debt of his office is bound only to investigate the truth diligently, so that he may judge according to it; but in our case he judges most probably that this is the truth, and that this man has right: therefore he can judge for him with that equal probability." Lugo d. 37, s. 10, n. 115. And indeed, since each party then has, according to a probable opinion, an entire right to the thing, the judge will well be able to conform himself to one of these opinions, and he inflicts no injury on the other party. Nor is it valid to object that by judging the truth to be for one party the judge exposes himself to the danger of deviating from the truth and of depriving the other party of his right. For the judge cannot avoid this danger. For the danger is equal if he judges for the other party. But if he divides the thing, "then the danger will be more certain; for then it will be not only probable but most certain that the true owner is deprived of his thing as to the half part: therefore it is better to undergo that probable danger with a probable judgment concerning the justice of him for whom sentence is rendered, than most certainly to deprive the owner of his thing as to the half part." Lugo l. c. n. 118. This latter opinion is consonant with present laws and practice, and is confirmed by canon law and Roman law, so that in equal right the causes of marriage, dowries of widows, wards, and other pious causes always prevailed. L. 1. 4, n. 410.

But if, in the same case, that no one possesses the thing, a truly more probable opinion in a question of law favors one party, and a less probable opinion favors the other party, the common opinion holds that the judge must render sentence for that party for whom the more probable opinion stands. The reason is taken, first, from proposition 2 condemned by Innocent XI: "I probably judge that a judge can judge according to an opinion even less probable." But from this condemned proposition it follows only that the judge cannot render sentence for the less probable opinion, but by no means that he must render sentence for the more probable opinion and cannot divide the thing among the parties according to the proportion of probability. The reason is taken, secondly, from this, that the judge is constituted by the republic so that he may define the matter according to the merits of the case and according to the opinion which seems to him more conformable to law; for otherwise he would be an accepter of persons. But neither does this reason truly prove the assertion.

For if he must judge according to the merits of the case, he must divide the thing according to the proportion of greater or lesser probability. But that he is constituted by society so that he may render sentence for the more probable opinion, by ascribing the whole right to that party, is indeed asserted, but it is not established. Only this can be asserted, and is established in itself: namely, if the thing cannot be divided according to the proportion of greater or lesser probability, but the whole is ascribed to one party, because this is, for example, the practice of tribunals, then surely it is to be attributed to him who has the greater probability. But this practice of tribunals could be rendered honorable under a twofold head: 1. if it concerns a far greater probability, because then moral certitude is almost had, which often is difficult to distinguish from great probability; 2. if, while the judge ascribes the whole thing to one party, he frees the other from all expenses of the judgment and from reparations of damages, because then an equitable compensation is had. Therefore the better reason seems to be that which was just brought forward for the case of equal probability, namely because there is less danger of injustice, and the judge, as interpreter of justice, is bound to choose an opinion at least less dangerous, since a certain one cannot be had.

And this opinion again corresponds to present laws and practice.

In the other case, that someone possesses the thing, while equal probability of right stands on each side, the thing is to be adjudged to the legitimate possessor; for by reason of possession his right prevails absolutely. This is confirmed from R. 65 of Law in the Sixth: "In equal delict or cause, the condition of the possessor is the stronger." But if unequal probability is had, the first opinion holds that the judge is bound to adjudge the thing to him who has the greater probability for himself, although he is not the possessor. For first, possession in itself does not bestow a right of property, but only detention of the thing, until someone is legitimately despoiled; but the right of property is greater for the other party. Moreover, the dispute is about the property itself, not about the simple detention of the thing, which is extrinsic to it. Therefore, as in the case of greater probability, with no one possessing, greater probability prevails, so also it prevails in the case of possession. For that presumption of property which arises from possession is destroyed by greater probability of right. Besides, R. I. 65 in the Sixth evidently has force in an equal case, not in an unequal case. The other opinion holds that the judge cannot despoil the possessor. The reason is that legitimate possession, with human morals considered, speaking in itself, argues a morally certain right, even of property itself; for men are not accustomed to be negligent in guarding their own things. And upon this reason the law of prescription is founded, which is had by the very possession of the thing. Legitimate possession; for it would be otherwise if the possession itself were not certain, or not certainly legitimate. Moreover, legitimate possession, besides the very fact of possession, requires two things: title and good faith. Title is donation, inheritance, purchase, and similar things, through which ownership of some thing is customarily acquired. This title must be at least reasonably presumed. But good faith is the judgment by which, on account of such a title, someone prudently believes the thing to be his own. "And therefore judges commonly adjudge things to those having the more probable right, because in the external forum the good faith of the possessor can be proved only with difficulty." L. 210; l. 1, n. 47. Lugo d. 37, s. 10; Ithur. Cas. 34; Viva on proposition 2 condemned by Innocent XI; E. M.

Can a judge render sentence when the law itself is certainly unjust and inequitable? - If it concerns a civil law contrary only to ecclesiastical laws in which the Supreme Pontiff can dispense, as, for example, is the law of ecclesiastical immunity, the judge can and must, if judgment must be rendered, speaking in itself, seek the due faculty from the Holy See, or from the Bishop of the place, according to the various laws and various cases that occur. But he will easily obtain this faculty, since it is especially expedient for the good of society that there be honest judges in it. The reason for seeking the faculty is the usurpation of the rights of the Church which otherwise would be had, and the public scandal to be guarded against.

If it concerns a civil law contrary to divine and natural laws, then either the judge must command something directly against this right, or he must only apply some penalty. The first is evidently not lawful, and thus he ought rather to relinquish his office than to oblige by military force a concubine to remain at home with her lover. Thus also it is not lawful to render a sentence of divorce according to the law, namely, by which the bond of marriage is dissolved, power being granted to the spouses to enter new nuptials. For this is openly against natural, divine, and ecclesiastical right. For as it is inequitable to execute an inequitable matter, so it is inequitable to command its execution. S. Th. 2. 2. q. 60. a. 5.

The other seems to some also altogether illicit, because it is intrinsically evil to condemn an innocent person, namely when the law itself is evidently unjust, whose transgression is punished. But to others it seems that it can be excused. For to decree some temporal penalty is not always evil in itself; and there is present a most grave reason on the part of the judge, lest he be compelled to renounce his office, and on the part of consenting society, for which it is better that judges be good rather than bad, scandal always having been removed, either from approved custom and the practice of the fearful, or from due faculty previously sought. And thus he can decree a fine because of the omitted formality of civil marriage, which the Church tolerates in this sense, scandal always having been removed, as was said.

But although there is question only of decreeing a penalty, one must distinguish between penalty and penalty. For if it concerns the penalty of death, for example, mutilation, etc., since neither the person himself can yield his right, nor can society by its authority sanction such a penalty, it is altogether inequitable to impose it. "For positive right has place where, as regards natural right, it makes no difference whether it is done thus or otherwise." S. Th. l. c.

But if it concerns some monetary penalty, or another similar one, since anyone in this matter can yield his right, and society can consent, the judge surely can impose some slight penalty of this kind, lest he be compelled to renounce his office with grave damage to himself and to society itself. Consent is then reasonably presumed. Yet this also seems to be limited to the case in which it does not concern a law directly against nature, although it is rather harsh and not sufficiently just. For since the sentence of a judge is not any declaration whatever, but an authoritative one, authoritatively to confirm a law against nature, even by determining a monetary and slight penalty, is against nature. It is against nature to condemn to death a Christian who refuses to adore idols; it is against nature to condemn him to a penalty and fine, even of only five small coins, because he did not wish to genuflect before an idol. Certainly of such a judgment it cannot be said that it is a "definition or determination of the just or of right," nor can it be said of the judge that he is "interpreter of justice" or "animated justice." S. Th. 2. 2. q. 66. a. 1; a. 5 ad 1; q. 67. a. 3; E. M.

Can a judge licitly receive gifts? - It is wicked for a judge to receive gifts of grave moment, which indeed seem at least indirectly in some way to be exacted, or in which some danger of corruption is to be seen. But it does not seem that receiving only slight little gifts, offered altogether spontaneously, in which there is no danger of corruption, and which are not even indirectly exacted, can be reproved. The reason for the first part is that it is wicked to receive those gifts for a just sentence; for this must be rendered from office.

Likewise it is wicked to receive them for an unjust sentence, because this is not to be rendered. Besides, this is positively prohibited in Deut. 16, 18, 19, and in Canon Law, C. Statutum 11 de Rescriptis in the Sixth, section Insuper. It is also prohibited by Civil Law, by which every corruption of magistrates through gifts and promises is punished with grave penalties, both in those corrupted and in those corrupting. L. 18 Dig. de Offic. praesid.; C. I. penal 171-173. The reason for the second part is that, since they are offered from courtesy alone, they would be refused almost discourteously. This is confirmed by Canon and Roman Law, ll. cc.; for it is said that perhaps food or drink offered by mere liberality can be received, which can be consumed in a few days. Cf. also C. Cum ab omni 15 de Vit. et honest. cler.; C. I. 1458; Lugo d. 37, s. 11; S. Th. 2. 2. q. 71. a. 4 ad 3. Cf. n. 40.

If against the prohibition made a judge has received gifts, is he bound to restitution? - If the judge received gifts from litigants by donation, he is probably not bound to restitution before sentence. For "the aforesaid laws and others are understood either only for the external forum, or concerning restitution as a penalty of crime, for which a sentence is always required, even if not one inflicting the penalty, at least one declaratory of the crime." L. 216. But if he received by agreement for rendering a just sentence, that is, for furnishing that which by justice he owed, he is bound to restitution. The reason is that whatever is already owed by office, and therefore by justice, cannot be the matter of a contract. Much more, however, is he bound to restore those things which he extorted by force, threats, or unjust vexation. Likewise, if he received by agreement for rendering an unjust sentence, he certainly is bound to restitution before he renders such a sentence; but once the sentence has been rendered, he can retain it, since the sin has already been committed, and there is no sin in retaining the thing received; but since what had been promised and was not owed has been furnished, then the innominate contract is verified: I give so that you may do. And thus also "on account of fornication... a woman can retain for herself what has been given to her." S. Th. 2. 2. q. 62. a. 5 ad 2; Lugo l. c.; C. I. penal 171-174.

Can a judge at least receive money for expediting someone's case before another's? - "Laymann says that, considering natural law, he does not dare condemn this, because that new obligation which he undertakes is worthy of a price. But the Salmanticenses, n. 66, more truly contradict, because a judge from justice is bound quickly to expedite the cases of those who have equal right to expedition; unless he should undertake an extraordinary labor, to which by force of his office he would not be held." L. 196. Lugo also absolutely reproves this, d. 37, n. 136, for "whenever from justice he is held disjunctively to do something gratis, he cannot receive anything for the election of this part."

When litigants have for themselves equally probable opinions, can a judge receive money for rendering sentence in favor of one rather than the other, according to the opinion reported above? Cf. 18. - R. Negatively; for this proposition is proposition 26 condemned by Alexander VII. The reason is that "he would receive a price for a thing not worthy of a price; for from justice he owed to render sentence for one: but the determination to that part, although it makes the sentence more useful to me, nevertheless does not add labor, or anything on the part of the judge worthy of a price. Just as, if someone from justice owed to give a dowry to one of two virgins, he could not ask anything from her for choosing her. But the reason a priori is that it is repugnant to owe from justice to give an entire thing to one of two, and yet to be able to ask a price for it; for then it would not be given entire to one of the two, although from justice he is held to give it entire. Therefore he cannot, with justice preserved, subtract anything; otherwise he could receive as price half of the thing to be given, which would be manifestly against justice." Lugo d. 37, n. 119.

What are arbiters? - Arbiters are said to be those who are spontaneously chosen or admitted by both opposed parties, after the manner of judges, for settling some lawsuit. The pact by which the faculty of settling the lawsuit is attributed to them is called a compromise. By this pact the adverse parties by mutual consent promise that they will execute whatever shall be established by the arbiters. But from the sentence of arbiters, according to C. I., it is lawful to appeal, otherwise than from common Law, S. Th. 2. 2. q. 69. a. 3 ad 2. But the compromise can be drawn up either by public act or by private writing, according to C. I.; otherwise it is null. Dig. l. 4, title 8; Decretals l. 1, title 43; C. I. civil procedure, preliminary title, c. 2; Lugo, Resp. Mor., l. 6, d. 21.

Women are prohibited from being chosen as arbiters, because it befits them to be mindful of their modesty, and therefore they ought not to mix themselves in manly offices. L. fin. Cod. de Recept. arb.; C. Proc. I. 10. They are excepted if by law, custom, or privilege they obtain some civil jurisdiction. C. 4, l. 1, title 43 of the Decretals.

Commitment to arbiters cannot be made by private persons in those causes which directly pertain to the right of a Superior, as criminal and penal causes, or to the public good, as, for example, a cause of invalidity of marriage, of religious profession, etc.

Arbiters according to the Italian Penal Code 207 are held as public officials as regards the effects of penal law.

The sentence of arbiters, in the common tongue, is called a lodo. "If someone has been made arbiter concerning his own matter, he cannot say sentence, because he would order himself to do something, or prohibit himself from seeking something; but no one can command himself or prohibit himself." L. 51 de Receptis arb. Dig.

What is the office of arbiters? - Arbiters, whoever they may be, once admitted by the different parties, properly enjoy the office of judges, and carry out all their functions, just as if they had been designated by public authority. The reason is that someone can subject himself to the judgment of another, although that other is not his superior. If this is done by two litigants, so that the lawsuit may be settled, an arbiter is had, who therefore, although not from public authority, nevertheless is constituted judge from a private pact. But private pacts, like public laws, oblige in conscience. C. H. 1820; S. Th. 2. 2. q. 67. a. 1 ad 2.

You will resolve: Since arbiters fulfill the offices of judges, they have almost the same rights and the same obligations. Wherefore they can instruct the case brought before them, defer the matter to another more opportune time, hear witnesses, and finally, after sentence has been rendered, settle the lawsuit absolutely. They ought not undertake a lawsuit for judging which they do not have sufficient learning; otherwise they sin against commutative justice and contract an obligation of restitution, if in fact by erring they inflict damage. Arbiters are bound to judge according to the laws of the region, because they are assumed after the manner of judges, unless the parties have granted them the faculty of composing the matter according to equity and the good. For then, according to natural equity, they must promote the advantage of each party. They must take the greatest care against acceptance of persons, namely lest, abstracted by hatred, aversion, or excessive affection, they render sentence against the rules of equity. C. B. 319.

Note: For the sentence of arbiters to have force in the external forum, it is necessary to fulfill the conditions placed in the Codes of various nations. C. I. civil 1742, 1764 ff.; civil procedure 8 ff.; C. G. civil 1989, 2044 ff.; civil procedure 1003; C. H. 1821; C. A. 1391.

What are jurors? - Jurors, so called because of the oath which they furnish concerning rightly exercising the office entrusted to them, are men selected from the foremost citizens to undertake some part proper to judges. They are employed only in criminal causes, and their office is to pronounce judgment concerning the existence of the fact and the culpability of the accused; but then the judges decree the penalty according to the law. C. I. penal procedure 493 ff.; C. G. criminal instruction 337 ff.

What are the obligations of jurors? - Jurors contract the same obligations as the judges themselves, while nevertheless staying within the limits of their office. The reason is that they exercise the office of judges in great part. Yet they ought not furnish all things to which judges are held, but only pronounce concerning the existence of the fact and the culpability of the accused. C. I. penal procedure 493 ff.; C. G. criminal instruction 337 ff.

Can a juror give a vote against the accused, juridically indeed convicted, but whose innocence he knows certainly by private knowledge? - R. Negatively. The reason is that he must pronounce only concerning the existence of the fact, according to his intimate conviction, nor in any way is he bound to give the legal reason for his own sentence. C. I. penal procedure 495, 498; C. G. criminal instruction 342. Even while juridical proof of the crime stands, if someone is certain from elsewhere of the innocence of the defendant, it is altogether impossible to have an intimate conviction of the delict committed. Nevertheless a juror cannot affirm a defendant to be guilty whom he knows as such only by private knowledge, but who has by no means been juridically proved. For the defendant, as long as he is not juridically proved to be such, has a right to be absolved; but the juror acts the person of judge, not of witness, and otherwise witnesses in the case would be used uselessly, and the whole form of judgment would be useless. The private intimate conviction of a juror for condemning, and not derived from juridical proofs, is against the whole tenor of the law; for a broad way would be opened to arbitrariness, and the form of judgment would be only for a certain exterior appearance. And this is openly established from C. I. penal procedure 437; C. G. criminal instruction 312.

Nor indeed is it valid to object what was just being said, that a juror must absolve a defendant proved guilty, but innocent by his own intimate conviction. For evidently the law condemning a defendant juridically proved guilty rests upon presumption of truth; but if, on the contrary, the contrary is evident and certain, that presumption must yield to evident truth, which the juror certainly knows.

Is it lawful for jurors to render sentence in a judgment in which the tribunal does not have authority over the defendant, if namely, for example, it concerns an ecclesiastical person? - If his intervention would be altogether useless, for example, when the greater part or almost the totality of the jurors is prepared to condemn the defendant, he can abstain from intervening in such a judgment. The reason is that, on one side, no one is bound to do a useless thing; and on the other side, absence is a certain protest against the abuse of justice. In the same hypothesis he must besides abstain. The reason is that his presence would be useless, and his absence necessary, lest he cooperate in the usurpation of justice, and so that he may protest against that abuse of justice. If the juror can bring forward no cause why he should abstain from judgment, and if he is punished by civil law, he can indeed, even in the same hypothesis, intervene in the judgment, seeking the due faculty, or if this cannot be done, favoring the defendant insofar as is in him. The reason is that, since he comes compelled by necessity and has previously sought the faculty, or, in impossibility, attempts to favor the defendant as much as he can, all scandal is removed, and a sufficient protest is had against the abuse of justice. Moreover, in these circumstances of affairs, he can reasonably presume the consent of ecclesiastical authority.

If his intervention would be altogether useful for absolving an innocent person, for example, because the greater part of the jurors is known to favor justice, it seems that the natural law of charity obliges him to intervene in the judgment, so that he may assist a neighbor gravely needing help. But for impeding scandal or wonder, it suffices to seek the due faculty, or, if this cannot be done, to declare his intention, if it is not established from elsewhere, that he comes not as judge, but as patron and advocate of an innocent person. The same resolution seems also to be given in the same case, if there were an express law or censure against those who undertake the office of juror. The reason is that, since laws and censures generally are unto edification, and in particular laws and censures of this kind are for protecting ecclesiastical persons and the dignity of their state, they do not seem in such a case to wish to impede the safety of those same persons from being protected. Wherefore they then cease contrariwise.

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.

1. To Ferdinandus, a most pious man, prefect of a province, there was committed the execution of the Decree that religious families be expelled from that same province over which he presides. But if he refused to execute it, he himself would have to resign from office, and another prefect, altogether wicked, would be substituted in his place, who certainly will immediately, and more harshly, execute that Decree.

Q. Can Ferdinandus execute the aforesaid Decree, by commanding that even by military force, where there is need, religious be expelled from their own houses?

R. Negatively. For 1. it does not seem that, in circumstances of this sort, the Church yields its right, of the free existence of religious Orders and of ecclesiastical immunity. 2. It indeed does not appear how a most pious man can command the execution of so iniquitous and unjust a Decree without public scandal. 3. If that reason, which is the principal one, of resigning the office, were valid for a prefect on whom the burden of execution of the Decree falls, then it would also have to be said that the supreme minister of the Government himself, issuing such a Decree, would be excused, if otherwise he would have to yield his office. For if that mandate of execution is iniquitous, unjust, and scandalous, much more is the Decree itself iniquitous, unjust, and scandalous. Moreover there is no one who will ever excuse the supreme minister of the Government by that reason, that otherwise he would have to yield his office. Otherwise, now by similar Decrees he could with impunity attack any other right of the Church, which directly yields to public damage of Religion: for any minister who refused to sign Decrees of this sort would certainly be forced to resign his office. But that another is not lacking who would perform this evil and worse cannot render lawful that which is intrinsically illicit, by reason of scandal, by reason of hatred against Religion, by reason of injury against the legitimate liberty of the Church, the Church indeed being reasonably unwilling and contradicting.

2. Festus, a pastor, on account of a grave and urgent cause of death, joined in marriage Caius and Sempronia, concubinaries, although they had not previously contracted civil marriage before the civil magistrate. Festus is accused, as guilty of a violated law, before a judge, an excellent man and fervent Catholic. Hence the judge, very doubtful, approaches his confessor, asking from him whether he ought to resign his office, or whether he can render a condemnatory sentence against the pastor.

Q. What as to the Case?

R. The judge must first take care in every way to absolve the pastor in the case, and declare him innocent. For the pastor acted legitimately per se. Indeed he acted legitimately even with that law of precedence of civil marriage standing. For a law is subject to legitimate epikeia, and in the Case legitimate epikeia appears. If in no way can the judge render a sentence for the pastor, nor can he himself decline the judgment, he does not then seem to be held to yield his office. For although there is question of a law altogether harsh and unjust, nevertheless the matter is not intrinsically evil, and, where it cannot be done otherwise, it is tolerated; and so neither is it intrinsically evil to commit it to execution. Nor likewise is it intrinsically evil to condemn the pastor to some monetary fine, e.g., in the Case, precisely on account of the law not observed, prescinding from the aforesaid epikeia which civil law and the practice of the forum do not admit. For then one altogether innocent is not condemned, at least according to the appearance and form of the judgment, but one guilty of a violated law, namely according to the presumption of the external forum and according to the things brought forward and proved. But the pastor, on account of a greater harm both of the judge and of the community, if another wicked judge would have to be substituted, is reasonably judged to yield his own right as to the aforesaid fine to be paid. Wherefore in the Case the grave harm of the judge, who otherwise would have to resign office, and at the same time the grave harm of the community, which would certainly be present if a wicked judge were substituted, seems to prevail. But the judge must take care in the Case to decree as small a fine as possible, and in the preliminary considerations of the sentence to remove any insinuation injurious against the pastor, so that both every scandal may be removed, and the sentence itself may sufficiently be understood to yield only to the rigor of the law, which does not admit legitimate epikeia from elsewhere. — I. M. 19.

3. Augustinus and Dominicus, confessors, without any scruple absolve all judges who render a sentence of divorce, according to the more recent laws, in matrimonial causes. For they say that here there is no question of a thing intrinsically illicit, but only positively prohibited by the Church; and positive laws do not obligate with great inconvenience. Besides, the judge does nothing else except merely declare the law, which is an act indifferent of itself. Wherefore the cooperation of the judge toward the sin of the parties is merely material, which is lawful for a grave cause. Besides, the judge can well admonish the parties either privately, or even in the Considerations of the sentence, concerning the real indissolubility of marriage. Whence the aforesaid sentence will be nothing except a certain mere permission and denial of civil action; and in truth it regards nothing except the civil effects of marriage; and it in no way touches the sacrament of marriage itself, but only the civil contract of marriage.

Q. What as to the Case?

R. Augustinus and Dominicus are deceived. For there is question of a thing intrinsically illicit, by natural and divine right, and not only by ecclesiastical right. For divorce from the bond of matrimony, according to the more recent laws, is opposed to natural and divine right. Besides, the judge rendering sentence does not merely declare the law, but declares authoritatively and practically, so that from that sen- tence civil rights and civil obligations flow, which, speaking per se, have force also in the forum of conscience, namely when that sentence is legitimate and just. Therefore the cooperation of the judge toward the aforesaid divorce in the Case is not merely material, but formal; nor remote, but proximate, since it itself is what gives the parties the faculty of divorce. But that the judge admonishes the parties privately, or even in the Considerations of the following sentence, does not change the intrinsic nature of that sentence, but rather shows its illicitness more. A sentence of this sort is not a mere permission and denial of civil action, since that sentence makes a civil right or civil power, namely according to that iniquitous law of divorce, of contracting other marriages, so that he who is bound by this second marriage must be held by the judge himself, not as an adulterer, but as one legitimately bound by civil marriage. Lastly, it is altogether most false that that sentence regards only the civil effects of marriage, since otherwise the law of divorce would have been altogether useless; for those effects were already governed by the law of civil marriage. Therefore, as that law of divorce regards divorce itself from the bond, so consequently does the sentence of divorce delivered by the judge by force of that law. It is one thing indeed that that sentence regards only civil effects, which is false; another, that the civil effects, where that law now prevails, depend on that sentence, so that unless the sentence of divorce is first obtained, there cannot be had separation of bodies and goods. Lastly, it is plain that, since the aforesaid law and sentence touches divorce from the bond itself, in reality they do not touch only the civil contract of marriage, but most truly the sacrament of marriage itself.

And indeed, if what is asserted were true, namely that that sentence of divorce regards only the civil effects of marriage, then either the Holy Office or the Sacred Penitentiary, from whom it has been sought very often, would have permitted at least spouses to invoke that sentence of civil divorce, in the case of avoiding very grave damage; and, on the contrary, the response has always been: It is not lawful. Cf. Ferraris, Supplementum, v. Divortium, Commentary on the Sentence of Divorce to be rendered by a lay judge as to the bond of matrimony.

4. Armandus and Armanda, spouses, since they could not obtain a sentence of divorce in Italy because of the absence of such a law in Italy, go to France; there they first obtain naturalization, or civil status, and then in court they obtain a sentence of divorce. Having returned to Italy, they ask in court that the judge in Italy confirm the sentence rendered in France. — Can the aforesaid judge in Italy confirm that French sentence?

R. In the negative. In no way can the judge in Italy furnish this, either by natural law or by positive civil law. Concerning natural law, cf. here n. 3.

As regards civil law, it is easily proved, because from C. I. 56, 148, one bound by marriage cannot contract another marriage, and marriage ceases only by the death of the spouse. But one independent State cannot impose upon another State, likewise independent, its own law permitting an act prohibited in that State, when that act regards natural and public honesty, good morals, and public order, as the indissolubility of marriage is. Hence it is that whether Armandus and Armanda are Italians, or are also French, that sentence of divorce pronounced by a French judge cannot be held ratified by an Italian judge. It is added in the Case that there is open fraud against the law, and no one’s own fraud ought to patronize him.

5. The ship William Brown, directed from the port of Liverpool to Philadelphia, suffered shipwreck in the month of June in the year 1841. Many sailors and many travelers were saved in a small boat. But since the sea was stormy, in order to lighten the boat, which otherwise they feared would sink, the sailors cast the travelers into the sea. The matter then having been brought before a judge, the accused were acquitted in court, since otherwise all would certainly have perished.

It is asked: What must be judged concerning the sentence of the judge in the Case?

R. It was certainly in no way lawful for the sailors to cast the travelers into the sea. For this in fact was nothing else than to kill innocent men by private authority. But the fact that all otherwise would have perished does not make their homicide honorable, since the death of all would then have happened only by a natural misfortune, which certainly they could not prevent by the death of some. Therefore the sentence of the judge, wholly absolving the sailors as not guilty of homicide, was not legitimate. In the Case the judge ought indeed to have condemned the sailors as true homicides, but to a punishment milder than the ordinary one, on account of the grave circumstance of the shipwreck of all, which in the case certainly attenuated the offense. It would certainly have been wholly another thing if, in that danger, lest all should perish, some should have cast themselves into the sea, lest the boat be sunk by the multitude. For this “is not directly to kill oneself, but to expose oneself to danger, so as to be overcome by the weight of the body pressed down by the waves.” Thus Lessius writes about one who permits to another the plank occupied by himself, de Iust. et Iur. l. 2, c. 9, d. 6, n. 31: “In a shipwreck,” he says, “you can permit to another a plank not yet occupied by you, indeed even one occupied, and commit yourself to the waves, even if there is no hope of escaping, as Victoria and Peter Navarrus teach; for this is not directly to kill oneself, but to expose oneself to danger, so as to be overcome by the weight of the body pressed down by the waves. Here note that he who first occupied the thing in such an event is not held to admit another, but can hinder him, unless it is sufficient for both; if they occupied it at the same time, it must be decided by lot, unless one wishes voluntarily to yield to the other.” Kenrick, Theol. Mor., Mechlin, 1890, tr. 3, c. 9, nn. 111, 134.

6. Gerulfas, a mayor, assists at the civil marriage of two betrothed persons who both are bound by a previous marriage, but have already been separated from their own spouses by sentence of divorce according to the law in force. Gerulfas contends that he himself can licitly do this, because his assistance is merely a certain civil ceremony.

It is asked: What as to the Case?

R. Gerulfas acts wholly illicitly. For his presence is not a merely civil ceremony; but it is a certain solemnity of law, furnishing civil authority, in the particular Case set forth, to legal adultery, or to adultery contracted according to the norm of civil laws. This is further established from the Responses of the S. C. and of the S. Penitentiary. Cf. Enchir. Mor. 19. And, since the mayor, in the aforesaid Case, not only posits an intrinsically illicit act, but also one unjust against the prior legitimate wife and legitimate children, he is held to compensation for damages if the adulterer refuses to compensate them. For by that unjust act the mayor effectively influences those damages.

Nor indeed does it avail to object that civil marriage in the Case is not intrinsically illicit; whence it could at least be permitted in some very grave and very rare case. For civil marriage, since it is not true marriage, of itself does not hinder a man from fulfilling the obligations of the prior legitimate marriage. This is not true; for in order that in fact a man, for example, may return after a civil marriage to his legitimate wife, the consent of the other party is necessary. Therefore that civil marriage is an act of itself and by its nature legally sanctioning adultery against ecclesiastical and legitimate marriage. — Of a mayor of this sort it cannot be said, as is prescribed by the S. Penitentiary on 20 March 1855, that he does nothing against the sanctity of marriage and the necessity of contracting it before the Church. Of a mayor of this sort it cannot be said, as is held from the same S. Penitentiary, that he removes scandal, since on the contrary he confirms it by his own act.

7. Torquatus, a mayor, a fervent Catholic, assists at the civil marriage of Tullius and Tullia, whom he knows neither to have contracted canonical marriage previously, nor to wish to contract it afterwards. Torquatus cannot deny his assistance; for otherwise he will be liable both to a grave fine and to deposition from office.

It is asked: What as to the Case?

R. Torquatus, in the Case, can assist at the aforesaid marriage. For to the aforesaid case the S. Penitentiary, 20 March 1855, responded: “That it can be tolerated, provided that civil officials in drawing up acts of this sort intend to exercise a merely civil ceremony, and do nothing or advise nothing against the sanctity of marriage and the necessity of contracting it before the Church; rather, that they exhort them to contract it before the Church itself; having before their eyes the most holy laws of our Religion, and the letters of Benedict XIV, Redditae sunt nobis, concerning which, for removing scandal, they should admonish the contracting parties. But as regards cases in which it appears that the faithful, approaching the civil ceremony, are ill-disposed, and will not celebrate before the Church the marriage which regularly ought to have been premised, but will remain in concubinage under the pretext of a civil contract, the officials themselves are to be directed according to the rules handed down by approved authors, and especially by St. Alphonsus, l. 2, tr. 3, c. 2, dub. 5, art. 3, concerning cooperation.” Moreover in the aforesaid letters Benedict XIV teaches that, when Catholics present themselves to the civil magistrate, they exercise a merely civil act, and that marriage must be celebrated before a Catholic minister and two witnesses; otherwise they will never be legitimate spouses, nor ever legitimate offspring.

Now St. Alphonsus teaches this concerning cooperation in the place cited: “It must be said that that cooperation is formal which concurs with the evil will of another and cannot be without sin; but that is material which concurs only with the evil action of another, apart from the intention of the cooperator. And this is licit when the action of itself is good and indifferent, and when there is present a just cause proportionate to the gravity of the sin of the other and to the proximity of the concurrence which is furnished for the execution of the sin.” Cf. I. M. v. 1, 440. Moreover Torquatus the mayor does not cooperate formally in the case with the depraved will of Tullius and Tullia, either by intention, as is supposed, or by action; for the act of the mayor is, in the Case, a merely civil ceremony, furnishing of itself force to a marriage contracted or to be contracted, as to civil effects. For by civil law those things can be ordered and administered which marriages of themselves bring in the civil order, the marriage itself being left untouched, which among Christians is governed by the laws of the Church. But that Tullius and Tullia have neither previously contracted marriage, nor wish afterwards to contract marriage, is only from their depraved will. The cooperation of the mayor is merely material, by an act, as appears, not only indifferent, but of itself honorable and licit, which the aforesaid betrothed persons abuse only from their own malice. Nor indeed is a just and proportionate cause lacking, such as certainly is both the grave fine to which the mayor would otherwise be subjected, and his deposition from office, which would redound to the grave private harm of the mayor himself and to the common harm of society itself; because otherwise honorable and religious public officials would, to the public harm, be replaced by depraved and unjust officials.

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.

1. Barbantius, a priest of most unimpaired reputation, visiting on a certain occasion Armanda, a married woman of excellent reputation, sinned with her. By a fortuitous chance Melchior, a man of corrupt morals, saw them; he immediately reported the matter to Armanda’s husband, and then testified to the same in court, with great scandal of the city.

It is asked: What as to the Case?

R. Fr. Gury raises the question: Is a witness held to reveal an altogether occult crime? and he responds, n. 19: “More probably in the negative by Common Law, if the witness is wholly certain that the crime is known to himself alone; because for condemning the accused two witnesses are necessarily required. Hence the axiom: one witness, no witness. But otherwise one must speak according to French Law, or another similar law, by which one witness can suffice for the condemnation of the accused, and nothing else is required from the jurors except that they assert that they have an intimate conviction of the fact, without their needing to prove their sentence.”

But from the fact that the jurors are not held to prove their sentence, and that it suffices that they have an intimate conviction of the fact, it does not follow that a witness is held, or even is able, to reveal an altogether occult crime. Indeed rather the contrary follows. For jurors do not pronounce their sentence independently of the trial, but after they have been present in court for the whole discussion of the case and the examination of witnesses; whence the crime is already supposed by that very fact to be publicized, at least half-proven, or certainly at least producing great suspicion of itself, and indeed from knowledge of facts already public in themselves. Wherefore from the sentence of jurors, to be pronounced according to intimate conviction, nothing indeed is drawn for that resolution, but rather the contrary. Nor indeed does that other thing prove anything better, namely that by more recent Law one witness suffices; for one thing is that one witness can make full proof even in court, another thing, altogether diverse, that therefore a witness can also reveal an altogether occult crime. There is no necessity for such an interpretation, which, since of itself it is not consonant with Natural Law, consequently is not to be asserted without a manifest declaration of the law itself. Cf. I. M. 70. And in the proposed case and in similar ones, the very grave disadvantages of this opinion easily appear.

Therefore it does not seem that Melchior is held, indeed even that he can, reveal that most occult crime either to the husband of Armanda, with so great harm and infamy of Armanda herself and of Barbantius; or even to the judge, with so great public scandal. Nor indeed in the Case is there question of a crime impending and to be avoided, and to be prevented in the future; for, as is clear from the exposition of the Case, that offense was committed wholly in passing, nor is there any indication of future danger, which otherwise would have to be met by other means altogether honorable and useful.

2. “Alexius promises by oath to Marcus that he will never manifest to anyone either the homicide which, while he saw and was not seen, Marcus had secretly perpetrated, or the theft which, an agreement having been made concerning the keeping of secrecy, Marcus had confided to his ear.

It is asked: Can Alexius, summoned by the judge, give testimony?

Already in the fourth precept of the Decalogue we have spoken about the various and mutual duties of superiors and inferiors. But in the present Treatise we must speak about the duties which regard the public good, and especially about forensic duties. Hence

One must treat 1º of the obligations of judges; 2º of advocates and procurators; 3º of apparitors; 4º of scribes and notaries; 5º of the accuser and the accused; 6º of witnesses; 7º of physicians, surgeons, and pharmacists; 8º of guards; 9º of craftsmen and workmen.

But the obligations of merchants and other men of this sort are sufficiently understood from those things which we have discussed concerning justice and contracts.

15. • The apparitor (huissier) is he who by office carries summonses ¹ (in French, citations) and mandates of justice, and completes the executions decreed by the judge. Hence the office of the apparitor is twofold.

¹ Understand the order of appearing in court; for the word vadimonium rather signifies a promise of appearing in court.

Since apparitors are ministers of justice, it is supremely fitting that they discharge their office very humanely, and temper the rigor and harshness of their ministry as much as can be done. They ought to be sufficiently instructed in all things which pertain to their office. They must also show fidelity in executing the mandates of the tribunal, equally guarding both against negligence in discharging their office and against rigor and vexation toward those whom public justice pursues. A special care also lies upon them, lest they omit any necessary formalities in their acts; for otherwise they would often harm justice, and would be bound to repair the damages coming from this.

16. • Apparitors act unjustly especially:

1º If by price or favor they allow themselves to be corrupted to the prejudice of the client, for example, by prolonging or neglecting the denunciations of sentences, or by doing other things from which it happens that the creditor cannot receive payment. Likewise by favoring certain solidary debtors, so that they do not include them in executions.

2º If they do not grant the time fixed for making juridical acts; if they ascribe a day falsely (fausses dates); if they affirm something false in verbal acts (procès verbaux); if they do not make at the prescribed time the juridical acts committed to them.

3º If, in searching houses, they act too harshly in order to extort some gift; if they inflict unjust force or another injury; if they state what is false in their acts.

4º If they exceed the mandate of the judge, or the statutes of the law, in seizing the things or goods of private persons; if they do not observe the just price in the sale of things seized, etc.; if they retain for themselves part of this price, etc.

17. Questions. - QUESTION 1º. Are apparitors bound to restitution if they have accepted a price above the tariff determined by law under the title of donation?

Resp. Yes, of itself. The reason is that such a donation generally cannot be called spontaneous. Hence if the excess of the price is something grave, they are obliged under mortal sin to restore it. - Thus commonly with the Salmanticenses. Nevertheless, if they had undergone extraordinary and undue labor, they could accept something above the ordinary price. - St. Ligorius ².

² Neither the Salmanticenses, whom the Author here calls upon, nor St. Alphonsus in reality have anything about Apparitors, but they discuss Advocates, Notaries, Tabellions, Relators, etc. Yet the matter comes down to the same thing. For the same question is made about all those to whom a wage is owed for some office which they perform in judgments.

Moreover, if the question is instituted with the Author about a price fixed by laws, the doubt which St. Alphonsus also touches must not be passed over in silence (Bk. 4, n. 231), namely whether the law establishing the tariff for them (notaries, etc.) obliges in conscience. But he himself responds thus: “Navarrus, Trull., etc., apud the Salmanticenses (tr. 29, ch. 5, n. 18) affirm, since it is a just law. But Machado and Fagundez deny, because this law is penal, or at least mixed, and therefore does not oblige in conscience, as Villalobos, Diana, and others hold concerning a mixed law. Lugo also denies with Turrianus and others apud the Salmanticenses (ibid. n. 19), but led by another reason, namely because, since tabellions and other ministers of justice ought to live from the stipends of their own office, and in the course of times the prices of things and expenses according to custom concerning food and clothing are increased, therefore they do not unjustly demand something above the tariff.” And the Salmanticenses say that this opinion of Lugo seems in these times more conformable to equity. To these things note that the Salmanticenses (l.c. n. 20), even setting aside the reason or opinion of Lugo, hold each of those opinions as probable.

Besides, even if the opinion of the Author seems to be preferred, as the more common, who otherwise supposes that the price fixed by law is altogether just, and therefore excludes Lugo’s hypothesis about a wage determined by ancient laws which afterward, because of the increased price of all things in the course of times, has become too small, nevertheless it must be added that the same opinion suffers its exceptions, just as the reason brought forward suffers exceptions, namely that such a donation generally cannot be called spontaneous. For both in many circumstances (see Lugo, On Justice and Law, disp. 44, n. 19, and Salmanticenses, l.c. n. 24) a donation can and must be held wholly spontaneous, and moreover not every donation even less spontaneous must be judged to lack that consent which suffices for transferring ownership. For not rarely occasions present themselves even to the unwilling which imply a certain necessity of giving, and yet no one thinks that a burden of restitution must be imposed on the donees.

18. • QUESTION 2º. Can an apparitor demand multiple wages if at one and the same time he carries different summonses?

Resp. 1º From natural law considered in itself alone, it would seem that one must answer yes, because he furnishes the same utility to each one requiring him as if he undertook the journey and work for one alone, according to what was said in the Treatise On Contracts in General, n. 757. - Thus St. Ligorius, Hom. apost., tr. 13, n. 68, etc.

Resp. 2º Attention must be given to the statutes of particular places. But by French law this is prohibited. Nevertheless, whatever the case may be concerning the civil law, a usage has prevailed, with the Government knowing and seeing it, that advocates and procurators so compose the matter that for individual summonses apparitors have nearly the same price.

19. • A scribe or secretary (in French, greffier) is he who reports in writing the testimonies, sentences of judges, and all other things which are transacted in tribunals. Hence he is accustomed to be considered as it were the right hand of the judge and his public and authentic secretary.

But a scribe can commit various injustices, especially:

1º If he does not employ due diligence in exactly reporting in writing all things heard and established or decided; for an omission in things of this kind can easily become grave.

2º If he does not use serious and constant attention in reporting into authentic books all things pronounced and transacted in the tribunal; for very easily a defect of attention in a scribe can induce grave fault and the obligation of restitution, unless it is altogether involuntary. For who does not see how great damages can follow from even a slight defect ¹ on the part of secretaries?

¹ You have here an example of one who in conscience is bound for slight fault, that is, who is gravely obliged to most exact diligence, so that a defect which in itself could seem slight induces a grave obligation of restitution. Cf. note to n. 661, vol. I.

3º If from malice he omits something in writing, or if he adulterates or badly guards the public tablets committed to him; if he does not append, or does not take sufficient care that there be appended, the due formalities and signatures; if he does not faithfully transcribe testimonies, whether by exaggerating, or by diminishing, or by changing or inverting.

4º If in distributing lawsuits he obeys favor rather than order; if, in order to increase his wage, he makes the acts to be distributed larger, for example, by writing on two pages those things which could have been reported on one.

5º If he betrays a secret committed to him; if he manifests a sentence not yet published; if without the prescription of the judge he shows completed proceedings to the parties.

6º If he gives the acts of the judge to the parties before they have been signed according to the legal forms. For then he exhibits a defective and false instrument, whose dispatch is held of no value. - St. Ligorius, n. 229.

20. • A notary, or tabellion, is said to be one who is constituted by legitimate authority to write acts or public instruments, which have credibility both in court and outside court.

Hence it appears how great is the importance of the office of notary, how widely it extends, and by how grave obligations it is bound. Therefore notaries must enjoy knowledge equal to this office, uncommon perspicacity, and especially outstanding fidelity, prudence, and probity. For since they must handle business and contracts of every kind, from their negligence, ignorance, and defect of attention the greatest evils can follow for society, and damages for the parties.

21. • Notaries are unjust especially in the following cases:

1º If they are ignorant of the things which pertain to their office, and therefore do not make instruments rightly; if, with detriment to the contracting parties or others, from negligence they omit necessary solemnities, for example, to employ suitable witnesses, to append signatures, to indicate the day, month, year, etc.

2º If they make a false, usurious, or unjust instrument; if to the damage of another contracting party or a third party they feign in the instrument those things which are not; if they append false notations of the day, or change true ones, even if they do not intend damage; likewise if they counsel such things; if they make acts which exceed their office, or if they exercise their ministry outside the territory assigned to them: for then their acts are by that very fact void.

3º If they do not describe faithfully the wills of the contracting parties, or by ambiguous drafts furnish occasion for lawsuits and injustices; if they do not warn the parties about clauses which can harm them, or about difficulties which can be born from them. For they are bound to these things from quasi-contract with the parties.

4º If they write falsely that a sum has been paid before them or previously, with damage to the other party or a third party; likewise if they easily write such things, gravely suspecting that they are being deceived by the contracting parties; for then they cooperate in their sin.

5º If they negligently guard acts and instruments with danger of damage to the parties; if they delay the dispatch of instruments in order to extort money; if they commit something to a copyist with danger of error.

6º If they change something in the protocol (la minute), from which some right is violated or impeded; if they admit false witnesses; if they do not exhibit, or conceal, or deny a transcript of, some necessary testimony to their client.

7º If they communicate acts to others than the parties; if by their fault they lose protocols; if they violate oaths or secrets; if to the sayings or deeds of the parties, or to the testimonies of witnesses, they add or subtract something; if they do not transcribe all things sincerely, just as they stand.

8º If they neglect to watch over their ministers, and for that reason instruments are badly made; for notaries are bound to answer for all the ministers whom they employ; if they sign instruments made either by other notaries or by their own ministers before they have diligently reviewed them and have had perfect knowledge of the things contained in them; likewise if, where several notaries are required, they have declared absent ones as present.

9º If they ask a price beyond the tariff or approved custom ², or if they amplify writings, or write in a larger or more extended character, so that the number of pages is notably increased; if they prolong business to be handled for the sake of increasing the wage.

² Compare the things said above in the note to n. 17.

In all these things, and many other similar things, notaries are bound under grave obligation, of itself, to restitution, as unjust damagers or cooperators, as is plain from what was said in the Treatise On Justice and Law. - St. Ligorius, nn. 230, 234.

22. Questions. - QUESTION 1º. Is a notary bound to restitution toward the fisc if, in making an instrument of sale or of inventory, at the request of the parties, or even with himself hinting it, he does not inscribe the true price of the thing, but another lower one, so that the tax to be paid may be diminished?

Resp. It is disputed. Some affirm, because thus he cooperates in the defrauding of taxes, which is iniquitous and unjust on the part of a magistrate to whom the Republic entrusts confidence. Others deny, provided that at least the lowest price is reported in the authentic writing. Others finally excuse him totally, because from custom generally received even among the upright, the whole price, even the lowest, is not customarily declared, but only a little beyond the middle part is declared, or around two thirds of this price. But if the parties do not sin by dissembling the true price, neither does the notary sin by cooperation; for he is not constituted, like one set over customs duties, to exact taxes, but to make instruments.

23. • QUESTION 2º. Does a notary sin who makes instruments on Sunday or on a feast day?

Resp. From a custom now general they can make whatever instruments, provided they do not pertain to contentious jurisdiction, that is, to forensic business. Thus they can make an instrument of contract, testaments of the sick, matrimonial agreements, processes of elections to public office, and other similar things.

“Not without great sorrow of soul—or rather, horror—did the Fathers of this Provincial Synod learn that certain legislators of this region had very recently proposed the establishment of a Court of Divorce, whose office would be to pronounce divorce from the bond on the ground of adultery. For besides the fact that such a law—which God avert—would be a subversion of the institution of almighty and most wise God and a usurpation of the rights of the Church of Christ, no one is ignorant, or can be ignorant, of how many and how great are the evils which flow from such a divorce and render it most hostile to civil society. For under the hope of a future divorce, marriages are contracted imprudently; quarrels—and, what the soul shudders to say, adulteries themselves—are provoked; the bond of charity between families gives way to irreconcilable hatred; fortunes are placed in jeopardy; the whole of society is scandalized. Finally, what shall become of the children whose parents have obtained a divorce? But We, whom God has placed as watchmen over this part of His Church, wish our diocesans always to remember that no one can, with a safe conscience: 1. cast a vote for such a law; 2. act in such a Court of Divorce in the part of the plaintiff, or of the judge, or of the notary or chancellor, or cooperate formally or in any other manner whatever; nevertheless, We do not intend to condemn those who, under compulsion, shall give testimony concerning the fact itself of adultery.” Fourth Provincial Council of Quebec, 1868; Collectio Lacensis, vol. 3, col. 718.

“The enacted law of the Swiss Confederation on civil status and marriage has decreed that all and each matrimonial case, ecclesiastical jurisdiction having henceforth been suppressed, is to be treated in lay tribunals according to the norm established for civil cases, and that sentences in them are to be pronounced according to the prescriptions of the common law and of the most recently enacted law. By the latter, even marriages of Catholics can, on certain very slight grounds, be perpetually severed and dissolved as to the bond, so that litigating spouses of this kind, after a sentence of divorce has been pronounced by secular judges, can pass to the contracting of other marriages if they wish. It is therefore asked:

“Fifth doubt. Can Catholic judges and advocates in lay tribunals of this kind, with a safe conscience, undertake and defend matrimonial cases, or take cognizance of and judge them?

“Sixth doubt. Can the same Catholic judges and advocates, with a safe conscience and according to the recent Swiss law, propose that the marriage bond be dissolved, or declare it dissolved, and also declare that spouses of this kind can pass to the contracting of another marriage, as the civil law in this case expressly commands and urges the judges to judge and declare?

“In discussing this question, it must not be forgotten that the secular tribunals whose office it is to judge civil cases are the same tribunals upon which, by the new law, it is incumbent to take cognizance of and judge matrimonial cases. Therefore, if Catholic judges should be forbidden to take part in tribunals of this kind we shall experience, to the great detriment of citizens, that those tribunals are deprived of the judges who, filled with the fear of God, judge piously and justly.

“Response. To the fifth and sixth. As regards judges, recourse is to be made in particular cases. As regards advocates, let the responses already given to the Bishop of Southwark be given, namely: Thursday, in the fourth place, 22 May 1860, to the doubt: Can a Catholic advocate defend the case of the respondent against a plaintiff seeking dissolution of the bond? The response was: Provided that the bishop is satisfied concerning the uprightness of the advocate, and provided that the advocate does nothing which departs from the principles of natural and ecclesiastical law, it can be tolerated.—And to another doubt: Is it lawful to act in the part of advocate and plaintiff when the end of the suit is simple separation without any sentence carrying with it the nullity of the marriage itself? The response was: Provision was made in the preceding; and Friday, 19 December of the same year: Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as to bed and board, 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 part of plaintiff and advocate, and provided that just grounds of separation exist in the judgment of the bishop; and if he has any further doubt, let the petitioner have recourse, setting forth all the circumstances and the dispositions of the law.” Holy Office, 3 April 1877.

“After the laws of divorce were recently restored among the French in the year 1884, several doubts were proposed to this Sacred Roman and Universal Inquisition by certain bishops of France: namely, whether it was lawful for lay judges to administer justice in cases concerning the separation of spouses, whether as to the bond or merely as to habitation; whether it was lawful for advocates and procurators to conduct cases of this kind before lay judges; whether it was lawful for those to whom it belongs by law to appoint defenders appointed by the court, as they call them; and finally, whether it was lawful for mayors (maires, as they are commonly called) to pronounce divorce.

“The Most Eminent Fathers, General Inquisitors together with me, the matter having been maturely considered, judged in the meeting of Thursday, in the fourth place, on 25 June 1885, that the following was to be decreed:

“In view of the most grave circumstances of affairs, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial cases in France without being bound to resign their office, provided that they openly profess the Catholic doctrine concerning marriage and concerning matrimonial cases as belonging to ecclesiastical judges alone; and provided that, both concerning the validity and nullity of marriage and concerning the separation of bodies, which cases they are compelled to judge, they are so disposed in mind that they never pronounce a sentence contrary to divine or ecclesiastical law, nor defend a sentence to be pronounced, nor provoke or incite such a sentence; and that in doubtful or more difficult cases each approach his Ordinary, direct himself according to his judgment, and, insofar as there is need, have recourse through him to the Apostolic Penitentiary.

“The Most Holy Father ratified this decree, and therefore it is made known by these letters—which otherwise are not to be published—to all archbishops and bishops in France as their norm.”

“The following doubts were proposed to the Sacred Roman and Universal Inquisition by certain bishops of France. In the letter of the Sacred Roman and Universal Inquisition of 25 June 1885 to all the Ordinaries in the French dominions concerning the law of civil divorce, it was decreed as follows: ‘In view of the most grave circumstances of affairs, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial cases in France without being bound to resign their office.’ It added conditions, of which the second is this: ‘Provided that, both concerning the validity and nullity of marriage and concerning the separation of bodies, which cases they are compelled to judge, they are so disposed in mind that they never pronounce a sentence contrary to divine or ecclesiastical law, nor defend a sentence to be pronounced, nor provoke or incite such a sentence.’ It is asked: 1. Is the interpretation spread throughout France and also given to print correct, according to which a judge satisfies the aforesaid condition if, although some marriage is valid before the Church, he truly and steadfastly abstracts from that marriage and, applying the civil law, pronounces that there is ground for divorce, provided that in his mind he intends to rupture only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard these alone? In other terms, can a sentence so pronounced be said not to be contrary to divine or ecclesiastical law? 2. After a judge has pronounced that there is ground for divorce, can the mayor (le maire in French), himself also intending only the civil effects of the contract, as is explained above, pronounce the divorce, although the marriage is valid before the Church? 3. Once the divorce has been pronounced, can the same mayor civilly join with another a spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living?—Response. To the first, second, and third doubts: Negative.” Holy Office, 27 May 1886.

“14 September 1886. Prince.... Following my request, His Eminence (the Cardinal Secretary of State) has just informed me, by order of His Holiness, that the Congregation of the Holy Office has declared that the decree of 27 May does not concern Belgium and that, consequently, nothing is changed in this country as regards the matter of divorce. † Dominic, Archbishop of Thessalonica, Apostolic Nuncio.” To the Minister of Foreign Affairs at Brussels.

“A certain French judge, formerly a student of theology, approaches his confessor and, after declaring various mortal sins, adds: ‘Concerning the sentences pronounced by me in the matter of civil divorce, there is nothing for me to say, Father. For I am accustomed to declare civil divorce whenever most grave reasons are present, whether on my part or on the part of those who have brought the case before me.’—‘You have acted wrongly,’ the priest replies, ‘and you have not read the decision by which the General Congregation of the Sacred Roman and Universal Inquisition recently (27 May 1886) forbade judges to act in this manner.’—‘Indeed, I know it perfectly well, Father, and nevertheless I do not judge that I have sinned, for the following reasons: 1. You also know, Father, the response given in the name of the Supreme Pontiff to the Government of Belgium by the Apostolic Nuncio. Now, an act tolerated in Belgium can also be tolerated in France when the same circumstances recur, unless a positive prohibition by the Supreme Pontiff is certainly adduced; and this is by no means constituted by the simple approval of a decree of the Holy Office. 2. Theologians do not agree concerning the force of a decision of this kind. 3. Finally—and this is the principal hinge of the matter—in the proposition most justly condemned on various grounds (27 May 1886), not even one word is read concerning the most grave reasons which can arise either on the part of the judge or on the part of the petitioners. Therefore, since it is lawful to use truly probable opinions, and since, as I trust, I have duly disposed myself and declared my mortal sins to you, I humbly ask you, Father, to be willing to impart absolution to me, to which, according to the doctrine of all, I have a right.’ The confessor labors to induce the penitent to abandon such an opinion, but in vain. On the other hand, moved by the reasons which the judge has brought forward, he does not dare to impose his own opinion upon him, and dismisses the absolved penitent in peace.—It is asked: Did the confessor act rightly?—Response. Confessors are bound, concerning the question proposed, to direct judges according to the recent declarations issued by the Holy See.” Sacred Penitentiary, 4 April 1887.

“N.... of Luçon, whose marriage was valid before the Church petitioned for divorce according to the abominable law now in force in France, and the civil judges have already pronounced that there is ground for divorce. The spouse N...., as article 264 of the aforesaid law provides, will soon present himself with the other spouse before the mayor so that the latter may pronounce the divorce. But if the mayor refuses to pronounce it, without doubt he will be deprived of his magistracy; and this will be very dangerous to the Catholic cause, of which that mayor has always shown himself a strenuous defender.—It is asked whether, on account of the most grave circumstances of affairs, times, and places, that mayor can pronounce the civil divorce, provided that: 1. he openly professes the Catholic doctrine concerning marriage and concerning matrimonial cases as belonging to ecclesiastical judges alone; 2. in the sentence itself, and speaking as a magistrate, he publicly declares that he wishes to rupture only the civil effects and only the civil contract, while otherwise the marriage bond remains entirely firm before God and conscience.—The Venerable Sacred Penitentiary responds to the foregoing for the Father in Christ, the Bishop of Luçon: in this particular case, if, after examining all its circumstances, he judges in the Lord that it is expedient, he can tolerate that the aforesaid mayor proceed to the act concerning which the petition was made, with the declarations proposed by him; in such a way, nevertheless, that in place of the words, ‘he wishes to rupture only the civil contract,’ he put, ‘he can regard only the civil contract.’” 24 September 1887.

“Although the oracle of the Holy See has repeatedly declared what is to be thought of the act of a civil judge pronouncing a sentence of divorce between spouses joined by a legitimate marriage contracted before the Church, theologians in France—and even bishops—are not of one mind in interpreting the decrees of the Sacred Congregations. Still greater confusion of minds has arisen since the public periodicals published the response of the Sacred Penitentiary given on 24 September 1887 to the Ordinary Bishop of Luçon, namely, that in the case, the due declarations of course having been made beforehand, it can be tolerated that the mayor pronounce the divorce. In the periodical Le canoniste contemporain, a certain writer interpreted this response as though it were equivalent to a decree permitting a mayor generally, in a similar case and after the due declarations had been made beforehand, to pronounce the divorce. And furthermore, since the same response was made public, the opinion has prevailed more and more that the act of a judge pronouncing a sentence of divorce and that of a mayor pronouncing it, provided that the prescribed declarations are made beforehand, is not contrary to divine law and therefore is not intrinsically evil. Therefore the petitioner—inasmuch as until now he held and taught as alone true the contrary opinion from the decrees issued on this matter by the Sacred Roman and Universal Inquisition—suppliantly requests, so that he may provide for his own conscience in fulfilling his episcopal office, a response concerning the following two doubts: 1. Is it lawful to infer from the aforesaid rescript of the Sacred Penitentiary to the Ordinary Bishop of Luçon that, universally, mayors in France who would otherwise be compelled to resign their office can, after the due declarations have been made beforehand, with a safe conscience pronounce divorce between spouses bound in the sight of the Church? 2. Can the same be said of a civil judge pronouncing a sentence of divorce between similar spouses and under the same declarations?—Response. To the first: In issuing the rescript in question, the Sacred Penitentiary had this alone in mind: to provide for the particular case according to its circumstances and necessities. To the second: Negative.” Sacred Penitentiary, 4 June 1890.

“Most Reverend Monsignor, I have reported to the Most Eminent Major Penitentiary the case of the mayor of that Diocese who, by virtue of his office, would have to assist at the civil marriage of a certain person who is already bound in the sight of the Church; and by command of the said Most Eminent One I must inform you that the named mayor cannot in any way lend himself to an act so contrary to the sanctity of marriage. Therefore, whatever the circumstances of the case may be, he must absolutely abstain from such assistance, even though it should consequently follow that he must resign. From the Sacred Penitentiary, 28 November 1883. Luigi Martini, Substitute of the Sacred Penitentiary.” To the Bishop of Ferentino in Italy.—Cf. no. 933.

"Not without great sorrow of mind, or rather horror, have the Fathers of this Provincial Synod learned that certain legislators of this region have very recently proposed that a Court of divorce be established, whose office would be to pronounce divorce from the bond on account of adultery. For besides the fact that such a law, which may God avert, would be a subversion of the institution of almighty and most wise God and a usurpation of the rights of the Church of Christ, no one is ignorant or can be ignorant how many and how great evils flow from such divorce, which render it most hostile to civil society. For under the hope of future divorce marriages are contracted imprudently, quarrels are provoked, and, what the soul shudders to say, adulteries themselves; the bond of charity between families yields place to irreconcilable hatred; fortunes are placed in danger; the whole of society is scandalized. Finally, what will become of the children whose parents have obtained divorce? But We, whom God has placed as watchmen in this part of His Church, wish our diocesan faithful always to remember that no one can, with conscience safe: 1. cast a vote for such a law; 2. in such a Court of divorce, act the parts of plaintiff, or of judge, or of notary or chancellor, or concur formally or in any other way; nevertheless We do not intend to condemn those who, compelled, would bear testimony concerning the very fact of adultery." Fourth Provincial Council of Quebec, year 1868, Collectio Lacensis, Vol. 3, col. 748.

"The law of the Swiss Confederation issued concerning civil status and civil marriage sanctioned that all and singular matrimonial causes, ecclesiastical jurisdiction being suppressed from now and henceforth, are to be treated in the tribunals of laymen according to the norm which is established in civil causes, and that sentences are to be pronounced in them according to the prescriptions of common law and of the most recently issued law, by which marriages even of Catholics can, under certain very slight reasons, be perpetually broken and dissolved as regards the bond; so that spouses of this kind litigating, after a sentence of divorce of secular judges has been issued, can pass, if they wish, to contracting other marriages. Therefore it is asked:

Fifth doubt: Whether Catholic judges and advocates in lay tribunals of this kind can with safe conscience undertake and defend matrimonial causes, or know and judge them?

Sixth doubt: Whether the same Catholic judges and advocates, according to the recent law of Switzerland, can with safe conscience propose the bond of marriage as to be dissolved or declare it as dissolved, and also declare that spouses of this kind can pass to contracting another marriage, as the civil law in this case expressly orders and urges the judges to judge and declare?

In discussing this question it must not be forgotten that the secular tribunals, whose office it is to judge civil causes, are the same ones to which by the new law it belongs to know and judge matrimonial causes. Therefore, if it has been forbidden to Catholic judges to take part in tribunals of this kind, we shall experience, to the great harm of citizens, that these tribunals are deprived of those judges who, filled with the fear of God, judge piously and justly.

Resp. To the fifth and sixth. As regards judges, let recourse be had in particular cases. As regards advocates, let the responses already given to the Bishop of Southwark be given, namely: Feria III, place IV, 22 May 1860, to the doubt: Whether a Catholic advocate can defend the causes of the defendant party against the plaintiff seeking dissolution of the bond? The response was: Provided that the Bishop is certain of the uprightness of the advocate, and provided that the advocate does nothing which turns aside from the principles of natural and ecclesiastical law, it can be tolerated. And to another doubt: Whether it is lawful to act the parts of advocate and plaintiff when the end of the suit is a simple separation without any sentence drawing with itself the nullity of marriage? The response was: Provided for in the preceding. And Feria IV, 19 December of the same year: Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics in that forum act the parts of plaintiff and advocate; and provided that there are just causes of separation in the judgment of the Bishop. And if he has any doubt besides, let him have recourse, setting forth all circumstances and dispositions of the law." S. I. C. 3 April 1877, to the Bishop of St. Gall. Archiv fur Katholisches Kirchenrecht, etc., edited by Dr. Friedrich H. Vering, Mainz, 1878, p. 294 ff.

"After the divorce laws had recently been restored among the French in the year 1884, several doubts were proposed by some Bishops of France to this Holy Roman and Universal Inquisition: namely, whether it was right for lay judges in causes concerning separation of spouses, whether concerning the bond or only concerning habitation, to pronounce law; whether for advocates and procurators to handle causes of this kind before lay judges; whether for those to whom it belongs by law to appoint official defenders, as they call them; finally, whether for syndics (commonly maires) to pronounce divorce.

The Most Eminent Fathers, General Inquisitors together with me, the matter having been maturely weighed, on Feria V, place IV, on the day 25 June 1885, judged that this must be decreed:

Attending to the most grave circumstances of things, times, and places, it can be tolerated that those who hold magistracy and advocates handle matrimonial causes in France, without being bound to leave office, provided that they openly profess Catholic doctrine concerning marriage and concerning matrimonial causes as pertaining to ecclesiastical judges alone; and provided that they are so disposed in mind, both concerning the validity and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend for one to be pronounced, nor provoke or excite to it, that is repugnant to divine or ecclesiastical law; and in doubtful or more difficult cases let each approach his own Ordinary, direct himself by his judgment, and insofar as there is need, have recourse through him to the Apostolic Penitentiary.

The Most Holy Father ratified this decree; and therefore it is made known to all Archbishops and Bishops in France for their norm by these letters, which otherwise are not to be published."

"By certain Bishops of France the following doubts were proposed to the Holy Roman and Universal Inquisition: In the Letter of the Holy Roman and Universal Inquisition of 25 June 1885 to all Ordinaries in the French Dominion concerning the law of civil divorce, it is thus decreed: Attending to the most grave circumstances of things, times, and places, it can be tolerated that those who hold magistracy and advocates handle matrimonial causes in France, without being bound to leave office. It added conditions, of which the second is this: Provided that they are so disposed in mind, both concerning the validity and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend for one to be pronounced, nor provoke or excite to it, that is repugnant to divine or ecclesiastical law. It is asked: 1. Whether the interpretation spread through France and even given to print is right, according to which there satisfies the aforesaid condition a judge who, although some marriage is valid before the Church, abstracts from that marriage with a true and constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that he intends in mind to break only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard only those things? In other terms, whether a sentence thus issued can be said not to be repugnant to divine or ecclesiastical law? 2. After the judge has pronounced that there is place for divorce, can the Syndic (in French, le maire), himself also intending only the effects and the civil contract, as is set forth above, pronounce the divorce, although the marriage is valid before the Church? 3. Once divorce has been pronounced, can the same Syndic civilly join with another the spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living? - Resp. To the 1st, 2nd, and 3rd doubt, in the negative." S. I. C. 27 May 1886.

"A woman, separated from her husband by force of a sentence as regards bed, would wish to undertake a certain public office for sustaining life. But the government does not allow this unless she asks for divorce. She would wish to ask, but, in her intention, always with the bond saved. The Parish Priest, who is also her confessor, asks whether she can be admitted to the sacraments, and for light or counsel concerning the rest, as below. Resp. To the penitent woman, in the case, nothing else is to be advised except that she abstain under grave obligation from seeking divorce." S. Poenit. 5 Jan. 1887, to a Parish Priest of France.

"Most Reverend Monsignor. I have reported to the Most Eminent Major Penitentiary the case of the Syndic of that Diocese, who by force of his office would have to assist at the civil marriage of a certain person who is already bound in the face of the Church, and by command of the praised Eminent one I must signify to you that the named Syndic cannot in any way lend himself to an act so contrary to the sanctity of marriage. Therefore, whatever the circumstances of the case may be, he must absolutely abstain from such assistance, even if it should follow afterwards that he must resign. From the Sacred Penitentiary, 28 Nov. 1883. Luigi Martini, Substitute of the Sacred Penitentiary." To an Italian Bishop.

"14 September 1876. Prince, ... Following my request, His Eminence (the Cardinal Secretary of State) has just informed me, according to the orders of His Holiness, that the Congregation of the Holy Office has declared that the decree of 27 May does not concern Belgium, and that, consequently, nothing is modified in that country in what touches the matter of divorce. + Dominic, Archbishop of Thessalonica, Apostolic Nuncio." To the Minister of Foreign Affairs at Brussels. Cf. Nouvelle Revue Theolog. Vol. 18, p. 73.

939. Up to this point the matter has concerned the offices which are incumbent upon all in general; but since there are various states of life, to which diverse offices correspond, it is necessary to add a few things concerning these. Now there are three states of life to which the others are referred: the state of laymen, the state of clerics, and the state of religious; for among Christians, some remain in the world, and, although they care for their own salvation, are devoted to secular affairs; others, adorned with clerical dignity and performing the priestly office, officially attend to the salvation of souls, although they dwell amid the dangers of the world; finally others, snatching themselves away from worldly cares, bind themselves by the three vows of poverty, obedience, and chastity to embracing a more perfect life, whether they are content with the lay condition, or receive the priesthood.

¹ St. Thom., 2. 2., q. 183; Antoine, Theol. Moralis, De obligationibus specialibus certorum statuum et officiorum (Migne, Theol. Curs., XVI, 1131-1276); Conferences d'Angers, sur les Etats, 3 vol., Paris, 1829-1830; Valentin, Examen raisonne sur les devoirs et les peches des diverses professions, Lyon, 1844; Berardi, Praxis, Tr. VII, De statibus particularibus; Ballerini P., Tr. IX, De praeceptis particularibus.

940. We shall not treat here of the religious state, since Canonists are accustomed to discuss it. Concerning the lay and clerical state we shall especially set forth those things which flow from natural and divine right, more briefly touching upon offices which are declared more fully in the Praelectiones Juris Canonici.

On The Offices Of Laymen

From domestic society:

• Of parents and children.
• Of masters and servants.

From civil society:

• Of superiors and subjects.
• Of those exercising a special office.

On The Offices Of Clerics

• Of all clerics in general.
• Especially of those who are constituted in sacred orders.
• More especially of those who have received the priesthood.

The special offices which are incumbent upon laymen arise especially from a twofold source, from domestic society and from civil society.

941. State of the question. Domestic society, which is older than other societies, arises from nature itself. For since the human race cannot naturally be propagated except by the union of man and woman, by that very fact there arises conjugal society, concerning which we spoke in Tr. on Matrimony; but afterward, when children have been procreated, parental society now arises, which flourishes between parents and children; to this there is often added masterly society, which flows from relations between master and servants. Wherefore we shall speak of the mutual offices 1. of parents and children; 2. of masters and servants.

942. According to St. Thomas,¹ parents "are the particular principle of our being, just as God is the universal principle"; for just as God creates men, so parents procreate their children; just as He preserves creatures in being, and directs them to their end and governs them by his providence, so parents protect their offspring by assiduous cares, and by counsels, examples, and also by wise providence rule them and direct them to the end. From this it follows that the right and office of educating their own children is incumbent upon parents, and besides that children are held to render the due honor to parents.

¹ St. Thom., 2. 2., q. 122, art. 5.

943. State of the question. Socialists, adhering to the footsteps of J. J. Rousseau,² contend that children belong to the Republic rather than to parents, and therefore that the office of feeding and educating them is incumbent upon the State: for parents, they say, often imbued with many prejudices, inculcate the same in their offspring, and thus dissensions arise among citizens, because not all have received the same discipline; wherefore, for placing national unity in safety, it is necessary that children be snatched away from parents, so that each and all may be instructed in the same way in public schools; then there will be no distinction between rich and poor, noble and ignoble, Catholics and non-Catholics; all, imbued with the same principles, will defend liberty of thinking, social equality, and perfect solidarity; no preeminence will be acknowledged except that which is owed to each one's talent and merit.³ - Anarchists, who altogether reject the authority of the State, nevertheless do not wish children, procreated from a free union, to be educated by parents, but by those who love them more, and adopt them as children, and freely consent to furnish them food and education.¹ - Not a few of those who defend the rights of women beyond what is fair (feministes) are more or less imbued with the same errors; for since they contend that women have, by equal right with men, the faculty of managing public affairs, they wish them to be immune from domestic cares and the education of children, so that they may give themselves to civil offices.²

¹ Taparelli, Essai de Droit naturel, n. 1555-1575; Meyer, Instit. juris naturalis, t. II, n. 107-111; 660-678; A. Jansen, De facultate docendi, 1885; Castelein, Droit naturel, Paris, 1903, p. 625-640; R. Lavollee, L'Etat, le Pere et l'Enfant, Paris, Plon, 1904.

² For he holds that the family is indeed older than any other society, but that children do not remain joined to parents except as long as they need them for protecting their life: "The oldest of all societies, and the only natural one, is that of the family: and even so, children remain bound to the father only as long as they need him in order to preserve themselves; as soon as this need ceases, the natural bond is dissolved." (Contrat social, l. I, ch. 5.) But afterward (ch. 6-8) he declares that, by force of the social pact, all authority is in the Prince's possession.

³ Thus G. Renard, Le Regime socialiste, Paris, 1898, p. 89-100, where among other things he writes: "The child, a moral person in potency, or, to speak still better, in the way of development, must no longer, as formerly, be considered the property of his parents. The power of the father or of the mother is justified, like every authority exercised over human beings, only on condition of being a creator of liberty, and not of oppression... If the parents remain absolute masters of his education, I fear over his mind a pressure all the more powerful because the pupil is naturally predisposed to undergo the affectionate suggestion of those who are nearest to him. Beware then hereditary prejudices, which are the very negation of scientific progress... Teaching being gratuitous and the maintenance of children being put at the charge of the community, one will no longer see, as in our mercantile society, this unreasonable anomaly: public instruction reserved to those who can pay for it... education will address itself equally to all intelligences which will be capable of profiting from it."

¹ Thus J. Grave, La Societe future, ch. 23, where he says: "The child is not a property, a product, which can belong more to those who have procreated him, as some wish, than to society, as the others contend." Whose therefore will children be? "To those who love the child most... Instead of being a charge for those who will adopt him, the child will no longer be anything but a pretty little creature to love and caress." - This system C. Turgeon sets forth and refutes, Le Feminisme francais, Paris, 1902, t. II, p. 405-420.

² In Turgeon, op. cit., t. II, 417-420.

944. Thesis: The right and office of educating their own offspring belongs primarily to parents, and only secondarily to the State, namely when parents are lacking. - For if it is certainly and publicly established that certain parents do not furnish the education necessary to their children, and there are no others who act in place of the parents, it pertains to the State, insofar as it is the provider of the public good, to provide for this education.³

³ We do not here treat of the rights of the Church, whose office it is to hand on moral and religious education to all those who have arisen from Catholic parents, or who through baptism have entered the Church, as was declared in Tr. on the Church. As to human sciences, spiritual authority has the right of teaching them, by at least the same right as private citizens or private associations. - Cf. F. Cavagnis, Instit. juris publici, l. IV, n. 1-145.

(A) It is proved by reason. For the right and office of educating offspring naturally belongs to those who have begotten the same: "It is a most holy law of nature that the father of a family should protect, with sustenance and every cultivation, those whom he himself has procreated."⁴ For children, as long as they have not attained the use of reason, are altogether unable to protect their own life; likewise, when reason now first dawns, they can obtain the truth in the intellectual, moral, and religious order only with the greatest difficulty by their own powers, without any external aid, and therefore they need some authority which directs them in the right path of truth. Now nature itself manifestly shows that the work of education is primarily to be performed by the parents themselves.

⁴ Leo XIII, Encyclical Rerum Novarum.

"For the son," says St. Thomas,¹ "naturally is something of the father; and at first indeed he is not distinguished from the parents according to the body, as long as he is contained in the mother's womb; but afterward, after he comes forth from the womb, before he has the use of free will, he is contained under the care of the parents, as under a certain spiritual womb." In reality nature gave breasts to the mother, but not to the State, for nursing children; to each parent, but not to the City or to strange nurses, it gave a maternal or paternal heart for pursuing their own offspring with tender and at the same time generous love; to parents, but not to strangers, at least from things commonly occurring, it gave an inclination that they gladly hand over not only their own things, but even themselves and their own life, for the welfare of their offspring. Wherefore long and universal experience establishes that children educated at home, fed with maternal milk, and carefully guarded by the vigilant care of parents, much more easily escape the dangers of diseases and death, and progress much more than those who are nourished by strangers.²

¹ St. Thom., 2. 2., q. 10, art. 12.

² For many of those who are handed over to strange nurses die: "Already in 1889, at the congress of hygiene and demography, Dr. Fleury attested that at Lyon the mortality of nurslings rose to 49 percent." (C. Raff, Natalite, Paris, 1901, p. 364.)

945. The same must be said concerning intellectual and moral education; no one, as the mother, can look into the mind of her offspring, no one can detect and correct their depraved inclinations, or direct the powers of the will to good: for led by maternal instinct, she naturally performs all these things, and besides by native inclination the child is inclined to follow the sweet direction of the mother. Afterward, when the boy is now growing up, he needs a virile education, for furnishing which no one is more suitable than the father: for, because of the special and generous love with which he pursues his children, he tempers with gentleness the authority necessary for restraining the depraved habits to which they incline, and helps them by opportune counsels to avoid dangerous occasions;³ by words and examples he draws them to the practice of virtues; indeed he himself is induced to lead a more honorable and more perfect life, led by this reason, that unless he gives a good example, he will scarcely be able to exhort his boys to honesty. - Hence experience establishes that children educated at home, other things being equal, generally progress much more in studies and in the practice of virtues than those who are instructed by strangers.¹

³ To the point it is read in the Expose des motifs du Code civil, where the matter concerns paternal authority: "The child is born weak, besieged by needs and diseases; nature gives him his father and mother to defend and protect him. When the time of puberty arrives, the passions awaken at the same time as intelligence and imagination... It is then that the child needs a counsel, a friend, who may defend his nascent reason against the seductions of every kind which surround him."

¹ On the office of each parent in education, cf. Turgeon, II, 341-362.

946. Socialists indeed object that children have rights which parents are not permitted to oppress. - It is certainly wonderful that these men complain of the tyranny of parents, while they themselves wish tyrannically to inculcate their opinions in the young; do they not thus contradict themselves? - We by no means deny the rights of children, since Christ himself and the Church have diligently vindicated these against the unspeakable errors of the pagans, as was proved elsewhere, on True Religion, n. 155; but since the child himself cannot protect these rights, it pertains to parents, rather than to strangers or to the State, to preserve them whole and intact; for those who begot and nourished children are joined more intimately with them, and are more apt to instruct them than any others. For the family is historically and logically prior to the State, nor is it consonant with right reason that civil power at its own judgment penetrate even to the interiors of homes, and disturb domestic peace; paternal power ought neither to be extinguished nor absorbed by the republic, but rather confirmed by it.² And certainly, if prejudices are in parents, is it not to be feared that the State, imbued with worse prejudices, may wish to inculcate them in the young, and thus oppress the liberty of children equally and of parents by intolerable tyranny? - And, since besides the opinions and theories of the State are diverse according to the diverse ministers who manage public affairs, will children also be held to change their ideas at the will of various officials? Where, I ask, is liberty? - Nor should it be said that the young are to be educated in such a way that they are instructed neither by the State nor by parents in religious or ethical disciplines, until, mature in age and reason, they are able freely to choose among various religions or diverse systems of ethics; - for this is nothing other than to promote indifferentism in matters altogether necessary for the right ordering of life, and to deprive the young of the means by which they need to restrain depraved inclinations.¹

² Leo XIII declared this excellently, Encyclical Rerum Novarum: "Therefore to wish that civil power at its own judgment penetrate even to the interiors of homes is a great and pernicious error... Paternal power is of such a kind that it can neither be extinguished, nor absorbed by the republic, because it has the same and common principle with the life itself of men. Children are something of the father, and as it were a certain amplification of the paternal person; and if we wish to speak properly, they do not of themselves, but through the domestic community in which they were generated, enter and participate in civil society." Cf. Brunetiere, Le Droit de l'Enfant, in the periodical Reforme sociale, Feb. 1, 1903, p. 202-221.

¹ G. Bonjean, Enfants revoltes et parents coupables, Paris, 1895; A. Fouillee, Les Jeunes Criminels, l'Ecole et la presse, in the periodical Revue des Deux Mondes, Jan. 15, 1897, p. 417-449; H. Joly, L'Enfance coupable, Paris, 1904, among others, have described into what excesses the young frequently fall who are educated without religion and moral discipline.

947. They insist, saying that by paternal education those dissensions are preserved and strengthened which draw one region and city, as it were, into two or more factions, and invincibly stand in the way of national unity. - I turn the argument back: are there not factions and dissensions in the State itself, and indeed among the socialists themselves? Do not anarchists, collectivists, and moderate socialists try to draw the minds of the young to their systems? - Therefore this difficulty rests on a false concept of unity: for it is impossible, especially in our days, where unbridled liberty of thinking, speaking, and writing flourishes, that all citizens of one City think and will the same thing concerning religious, philosophical, or political matters. Therefore those who vindicate national unity in this sense, that they wish all citizens to have the same principles concerning all these matters, not only promote intolerable tyranny, but dream of a thing altogether impossible. No unity can flourish among rational and free citizens other than that which arises from mutual tolerance and fraternal charity;² for all citizens ought to tend toward the common good of the fatherland, and devise nothing which turns to its detriment; but concerning the better reason for pursuing this end, discussion ought to be free, according to that saying: in necessary things unity, in doubtful things liberty, in all things charity. This is clearly evident by the example of nations which are eminent among cultivated nations, such as Great Britain and America: there certainly flourishes a singular love of fatherland, precisely because the greatest liberty flourishes for parents in educating children; and certainly the fatherland is loved the more, the more securely and efficaciously the liberty of domestic life is protected.

² Cf. Ch. Dupuy, in the speech held to the Senate Nov. 5, 1903, in Questions actuelles, t. 71, p. 168-192; E. Faguet, Le Liberalisme, Paris, 1903, p. 128-169, where he lucidly shows how much they contradict themselves who, under the pretext of unity, strive to extinguish liberty of teaching.

948. (B) The same is established by history. For Nations which assigned the office of educating boys to the Republic alone soon fell into despotic tyranny; thus the Spartans, ignorant of human dignity, who had committed the education of children to the State, instituted not men nor free citizens, but soldiers. Thus also the leaders of the French Revolution, Danton and Robespierre, who assigned to the fatherland alone the right of educating children, oppressed their fellow citizens with bronze tyranny and cruel persecution. Hence those who favor Caesarism, as Napoleon I, State Socialists, in one word, all haters and oppressors of liberty, vindicate for themselves the exclusive right or monopoly of teaching.¹ - On the contrary, however, the Christian religion, which liberated peoples from tyranny, has always asserted and defended the rights of parents to educating their own offspring; likewise everywhere and at every time it has favored those institutes and Universities which, independently from the State, hand on various disciplines. Wherefore even in our days truly cultivated nations, which pursue not only the shadow and name of liberty, but the thing itself, such as Belgium, Switzerland, Great Britain, and the Federated States of America, gladly acknowledge and protect the rights of parents to instructing their own offspring in various disciplines, and at the same time confer the greatest liberty on independent schools and Universities.¹ Unless therefore we wish to say farewell to the liberty of private persons and families, we ought unceasingly to vindicate, by all legitimate means, especially by rightly ordered associations of fathers of families, the rights of parents as to the education of offspring.

¹ This indeed is admitted by a man otherwise most hostile to the doctrines of the Church, Clemenceau, in the speech held to the Senators Nov. 17, 1903: "The State, I know it: it has a long history, all of murder and blood. All the crimes which have been accomplished in the world, massacres, wars, breaches of sworn faith, pyres, torments, tortures, everything has been justified by the interest of the State, by reason of State... I understand well: you dream of the ideal State. Thus Plato, thus Aristotle, thus Thomas More, thus other dreamers. You dream of the ideal State. This State, in books, you make it as beautiful as it can please you; but here we are weak men, changing, grappling with reality... If you could succeed, you would put into the hands of universal suffrage, into the hands of the changing majorities which succeed one another in Assemblies, the most formidable instrument of reaction which has yet been seen in the world, for the responsibility would be ungraspable, scattered in the anonymous crowd." (In Questions actuelles, t. 71, Dec. 12, 1903, pp. 197, 198, 199; ibidem p. 177-183, read what Lamarzelle spoke excellently concerning liberty of teaching.)

¹ Thus J. Stuart Mill (Principles of Political Economy, New York, 1882, t. II, p. 576-577) writes that no right belongs to the State of teaching exclusively, or even of conferring special privileges on those who frequent the State's schools; and that it is intolerable tyranny to wish to subject all schools to its rule: "to possess such a control, and actually exert it, is to be despotic." - R. Lavollee sketches the history of this question and the laws of diverse Nations, op. cit., p. 3-202.

949. Corollary. A twofold office belongs to civil authority concerning the instruction of children, namely to take care that independent schools not favor the corruption of morals, and to found schools necessary for the right instruction of citizens.

(A) The reason for the former is that it pertains to the State to promote the public good, and therefore to prohibit those things which manifestly stand in the way of this good. Now, if there were any school which notoriously corrupted the minds of the young by doctrines evidently contrary to natural right, or weakened good morals, civil authority would deservedly restrain those abuses, since the right and office is incumbent upon it of warding off dangers which can overturn the foundations of the republic. - Yet we said notoriously, because public authority ought not to be too solicitous about hidden things, lest perhaps, while it tries to restrain abuses, it take away all liberty altogether.

(B) The same reason of the public good often urges civil authority to institute schools and colleges. For although it pertains primarily to parents to educate their own offspring, nevertheless many can fulfill this office neither through themselves nor through private teachers; wherefore it pertains to the City to remedy this insufficiency by the foundation of public schools, to which parents can send their offspring: for the right instruction of the young greatly profits the public good.

But the Republic cannot institute a monopoly of education, namely by commanding that parents send their children to public schools, with the faculty excluded of educating them privately through teachers well seen by themselves: for this would be a usurpation of domestic right and an open violation of liberty of conscience.

Indeed that system, now flourishing among not a few nations, by force of which public schools alone are sustained from the common treasury, harms the equality and liberty of citizens; for then the school tax is paid by all, although many receive no advantage from it.¹ Much fairer is the system prevailing in Great Britain and other regions, by force of which public and private schools are equally sustained, provided that they attain a certain degree of progress: for thus the liberty of families remains intact, burdens are equally distributed, and noble emulation prevails among the diverse schools.

¹ Faguet sets this forth thus, op. cit., p. 134: "It is as if from Paris to Bordeaux there were two railways, one by Chartres, the other by Orleans, operated by two different companies, and I had the right to go to Bordeaux by Orleans, but on condition of paying my place to the Company of Orleans and also to the Company of Chartres."

950. Since parents act in God's place with respect to their offspring, they are held to pursue them with a special love, and to impart to them bodily and spiritual education, and also by a certain providence to direct them to the end.

² St. Chrysostom, De liberorum educatione, in Migne, P. G., t. LXIII, col. 763-772; Sayrus, Clavis regia sacerdotum, lib. VII, cap. 7; Mayol, Summa doctrinae moralis circa decem Decalogi praecepta, in Migne, Curs. Theol., t. XIV, p. 503-532; Jaugey, De virtutibus cardinalibus, Paris, 1876, p. 464-475; Berardi, Praxis, Tract. VII, n. 1-32; Rosset, De sacram. Matrimonii, t. V, n. 3520-3572; A. de Margerie, De la Famille, Paris, 1869, t. I, p. 226 sq.; P. Janet, La Famille, 15th ed., Paris, 1894, p. 107-236; A. de Gasparin, La Famille, Paris, 1866, t. I, p. 143-297; M. d'Hulst, Lent of 1894, 4th Conference.

1. On The Love Of Parents Toward Children.

951. Love of this sort is called piety, because it bears before itself something sacred and religious; it helps to set forth its foundation and endowments.

(A) The motives on account of which parents ought to love their offspring are natural and supernatural.

(a) Natural indeed; for if anyone loves the work of his hands, if even beasts themselves by a certain natural instinct love and protect their young,³ even with danger to their own life.

³ St. Augustine lucidly sets forth this argument, Sermon 349 (alias, de Tempore 52), in Migne, P. L., XXXIX, 1530: "Beasts also love their children: asps love their children, tigresses love their children, lions love their children. For there is no beast which does not gently murmur to its children. For when it terrifies men, it cherishes its little ones. A lion roars in the woods, so that no one may pass: he enters the cave, where he has his children, he lays aside every rage of ferocity. Outside he places it, when he himself does not enter. Therefore he who does not love his children is worse even than a lion."

how much more ought parents to pursue with tender and devoted affection the offspring whom they have begotten from their own substance, and who are as it were a certain amplification of the paternal person? - This appears even more manifestly if one considers that the children whom they procreated are endowed with reason and free will, bear in themselves the image of God and at the same time of the parents, enjoy immortality, are destined to God as to their ultimate end, and that they are citizens of the earthly fatherland, whose good and honor they can promote, if they have been rightly educated; for who, attending to these things, would not sincerely and devotedly love the sweet offspring who can procure the glory of God, the exaltation of the fatherland, and the happiness of the family?

952. (b) To these are added supernatural motives; for these are citizens not only of the earthly, but also of the heavenly fatherland: they are destined to the supernatural end, namely the clear vision of God and perfect possession; wherefore they are given the divine life, and all the graces necessary for increasing it; redeemed by Christ, and cleansed by his precious blood, they bear the image of Christ impressed in their hearts, and ought to imitate his virtues. Now parents are as it were God's cooperators in the sanctification of children, as they were in procreation; and therefore they ought to love their offspring with a special and supernatural love, so that by paternal solicitude they may form in them the spirit and virtues of Christ, and supernaturally beget those whom they have carnally begotten, according to that saying of the Apostle:¹ "My little children, of whom I am in labor again, until Christ be formed in you."

¹ Galat., IV, 19.

953. (B) The endowments of this love. The love of parents toward children ought to be:

(a) True and internal, insofar as they sincerely will their good, not only as to the body, but also and chiefly as to the soul, not only for the present, but also for the future. - Wherefore they sin gravely of themselves who deliberately pursue them unjustly with hatred, or seriously and from the soul curse them or imprecate evils upon them, or provoke them to anger with names gravely injurious; to the point St. Paul says: "And you, fathers, do not provoke your children to anger, but educate them in the discipline and correction of the Lord."¹ - Yet parents are often excused from grave sin who, moved by anger, act thus without perfect deliberation. Nor do they commit any sin, but act rightly, who, on account of a just cause, severely rebuke children, and moderately chastise them.

¹ Ephes., VI, 4.

(b) Rightly ordered, that is, resting on and ruled by a rational and also supernatural motive, so that it is neither excessive, nor irrationally favors one rather than another. - Hence they should not love children with a quasi-idolatrous love, by indulging everything to them, on account of sluggishness or cruel benignity, by by no means correcting their vices, etc. Likewise they should love all offspring equally, insofar as it can be done; and if there is some distinction, let them take care that it not be made without a reasonable cause; not rarely incautious parents are deceived by external qualities or flattering caresses, and they pursue with a more tender affection those who are worthy of less love; and from this arise not a few envies, quarrels, contentions, and other things of this sort, as is clear from the history of Joseph.²

² "But his brothers, seeing that he was loved by his father more than all the sons, hated him, nor could they speak anything peaceably to him." (Gen. XXXVII, 4.) - Hence St. Ambrose writes (de Joseph, in Migne, P. L., XIV, 643): "To love children is sweet, and to love more intensely is very sweet; but frequently paternal love itself, unless it holds moderation, harms children; if either by excessive indulgence it weakens the beloved, or by the preference of one turns the rest away from the affection of brotherhood... Let equal grace join children whom equal nature has joined."

(c) Generous and operative, insofar as parents not only will well to children, but do good, by averting from them every evil, whether corporal or spiritual, insofar as it can be done, and by furnishing that which can conduce to their good and salvation; this indeed is especially performed through the best education.

2. On The Education Of Children.³

³ Dupanloup, De l'Education, 7th ed., Paris, 1866, t. II, l. 2, p. 138; Guibert, L'Educateur apotre, Paris, 1894, p. 66-84.

954. Education is the progressive and harmonious evolution of faculties, by which children are gradually and orderly transformed into perfect men. For children have received from God various faculties, which, although generically the same in all, are nevertheless imbued with special inclinations, whether good or bad; now good education is placed in this, that it eradicates evil inclinations, restrains untamed passions and directs them to good, but strengthens, cultivates, and orders good qualities to human and at the same time Christian perfection. - This evolution, however, can only be slow and progressive, because it is impeded by many obstacles, and besides man naturally can obtain perfection only gradually. It ought to be harmonious, or rightly ordered, insofar as all faculties, whether bodily, spiritual, or religious, must be cultivated in such a way that the whole man is formed, that is, a sound mind in a sound body; if therefore one kind of faculties is evolved before the others, this nevertheless ought to be done proportionately, so that bodily exercise does not harm the progress of the mind, nor excessive intellectual cultivation stand in the way of bodily health. - We shall speak of education both bodily and spiritual, and also of the schools to which parents ought to send their children.

955. (A) On bodily education. This already begins in the maternal womb, and does not come to an end except at mature age.

(a) As soon as it is established that a child has been conceived, everything which, under grave obligation, could harm the life of the little child ought to be avoided. Wherefore the mother ought to abstain from those dances, violent movements and actions, and other things of this sort which induce more violent concussions of the body;¹ and also from immoderate excitements, anxieties, or from excesses in drink; for all these things can induce abortion. Men and others who inhumanely treat, exasperate, or strike a pregnant woman also sin, since from this the life of the fetus is endangered.

¹ To the point Capellmann, Medicina pastoralis, 1896, p. 156, n. 1: "It is also to be most carefully guarded that they (pregnant women) not be carried in a carriage through badly paved streets or rough roads. The very trips on the railway, by continual concussions, not rarely furnish the occasion of abortion, wherefore longer journeys on the railway are not to be undertaken without necessity. To this also pertains the use of machines for sewing (machines a coudre, sewing machines) which are moved by the feet."

(b) After the birth of the offspring, parents are held diligently to watch so that whatever would induce danger of death be warded away from it. Wherefore the Ritual admonishes parents not to have a little child with them in bed, because of the danger of suffocation.

956. (c) The mother ought to nourish children with her own milk, as often as this can be done;² for many inconveniences arise from the contrary practice as to the mother herself, who is exposed to a longer-lasting fever, - as to the children, for whose nourishing maternal milk is more apt,¹ - and as to the nurses themselves, who are generally compelled to abandon their husbands and their own offspring, with danger of incontinence and neglect of the offices of domestic life. Yet mothers are excused from this office who, because of lack of milk, infirmity, or another reasonable cause, prudently cannot nurse their own offspring.

² Concerning the gravity of this obligation, scarcely anything certain can be established; of itself it is held as light by most theologians; but when many evils, and very grave ones, are foreseen to arise from the use of a strange nurse, of itself a grave sin is committed if this is done without legitimate cause. On this Capellmann wrote excellently, op. cit., p. 47-53; cf. R. Bazin, Donnatienne; Brieux, Les Remplacantes.

¹ Hence, with experience as witness, among infants who are nourished by art, mortality is far greater than among those who are fed with maternal milk.

But when little children are handed over to nurses, care should be taken that these be healthy in mind and body, and provide for the health and also the morals of the child: for maternal solicitude is no less necessary in this case than where the mothers themselves feed their children.

(d) Parents are held under grave obligation of itself to furnish to offspring food and other things necessary for honestly sustaining life, according to their condition, until these can feed themselves; for it pertains to them to protect the life of those whom they have procreated, and this obligation from its nature is grave.

Therefore parents sin who, without grave necessity, expose offspring in public ways, with danger of death, or at the door of an orphanage, so that they may free themselves from the burden of feeding it, when besides they can easily provide for its education. Yet, if the matter concerns illegitimate offspring, prudence can demand that it be commended to an orphanage; in which case, however, honor and equity demand that the rich repay the expenses for nourishing the offspring. But whether justice requires this is disputed among theologians; certain ones probably deny it, because hospitals of this sort have been instituted not only for assisting the poor, but also the rich who otherwise would incur the mark of infamy;² whence if any parents have not paid these expenses, they are to be earnestly exhorted, but not compelled to restitution.

² St. Alphons., lib. III, on the Decalogue, n. 656; Ball. P., n. 824.

957. (e) Finally, in a general way parents ought to take care that children, by bodily exercise and labor proportioned to age, orderly evolve and increase their physical powers; for since the body is the instrument of the soul, and the health of the body favors not a little the evolution of intellectual life, it is very expedient that legitimate means be used for multiplying physical powers.³ This is also true of girls: for if they are educated delicately and are weaker in body, they easily suffer in their nerves and by an irritable character exasperate others.⁴

³ Demolins described how, in Great Britain, attention is given to the physical education of boys, A quoi tient la superiorite des Anglo-Saxons? Paris, s. d., p. 52-86; every excess indeed in this matter must be avoided, but in France parents and teachers often do not care enough about bodily education.

⁴ To the point Bentzon, Causeries de Morale, p. 236: "It is a duty to be well. Without doubt each of us inherits a more or less robust temperament; but, such as it is, we ought by wise hygiene to maintain it in the best possible equilibrium. And why? Because the soul is bound to the body; how many nervous people, by losing all command over their will, become insupportable to themselves and to others! How many young girls are sullen, capricious, disagreeable, because they overwork, digest badly, lead a life too over-excited, abuse dance and worldly pleasures..."

958. (B) On spiritual education. The care of parents is not confined to the health of the body, but ought especially to be occupied in rightly instructing the souls of children. For this it is necessary that they cautiously and diligently look into their inclinations and psychological dispositions: for not all ought to be instructed in the same way and by the same method, but each according to his own powers and the special character with which he is endowed.¹ Yet we shall hand on certain more general things: namely education ought to be virile, practical, and Christian.

¹ Courtade and d'Hulst, De l'action individuelle dans l'education chretienne, Paris, 1870; E. Picard, Comment traiter l'enfant a l'ecole, in Science sociale, t. XXXVI, August 1903, p. 97-129.

959. (a) First, education ought to be virile, insofar as it ought to tend to forming men gradually. For there are parents and teachers who think that nothing else is to be desired in the young except perfect docility of soul and blind obedience of will, by which they immediately and without complaint embrace the opinions expressed by superiors and obey their commands. Men endowed with reason and liberty are not formed thus. But by words and examples, persuasion and gentle suggestion, and also paternal correction, let the young be taught how they may cultivate their faculties, and gradually may be able by themselves to think, will, and act, not indeed independently from God and the rule of morals, but independently from vain human fear and from prejudices by no means consonant with reason.

Wherefore, as soon as the exercise of reason dawns, let it be set forth to them why and how they ought to flee evil and do good; let them be deterred especially from vices common to their age, such as lies, small thefts, contentions, and quarrels; let them be induced to perfect sincerity and honesty, justice and charity, modesty and chastity.² But let them be taught to perform all these things not only from fear or custom, but from the inward persuasion of the soul, by which they understand that they are held to this both from the will of God and from the dictate of conscience. Likewise let them increase the powers of the will by assiduous efforts,¹ so that they may more easily overcome the untamed passions which arise within, and the allurements of the world which from without entice them to vices.

² Fonssagrives excellently sets forth how the young are to be strengthened in chastity, Conseils aux parents et aux maitres sur l'education de la purete, 2nd ed., 1902. - For preserving chastity, it must diligently be cared for that boys and girls not sleep together in the same room, and especially in the same bed, at least after the seventh year.

¹ J. Payot, L'Education de la volonte, 18th ed., Paris, 1894; Ribot, Les maladies de la volonte, Paris, 18th ed.; A. Martin, L'Education du caractere, Paris, 1889.

960. (b) Education ought also to be practical, that is, truly preparing boys or girls for that kind of life for which they are destined, according to the character and condition of each. Many parents today, especially in France, think only of teaching letters, and send their offspring to colleges and universities, so that they may be able to lead a quiet life in the exercise of the liberal arts or in managing public affairs; from this it happens that many exercise no office, because there are many more candidates than offices to be distributed. Now the liberal arts must be cultivated by some, but not by all; otherwise industry, commerce, agriculture, and other arts necessary for life would soon grow languid and perish. Moreover many are found less suitable for the liberal arts, while on the contrary they would wish to give themselves to agriculture, industry, or commerce, if they were rightly instructed in these. Therefore let parents and teachers diligently look into the character and inclinations of their children or pupils, and not exercise any longer in literature those who intend to devote themselves to industry. Therefore it is greatly to be desired that schools which they call professional be multiplied among Catholics, in which all those who wish to embrace an industrial office, independent from the State, may be rightly formed.²

² Demolins, op. cit., p. 87-112; the same author, in another work (L'Education nouvelle, Paris, s. d.), describes how the young can be practically prepared for industrial life.

961. (c) Education should especially be Christian, by which namely adolescents are formed who embrace religion and adhere to it, not only when they are placed under the guardianship of parents or teachers, but also when they now act by their own movement and lead life far from the family. For this it is required that they believe from an inward and reasonable persuasion of the soul, and not be ashamed to manifest faith by works; for today, since the Catholic faith is attacked everywhere, it is necessary that Catholic youth be ready to fight manfully for the faith, as soldiers of Christ.

Wherefore parents are held under grave obligation, either through themselves or through others, to hand on to their children Catholic doctrine concerning all those things which are necessary to be known for attaining salvation and living as Christians; to form the same to the practice of those virtues without which they cannot be saved. For since children of this sort are destined to a supernatural end, those who procreated them by that very fact took upon themselves the burden, insofar as it can be done, of furnishing them the means necessary for obtaining this end. - The Roman Catechism inculcates this obligation in these words:¹ "The proper offices and duties of parents are that they imbue their children with most holy disciplines and morals, and give them the best precepts of living, so that, instructed and prepared for religion, they may venerate God holily and inviolate."

¹ Catech. Rom., On the fourth precept of the Decalogue, n. 13.

The same is handed down in the Code, c. 1113.

962. 1. Hence parents ought to take care that children be baptized as soon as possible (On Baptism, n. 48), and receive the grace of regeneration, by which they are made children of God, citizens of the Church and of the kingdom of heaven; - that from the tenderest years they learn the principal mysteries of faith, invoke the name of God,² love Christ the mediator, and pursue his Mother with a pious affection; - that they become accustomed to morning and evening prayers, the sacrifice of the Mass and divine offices, and also catechisms; - that they avoid depraved companions and dangerous readings, and especially that they not be corrupted by impious or dishonest servants.

² Let mothers take care that children, first attaining the years of discretion, turn themselves to God; to the point St. Thomas, 1. 2., q. 89, a. 6, ad 3: "For the first thing that occurs to a man having discretion is that he think concerning himself, to whom he should order other things as to an end. For the end is prior in intention. And therefore this is the time for which he is obliged by the affirmative precept of God, by which the Lord says: Be converted to me, and I will be converted to you (Zach., 1, 3)."

2. But they themselves ought to furnish a good example to their offspring, by speaking cautiously before them, especially about things pertaining to religion or chastity, lest at an inopportune time they learn what they ought still to be ignorant of; - likewise by acting cautiously, lest perhaps they furnish scandal to little ones:³ for these easily desire to imitate all things which they see; - by showing them examples of all virtues: for since the first age, like soft wax, receives impressions more distinctly and elegantly, it is certainly of great importance that only specimens of virtue be shown before boys, especially by those who enjoy the greatest authority among them.

³ Hence even the pagan poet Juvenal writes (Satire 14): "The greatest reverence is owed to the boy; if you prepare anything shameful, do not despise the years of the boy: but let your infant son stand in your way when you are about to sin."

3. Parents are also held to correct delinquent children, yet moderately, prudently, and benignly, so that it clearly appears that this is done for the sake of amendment, but not of indignation and anger. - For parents act in God's place in the rule of the house, and ought to imitate him who disposes all things sweetly and strongly, and chastises men only wisely, for instructing them and deterring them from vice. Therefore let them speak or determine nothing too bitter against children; but, as the Roman Catechism admonishes,¹ "if any fault has been committed, since chastisement and rebuke are necessary, let them not loosely remit anything to children through indulgence: for often children are depraved by the excessive softness and facility of parents; wherefore let the example of Heli, the high priest, deter them from relaxed indulgence, who, since he had been too indulgent toward his children, was afflicted with the greatest punishment."

¹ Catech. Rom., loc. cit., n. 14.

963. (C) On Catholic schools. Finally parents, when they cannot provide at home for the perfect education of children, are held to send them to Catholic schools; for from the Code, c. 1374, "Catholic children should not frequent non-Catholic, neutral, mixed schools, namely those which are open also to non-Catholics"; lest they be exposed to the danger of losing faith or morals.²

² Dupanloup discusses excellently the endowments of teachers and the manner of educating the young, De l'Education, and Lettres sur l'Education des Filles, Paris, 1879; cf. Guibert, op. cit.

To set forth the matter more fully, it must be known that non-Catholic schools are of two kinds: neutral, which in the education of boys prescind from any positive religion, but teach nothing heretical or impious; positively evil, in which atheism, heresy, or indifferentism is more or less defended.

(a) Now it is not permitted to parents to send children to positively evil schools, in which the proximate danger of perversion cannot be removed: for here the matter concerns the eternal salvation of souls, which must be preferred to all goods; nor is it permitted to expose oneself to the proximate danger of sinning, as is established from the things said where treating the proximate occasion, On Penance, n. 458-469. Hence, if such public schools exist, let fathers of families not omit to denounce them, as contrary to the common good, and let them use all legitimate means to abolish them thoroughly. - But if, with attention to all the circumstances, the danger can certainly morally be removed, let these things from the Code, c. 1374, be attended to before the eyes: "But it belongs to the Ordinary alone to decree, according to the norm of the instructions of the Apostolic See, in what circumstances of things and with what cautions employed, so that the danger of perversion may be avoided, it can be tolerated that those schools be attended." This also applies to neutral schools.

964. Schools which are called neutral are also very dangerous; for by the very fact that they exclude every religion, they prepare the way for religious indifferentism, especially as regards boys of tender age; at least in their estimation the dignity and authority of religion is much diminished if it seems relegated within domestic walls; besides, in these schools purity of morals is not rarely exposed to great dangers; finally it can scarcely happen that religion is altogether prescinded from, especially in historical and moral matters, and often, under the pretext of neutrality, Catholic dogmas are attacked or mocked.¹

¹ Leo XIII vividly described these dangers, Encyclical Nobilissima Gallorum gens, Feb. 8, 1884; cf. Instruction of the S. C. de Prop. Fide, Nov. 24, 1875, to the Bishops of the Federated States of America, in Collectanea, n. 481; Third Council of Baltimore, n. 194-213; Letter of the S. C. de Prop. Fide, in Acta S. Sedis, t. XXVIII, p. 381. - In France, the Bishops set forth how dangerous State schools are, in the letter of Sept. 14, 1909; cf. Goyau, L'ecole d'aujourd'hui, Paris, 1899; J. Bricout, Ce qu'on enseigne aux enfants dans nos ecoles publiques, Paris, 1910. In certain schools the existence of God, the immortality of the soul, and the very foundations of morality are denied or called into doubt!

Wherefore Catholic schools are to be erected wherever this can be done, all the more because, where such have been instituted, public schools are compelled to reverence the Catholic religion more, lest perhaps parents send their offspring from these to Catholic schools.

But where there are no Catholic schools suitable for conveniently educating the young, parents are permitted to commit their offspring to public schools, provided that cautions are employed by which the danger of perversion is made remote from proximate.²

² Thus the Holy See already declared that it can be tolerated that Catholic young persons frequent the Universities of Oxford and Cambridge, and at the same time defined what cautions are necessary for removing the dangers thence arising (Holy Office, March 26, 1895).

But the cautions to be employed so that the danger of perversion may be warded off are these: to hand on Christian instruction and education outside school rightly and diligently, especially concerning those truths which are usually attacked in schools; to watch solicitously lest children suffer some detriment in faith or morals from lessons heard, from depraved books, or from association with depraved companions.¹

¹ Thus the Holy Office, in Collectanea, n. 481. - Hence the Third Plenary Council of Baltimore, n. 199, established that "all Catholic parents are held to send their offspring to parochial schools, unless either at home or in other Catholic schools they sufficiently and evidently consult the Christian education of their children, or, on account of a sufficient cause, approved by the Bishop, and with opportune cautions and remedies, it is permitted to them to send them to other schools."

3. On The Providence Of Parents Toward Children.

965. When parents have given work to the education of children, it remains that, by a certain paternal providence, they help them toward choosing a state and rightly ordering life.

(A) First of all they are held to help them so that they may be able to embrace a state suitable to their condition and character; for it is not fitting that even the rich and noble remain idle, but an obligation is incumbent upon each person of devoting himself to some labor, so that he can bring some utility to himself, to the family, and to society. They will furnish this indeed:

(a) By taking care that boys and girls (for these also ought to do something useful) learn art or letters, - and acquire those endowments of body and soul by which, even if they were deprived of an inheritance, they would be able to obtain for themselves an honorable support.

(b) By furnishing to the same counsel concerning choosing a state of life, according to their condition: for parents, who have greater experience, can help incautious young persons much in this matter; nevertheless they cannot bring force upon their children, who have the right of choosing a decent state for themselves, after they have sought the counsel of parents.

966. (c) By bringing help to them, so that they may be able to attain the state which they have chosen; therefore, if parents are richer, it is altogether fitting that they moderately endow their children, so that these may more easily be able to devote themselves to some industry or art and support themselves and their family, when they have married. But whether this is owed from justice, by natural right alone, is not so certainly established, provided that otherwise the children are able to provide for themselves. - Whatever may be the case, in many regions the custom has prevailed that daughters be endowed, so that they may more easily marry according to their condition; and, where custom flourishes, parents who without reasonable cause would not wish to furnish this would sin against charity - gravely or lightly according to the circumstances - because by their fault a daughter would often remain unmarried or would enter only an unequal marriage.

It is likewise fitting that parents lay up treasure for children, and leave to them a part of the inheritance, so that the honor and security of families may be more safely provided for; but, natural right alone being inspected, that is not prescribed from justice;¹ wherefore, in certain nations, civil law leaves full liberty to fathers, as we declared above, on the Virtue of Justice, n. 716. But where civil law has defined something concerning this matter, what is to be done in conscience we handed down in the same place, n. 725.

¹ To prove that this is an office of justice, many allege the words of the Apostle: "For children ought not to lay up treasure for parents, but parents for children" (II Cor., XII, 14); but, the context having been inspected, it is clear that St. Paul there in no way treats of an office of justice incumbent upon parents, but only refers to those things which are fitting, and which in his time were commonly done.

967. (B) After children have chosen a state of life and have married, paternal care is indeed diminished, but not altogether extinguished; for children, even after marriage has been celebrated, are closer to parents than strangers; wherefore the order of charity demands that, if they are placed in bodily or spiritual necessity, parents assist them more than strangers.

(a) If therefore children by fortuitous chance, from physical infirmity or misfortune, indeed from their own fault, have been made needy, and do not have the necessities for the support of themselves and of their children, and neither wives nor their own children can furnish them food, paternal charity demands that parents, insofar as they can, provide for the necessities of children: for if they are held to aid the poor, a fortiori those who are joined to them by the closer bond of consanguinity. - Yet they ought by no means to supply them with wealth and luxury, but only those things which are required for honorable support.

968. (b) Thus likewise if children need spiritual correction or opportune counsel, the right and office of furnishing spiritual alms by paternal affection is incumbent upon parents rather than upon strangers, because of the closer conjunction which they retain with them.

In one word, the special bonds of charity by which parents are bound to children are indeed relaxed at mature age, but are not entirely dissolved. Yet in these matters very great attention must be paid to the morals and customs which have prevailed in such or such a region, indeed even in the same region among various kinds of families; for the bonds by which parents and children are joined are closer or looser among diverse Nations, and also at various times or among diverse families: in this matter, custom is the best interpreter of laws.

969. Since parents act in God's place with regard to children, they have the right to be loved and honored by them, first on account of God, whom they represent; hence the honor rendered to parents is attributed to God rather than to men. Wherefore to them, as to God, yet in a lesser degree, love, reverence, and obedience are owed: love indeed, because they participate in God's infinite goodness in a finite way; reverence, because divine excellence specially shines forth in them; obedience, since they are made participants of divine authority; concerning these we must speak separately.²

¹ Mayol, op. cit., p. 478-504; Jaugey, p. 448-464; Ball. P., Tr. VI, n. 815-822; A. de Margerie, t. II, p. 138-171; P. Janet, op. cit., p. 143-236; M. d'Hulst, op. cit., 5th Conf.

² And thus we shall set forth the fourth precept of the Decalogue: "Honor thy father and thy mother, that thou mayest be long-lived upon the land which the Lord thy God will give thee" (Exod., xx, 12). For, as the Catech. Rom., l. c., n. 4, rightly observes, to honor is to think honorably concerning someone, and to consider all his things of very great worth. The other things are joined to this honor, namely love and obedience; for he who loves does not always venerate; he who fears does not always love; but he who honors someone from the soul loves and reveres him.

1. On The Love Owed To Parents.

970. Principle: Children are held to love parents not only from the common law of charity, but from the special precept of piety.

It is proved. For besides motives common to all, there are certain special ones on account of which parents ought to be loved; for by procreating children, they bestowed life upon them, and with it all the goods which flow from it;³ by nourishing and protecting them they preserved that same life, often subtracting very many things from themselves so that they might provide for them; by education they cultivated and increased their faculties; in one word, whatever children have, after God, they owe to progenitors, and on that account they are held to exhibit special love and gratitude to them. In reality if God must be loved because he is good in himself and benign to us, ought not parents likewise to be loved, who, participants in divine goodness, have imitated his benignity toward their offspring?

³ "In thy whole heart honor thy father, and do not forget the groans of thy mother: remember that unless through them thou wouldst not have been born; and repay them as they also did to thee" (Eccli., VII, 29-30).

Wherefore in the Sacred Scriptures God promises all the best things to those who honor and love parents: "Honor thy father and thy mother, that thou mayest be long-lived upon the earth";¹ this longevity indeed was highly valued among the Jews. And again: "He who honors his father will rejoice in children, and in the day of his prayer he will be heard... In work and speech, and in all patience honor thy father, that a blessing may come upon thee from him, and his blessing may remain in the end."² Nor otherwise St. Paul: "Honor thy father and thy mother, which is the first commandment with a promise, that it may be well with thee, and thou mayest be long-lived upon the earth."³

¹ Exod., XX, 13.

² Eccli., III, 7, 9-10.

³ Ephes., VI, 2-3; see other texts in the work La Famille suivant l'Ecriture Sainte, Paris, 1881, p. 233-268.

971. It is declared. This love indeed ought to be internal and external at the same time, and consists in two things: to will well and to do good.

(A) To will well, that is, to pursue them with a pious, tender, and devoted affection, so that one is ready in soul to suffer and do all things for them. - Wherefore children gravely sin against piety who deliberately and seriously wish death upon their parents, or grave damage of soul or body, or rejoice concerning notable damage inflicted on them; likewise those who truly despise them, mock them, affect them with insults and words gravely injurious, or, without a just cause, gravely and deliberately sadden them. - It must be noted that hatred toward parents is more easily a grave sin than toward strangers.

972. (B) To do good, or to show parents signs of benevolence: (a) by a friendly and cheerful face, sweet speech, prompt service, and all those means by which tender and devoted love is manifested. Wherefore those who scarcely show a sign of friendship, but speak harshly or act imperiously, sin more or less, and often gravely.

(b) By assisting them in bodily or spiritual necessity. Thus, when parents labor under infirmity or old age, or suffer from adverse cases, children ought to visit and console them and bring help to them; if they are placed in poverty, not only extreme but grave, they are held to furnish the same food and other necessities of life.

So great is this obligation that, when parents are placed in extreme or grave necessity, a son cannot enter religion, even if he has emitted a vow of entering religion, but ought to remain in the world so that he may assist them, provided that there is no other who can or wishes to furnish this; for the natural law concerning the care of parents precedes an obligation undertaken by one's own will.¹ - But when he has already been professed in religion, he can and is held to go out from the convent for a time, even with the Prelate unwilling, if the parents are in extreme and evident necessity, which cannot otherwise be assisted, on account of the same reason;² but if the religion itself provides necessary things for needy parents (which is altogether fitting as often as this can be done), the religious ought to remain within the cloister. - But if the necessity is only grave, it is disputed; according to the more probable opinion, he is held, with obedience to his Prelate preserved, to use means by which his parents may be assisted.

¹ St. Thom., 2. 2., q. 101, a. 4. - Thus also civil law in most regions; so in France: "Children owe support to their father and mother or other ascendants who are in need... Support is granted only in proportion to the need of the one who claims it, and to the fortune of the one who owes it... If the person who ought to furnish support shows that he cannot pay the support pension, the tribunal can, with knowledge of the cause, order that he receive in his dwelling, feed, and maintain the one to whom he owes support" (Cod. civ., art. 205, 208, 210).

² St. Thom., l. c., ad 4, seems to teach the contrary; but there he does not speak of extreme necessity; for elsewhere he writes (Quodlibet 3, q. 6, art. 11): "He ought, as far as he can, with the obedience of the order preserved, to strive that by himself or by another his parents be assisted, if they shall have been placed in necessity." Besides, the Superior would not reasonably be unwilling who denied permission of going out from religion to him who otherwise would not be able to succor the extreme necessity of parents. Thus St. Alphonsus, n. 67; Jaugey, op. cit., n. 551; Ball. P., n. 148.

973. Likewise they are to be assisted in spiritual necessities, namely by taking care that they obtain all spiritual helps which they need, but especially that to those lying in extremity there be administered the sacraments and other helps useful for dying well. Likewise they ought not to impede them from restoring another's goods before death, or repairing damage inflicted on neighbors, or making a testament for donating something to pious works. - After their death, according to their faculties, let them take care that they receive decent obsequies and that the sacrifice of the Mass be offered for them several times: for piety extends even to the dead.

2. On The Reverence Owed To Parents.

974. (A) Principle: Children are held to show to parents special signs of reverence and honor, according to the custom of the fatherland and of their condition. - It is said special, because greater reverence, other things being equal, is owed to parents than to strangers.

This is certainly openly established from all the places of Scripture related above, in which the matter directly concerns the honor owed to parents. - This is also proved by reason: for honor is owed to those to whom excellence belongs, and indeed the greater the higher their dignity; but parents participate in the excellence of God in a particular way, insofar as they were cooperators of God in the procreation and education of children; they are therefore visible and living images of the invisible God, and their excellence is as it were a certain emanation and participation of divine excellence; therefore to these, insofar as they act in God's place, children ought to show special honor and reverence.

975. (B) They ought indeed to furnish this by heart, word, and work: (a) By heart indeed, by thinking honorably concerning them, acknowledging them as superiors, and conceiving a good estimation of their excellence. Therefore children sin who despise them, disdain them, or are ashamed of them, not wishing to acknowledge them as their parents; this sometimes happens when children are raised to a higher state, while parents live in poverty, but it is deservedly judged unworthy of an honorable man.

(b) Also by word, by speaking with them modestly and reverently, without any sign of contempt, and by saying nothing concerning them which can harm the good estimation which they enjoy among others. - Therefore children sin, and indeed mortally of itself, who deliberately affect parents with contemptuous, mocking, or abusive words, or in a grave matter detract from them, or provoke them to anger without cause; a fortiori those who curse them: "He who shall have cursed his father or his mother shall die by death";¹ "he who curses his father and mother, his lamp shall be extinguished in the midst of darkness."²

¹ Exod., XXI, 17.

² Prov., XX, 20.

(c) Finally by work, by greeting and honoring them according to the custom of the fatherland, and by showing other signs which denote the internal sense of reverence, e.g., by opportunely seeking and following their counsels, especially in matters of great moment, insofar as it can be done. - Therefore those sin gravely who deliberately strike parents, even lightly, or lift a hand for striking, although they do not in reality strike, or injuriously treat them. On the contrary, they ought to bear, conceal, and excuse with all patience, without anger and indignation, their defects, and also rustic, uncivil, or difficult manners: since they also once patiently bore the defects and rough manners of children.

The Wise Man draws all these things together thus:¹ "In work and speech, and in all patience honor thy father, that a blessing may come upon thee from him, and his blessing may remain in the end. The blessing of the father strengthens the houses of children: but the curse of the mother uproots the foundations. Do not glory in the dishonor of thy father: for his confusion is not glory to thee... Son, receive the old age of thy father, and do not sadden him in his life; and if he fails in sense, give pardon, and do not despise him in thy strength."

¹ Eccli., III, 9-14; read the whole chapter.

3. On The Obedience Owed To Parents.

976. Principle: Children ought to obey parents in all honest and licit things pertaining to paternal care, as long as they remain under their power. - Love and reverence are owed for the whole time of life, but obedience strictly binds children only as long as they live under paternal authority; therefore when they have now been emancipated, or have attained majority, or have married, they are now made their own right. Yet if they live under the paternal roof, they are held to furnish a certain obedience to the father, as head of the family.

(A) It is proved. (a) For Scripture often inculcates this: "Hear, my son, the discipline of thy father, and do not abandon the law of thy mother...² Children, obey your parents in the Lord; for this is just...³ Children, obey your parents in all things; for this is pleasing in the Lord."⁴ (b) And deservedly; for, if in a general way inferiors ought to obey superiors, a fortiori children ought to obey parents: for these, as God's cooperators in the procreation and education of children, participate in his authority in a special way, and therefore have the right of prescribing to children in all things which regard their instruction and discipline; for since the duty and office of educating and instructing offspring is incumbent upon them, by that very fact children are held to obey parents justly prescribing, as God himself, in whose place they act.

² Prov., I, 8.

³ Ephes., VI, 1.

⁴ Colos., III, 20.

977. (B) It is declared. Yet they are not held to obey in all things without any distinction, but only: (a) in licit and honest things; for if parents should prescribe something evil or less honest, e.g., to exercise vengeance, to pursue enemies with hatred, to provoke them to duels, or to steal and inflict damage on others, or to go to dangerous occasions of sin, etc., it would be necessary to resist them, because then they by no means act in God's place: "It is necessary to obey God rather than men."¹

¹ Acts, V, 29.

(b) In all things pertaining to paternal care; since the authority of parents is neither absolute nor universal, but is contained within certain limits, and is restricted to those things which regard the education of offspring and the government of the family. Thus children certainly ought to furnish obedience in those things which regard eternal salvation and good morals, e.g., when parents prescribe attendance at divine offices on feast days, - or forbid that suspect houses and dangerous gatherings be frequented, or prohibit immoderate games, certain associations full of dangers, entrance into taverns given to intemperance, and other things of this sort which can corrupt morals. In all these things, which are now forbidden or prescribed by divine law, there is probably not committed a double sin, one against the special virtue which is offended and another against the obedience owed to parents, unless the violation proceeds from contempt of parents; but the malice of the sin is increased from the irreverence committed against parents, and the young are to be exhorted to declare this circumstance, so that the confessor may be able to hand on opportune counsels concerning this matter. - Likewise children are held to obey in those things which pertain to the administration of the house and family, e.g., as to domestic things not to be alienated or destroyed.

So that a sin against obedience owed to parents may be grave, it is required that parents seriously and strictly prescribe, - that the matter of the precept be grave, with attention to all things, - and that disobedience be fully voluntary. Wherefore not rarely, from the defect of one of these conditions, the sin is judged light, especially when it is committed not from contempt or obstinacy, but from a certain frailty or inborn sense of independence.

978. (c) But children are not held to obey parents in the choice of the state of life, although generally it is greatly expedient to seek their counsel. The reason is that vocation to a particular state is an act of divine providence which transcends the authority of parents; besides, since the happiness of the young depends very greatly on such an election, it belongs to them to choose and embrace this state, according to the sweet inclination which they experience and the admonitions of a spiritual director. Yet it is useful to seek the counsel of progenitors, especially if the matter concerns the lay state, since in these matters they have greater experience than adolescents.

Wherefore children can enter religion or receive sacred orders, while parents dissent, provided they enter this plan not lightly, but after mature deliberation. What power they have in order to matrimony we have already set forth on Matrimony, p. 217-221.

Guilt of lending

60. 6. On the lending of a book. a) Of itself, it is less grave to lend a book than by selling it to hand over full possession of it. Therefore a proportionate reason, such as a librarian of a public library has, can excuse the lending of those books which, although prohibited, have a useful use.¹ Moreover, a positive faculty is granted by the Holy See.

On a librarian,

b) But concerning booksellers who also rent the books which they have for sale, or concerning libraries which are set up by private funds, one must respond more cautiously. This private industry easily contains some recommendation of prohibited works, which is entirely to be avoided. Catholics besides must beware of scandal. Therefore these will neither rent such books without license, nor openly display them, nor hand them over without distinction of persons.

On innkeepers

c) Here the question is asked concerning innkeepers, whether or not they can set evil newspapers before guests.

We think this question is to be solved thus,² leaving aside positive prohibition.

How far innkeepers can set out evil newspapers

alpha) On account of the additional reason of scandal, they cannot, even if they would be abandoned by many clients, set out those newspapers which are entirely opposed to faith and morals.

beta) But those which more rarely contain something less right, they will be able, for a reasonable cause, to hand over to be read, especially if, on account of the announced matters, for example commercial news, there is some necessity for several to read some sheet; at least then they can supply these things to clients of this kind in a separate place.

gamma) But the Confessor should practically see what he can obtain. The matter must be urged more severely in those places where, as in the countryside, these newspapers will be removed both more usefully and with greater scandal if displayed. Let him certainly lessen the evil which he cannot extinguish, by effecting that they be handed over only to those asking, or in a separate place, not indiscriminately, and that at least good newspapers be displayed at the same time.

¹ Cf. Hollweck, Die kirchlichen Strafgesetze, section 107, 4, who thinks it is lawful for public libraries, excepting obscene books, to contain all prohibited books and to leave the reader to his own conscience. We can concede this for those places where it can scarcely be otherwise. This will often happen in larger cities.

² Cf. Lehmkuhl, I, 664; Arndt, pp. 235, 236, n. 175.

Utility. - To be instructed concerning the juridical relations of laypersons is equally useful to clerics and laypersons: to clerics, so that they may fulfill the offices which correspond to rights; to laypersons, so that they may be more affected toward the Church and may obey her admonitions with a more prompt soul. Moreover, by a distinct knowledge of ecclesiastical and lay associations, even dissensions can be avoided.

— I. General notions.

Writers of moral theology are accustomed in this place to observe some things concerning the various offices which are incumbent upon laypersons according to their various condition: for example, judges, advocates, witnesses, defendants, physicians, masters, workmen. Yet these distinguish persons more in civil society than in the Church. Nor, especially today, is the reason clear why something should be said in specie concerning these few kinds of persons, while many others are omitted. Wherefore the things better to be noted opportunely are treated in the individual chapters on virtues, so that we may confine the discussion to the state which they commonly have in the Church alone.

By baptism a man is constituted a person in the Church (c. 87). But persons in the Church, by divine institution, are distinguished into clerics and laypersons, although not all clerics are of divine institution (c. 107). The rights and offices of Christians are common to clerics and laypersons; but this difference exists between each genus, that laypersons, by canon law, are incapable of ecclesiastical jurisdiction. By canon law, I say, from which therefore the Pope can dispense, and the Pope himself, by divine law, is immune: for every baptized Catholic, possessing the use of reason, can validly be chosen Supreme Pontiff.

Laypersons are prohibited from wearing clerical habit, with seminarians and others who aspire to orders excepted; excepted also are laypersons who are legitimately dedicated to the service of the church, "while they are within the same church, or outside it have a part in some ecclesiastical ministry" (c. 683).

But they "have the right of receiving from the clergy, according to the norm of ecclesiastical discipline, spiritual goods, and especially the helps necessary for salvation" (c. 682).

Nevertheless ascription to a non-Catholic sect and censure, especially excommunication, stand in the way of that right in a certain measure (c. 87).

A baptized person is never stripped of every right, since in the baptismal character he preserves a title to special solicitude and, in the hour of death, to the administration of the necessary sacraments.

— II. On associations of the faithful. In the Part on laypersons the Code treats of associations of the faithful, not because they exclude clerics, but because they are destined also to non-clerics or laypersons.

Moreover, some associations of the faithful are of ecclesiastical origin, because of a formal decree of erection, or at least a prerequisite approval of the Church (c. 686); while others are of lay origin and nature, although, if they pursue a pious end, they are honored by praises of ecclesiastical power and indulgences. The former are governed by cc. 685 ff.; the latter are not excluded by the commendation of c. 684, but exist by their own reason and are not subject to bishops except according to c. 316, §2. Cf. in the Corrientes case, November 13, 1920, the Votum of the Consultor, concerning the Conferences of St. Vincent de Paul, A. A. S., XIII, p. 135 ff.

Moreover, Catholics are praised who give their name to associations commended by the Church; and associations of ecclesiastical character are reserved to Catholics who are not ascribed to a condemned sect or public sinners (c. 693). Of these, some associations promote a more perfect Christian life among the members, and are Third Orders; others exercise defined works of piety or charity, and are Pious Unions; others are constituted for the increase of public worship, and in the Code are called Confraternities (cc. 685, 702, 707). Before the Code, the word Confraternity was more generic.

The faithful are turned away "from associations which are secret, condemned, seditious, suspect, or which strive to withdraw themselves from the legitimate vigilance of the Church" (c. 684).

— The rights and offices of Christians are common to clerics and laypersons; laypersons are prohibited from wearing clerical habit, unless in ecclesiastical ministries, or unless they aspire to orders.

Unless censure or ascription to a non-Catholic sect stands in the way, they have the right of receiving from the clergy, according to the norm of ecclesiastical discipline, spiritual goods and helps.

Associations erected or approved by the Church are reserved to Catholics; these associations either promote a more perfect Christian life among members, namely Third Orders; or exercise defined works of piety or charity, namely Pious Unions; or are constituted for the increase of public worship, namely Confraternities.

The faithful are turned away from secret, condemned, or suspect associations.

Already in the Fourth Precept of the Decalogue we have spoken concerning the various and mutual offices of Superiors and inferiors. But in the present Treatise we must speak concerning the offices which regard the public good, and especially concerning forensic persons. Hence:

It must be treated 1° concerning the obligations of judges; 2° of advocates and procurators; 3° of officers; 4° of scribes and notaries; 5° of the accuser and the accused; 6° of witnesses; 7° of physicians, surgeons, and pharmacists; 8° of craftsmen and workers. Concerning custodians see n. 776. q. 7°. 822. 823.

But the obligations of merchants and of other men of this kind are sufficiently understood from those things which we have discussed concerning justice and contracts.

1052. • A judge is a public person, constituted by legitimate authority, so that according to the laws he may vindicate justice and decree due punishments upon delinquents.

It is said: a public person, constituted by legitimate authority, so that he may be distinguished from an arbiter, who undertakes the office of judging not by public authority, but by the spontaneous election of the contending parties.

Principles. - I. A judge is held from a quasi-contract with society and private persons to fulfill his office rightly: if he does not provide this, he will be guilty of violated justice both legal and also commutative.

II. That a judge may rightly perform his office, he must have 1° more than common intelligence, so that he can look into intricate causes; 2° sufficient knowledge, so that he may have account of all the circumstances both of law and of fact, so that whoever seeks or undertakes the office of judge, knowing himself to be so unequal to it that he probably foresees grave damage to his neighbor will follow, sins mortally. But whether he has done this conscious or unconscious of his poverty, he ought not to be absolved unless renunciation of the office has been made, or unless he has the firm purpose of renouncing;¹ 3° incorruptible integrity, so that he yield neither to love nor to hatred.

III. A judge is held to pronounce sentence according to the laws and the order determined by the laws; for he is not constituted to change or reform the laws, but to put them into execution. Except the special case in which the mind of the law must be followed by the judge rather than the bark of the words; then indeed account must be had both of the age, and of the condition and fortune of him on whom he must impose the punishment.

IV. In a doubtful cause let him hold these rules:

1° In criminal matters favor must be shown to the accused, unless the crime is clear, i.e. both concerning the existence of guilt and concerning the merits of the punishments. - Reg. Jur. Can. 11. in 6°.

2° In doubt concerning ownership and possession at the same time one must judge according to the more probable reasons, as is clear from natural law and proposition 2 condemned by Innocent XI. See p. XV. But if the reasons are equally probable from each side, the thing must be divided. Cf. n. 60. II. 3°.

3° In doubt concerning ownership alone, one must stand for the possessor certainly of good faith. This is clear from Reg. Jur. 65. in 6°: "In equal fault or cause, the condition of the possessor is better." Cf. n. 60. II. 3°. Except pious causes and certain others in St. Alphonsus,¹ in whose favor one must judge, although they are actors. Yet our laws do not favor them.

1053. Questions. - Query 1° Whether a judge can condemn an accused person whom he knows to be guilty only by private knowledge, or an innocent person who juridically is convicted as guilty?

Resp. to the 1st Negatively altogether according to all. The reason is that a judge is held to judge according to the things alleged, and according to the forms prescribed by law. For there is no danger in sometimes dismissing a hidden guilty person, while there would be great danger in violating the established forms of judgment.

Resp. to the 2nd It is greatly controverted. St. Thomas affirms.² - St. Bonaventure denies. - St. Alphonsus³ admits the affirmative opinion as undoubted if it is a question of civil causes, or even pecuniary punishments: but if a case concerning greater criminal matters, and especially capital ones, occurs, he thinks the opinion of St. Bonaventure very probable. The reason is that in the former case the Republic for the common good, which exists from judgment rendered according to public knowledge, rightly transfers the dominion of goods. But otherwise in the latter case; and therefore then to condemn an innocent person seems intrinsically evil.

Besides, this question in our law and in causes which we call criminal offers itself under an altogether different aspect; for among us jurors alone pronounce concerning the innocence or guilt of the accused; but the judge only declares what punishment according to the laws is to be applied to him who has been pronounced guilty by the jurors. But in declaring this he performs his office only mechanically, so to speak; nor does he, but the jurors, seem to be the efficacious cause of the punishment to be pronounced. Yet he is held to do what is in him, so that he whom he knows to be innocent not undergo the punishment, which for the most part he can prevent either by intercession with the Governor, or, if the sentence of the jurors does not rest on the acts and proofs, but has been pronounced from a malignant spirit or rashly from ignorance, by indicating that they have exceeded the limits of their office, and labor under error of fact or of law, and thus obtain a new judgment for the innocent person, by which the error may be removed.

Query 2° Whether 1) a Catholic Judge can pronounce a sentence of divorce as to the bond according to the laws of this region; whether 2) it is licit for a Catholic, in any event of things, to demand a sentence of this kind, and what 3) concerning an advocate seeking it in the name of a client?

Resp. to the 1st "Since a Catholic could scarcely perform the office of judge, if he did not wish to decree divorce, the offense" (on account of which it is sought according to the laws) "having been proved in judgment; and the civil effects are chiefly regarded, I think the judge is not to be condemned who furnishes his service." Thus Kenrick.¹ But certainly, as is clear of itself, he can pronounce a sentence of divorce in the case in which a Catholic licitly demands it.

Resp. to the 2nd The bond of matrimony subsists before God, or not. In the former case again one must distinguish; for civil divorce is sought either with the intention of entering new nuptials, or without this intention. If the former, it is not licit, as is clear of itself. If the latter, and a most grave reason presses, e.g. lest the husband be compelled to pay the foreign debt of the wife and so that every right to inheritance be taken away from her,² let divorce from cohabitation be sought where the law grants it. But if the law, as in most States, grants only divorce from the bond, or where the option of either is given, this alone is chosen as the sole efficacious barrier against foreign troubles, it seems this can be sought in certain most grave circumstances; for he who is not going to use the civil liberty which he asks to be restored to himself is not judged to approve the exercise of civil power upon the bond.

But if the bond of matrimony subsists from civil law alone, and not before God, because, for example, one or the other lacked Baptism, it will be licit for a Catholic to seek the protection of the civil law. This is gathered from the response of the S. C. Inq. to the questions of the Bishop of New Orleans, Sept. 9, 1824, concerning marriages which were invalid on account of the impediment of clandestinity. Namely the S. Congregation advises that every effort be applied to induce them to contract with each other in a Catholic manner; "but to suggest to one asking to enter a new marriage with another that he should first consult both for himself and for the Parish Priest, acting namely so that both civil liberty may be restored to himself, and nothing evil may come thence to the Parish Priest, this would not be to approve the custom of civil repudiation, provided the one asking is rightly instructed that this is done not for this reason, that the bond of matrimony may be dissolved, because he is now detained by no bond, but only that he may free himself and the Parish Priest from legal penalties and civil vexations. ... But Missionaries ought not to involve themselves in these things to be transacted with the Government. He who asks to marry, let him conduct his own business."¹

Resp. to the 3rd. 1° It is certain that it is licit for an advocate to do what I said is licit for the client in Resp. to the 2nd. - 2° It also seems certain that an advocate is not held to inquire from the client either concerning the intention with which he seeks divorce, namely whether with the intention of entering other nuptials or not, or concerning the true cause on account of which he seeks it, so that he may know namely whether it is sufficiently grave, or concerning the value of the marriage before God; for he is judged to undertake only the civil cause of the client and this to be defended only by a civil title. - But whether 3° it is licit for him to undertake this civil cause in the case in which from the sayings of his own client or from public and certain fame, he knows that divorce is sought in a marriage valid before God and with the intention of passing to other nuptials, or from a cause not sufficiently grave, I would rather leave to the judgment of the wiser. It is indeed true that the client will easily find another advocate who will act his part; but the advocate is not able to be excused by the same reason of necessity as a judge, since he can refuse his service with impunity.

1054. • Query 3° Whether a judge can accept gifts for pronouncing sentence?

Resp. Negatively. For this is prohibited by every law; and 1° By natural law, in the case in which either scandal or danger of perversion, or of favoring the donor more than is fair, is present.² But if the judge sins by receiving gifts, by this very fact whoever offers them also sins; for he cooperates with the sin of another. Except the rude, whom ignorance generally excuses. Likewise except if gifts are given to redeem unjust vexation, when an unjust sentence otherwise prudently seems to be feared: but these must be restored, and can also be sought back in judgment after the sentence.³ 2° By Canon Law; for Boniface VIII¹ established that judges accept neither any gift nor anything else, except perhaps food and drink offered by mere liberality.

Query 4° Whether a judge is held to restitution if he has accepted gifts from litigants?

Resp. Negatively, probably before the sentence; because although he acts illicitly by accepting gifts, nevertheless he does not sin against justice. - Thus more commonly, - against others, who also probably affirm. - St. Alphonsus² says that each opinion is sufficiently probable.

Yet judges at least must be impelled to restore gifts accepted, or to expend them on pious works. Sometimes this could be enjoined as penance to turn the judge away from relapse.

Query 5° Whether a judge is held to restore what he has accepted by pact for pronouncing some sentence?

Resp. 1° Affirmatively, if he accepted it for pronouncing a just sentence, i.e. for furnishing that which from justice he owed. The reason is that whatever is already owed from office, and therefore from justice, cannot be matter of a contract. A fortiori he is held to restore those things which he has extorted by force, threats, or unjust vexation.

Resp. 2° If he accepted it for pronouncing an unjust sentence, he certainly is held to restitution before he pronounces a sentence of this kind; but after sentence has been rendered it is controverted, according to the things said concerning a contract in a shameful matter, n. 834.

1055. • Query 6° Whether a judge is held to repair damage which he did not impede, or whose reparation he does not procure, when he can?

Resp. Affirmatively, because he is an unjust and efficacious cooperator. Recall the things said concerning negative cooperators, n. 773 and following.

Query 7° Whether a sentence of a judge doubtfully just, or certainly unjust, obliges?

Resp. to the 1st Affirmatively altogether. For presumption favors the Superior or judge. (n. 65. 3°.)

Resp. to the 2nd Negatively of itself, as is clear. Yet except unless there is present a reason of scandal or of disturbance of public order; because private good must always yield to public good. But he who obtains a cause through an unjust sentence cannot receive the thing adjudged to himself, or must restore it, and moreover he is held to repair all damages and expenses to the adverse party. Yet if he was in good faith, when this vanishes he must only return the thing of another according to the things said concerning a possessor of good faith, n. 722.

1056. • Jurors, so called on account of the oath which they furnish concerning the office committed to them to be rightly exercised, are men selected from the citizens to perform some part proper to judges. Their function is to pronounce concerning the existence of the fact and the culpability of the accused; but then the judge pronounces the punishment according to the law.

Jurors contract the same obligations as the judges themselves, whose office in great part they exercise, and therefore concerning Jurors the same generally must be said as concerning the judges themselves.

1057. • Query. Whether a Juror can give a vote against the accused, indeed juridically convicted of the crime, but whose innocence he certainly knows by private knowledge?

Resp. Negatively, because this seems contrary to the mind of the law, by force of which, almost everywhere, they must pronounce only concerning the fact, and according to the intimate conviction which they have concerning its existence, nor are they in any way held to render the legal reason of their sentence. Indeed from the law itself they are not held to found their sentence either from such a number of witnesses, or from these or those reasons brought into the middle by the various parties, etc. Therefore they must give their vote only according to that which they think in the forum of conscience. And so, with attention to the office which is imposed on Jurors, it is easily clear that those controversies which are conducted concerning judges, n. 1053, have no place at all concerning them.

1058. • They are called arbiters who, by each opposed party, are spontaneously chosen or admitted, after the manner of judges, to settle some lawsuit.

The pact by which the faculty of composing the lawsuit is attributed to them is called compromise (in English submission). By this pact the adverse parties by mutual consent promise that they will execute whatever is established by the arbiters. But what is established is called in our tongue "award."

Arbiters, whoever they are, once admitted by the diverse parties, properly enjoy the office of judges and perform all their functions, no differently than if they had been designated by public authority. Therefore they can instruct the cause brought to them, defer the matter to another more opportune time, hear witnesses, and finally, with sentence rendered, settle the lawsuit absolutely. Sometimes they designate a third, who in their name may settle the matter, and this one is called "the umpire."

1059. • Since arbiters fulfill the offices of judges, they undergo approximately the same obligations and the same burdens as judges. Hence:

1° They ought not to undertake a lawsuit for the judging of which they do not have sufficient doctrine; otherwise they sin against commutative justice, and contract the obligation of restitution.

2° Arbiters are held to judge according to the laws, unless the parties have imparted to them the faculty of composing the matter from the fair and good. For then from the good and fair they must promote the convenience of each party.

3° They must most greatly beware of acceptance of persons, namely lest, drawn aside by hatred, aversion, or excessive affection, they pronounce sentence against the rules of equity. As to the rest, the same things must be said concerning arbiters as concerning the judges themselves.

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.

1066. • An officer (constable, sheriff) is he who from office carries a command of appearing in judgment (citation, warrant) and the mandates of justice, and performs the executions decreed by the judge. Hence the office of an officer is twofold.

Since officers are ministers of justice, it is exceedingly fitting that they perform their office very humanely, and temper the rigor and harshness of their ministry as much as can be done. They must be sufficiently instructed concerning all things which pertain to their office. They must also furnish fidelity in executing the mandates of the tribunal, and in guarding themselves both from negligence in performing their office, and from rigor and vexation toward those whom public justice pursues.

1067. • Officers act unjustly especially:

1° If they allow themselves to be corrupted by price or favor to the prejudice of the client, for example by drawing out or neglecting announcements of sentences, or by doing other things whence it happens that the creditor cannot receive payment. Likewise by favoring certain debtors bound in solidarity, so that they do not comprehend them in executions.

2° If while searching houses they act more harshly, so that they may extort some gift; if they inflict unjust force or another injury; if they announce something false in their acts.

3° If they exceed the mandate of the judge, or the statutes of the law in seizing the things or goods of private persons; if they do not observe the just price in the sale of seized things, etc.; if they retain part of this price for themselves, etc.

I. On scribes or secretaries.

1068. • A scribe or secretary (clerk of the court) is he who reports in writing the testimonies, the sentences of judges, and all the rest which are transacted in tribunals. Hence he is usually considered as the right hand, as it were, of the judge, and his public and authentic secretary.

But a scribe can commit various injustices, especially:

1° If he does not apply due diligence for reporting exactly in writing all things heard and established or decided; for omission in matters of this kind can easily become grave.

2° If he does not use serious and constant attention for reporting into the authentic books all things uttered and transacted in the tribunal: for very easily a defect of attention in a scribe can induce grave fault and the obligation of restitution, unless it is altogether involuntary. For who does not see how great damages can follow from even a slight defect on the part of secretaries?

3° If from malice he omits something in writing, or if he adulterates or badly guards the public tables committed to him; if he does not place, or does not sufficiently strive to have placed, the due formalities and signatures; if he does not faithfully transcribe testimonies, whether by exaggerating, or diminishing, or changing, or inverting.

II. On notaries.

1069. • A notary, or tabellion (Notary, Notary public, Conveyancer), is called he who is constituted by legitimate authority for writing public acts or instruments, which may make faith both in judgment and outside judgment.

Hence it appears of how great moment the office of a notary is, how widely it extends, and by how grave obligations it is bound. Therefore notaries must enjoy knowledge equal to that office, more than common perspicacity, and especially eminent fidelity, prudence, and probity. For since they must handle affairs and contracts of every kind, from their negligence, ignorance, and defect of attention very great evils for society and damages for the parties can follow.

1070. • Notaries are unjust especially in the following cases:

1° If they are ignorant of the things which pertain to their office, and therefore do not compose instruments rightly; if with detriment to the contracting parties or to others from negligence they omit necessary solemnities, for example to employ suitable witnesses, to place signatures, to indicate the day, month, year, etc.

2° If they compose a false, usurious, or unjust instrument; if to the damage of another contracting party or of a third they feign in an instrument those things which are not; if they place false annotations of the day, or change true ones, even if they do not intend damage; likewise if they counsel such things; if they compose acts which exceed their office, or if outside the territory assigned to them they exercise their ministry: for then their acts are void ipso facto.

3° If they do not describe faithfully the wills of the contracting parties, or through ambiguous compositions furnish place for lawsuits and injustices; if they do not warn the parties concerning clauses which can harm them, or concerning difficulties which can arise from them. For they are held to these things from a quasi-contract with the parties.

4° If they falsely write that a sum has been paid before themselves or already before, with damage to the other party or to a third; likewise if they easily write such things, gravely suspecting that they are being deceived by the contracting parties; for then they cooperate with their sin.

5° If they guard acts and instruments negligently with peril of damage to the parties; if they defer the expedition of instruments so that they may extort money; if they commit something to an amanuensis with danger of error.

6° If they change anything in the original act, whence some right is violated or impeded; if they admit false witnesses; if they do not exhibit, conceal, or deny a transcript of some necessary testimony to their own client.

7° If they communicate acts to others than the parties; if by their fault they lose original acts; if they violate oaths or secrets; if they add something to, or take something away from, the sayings or deeds of the parties, or the testimonies of witnesses; if they do not sincerely transcribe all things as they stand.

8° If they neglect to watch over their ministers, and on account of this the instruments are badly composed; for notaries are held to answer for all ministers whom they employ; if they sign instruments composed either by other notaries, or by their own ministers, before they have diligently reviewed them and have had perfect knowledge concerning the things which are contained in them.

9° If they ask a price beyond the tax or approved custom, or draw out the affairs to be handled for the sake of increasing the salary.

In all these, and many similar matters, notaries are held under grave obligation, of themselves, to restitution, as unjust damagers or cooperators, as is clear from the things said in the Treatise on Justice and Right. - St. Alphonsus.¹

I. On the accuser.

1071. • He is called an accuser who in criminal causes brings a crime to the judge, and asks vindication from him on account of the common good, and at the same time undertakes the obligation of proving the objected crime: but in civil causes he who, as the injured party, compels the adversary to the judge, is not called accuser, but actor (plaintiff).

The accuser differs from the denouncer, who brings some crime to the Superior or judge for vindication, and nevertheless does not undergo the obligation of proving it. - Therefore denunciation is not understood here as fraternal, whose scope is not punishment but the amendment of the neighbor, with the paternal admonition of the Superior intervening, from which amendment is hoped more certainly on account of his authority, - but juridical. L. V. 235.

By our law the obligation of proving a denounced crime is incumbent only on the magistrate constituted for this, or the procurator of the State. But private persons also are held to denunciation from charity, and indeed under grave obligation and even with grave inconvenience, when it is a question of avoiding common and grave damage, or even, but not with grave inconvenience, if it is a question of averting grave damage from an innocent person.¹

II. On the accused.

An accused person (accused in a criminal cause, defendant in a civil) is called he who is accused in judgment either criminal or civil, whether he is guilty or innocent.

1072. Questions. - Query 1° Whether the accused, questioned by the judge, is held to confess the truth?

Resp. 1° Negatively by our positive law. "Nor shall" (any person) "be compelled in any criminal case to be a witness against himself."²

Resp. 2° Affirmatively by natural law, if this is necessary to avert common damage. Yet he must be left in good faith if fruit is scarcely hoped from the warning.

Resp. 3° Affirmatively also, if it is a question of an ecclesiastical punishment, which namely is medicinal, provided he is legitimately questioned, i.e. by a legitimate judge, with the judicial form observed and the offense half-fully proved.⁴

Query 2° Whether the accused, although not legitimately questioned, if it is a question of an ecclesiastical punishment, at least from this cause must confess the crime, because otherwise he by whom he was accused or denounced could be held as a calumniator?

Resp. This certainly and altogether must be denied. The reason is that no sane person will hold the accused as falsely accused because the crime has not been confessed, and the accused not confessing who, other proofs failing, is absolved, is held not as innocent, but simply as not convicted. L. V. 277.

Query 3° Whether it is licit for the accused to appeal?

Resp. Distinguish. For either it is a question of a civil cause, or of a criminal. If of a civil, and this either certainly unjust or less probable, it is not licit, as is clear from the things said n. 60. II. 3°; otherwise, if it is doubtful whether the superior judge is justly going to render sentence for the accused, because since the minds of men are diverse, perhaps the opinion which the inferior judge judged less probable will appear more probable to the superior, and the accused can licitly try this.⁵ - If of a criminal cause, generally and practically speaking, among us it will almost always be licit; for 1° the right of an appeal properly so called in a criminal cause is not given here to the accused except by decree of the judge, which it is surely licit for the accused to ask by legitimate means. 2° St. Alphonsus teaches with the common opinion that the accused is not held to abstain from an appeal from a sentence, even an altogether just one, except in the case in which it is certain that the opposite cannot be proved; but in practice that certitude, when a new judgment has been granted, will scarcely ever be present, especially among us, since jurors are very easy in absolving. (q) p. 483.

Query 4° Whether an innocent accused person can reveal occult crimes of witnesses or of the accuser for his own defense?

Resp. Affirmatively, provided 1° the crime is true; 2° the revelation is absolutely necessary for his own defense; 3° otherwise he himself is going to suffer grave damage² (n. 517. III. IV.).

1073. • Query 5° Whether it is licit for an innocent accused person to flee or resist?

Resp. It is indeed licit for him to flee and to snatch himself from the hands of attendants; but it is not licit to repel force by force, by killing or wounding, because he would violate the rights of public power.³

Query 6° Whether it is licit also for an accused person who truly committed an offense to flee?

Resp. Affirmatively, if he has not yet been condemned by juridical sentence to the punishment; because no one is held to pay the punishment before sentence. Likewise if he has already been condemned to a most grave punishment, and prison has been assigned to him for custody until he is struck by the established punishment. - Thus commonly.⁴

But they more commonly deny if prison has already been assigned as punishment by the sentence of the judge. The reason is that the accused is held to obey in the execution of a just sentence. Yet many except if necessary things are not given to him, or if the prison is most harsh: because the obligation of not freeing oneself from a most grave punishment seems to exceed human strength when one can accomplish this without force and resistance.⁵

Query 7° Whether it is licit for the accused to flee, even if the guard is going to suffer damage from it?

Resp. Affirmatively, because he uses his right and does injury to no one, unless nevertheless charity suggests otherwise on account of damage to the guard much graver. Yet it is not licit for the accused to corrupt the guard with money, because, since an obligation is incumbent on the guard of not dismissing the accused, he would cooperate with this man's sin. L. V. 282.

Query 8° Whether it is licit for those who are not ministers of justice to help the accused, so that he can escape from prison?

Resp. Affirmatively, in the case in which this is licit for the accused, and provided 1° the flight of the accused, because, e.g., he is a highway robber or similar, is not pernicious to the Republic, and 2° from this, for example from a break-in, the security of the prison does not perish. The reason is that to help another toward an end licit to him cannot be illicit.²

Query 9° Whether it is licit for the accused to decline a MILDER punishment, for example a fine or a not long prison, to which he was justly condemned, BUT WHICH HAS NOT YET BEEN INFLICTED UPON HIM?

Resp. Kenrick:³ "I think all punishments are so established by law and decreed by the judge that they are to be inflicted by the ministers of justice; and therefore I do not dare to condemn him who, another's right being uninjured, withdraws himself" from punishment of this kind, "provided however he does not apply force and does not disturb public order."

1074. • I. No one is held from justice spontaneously to offer himself for testifying; but sometimes there is given such an obligation from charity, for example if someone by his testimony can easily free an innocent person, impede a grave injustice, etc.¹

II. A witness legitimately cited is held to present himself before the judges, to emit the oath prescribed by law; to say the truth entire and nothing besides the truth, and then to respond simply according to conscience to legitimate questions. - Thus all.

III. A witness who maliciously deposed what is false is perjured, and, if through this he was the efficacious cause of damage to another, a violator of justice; and therefore he is held to reparation of all damages, and also to revocation of the false oath, with equal damage to himself, even with danger of life, if by force of the false testimony an innocent person has been condemned to death.⁴

1075. Questions. - Query 1° To what is a witness held who said what is false from invincible ignorance, or inadvertence, or inculpable forgetfulness?

Resp. He is held to open the false testimony, and to impede damage in the way in which he can; yet he is not held to reparation of damage already following, since he is without theological fault.¹ - The same would have to be said more probably even if he had sinned venially. Cf. things said n. 746. 3°. - 749. q. 3°. - 773. q. 7.

Query 2° What concerning him who supposes or adulterates a writing, note, or receipt, to supply acts that have been lost, or to prosecute a certain right?

Resp. 1° He sins at least venially by reason of lying; because, however the matter stands, the note which is exhibited is diverse from that which makes faith in judgment.

Resp. 2° Sometimes he can sin gravely against charity toward himself, when he exposes himself to the proximate peril of most grave punishments if the falsity is detected.

Resp. 3° In no way does he sin against commutative justice, and therefore he is by no means held to restitution.

1076. • Query 3° When is a witness excused from furnishing testimony?

Resp. He is excused in the following cases: 1° if he accepted the matter only under the secret of Confession; 2° if he knew the matter under a committed secret; 3° if he accepted the matter from men not worthy of faith; 4° if he knows that the accused did not sin mortally, for example on account of ignorance; 5° if he foresees grave damage going to come to himself or to his own; 6° if he has knowledge of the fact through injury, for example by opening another's letters, or unjustly compelling another. Except, as to 2°, 5°, 6°, if common damage or another's private damage prevails.³ - Yet by the laws of all States the excusing cause alleged 2°, or even 1°, is not admitted. Cf. n. 541. q. 1°.

Query 4° Whether a witness is held to reveal an altogether occult crime, for example which he alone knows?

Resp. Affirmatively, in States in which common law is in force, which establishes that even one witness can suffice for condemning the accused.⁴

1077. • Query 5° Whether and how a witness sins who hides himself lest he be cited by the judge, or who flees after citation?

Resp. To the 1st. He does not sin 1° against legal justice, because no one is held to obey the precept of a Superior before it is imposed on him; 2° nor against commutative justice, because he conducts himself merely negatively. Yet he can sin against charity toward neighbor, as was said above (n. 1074).

Resp. to the 2nd. He sins gravely against legal justice, or against obedience owed to the judge in a grave matter and necessary to society; but more probably he does not sin against commutative justice: because that citation does not impose an obligation of justice, but only of obedience.¹

Query 6° Whether a witness is held to restitution who, legitimately interrogated, conceals the truth; yet does not say what is false?

Resp. Negatively, probably. The reason is that the witness then conducts himself merely negatively, nor is he held to depose the truth except from the precept of the judge: and therefore by concealing it then he sins only against obedience owed to the judge, or even against religion on account of the oath furnished of saying the truth.²

1078. • They are held before all things under grave obligation, 1° to have sufficient knowledge and skill; 2° to apply diligence proportioned to the gravity of the matter which is committed to their care. But if they are deficient in these, they are held concerning all damages which follow thence.

Moreover they must furnish their work gratuitously to the poor who are in necessity, as was said above n. 1062. q. 3° R. 2° concerning advocates.

But in curing the sick the following rules must be observed:

I. They are held to follow safe and secure opinions of physicians, at least ordinarily; because the peril of the sick person cannot be removed by the probability of the matter.

II. When it is certain that some medicine will be useful to the sick, they are held to apply it, the doubtful one omitted; but if something certain is lacking, they more probably must prefer the doubtful.

III. What is licit when no hope appears concerning the health of the sick person, and no remedy is present except a doubtful one, see n. 60. II. 2°.

Hence a physician sins gravely, 1° If without sufficient capacity he undertakes to cure a grave disease. 2° If, when a grave and unusual disease occurs, he does not expend special work. 3° If he applies untried medicines for the sake of trying them. 4° If, with the nature of the disease not well known, he rashly prescribes dangerous remedies, especially with risk of life or grave lesion. 5° If, when the danger of the sick person has been recognized, he is not present opportunely, visiting him day and night if need be, and does not apply all means apt for driving away the disease. 6° If he does not permit other physicians to be called when it would be necessary, or if, summoning others for the sake of consultation, he attends to friendship rather than to skill. 7° If, on the contrary, without necessity he calls other physicians with useless expenses for the sick person, or if against his own conscience he adheres to their counsels. 8° If he draws out the cure for the sake of profit, uselessly multiplies visits where a salary is exacted for each, or if he exacts too great a price. 9° If, to favor friendly pharmacists, he prescribes superfluous medicines. 10° If he advises abortion, or the means of procuring it, or himself executes it. 11° If easily and without necessity he absolves from fasting or from Mass. 12° If he treats the poor, whose care he undertook from a stipend, less diligently than the rich, or, although not obliged from a stipend, does not assist those placed in grave danger and not having another. 13° If he does not preserve secrets committed to his faith and in order to his art, e.g. by revealing shameful diseases without a proportionate cause. 14° Finally the physician sins gravely, indeed most gravely, if, besides in the case in which he would certainly judge the warning not to be useful, he does not forewarn concerning the grave danger of the sick person, so that the Sacraments may be conferred on him.¹ See also other things concerning the physician above in their own places.

1079. • Pharmacists, if you except a few things, sin almost as physicians in the cases just set forth, but especially by applying old medicines, selling useless ones, supplying means to pregnant girls for casting out the fetus, not faithfully executing the mandates of the physician, for example by supplying one medicine for another, etc.

1080. Questions. - Query 1° To what is the physician specially held as to the soul of the sick person whose care he has undertaken?

Resp. He is held of himself under grave obligation to warn him concerning the grave danger in which he is placed, and, if it is a question of a Catholic sick person, also concerning the necessity of receiving the Sacraments, lest he depart without absolution, Viaticum, and Extreme Unction. This is clear 1° from natural law, or from the precept of charity. 2° From the very well-known Decretal of Innocent III, confirmed and renewed by other subsequent Supreme Pontiffs.² - Yet it is not always necessary that the physician by himself warn the sick person concerning the proximate danger of death. Sometimes it suffices that he take care that he be warned by relatives or friends, so that he benevolently admit the Priest, and be induced to receive the Sacraments. If the sick man has a known confessor, it will suffice if this one is warned concerning the state of his penitent; for then by visiting him he will be able more efficaciously to move him to provide for the salvation of his soul. But let the physician beware lest he suffer the warning to be deferred longer. For he ought not to draw it out until the danger of death is certain; but he is held to this office when he adverts that danger is gravely imminent. If physicians observed this custom, the sick would not so greatly fear the warning, nor at the mention of Confession be seized with terror.

Query 2° Whether a physician sins gravely who in time of pestilence abandons the sick, lest he contract the plague?

Resp. Affirmatively, if it is a question of a physician for whom a stipend has been established by the community, and of those sick persons in whose favor it was constituted. Otherwise negatively, since charity does not oblige with equal danger to oneself.

1081. • Craftsmen and workers must be carefully examined by the confessor: for generally in Confession they are silent about the injustices and sins proper to their condition.

I. In general they are unjust by selling or leasing their works at an unjust price; by not manifesting occult defects of their works according to the things said concerning sale; by wasting time through culpable negligence; by turning other workers away from labor; by executing the work badly, whether by excessive haste, or by omission of necessary things, etc.

II. But in particular the following chiefly are unjust:

1° Goldsmiths and silversmiths who adulterate gold and silver, pour lead among the empty spaces, buy diamonds or even below their just lowest value from the ignorant, or sell fabricated or artificial ones as natural.

2° Clothmakers and wool-workers who mix wool of lesser price with good wool, and sell it for as much as if the whole matter were of the same quality; who weave the beginning and end of a roll of cloth from much better wool; who use painted colors; who, deceived in buying cloths, likewise deceive others by selling.

3° Millers who change the grains, or mix with them extraneous things of almost no value, as beans, for increasing the weight and mass; who retain for salary something from the wheat or flour beyond the practice of the fearful.

4° Bakers who bake badly; who maliciously mix flour from rye, barley, beans, etc., with wheaten flour; who fraudulently diminish the weight.

5° Butchers who sell corrupted meats, or hand over a worse quality for a better.

6° Tailors and shoemakers who cut badly; who use cloth or leather corrupted or burnt; who retain part of the cloth handed over to themselves, pretending that they applied the whole in making the work.

7° Makers of hats who sell hats newly blocked or dyed as new, or as if they had existed in the shop for a longer time.

8° Printers who print copies in a greater number than was agreed, and retain these for themselves; who make adulterous editions against the right of one having a privilege; who have unskilled correctors; who do not apply paper of the same quality as they promised in the program, etc. ... - See St. Alphonsus.¹

2282. • For those living in the lay state, the condition of life is one or the other: either they spend private life in domestic society, or they bear some public duty, for the common good.

From this double condition of life there arises a double species of particular offices. Some bind men who conduct private life, and these are referred to domestic society, whether paternal, conjugal, or masterly (concerning which we have already acted in the Treatise on the Fourth Precept). But others bind men who perform some public duty in civil society. Concerning these there must be disputed in the present Treatise.

The disputation embraces THREE things, namely: 1. The Offices of Princes, legislators, and others who are over the republic; 2. The Offices of those who are engaged in the forum, and in whose hands is the exercise of public justice; 3. The Offices of physicians and pharmacists, who similarly perform their duty for the common good.

Concerning the other secular offices, we have treated abundantly in the various chapters of the Decalogue. - See what was said concerning more frequent scandals (n. 515 sqq.), concerning innkeepers (n. 522), concerning artisans and merchants (n. 523 and 908), concerning printers and booksellers (n. 524), concerning collectors of taxes (n. 968), concerning mandataries (n. 1090), concerning money-changers (n. 1116), etc. etc.

2283. • Those who are over others, these Divine Wisdom itself gravely admonishes in this manner: "Give ear, you who contain multitudes, and please yourselves in the crowds of nations: because power has been given to you by the Lord, and strength by the Most High, who will interrogate your works, and search out your thoughts: because when you were ministers of his kingdom, you did not judge rightly, nor keep the law of justice, nor walk according to the will of God. Horribly and quickly he will appear to you: because a most hard judgment will be made for those who are over others. For mercy is conceded to the little one: but the powerful shall powerfully suffer torments" (Wis. 6:3-7).

This most grave admonition having been premised, behold what things seem to have to be said summarily both concerning the offices of PRINCES and of those who possess supreme power; and concerning the offices of LEGISLATORS and of those who are over some multitude.¹⁰

2284. • A PRINCE and anyone marked with supreme power, according to the doctrine of the Apostle, "is the minister of God unto good." But since the good of human society is DOUBLE, namely spiritual or moral, and temporal, the following things must be established.

Principles. I. A PRINCE, and anyone ruling, is held TO FOSTER in those subject to him the sense of religion, and good morals. The reason is because, religion and fidelity toward God having been taken away, fidelity itself toward the prince collapses, and supreme power, without which no order in society can subsist, is necessarily brought into contempt. For civil life is defended by religion alone, and no force or human law can efficaciously impel an irreligious multitude to an honorable and truly upright tenor of life.¹¹

Therefore the Prince and whoever acts in his PLACE ought:

1. To furnish a good example in all those things which regard religion and honesty of morals; and since "the whole world is formed according to the example of the King," the leader of the people would stain himself with the enormous crime of prevarication if by his own evil example he induced those subject to him into contempt of religion and corruption of morals.

2. He ought to choose suitable counselors and ministers, whom doctrine and goodness of life make truly commendable, and first of all (if he possesses the right of election from the Holy See) good Bishops, and upright instructors of studious youth (cf. n. 2244 and 712).

3. He ought to use his power for the protection of religion and of the Church, not because he boldly arrogates ecclesiastical authority to himself, or decrees those things which regard faith and religion; but because he strives to be a help to the sacred Ministers to whom the care of the Church has been committed by Christ: by taking care that reverence be exhibited to the divine precepts and to men enrolled in the sacred militia, that public violations of divine law be prevented, that sowers of new religions be warded off, as also those evil books and journals by which damage is brought upon holy Faith and good morals. "For evil books," says St. Alphonsus, "plot ruin for kingdoms."¹² (cf. n. 451).

2285. • II. A PRINCE and anyone ruling is held TO PROVIDE for public felicity and security by just and opportune means. The reason is because public felicity or prosperity is the end of government, not indeed the primary end, but the secondary, according to that of Matthew: "Seek first the kingdom of God and his justice, and all these things shall be added to you." - Whence, a prince would sin if he placed over the republic ignorant and unskilled ministers, if he burdened subjects more than is equitable, if he did not protect them from enemies or unjust vexations¹³ (Recall what was said nn. 138, 147-150, 653, 729, 749, 873, 922, 965, 978, 983, 1188).

Note. Since St. Alphonsus depicts in few words the form of a good prince, it is helpful to transcribe his words here, especially because ALL who PRESIDE over a multitude or community to be ruled can take from it an example for imitating. - Behold the salutary words of the holy Doctor:¹⁴

1. A good Prince, for the exercise of good government, has God always present to himself, and he sets those things which regard the divine glory before all political reasons.

2. He abhors flatterers, and loves truthful men, and desires that this horror and love of his become known to all.

3. He uses equity toward all, every passion and party-zeal being removed.

4. He does not decree matters of greater moment except after a prior and serious inquiry.

5. In doubtful matters, he has recourse to the counsel of the prudent.

6. He is most cautious in selecting for himself wise and upright counselors.

7. Once counsel has been accepted which he judges to be good, he is wholly intent on this, that he execute the matter strongly, unless clear reasons supervene which persuade the contrary; for to change counsel with a just reason is not weakness of mind, but laudable prudence.

8. If he hears someone praised or accused, he is slow to believe, and weighs whether the reporter, moved by some advantage of his own, is incited to speak thus.

2286. • Besides supreme governors, there concur for making laws or Decrees both Senators and Deputies (or Counselors) elected by the Prince or by the people in a representative Government, and the electors themselves. Wherefore we establish the following:

Principles. I. Those ELECTED to the office of MAKING LAWS are held to attend, not to what here and now pleases the prince or the multitude, but to what is just, and congruous with the common good of all. For civil law is not just because it is a fugitive decree of the will of the prince or of the people (as pleased certain innovators); but because it is a stable prescription, by which the supreme Power reasonably commands, prohibits, or establishes something, for the common temporal good of the citizens without detriment to spiritual good. - And what we say here concerning laws is valid, by a like reason, for Decrees and any Statutes whatsoever. (Recall what was said n. 153 sqq.) - Sometimes, however, Senators, Deputies, and Counselors can admit certain things less right (which are not intrinsically evil) and strengthen them by their vote, that worse things may be excluded; provided that they do this with a protestation of their right intention¹ (cf. n. 202).

Hence: - 1. Participants in legislative power SIN (for the most part gravely), if they do not bring due knowledge and diligence to so great an office; and most gravely indeed, if knowingly they lend their effort or assent to unjust laws or decrees. - Whence, it can happen that they are held to the reparation of damages. Indeed, theological fault and effective influence being supposed, whoever abstains from casting a vote is liable to restitution, when he ought to cast it by reason of the office which he freely accepted by quasi-contract, and by which he bound himself to protecting the public or private good. - Recall what was said n. 983 sqq. - Concerning excommunication, see n. 1320 sqq.

2. Those elected, or to be elected, if they are suitable for so great an office, and no other suitable persons are found, are held to subject themselves to election. And indeed, if someone is sometimes held to consult the good of private persons, how much more the good and safety of the whole community.²

2287. • II. Upon ELECTORS, in a legitimate government, there lies the grave office of ELECTING UPRIGHT Deputies, whether communal, or provincial, or political. - Whence, other circumstances being set aside, not only do positive cooperators sin, namely those who vote for evil men; but also negative cooperators, who by not concurring knowingly are the cause why evil men are elected; for from legal justice each one is held, insofar as he can, to avert evil from the republic, if any hope of averting it shines forth. But no one is ignorant how many and how great evils are brought into both religious and civil society by wicked Deputies, especially by those who are enrolled in the Masonic sect³ (cf. n. 989).

We have said in a legitimate government; for, if it is asked whether it is lawful, in a usurped kingdom, to vote in elections and to sit in an assembly of legislators, authors disagree. Some indeed affirm, especially if society is in extremities, and ruin threatens religion. - But others deny that it is right, because such concurrence cannot be furnished without scandal, nor without injustice, since to elect DEPUTIES and to exercise PUBLIC OFFICES is the same as to sustain the person of the usurper, to make laws with him, and to share the government. And hence it was that PIUS IX wholly disapproved a concurrence of this kind, especially for the Pontifical Dominion, in a Brief issued 29 January 1877, and already before in a Declaration made on 18 June 1874... Otherwise, however, if the question is only of electing municipal and provincial COUNSELORS; for these protect only the affairs of the Community, or the good of the Province, nor do they make laws, but they undergo them, not otherwise than the other citizens. - Finally others proceed by a middle way and teach more truly that account must be taken of places, persons, times, and circumstances, which, since they can be diverse, can also lead to diverse conclusions. Therefore with these we say: If, with the right of the legitimate prince preserved, grave damages can be averted from society, citizens have the right and the office of electing upright men, who may keep watch over the common good; if probable hope of promoting a greater good is lacking, it will be better to abstain from political concurrence; especially if the right of the legitimate prince would thereby be injured. But to define the matter belongs to the prince himself⁴ (cf. n. 150, q. 2).

2288. • IT IS ASKED. Whether it is lawful to elect an UNWORTHY man in order to exclude a MOST UNWORTHY man?

Resp. Some with Hurtado deny; for it is evil to will and to choose evil; and if evils are not to be done that goods may come about, a fortiori evils are not to be done that lesser evils may come about; for that is intrinsically evil, and prohibited by the law of nature. To this belongs that saying: "Let the world perish, but let justice be done." - Others with Lugo affirm; for it is lawful to take counsel for a lesser evil, that a greater may be avoided. And then an evil man is not properly chosen because he is evil or for evil; but he is chosen for this, that he may impede greater damages, which is good. And this cannot be said to be evil intrinsically and per se, since in the present case it has the character of good; for it is a diminution of evil. - Finally, others readily concede this, if not only is evil diminished by such an election, but some good is intended and hoped from the one to be elected, as if through him Catholics are able to obtain that liberty by which the evil enjoy themselves.⁵

2289. • To the present order chiefly pertain: 1. Ministers of princes, and Prefects of provinces; 2. Leaders of the military; 3. Syndics or rectors of communities. - Concerning each, a few things.

I. Concerning Ministers. - Standing between the prince and the people, MINISTERS owe to the prince truth and service in all things which look to good government; but to the people they owe the faithful and equitable execution of the common law. Whence they make themselves guilty of infidelity: 1) if they conceal from the prince, whose eyes and hands they are, those things the knowledge of which right administration requires for itself; 2) if they bring contempt or hatred of the government upon the people by vicious administration, whether by too great negligence or severity, or by injury to distributive justice in the application of the law, or in the distribution of burdens or favors; 3) if they execute commands certainly unjust. For where the injustice of the command is certain and grave, execution ought to be deferred, until the prince or Superior, having been reverently admonished, corrects the error. But if, admonished, he refuses to correct it, or if admonition is impossible, surely God must be obeyed, and not men.

And these same things, proportion being preserved, are valid concerning Prefects of provinces, concerning delegates to foreign princes, and concerning all other ministers of the executive Power.

2290. • II. Concerning leaders of the military. Leaders of the military, besides suitable KNOWLEDGE and SKILL, which they are held to acquire and to have, are bound by several other obligations, both toward the prince and toward the soldiers.⁶

1. Toward the Prince (and the nation), they ought to preserve inviolate FIDELITY and JUSTICE. - Whence, they cannot desert military service, especially in time of war, except by the consent of the prince. They are held to fight strongly; they would be perjured if they fled over to the enemies, or entered clandestine counsels with them. - They would sin against justice by pretending absent soldiers to be present, or by retaining the pay of dead soldiers.

2. Toward soldiers, as good fathers of families they ought to keep watch that nothing be lacking to them, whether as to soul, or as to body: let them impede, as far as it can be done, single combats, drunkennesses, quarrels, impurities, thefts. They sin gravely if, without necessity, they prescribe military exercises on Sundays and feast days, especially at the hour of Mass; for they impede the soldiers from performing the principal duty of religion. - Likewise, they sin gravely if they rashly enter battle, or expose the life of soldiers without a just cause. Recall what was said concerning Duel and War (n. 745 sqq.).

2291. • III. Concerning Syndics. "The Syndics of Communities, and their assistants, have their obligations, and indeed most grave ones; since they have been deputed by law as rectors and guardians of Communities, namely that they may protect their goods and rights and the observance of laws, if these are just. - Therefore, they sin gravely and are held concerning damages, if, acceptors of persons, they choose unsuitable men for public offices; if they do not restrain the wicked; if, when able, they do not impede scandals; if they squander the goods of the Community; if they hold the things which belong to religion as almost nothing; and coerce its free exercise, pervert rights, or furnish assistance to those who usurp them.

Concerning these things, sometimes, though prudently, public administrators are to be questioned by the confessor; for not rarely such men confess, as it is said, the sins of Charles, and are silent about the sins of Caesar: that is, they confess the things which they committed as private persons, not those which they perpetrated as deputed to public offices.⁷ - This the Most Holy Lord, Our Lord Pope LEO XIII specifically reproves, solemnly declaring:⁸ "it is not lawful to follow one form of duty privately, another publicly, namely so that the authority of the Church is observed in private life, and rejected in public. For this would be to join honorable and base things, and to make a man fight with himself, whereas, on the contrary, he ought always to be consistent with himself, and in no matter nor in any kind of life to fall away from Christian virtue."

But here the more general question, and one especially useful for practice, comes to be treated:

2292. • QUESTION. WHETHER A PRAETOR, or another PREFECT of the republic, can sometimes commit an UNJUST LAW to execution?

Resp. By reason of obtaining a greater good, or avoiding a greater evil, the execution of an unjust law sometimes becomes lawful. But for this it is required: 1) that the object of the law not be intrinsically evil; 2) that the one injured in his own right, because an unjust law is observed, can and wishes to assent to the injury of his right, or at least that, with the order of charity so commanding, he is not reasonably unwilling.

Wherefore: 1. It is not lawful for the praetor or judge to urge the application of an unjust law, if its execution has been committed to their discretion.

2. If any law is opposed to the rights and liberty of the Church, its execution, when the Church contradicts in the particular case, can in no way whatever be urged, not even under the pretext of obtaining a greater good, or avoiding a greater evil, since the Church alone is judge of those things which are more fitting for herself.

3. If the execution of an unjust law becomes a little harmful to some third party, but its neglected application very harmful to the praetor or judge, the law can be urged: especially if the damage to the third party cannot be avoided, because, one praetor failing, another will not be lacking who will furnish his effort (cf. n. 526).

2293. • Preliminary Notes. I. Forensic judgment is usually defined: The sentence of a judge concerning a right disputed between plaintiff and defendant, after due discussion has been carried out.

In this definition there are included: 1. The cause, or the disputed right, as the object of the judgment; 2. Three distinct and necessary persons: the plaintiff, the defendant, who litigate concerning the right, and the judge who pronounces; 3. The legitimate discussion and definition of the cause, as the form of the judgment.

2294. • II. Judgments are OF HUMAN LAW formally and as to solemnities, as is clear from their history; but originally they are OF NATURAL LAW; for, the condition of fallen nature being posited, it is necessary that crimes and lawsuits occur; but since it is repugnant to right reason that anyone be judge in his own cause: thence it is altogether required that judges and judgments be constituted by public authority, by which doubts of right are duly settled. - Yet natural law does not absolutely require that all crimes be restrained, and that all lawsuits be settled by judgments properly so called. For sometimes it is expedient, "when crimes are atrocious, to punish at once those caught in the very act of crime, or in excepted crimes to change the common manner of proceeding." Indeed military discipline has this as proper to itself, that it is right for leaders, every form of forensic judgment having been passed over, to punish the offenses of soldiers. And Bishops similarly can, in certain cases, proceed extra-judicially, e.g. from informed conscience¹⁰ (cf. n. 731).

2295. • III. But in no judgment, even a summary one, can those things be omitted which are called the substantial things of judgments: for these are of natural law, against which custom cannot prevail. - Hence, in every judgment properly so called there are found: 1. the petition of the plaintiff and citation of the defendant; 2. proof of the cause, and its defense; 3. decision of the cause, and pronouncement of the sentence. And these THREE pertain to the nature or substance of the judgment; but the other things pertain to solemnity.¹¹

Note. Among the legitimate forms of judgments, canon law excels, which first wove together the judicial web in the second book of the Decretals, from which thereafter every civil procedure was derived, as all Doctors testify with one voice.¹²

These things having been premised, there must be treated: 1. concerning the persons who constitute the judgment, namely concerning the judge, the plaintiff, and the defendant; 2. concerning the persons who intervene in the judgment, for helping either the litigants or the judge, i.e. concerning witnesses, advocates, etc. - (Recall what was said n. 1292, 7, and n. 1321.)

Three persons, the plaintiff, the defendant, and the judge, as we have said, are found in every judgment. Nevertheless it is not always required that the plaintiff, or accuser, be a distinct person; for the judge can, once a rumor has been heard concerning a perpetrated offense, call those who are said to have offended to his tribunal, inquire into the truth, and, this having been certainly ascertained, pronounce sentence: "not as though the same person were accuser and judge," says Innocent III,¹³ "but as if, report denouncing, or outcry bringing it forward, (the judge) executes the debt of his office."¹⁴

2296. DEFINITION. - A JUDGE, so called because he declares the law, is a public person, constituted by legitimate authority, that according to the laws he may vindicate justice, and decree punishments against delinquents. - If he is constituted by the litigants themselves, he is called an ARBITER, to whom thereafter, by new law and with the required conditions observed, jurisdiction over the litigants belongs. We have said by new law; for Roman law imparts no jurisdiction to him.

Among moderns, in criminal matters certain judges of fact alone are constituted, who are called JURORS, from the oath which they make of issuing a vote according to conscience. It belongs to them to pronounce according to the allegations concerning the existence of the fact and the culpability of the accused; afterward, the judges of law decree the penalty according to the law. These are bound by the same obligations as the judges themselves.¹

2297. • Principles. I. In a JUDGE, that he may perform his office rightly and legitimately, THREE things are required, namely jurisdiction, knowledge, and integrity. - 1. JURISDICTION, or competence, failing which the sentence is null, unless there is a colored title and common error; whence, a civil judge sins, and indeed gravely, if he brings ecclesiastical causes before his tribunal, unless by Concordats or the tolerance of the Holy See, or also by special license, this is conceded to him. - 2. Suitable KNOWLEDGE of those things which pertain to his office. Wherefore, if from culpable ignorance he has injured the parties, whether in the substance of the suit, or in superfluous expenses, he is held to restitution; nor can he be absolved, unless he either resigns the office, or tries to acquire sufficient knowledge, with the damage or danger of his neighbor meanwhile removed. - 3. Incorruptible INTEGRITY, so that he constantly preserves justice, and yields neither to love nor to hatred.²

Wherefore two things here come to be NOTED: - 1) "If the judge recognizes an error committed by himself (although without grave fault) to the prejudice of a litigant, he is held, if he can do it without infamy, to impede the error, e.g. by secretly warning the injured party, that he may take counsel for himself by appeal or otherwise; because this pertains to the due execution of the office."³ - 2) "If the judge, in executing the cause and pronouncing sentence, is negligent or unjust, he is held not only to the injured party, but sometimes also to the fisc: e.g. if he remitted without cause a monetary fine which by custom, or common law, he ought to have imposed upon the defendant." Thus St. Thomas, Sylvester, and others. - Yet, "Lugo, etc., probably hold that the judge is held to nothing if the defendant has not yet been condemned to the fine; because, before sentence, no right to the penalty is acquired for the fisc; hence, if the judge unjustly absolves the defendant, he sins against legal justice, not commutative justice."⁴

NB. Concerning RESTITUTION to be made by judges, recall what was said n. 983 and 988.

2298. • II. The judge ought to institute judgment ACCORDING TO THE RULES OF LAW, both natural and positive, whether in the manner of proceeding, or in passing and executing sentence. - For he is not constituted to make laws, but to commit them to execution. But the RULES of natural law, to which he ought to conform himself, are the following:

Rule 1. - As to the MANNER OF PROCEEDING, he ought to take care lest, without a just cause, he inflict damage or infamy upon the litigants. - Hence: 1) He cannot institute a special inquisition concerning a certain crime and its author, unless infamy, half-proof, or something similar has preceded; because he would render the man against whom he proceeded by inquisition suspected and infamous. The sole case must be excepted in which there is question of graver crimes, which turn to the common damage of the republic.⁵ - 2) He cannot, without necessity or a grave motive, defer the dispatch of causes; otherwise he is held to compensate the injured party for the damages which have followed from unjust delay.⁶

2299. • Rule 2. - The judge ought, regularly speaking, in PASSING SENTENCE, to pronounce according to the things alleged and proved, and from knowledge juridically acquired. Thus commonly; and the reason is, because the judge bears a public and legal person. - Hence, he sins and is held to restitution, if he condemns him whom by private knowledge indeed he knows to be guilty, but whom the process declares innocent (see however n. 2302). - Likewise, if he condemns anyone unheard, or without witnesses, or from knowledge unjustly extorted, e.g. by force, fear, or fraud, by interrogations made without competent indications, etc.; because the acquisition of knowledge of this kind participates in the injustice of the means, which are against the necessary order of judgment, and consequently is unjust.⁷ The judge also sins, "if he opens to one party what that party could allege for himself; because this would be to perform the office of advocate, which is not lawful for the judge."⁸

2300. • Rule 3. - The judge ought, in criminal causes, TO FAVOR THE DEFENDANT, until his crime is certainly proved. For thus sounds the 11th rule of law in the Sext: "When the rights of the parties are obscure, the defendant is to be favored rather than the plaintiff." And Roman Law plainly agrees with this rule, prescribing that, for pronouncing a sentence of blood, proofs be brought which are clearer than light.⁹ - Hence: 1) The defendant is always to be absolved (both by jurors and by the judge), if probable reasons are brought for his defense, especially when there is question of capital punishment.¹⁰ - 2) Likewise he is to be absolved, although he has said nothing for his defense, if nothing is proved against him.

2301. • Rule 4. - The judge ought, in civil matters, to favor the CERTAIN POSSESSOR, until convincing reasons are given against him. But if there is DOUBT concerning the possession itself, or if neither litigant possesses in good faith, he ought to adjudicate the thing to the one bringing notably more probable reasons; and in equality of reasons, to divide the thing, unless there is question of a privileged cause. Thus commonly, with St. Alphonsus.¹¹

It is said 1. he ought to favor the possessor. And this indeed is indubitable, whenever the reasons are equal, as is clear from the 65th rule of Law in the Sext: "In equal offense or cause, the condition of the possessor is the stronger"; and from rule 128 ff. of Roman Law: "In an equal cause, the possessor can be held stronger." Moreover, St. Alphonsus affirms that the same rule must be admitted, according to the most common opinion, even if more probable, or solely probable, reasons militate against the possessor in good faith; because the title of legitimate possession bestows a certain right, which is not destroyed except by another certain and proved right, that is, by convincing reasons (cf. n. 45 and 946). Nor does it stand in the way that the judge is held to judge according to the more probable reasons; for, in favoring the possessor, he judges not only according to the more probable opinion, but according to the most probable opinion founded upon another rule of law cited above: "When the rights of the parties are obscure (as they are, when certainty is not present on the part of the plaintiff), the defendant is to be favored rather than the plaintiff."¹²

It is said 2. if there is doubt concerning the possession itself, i.e. if there is doubt as much concerning possession as concerning ownership: e.g. if the suit is concerning a thing possessed by no one, or if the possessor is of doubtful good faith, or at least if it is not established that he is in good faith (as commonly happens in the external forum): then the one bringing stronger reasons is certainly to be favored, as is had from the 2nd proposition condemned by Innocent XI: "I probably think that a judge can judge according to an opinion even less probable." For deservedly was that proposition proscribed, because the judge is held to render to each one his own right, and that party certainly has the greater right who brings more probable reasons (cf. n. 84, 4; 945, 3).¹³

It is said 3. in equality of reasons, whether of fact, or even of law, as the Salmanticenses more rightly teach with Roncaglia, he ought to DIVIDE equally between the litigants the thing certainly possessed by no one; for the judge ought, from his office, to render to each one his own right according to the merits of the cause; therefore, since an equal right belongs to each from parity of cause, it is clear that the thing is to be divided equally, nor can the judge ever judge at will; because to judge is to declare the law, to declare, not to constitute. - Hence deservedly was this 26th proposition condemned by Alexander VII: "When litigants have opinions equally probable for themselves, the judge can receive money for passing sentence in favor of one before the other" (cf. n. 945, 3).¹⁴

"Exception is made [in ROMAN and CANON law], if there is question of causes of matrimony, dowry, widow, ward, and of other pious causes; for then judgment must be made for them, when the rights are equal, even if they are plaintiffs (from cap. Ex litteris 3 de Probationibus, and from cap. final de sent. et re judicata). - But otherwise, if the opposite party rather has the right (from law Si pars ff. de inoff. testam.)." - Recall what was said n. 1027-1028.

2302. • Questions. - QUAER. 1. Whether a judge can condemn an innocent man who is juridically proved guilty?

Resp. 1. It is certain that the judge is held to do as much as is in him, that he whom by private knowledge he knows to be innocent may not undergo punishment. This will often be possible, e.g. by impeding the accusation, prolonging the judgment, suggesting means of defense, remitting the cause to the Superior, or even by opening the prison, if he can execute this without a greater evil.¹⁵ It is also certain that jurors or judges of fact can never cast a vote against an accused man whom by private knowledge they certainly know to be innocent; for by pronouncing thus, they would sin against their own office and oath.¹⁶

Resp. 2. It is very much controverted, in the case in which the judge is compelled to pass a sentence of punishment. - Some with St. Thomas¹⁷ say that the innocent man can then be condemned according to the things alleged and proved. Others with Bonacina,¹⁸ Lessius, etc., deny this; because to condemn an innocent man seems intrinsically evil: just as it would be evil to compel a woman to live with him whom the judge privately knows not to be her husband. - St. Alphonsus distinguishes and says: "1) In monetary penalties, and in civil causes, the judge, without doubt, ought to judge according to that which has been proved....; while the republic, for the common utility, which is had while judgment is passed according to public knowledge, can certainly transfer ownerships of goods."¹⁹ 2) But in corporal penalties, in which there is question of death or mutilation, the holy Doctor holds the opposite as very probable; and the reason can be assigned, because the republic neither could nor willed to confer on the judge the power of killing or mutilating an innocent man, since this is intrinsically evil (cf. n. 738).

QUAER. 2. Whether it is lawful for a judge to receive GIFTS from litigants?

Resp. Neg., even if they are offered freely; for it is said in Deut. 16:19: "You shall not accept a person, nor gifts: because gifts blind the eyes of the wise, and change the words of the just." - Foods and drinks spontaneously offered are excepted; both because, in law, under the name of gifts there do not come xenia, that is, small gifts; and because it cannot be supposed that the judge, on account of a small gift, will pass an unjust sentence. At least in this, as Lugo says, custom ought not to be reproved, where it is found legitimately prescribed.²⁰

QUAER. 3. Whether and when a judge is held TO RESTORE gifts received?

Resp. 1. It is certain that he is held to restitution: - 1) If he has received gifts from a pact, for passing a just sentence, or for furnishing that which he owed from justice (cf. n. 1036, q. 2); - 2) If by force, threats, or unjust vexation he extorted them; - 3) If the law makes an acceptance of this kind invalid, and a declaratory sentence of the crime has already been passed; - 4) If he has received them for passing an unjust sentence, and the crime (namely of barratry) has not yet been completed (cf. n. 1036, q. 1).

Resp. 2. It is probable that he is not held to restitution, although he has acted illicitly: - 1) if the gifts were offered spontaneously, and he protested that he would nevertheless judge according to justice; 2) if he has already completed the pact concerning an unjust sentence to be passed, and has not been condemned to restitution (cf. 1036, q. 1).¹

QUAER. 4. Whether he sins who GIVES GIFTS to a judge, or to his ministers?

Resp. Dist. 1. If he gives without a just cause, he indeed sins, by cooperating with unjust reception. Yet simple persons are often excused because of ignorance. - 2. If he gives with a just cause, namely for redeeming unjust vexation, he does not sin; "provided that there is probable danger that otherwise manifest injustice would be inflicted upon him; for then this is not corruption, but caution that his right be rendered to him.... Nor do prohibiting laws stand in the way of this; for laws intend to avoid lest those giving gifts corrupt judges by gifts, but not that they obtain a just sentence (otherwise not to be obtained)."²

QUAER. 5. Whether an unjust or doubtfully just sentence of the judge OBLIGES?

Resp. 1. "If the sentence is unjust, or null on account of defect of jurisdiction, or of substantial form, or if it proceeds from false principles and from ignorance of the facts which is opposed to the order of law simply necessary, whether it is passed through things falsely alleged and proved, or from the iniquity of the judge, it has no force in the forum of conscience; and his right remains to the injured party, even if he does not appeal, and it will be lawful for him, if he can do it without scandal, to recover the goods.... We have said in the forum of conscience: because in the external forum, where not so much the truth of the fact as juridical proof is regarded, the sentence passed must be observed, for avoiding scandals and inconveniences; nor, once the term has elapsed (within which it was lawful to appeal), is action granted to him, the law so establishing, both as a punishment for sluggishness and on account of the public good, that there may be an end of lawsuits."³ (cf. n. 191 and 1272).

Resp. 2. A doubtfully just sentence certainly obliges, in each forum, unless appeal is made. For presumption favors the judge (cf. n. 52).

QUAER. 6. To what is a judge HELD, who has passed an unjust sentence?

Resp. 1. "If he did this by deceit, or great unskillfulness, he made the suit his own, that is, he transferred to himself the damage of the injured party, to whom he is held to make restitution.

2. If otherwise worthy of his office, he erred through forgetfulness, from human frailty, he is not obliged in conscience to restitution from his own goods, since he did not inflict formal injury, nor received any advantage from such a sentence;... nevertheless he ought to revoke the sentence, if he can do so without grave inconvenience"⁴ (cf. n. 983, and 988).

NB. But if the law itself applied or to be applied by the judge has been unjust, recall what was said n. 2292. - If there is question specifically of Divorce, see n. 2126, 3.

2303. • A PLAINTIFF or Petitioner, in civil causes, is he who proposes an action for obtaining reparation of his own damage, and who first summons to judgment, either by himself, or by a procurator. See n. 2316. - A Plaintiff in criminal matters is called an Accuser, and is he who brings a crime before the judge, and asks from him vindication for the common good in writing, with the burden of proving the crime charged.⁵

Note 1. From ROMAN LAW, accusers, if they are convicted of calumny, incur the penalty of retaliation, or ought to undergo the very penalty which they were seeking for the accused. - This penalty, however, from general custom, is no longer inflicted.

2. From MODERN law, private persons are not permitted to institute an accusation; for this function belongs solely to the magistracy constituted for this, i.e. to the general procurator of the State: who therefore, together with others destined for this office, is called the Public Ministry; for it belongs to them to assume and protect the parts of the Community and of good morals against defendants. - In lower tribunals, e.g. before the judge of the region, in a cause, as they say, correctional, the same office is committed to ministers of public security, or even to the first elected municipal Officials. But the general procurator, in fulfilling the parts of his office, is assisted by another official, who is called the Judge of instruction. To this man it generally belongs to collect arguments and indications of offenses before the suspects are cited, to make investigation of guilty persons, and to take care for their arrest, to inform the cause, and to order the suit in that manner which the laws prescribe or permit. - Let recourse be had to the Code of the respective nation.

2304. • The place of accusation is supplied by denouncement, concerning which a more special discussion must be given.

Denouncement in general is defined: the manifestation of someone's crime made to a Superior, with the burden of proving it not assumed. By these last words it is stated in what manner denouncement differs from accusation.

Denouncement is threefold: evangelical, canonical, and judicial. 1. Evangelical or paternal denouncement is the delation of a crime to a Superior as to a father, to the end that the defendant may come to his senses⁶ (See what was said n. 494). - 2. Canonical denouncement (which in certain cases is prescribed by the canons) is the delation of a crime to an ecclesiastical Superior, to the end that the crime may be impeded, or that an unworthy man may be removed from office.⁷ - 3. Judicial denouncement is the delation of a crime to a judge, whether lay or ecclesiastical, to the end that the defendant may be punished, or that damage may be repaired for the injured party. It is held in place of accusation, and lays the way for the judge to inquire.

2305. • The obligation of juridically denouncing arises from a threefold source, namely: from justice, from charity, and from a positive precept.

Principles. I. From LEGAL and COMMUTATIVE justice, those are held to denounce who are deputed to this by office, and are remunerated by the Prince or by masters by an agreed stipend. Of this kind are Fiscals, and other public officials, keepers of fields, of taxes, and of similar things, all of whom, since by office and by quasi-contract they are held to denounce crimes, are also held to repair damages to the Community, or to masters, which have followed from culpable omission of accusation or denouncement. - Recall what was said n. 988.

Gury notes that keepers of woods, fields, etc. sin if they denounce merely accidental damage, and that they are not held to denouncement if the delinquents spontaneously offer themselves to compensate the damage secretly.... But sometimes, he says, they can act more mildly with those causing damage, if the damages, e.g., are of lesser moment, and have not been repeated more often; if it can prudently be presumed that the master does not wish the delinquent to be brought forward; if the delinquent is very poor and not accustomed to offend, etc.; but let keepers carefully beware lest in these things they indulge more than is equitable.⁸

2306. • II. FROM CHARITY, for consulting the good of the Community or of the innocent, private persons are held to denounce certain OFFENSES or CRIMES, namely: 1. a crime turning to the damage of the Faith, or of the Community, as heresy, rebellion, falsification of monies, robbery on the public road, and the like: which each one ought to avert under grave obligation, even with grave inconvenience, because there is question of the common good (cf. n. 442). - 2. A crime from which grave damage threatens an innocent person, whenever no grave inconvenience is prudently to be feared for the denouncer. The reason is, because on the one side the innocent is to be preferred to the voluntarily harmful, but on the other, each one is held from charity to protect the innocent, when he can furnish this without grave inconvenience to himself⁹ (cf. n. 483, Reg. I.).

2307. • III. FROM THE PRECEPT OF A SUPERIOR, or from a MONITION or PUBLIC EDICT, all persons, for the most part, are held to denounce offenses. - But a precept of this kind does not urge, unless the delinquent is defamed, or at least suspected by grave indication, or when the crime turns to the damage of the Community, or of a third party; yet with this difference, that in the case of damage only inflicted or to be inflicted upon some third party, fraternal correction ought to be premised, nor is there obligation of denouncing with one's own damage; but when the offense turns to common damage, there is an obligation of denouncing, even with one's own damage, although the offense were occult; nor is previous correction to be premised, except in the rare case in which by secret warning the evil can be impeded at once (cf. n. 494 sq.).

We have said all persons for the most part; for: 1. by force of a Monition no one is held to denounce himself; for no one can be bound to brand himself with infamy; 2. he is not held to denounce those joined to himself within the fourth degree, except in the case of formal heresy, or of conspiracy against the Prince. "The reason is, because to denounce one joined to oneself is the same as to undergo grave damage or inconvenience: which reasonably excuses, when danger of common damage is absent."¹⁰

2308. • IT IS ASKED. When is it ILLICIT to denounce a crime?

Resp. You are not held, nor ought you (even supposing the precept of the Superior) to denounce: 1. If the crime is not public, nor harmful to society, and fruit is hoped from private warning; for then fraternal correction ought to be premised (cf. n. 494). - 2. If the delinquent has been amended, without danger of relapsing, and satisfaction has been made to the injured party, nor does danger threaten others; because the infamy of the neighbor would follow without cause. (See however what was said n. 1798 concerning solicitors.) - 3. If you know the crime under a committed secret, as consultant, advocate, etc.; unless however he who committed the secret to you were unjustly vexing an innocent person or the Community, and were unwilling to desist from vexing (cf. n. 1187).

Note. From ECCLESIASTICAL LAW these must be denounced: - 1. Heretics and those suspected of heresy (cf. n. 442); - 2. Confessors who solicit (cf. n. 1354; 1794 sqq.); - 3. Confessors who demand that the name of an accomplice be revealed to themselves (n. 1701); - 4. Masons and others enrolled in secret sects (n. 1331); - 5. The unworthy to be promoted to sacred Orders (cf. n. 1916); - 6. Betrothed persons entangled in a diriment impediment and about to enter matrimony already published (cf. n. 2065).¹¹

2309. • A DEFENDANT (called from the thing or from guilt) is he who is called into law and against whom action is taken in judgment. - In a civil judgment he is also called the defender, and in criminal matters the accused. - But for discerning what is lawful for the defendant, and what is not lawful, whether in confession of the crime, or in defense of his cause, or finally in declining the penalty inflicted upon him, the following things are valid:

Principles. I. The defendant is held TO CONFESS THE TRUTH and TO REVEAL the associates of the crime TO THE JUDGE ALONE, when he legitimately and juridically interrogates. - Thus commonly with St. Alphonsus.¹²

We say 1. when legitimately and juridically interrogating; otherwise, according to St. Thomas,¹³ the accused is not held to respond; "but he can elude the judge, either by ambiguous words, or even by denying with some restriction, and in a good sense, so that a lie be absent." The reason is, because the judge does not have authority, except when he interrogates legitimately and juridically (cf. n. 1182). But now: - 1) he does not interrogate legitimately unless he has jurisdiction over the matter or over the person; - 2) he does not interrogate juridically, unless half-full proof has preceded, or unless infamy exists, or another manifest indication of the crime. - Indeed, in a criminal cause, if the defendant reasonably doubts whether he is interrogated legitimately, he is not held to respond. "The reason is, because he himself possesses life and reputation; whence, in doubt, he has the right of preserving it, until the legitimate interrogation is established."¹⁴ Yet someone could be held from charity, namely on account of the utility of the neighbor, to respond.

We say 2. he is held to confess the truth; for the judge legitimately interrogating has the right of demanding the truth from the defendant: therefore it is repugnant that there should be at the same time in the defendant a right of denying it. - Hence, Benedict XIV in the Constitution Paterna charitas issued in the year 1749 teaches that absolution is generally to be denied to defendants who keep back the truth; because it pertains to the common good that guilty persons be known and punished; especially if the penalty which is feared is ecclesiastical, because this is medicinal. - But whether the defendant is held to confess his offense with fear of death, or of another most grave penalty? It is sharply DISPUTED. Suarez, Lugo, and others deny; because the law would then be too hard, and as if impossible for human weakness, unless it is necessary for averting common damage, e.g. by revelation of the associates of rebellion. St. Alphonsus indeed does not reprove this opinion; but he considers the opposite opinion more probable, at least because of the authority of St. Thomas, Sanchez, Lessius, the Salmanticenses, etc., and because the judge has the right of knowing the truth whenever he interrogates legitimately. In practice, if the defendant does not believe himself obligated, and no fruit can prudently be hoped from admonition, he is to be left in his good faith.¹⁵

We say 3. he is held to reveal associates; namely, if there would be against them indications, or testimonies, or infamy. Otherwise, he is not held nor can he reveal them, because in occult matters they retain the right to their own reputation. But if the offense is of the excepted ones, as heresy, conspiracy, etc., he is held, even when not interrogated, to reveal them, as is clear from what was said concerning denouncement (n. 2306).¹⁶

It is helpful TO NOTE: - 1) After sentence has been passed, the defendant is not held to confess the crime which before he unjustly denied; because once the judgment is finished, the precept of the judge no longer urges. Except if the defendant by his denial has inflicted damage on the judge, which he ought to repair. - 2) Before sentence it is not necessary that he be interrogated again; because the precept of the judge perseveres, which he is still held to obey.¹⁷

2310. • II. It is never lawful for a defendant or accused man, even if innocent, FOR HIS OWN DEFENSE, to impose a false crime upon another. This is clear from the 44th proposition condemned by Innocent XI (cf. n. 1196). - Yet he can licitly, for his own defense, set against the accuser or witnesses a true but occult crime, provided that this is absolutely necessary, and that otherwise he himself would suffer grave damage, although through the revelation greater damage may come to the accuser or witness; for no one is held, with his own grave damage, to preserve the reputation of his neighbor (cf. n. 1198). - Likewise, if the defendant had indeed committed the crime, but so occultly that it cannot be proved, he can licitly set calumny against the accuser; because by law he is presumed to calumniate who accuses a defendant of a completely occult crime.¹⁸

2311. • III. It is not lawful for the defendant, even if unjustly condemned, TO REPEL FORCE BY FORCE, e.g. by killing, wounding, etc.; as is clear from the 18th proposition condemned by Alexander VII. - Nor can he licitly corrupt the keeper of the prison with money, since this is intrinsically evil (cf. n. 518). - But one unjustly condemned can positively resist, so that he may snatch himself from the hands of the attendants, provided that from this there does not arise public scandal and grave disturbance. He can similarly, by breaking doors, lawfully flee, even if the keeper of the prison is going to suffer damage from this; for he uses his own right, and consequently the damage which he does not directly intend is not imputed to him.¹⁹

But for him not yet condemned, or already justly condemned to death, or to the galleys, it is not lawful to resist. He can indeed flee from prison, where he is detained in custody; but he is by no means held to this. - But if prison (not very hard) has already been assigned to him as punishment, he can no longer flee; because the sentence justly passed against him obliges in conscience. Thus commonly.¹

On these things LET IT BE NOTED: - 1. When it is lawful for the defendant to flee, others also (ministers of justice, however, excepted) can supply those things which help or hasten flight, e.g. files, ropes, or other instruments, provided that no damage will come to the republic from this, for example, if the defendant were the head of robbers. - But it is lawful for no one to break into prisons in order to free the condemned: for this is conceded to the defendant from the right of preserving life; but for others it is ruled by the common good, namely lest all security of the prison perish (cf. n. 519).

2. Let the confessor prudently ADMONISH the defendant that he can neither benefit him nor harm him; for, this admonition being omitted, the defendant, led by hope or fear, will try to prove himself innocent. And although his innocence becomes known from confession, nevertheless let the confessor not commit himself to intercede for him before the judge; both because his testimony would not make faith, and because the seal of confession would be broken indirectly, in relation to those for whom the same intercession would not be made, and also because of many other inconveniences² (cf. n. 2300, and n. 1546, qu. 2, concerning Communion).

2312. • Questions. QUAER. 1. What is lawful for the defendant in a CIVIL cause?

Resp. The defendant, or defender, has the civil action brought against him by the petitioner, either as certainly just, or as certainly unjust, or as doubtful. - In the first case, he ought without delay to satisfy the petitioner, nor can he begin a lawsuit without being held concerning all damages that will come about. In the second case, he can defend his cause by all means and arts not illicit, as a defendant in criminal matters (n. 2310). - In the third case, he can, as long as the doubt persists, licitly contend; unless charity toward himself and the neighbor, and the counsel of the prudent, advise a transaction, namely lest expenses be multiplied beyond measure (cf. n. 944-947 and n. 1160).

QUAER. 2. Whether it is lawful to interpose an APPEAL?

Resp. 1. Neg., in a civil cause certainly unjust, or certainly less probable; because if a new judge judged for the defendant according to the less probable opinion, he would certainly act unjustly (from n. 2301, rule 4). - "But what if it is doubtful whether the superior judge will justly pass sentence for the defendant? In such a case, it is probable that the defendant can appeal, even in a civil cause; because, since the minds of men are diverse, perhaps the opinion which appeared less probable to the lower judge will appear more probable to the superior; and the defendant, since he already has a probable right for himself, can licitly try this, not without a just cause. And this seems to be the practice of all who appeal." Thus St. Alphonsus.³

Resp. 2. If there is question of a criminal and capital cause, the defendant can appeal, even if he has a less probable right, as is clear from what was said n. 2300. He will also be able to do this, although the first sentence has been just according to the things alleged, in the case in which he has found new reasons for himself, so that the opposite can still be proved.⁴

There must be treated: 1. concerning auxiliaries of the litigants, 2. concerning auxiliaries of the judges.

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

I. Reason for the question. - Because it is difficult in the business either of trade or of military service to preserve justice and to lead a Christian life, the confessor will give special attention and care to merchants and soldiers.

II. Merchants are especially to be questioned:¹

¹ Cf. St. Alphonsus, Praxis Conf., n. 59; Theol. Moral., l. III, tr. V, n. 801 sq.; Reuter, Neo-Conf., nn. 157-160.

1. Whether they have deceived in weight and measure.

2. Whether they have sold things beyond the highest price, unless by reason of emergent damage, ceasing profit, or special affection or need of the thing.

3. Whether they have abused the necessity or need of the buyer in order unduly to increase the price.

4. Whether they have used frauds in trade.

5. Whether they have manifested grave and hidden defects of the thing to be sold, or defects about which they were specially questioned.

6. Whether they have not substituted for the thing sold another substantially different thing, or have not sold things mixed with another of lesser quality without diminishing the price.

7. Whether they have sold defective merchandise soon to be corrupted; or goods in litigation without warning concerning this.

8. Whether they have not sold at the lowest price, but while giving a smaller measure.

9. Whether they have not established unjust coalitions or monopolies for excessively increasing the price, or exacting more than the highest price, especially in things of necessity.

10. Whether they have not used unjust or fictitious means, or false rumors, to increase or diminish artificially the price of things.

These last points especially have place in great businesses.

In all the aforesaid cases they are bound to restitution, if thereby they have unduly become richer, or if they have voluntarily inflicted unjust damage. Concerning this it will also be said below, c. 2, section B, q. 4.

III. Soldiers are especially to be questioned:

1. Concerning blasphemies and undue oaths.

2. Concerning omissions in fulfilling the precepts of the Church, especially concerning Sunday Mass neglected, if they were not impeded by reason of military service.

3. Concerning quarrels and duels; if these are entered by agreement, excommunication is incurred.

4. Concerning lust, and indeed not only concerning pollution, but also and especially concerning fornication, or even concerning stuprum, and sometimes, especially among cavalrymen, concerning sodomy.

5. Concerning immodest, depraved amusements or readings.

6. Concerning thefts and injustices.

7. Concerning damages unjustly inflicted.

This especially holds for time of war. On which occasion it can be asked: whether they have not harmed the innocent, have not seized the goods of private persons or inflicted damage upon them, have not occupied goods without necessity of sustenance or legitimate requisition of the leader, have not destroyed things belonging to another without necessity, etc. For those things which they would unjustly seize or destroy, they would be bound to restitution.

S. Th. II-II, q. 63, a. 4.

635. Public judgment formally and primarily is an act of distributive justice, by which the judge grants protection and guardianship to individuals proportionately to the quality and quantity of their rights; but if he grants it beyond proportion, there is acceptance of persons by which judgment is corrupted.

Although, therefore, public judgment by reason of the end pertains to legal justice, because it is exercised with a view to the common good (q. 60, a. 1, ad 1), and by reason of the matter can be an act of commutative justice, because it protects strict and rigorous right in individuals, nevertheless by reason of the form, according to its essence, it is an act of distributive justice. Hence St. Thomas says, q. 63, a. 4, ad 1: "Judgment can be considered in two ways: in one way as regards the thing itself judged, and thus judgment is related commonly to commutative and distributive justice: for by judgment it can be defined how some common thing is to be distributed among many, and how one person is to restore to another what he has received from him. In another way it can be considered as regards the very form of judgment, insofar as, namely, even in commutative justice itself the judge receives from one and gives to another; and this pertains to distributive justice. And according to this, acceptance of persons can have place in any judgment."

Gentlemen, so far I have explained the duties which the physician has in common with all other men, and which arise directly from the natural law independently of any civil legislation. The natural law requires the Doctor to respect the life of the unborn child, thus forbidding craniotomy and abortion. It also obliges him to protect his patients from the baneful effects of venereal excesses. Over these matters human law has no control, except that it may and ought to punish such overt acts as violate the rights of individuals, or seriously endanger the public welfare.

We shall now consider the physician’s natural rights and duties in regard to matters which civil and criminal legislation justly undertake to regulate. One of the chief functions of civil authority is to provide for the observance of contracts. Now, the physician in his professional services acts under a double contract, a contract with the state and a contract with his individual patients. By accepting his diploma of M.D. from the college faculty, and indirectly from the civil authority, he makes at least an implicit contract with the state, by which he receives certain rights conditioned on his performance of certain duties. In offering his services to the public, he also makes an implicit contract with his patients by which he obliges himself to render them his professional services with ordinary skill and diligence on condition of receiving from them the usual compensation.

I. The chief rights conferred on him by the state are these:

1. Protection against all improper interference with his professional ministrations.
2. Protection for his professional career by the exclusion of unauthorized practitioners.
3. Immunity from responsibility for evil consequences that may result without his fault from his medical or surgical treatment of patients.
4. Enforcement of his right to receive due compensation for his professional services.

These rights are not granted him arbitrarily by the state; they are founded in natural justice, but made definite and enforced by human legislation. Take, for an example, his right to receive due compensation for his services. This right was not recognized by the old Roman law in the case of advocates and physicians, nor by the common law of England until the passing of the Medical Act in 1858. Surgeons and apothecaries could receive remuneration for their services, but not physicians. These were presumed to attend their patients for an honorarium or honorary, that is, a present given as a token of honor.

Certainly, if Doctors by common agreement waived their right to all compensation, or agreed to be satisfied with any gift the patient might choose to bestow, they would be entitled to honor for their generosity; but they are not obliged to such conduct on the principles of natural justice. For by nature all men are equal, and therefore one is not obliged, under ordinary circumstances, to work for the good of another. If he renders a service to a neighbor, equity or equality requires that the neighbor shall do a proportionate good to him in return. Thus the equality of men is the basis of their right to compensation for services rendered. The physician’s right to his fee is therefore a natural right, and on his patient rests the natural duty of paying it. Not to pay the Doctor’s bill is as unjust as any other manner of stealing.

As to the amount of compensation to which the Doctor is justly entitled, Ewell’s “Medical Jurisprudence” remarks: “By the law of this country, all branches of the profession may recover at law a reasonable compensation for their services, the amount of which, unless settled by law, is a question for the jury; in settling which the eminence of the practitioner, the delicacy and difficulty of the operation or of the case, as well as the time and care expended, are to be considered. There is no limitation by the common law as to the amount of such fees, provided the charges are reasonable. The existence of an epidemic does not, however, authorize the charge of an exorbitant fee.

“A medical man can also recover for the services rendered by his assistants or students, even though the assistant is unregistered; it is not necessary that there should be any agreed specified price, but he will be allowed what is usual or reasonable.

“It is not the part of the physician’s business, ordinarily, to supply the patient with drugs; if he does so he has a right to compensation therefor. If the agreement is “No cure, no pay,” he cannot, however, even recover for medicines supplied, if the cure is not effected. His right to recover for professional services does not depend upon his effecting a cure, or upon his service being successful, unless there is a special agreement to that effect; but it does depend upon the skill, diligence, and attention bestowed” (pp. 3 and 4).

Further details on this point belong more properly to the lecturer on Medical Law. We are now concerned with the principles underlying special legislation. The main principle regulating all compensation is that there shall be a sort of equality between the services rendered and the fee paid for them. Ignorant people sometimes find fault with the amount charged as a Doctor’s fee. There may, of course, be abuses by excess; but men have no right to complain that a Doctor will ask as much for a brief visit as a common laborer can earn in a day. This need not seem unfair if it be remembered that the physician had to prepare, during many years of primary, intermediate, and professional studies, before he could acquire the knowledge necessary to write a brief prescription. Besides, it may be that his few minutes’ visit is the only one that day; and yet he has a right to live in decent comfort on his profession together with those who depend on him for support.

We must, however, remember, on the other hand, that excessive fees are nothing else than theft; for theft consists in getting possession of another’s property without just title. The following rules of Dr. Ewell are sensible and fair:

“The number of visits required must depend upon the circumstances of each particular case, and the physician is regarded by the law as the best and proper judge of the necessity of frequent visits; and, in the absence of proof to the contrary, it will be presumed that all professional visits made were deemed necessary and were properly made.

“There must not be too many consultations. The physician called in for consultation or to perform an operation may recover his fees from the patient, notwithstanding that the attending physician summoned him for his own benefit, and had arranged with the patient that he himself would pay.” (This, of course, does not mean that the practitioner has a right thus to shift the burden of pay from his own shoulders.) “Where a medical man has attended as a friend, he cannot charge for his visit. Where a tariff of fees has been prepared and agreed to by the physicians of any locality, they are bound by it legally as far as the public are concerned (that is to say, they cannot charge more than the tariff rates), and morally as far as they themselves are concerned” (p. 5).

In these rules Dr. Ewell regards chiefly what conduct the courts of justice will sustain. It is evident that the Doctor is never entitled to run up his bill without any benefit to his patient; where there is no service rendered at all, there can be no claim to compensation. Still it is not necessary that actual benefit has resulted to the patient; it suffices for the claim to the fee that measures have been taken with a view to such benefit. Even when no physical advantage can reasonably be hoped for from the visit, the consolation it affords the patient and his friends may render those who are to bear the expense fully willing that it should be often repeated and, of course, charged on the bill. Provided care be taken that they understand the situation, no injustice is done them. “Scienti et consentienti non fit injuria” is a good moral maxim.

II. We have said that the rights conferred on the physician by the state are conditioned on his performing certain duties. He owes the same duties to his patients in virtue of the contract, explicit or implicit, that he makes with them by taking the case in hand. Under ordinary circumstances, neither the state nor the patients can oblige him to exercise his profession at all; but, if once he has taken a case in hand, he can be justly held not to abandon it till he has given his patient a fair opportunity of providing another attendant; even the fear of contagion cannot release him from that serious obligation.

The duties arising from the physician’s twofold contract, with the state and with his patients, are chiefly as follows:

1. He must acquire and maintain sufficient knowledge of his profession for all such cases as are likely to come in his way. No Doctor has the right to attempt the management of a case of which he has not at least ordinary knowledge. In matters of special difficulty, he is obliged to use special prudence or ask for special consultation. The courts justly hold him responsible for any serious injury resulting from gross ignorance; in such cases they will condemn him for malpractice. I would here remark that, in an age in which the science of medicine is making such rapid progress, every Doctor is in duty bound to keep up with the improvements made in general practice, and in his own specialty if he has one.

2. A second duty is that of proper diligence in treating every single case. Many a patient suffers injury to health or even loses his life in consequence of a Doctor’s neglect. Gross negligence is an offence that makes him punishable by the court, if it results in serious injury. But even if such injury cannot be juridically proved, or has been accidentally averted, the moral wrong remains and is to be settled with the all-seeing Judge. Still, in ordinary ailments, no one is obliged to take more than ordinary trouble.

3. A third duty of the physician is to use only safe means in medical and surgical practice. He has no right to expose his patient to needless danger. What is to be thought of the use of such remedies as will either kill or cure? They cannot be used as long as safer remedies are available and capable of effecting a cure; for neither Doctor nor patient has a right to expose a human life to unnecessary risk. But when no safer remedies are going to effect a cure, then prudence itself dictates the employment of the only means to success. In such a case, however, the patient, or his parents or guardian, should, as a rule, be informed of the impending danger, so that they may give or refuse their consent if they please. For, next to God, the right to that life belongs to them rather than to the physician. The same duty of consulting their wishes exists when not life but the possible loss of a limb is at stake, or the bearing of uncommon sufferings. Moralists teach that a man is not obliged in conscience to submit to an extraordinarily painful or revolting operation even to save his life. Certainly, when the natural law leaves him at liberty, the physician cannot compel him to submit to his dictation; all he can do is to obtain his consent by moral persuasion.

4. As a consequence from the Doctor’s duty to use only safe means it follows that he cannot experiment on his patients by the use of treatment of which he does not know the full power for good or evil. Nor is he excused from responsibility in this matter by the fact that the experiment thus made on one patient may be very useful to many others. His contract is with the one now under treatment, who is not willing, as a rule to be experimented upon for the benefit of others. And even if the patient should be willing, the Doctor cannot lawfully expose him to grievous danger unless it be the only hope of preserving his life. This follows from the principle explained before, that human life belongs chiefly to God and not to man exclusively.

5. There are various kinds of medical treatment to which we can scarcely have recourse without exposing ourselves to serious evil consequences. Such is the use of cocaine, morphine, and even in special cases of alcohol. The drugs in themselves are useful, but they often lead to evil results. Now in the use of all such drugs as are apt to be beneficial in one way and injurious in another, we must ever be guided by the rules formerly explained concerning evil indirectly willed, or rather permitted to result, while good results are directly willed or intended. If the Doctor is satisfied that a dose of morphine or an application of cocaine will do more good than harm, he can, of course, prescribe or apply it. Still in such matters he must remember that the good effect is but temporary, while its pernicious consequences, especially when habits are thus contracted, are likely to be permanent and cumulative. Besides, the good results affect the body only, the evil often affect body and soul. Many a wreck in health and morals has been caused by imprudent recourse to dangerous treatment, where a little more patience and wisdom would have been equally efficient in curing the bodily ailment, without any deleterious consequences. If once a patient becomes a slave to the morphine or cocaine habit, the only cure is to cut off all the supply of the drug either at once or, at any rate, by daily diminution. To leave him free control of the poison is to co-operate in his self-destruction.

6. The sixth duty of a Doctor is of a different kind. There exists a tacit or implicit contract between him and his patients that he shall keep their secrets of which he becomes possessed in his professional capacity. It is always wrong wantonly to betray the secrets of others; but the Doctor is bound by a special duty to keep his professional secrets; and it is doubly wrong and disgraceful in him to make them known. For instance, if he has treated a case of sickness brought on by sinful excesses of any kind, he is forbidden by the natural law to talk about it to such as have no special right to know the facts. Parents and guardians are usually entitled to be informed of their children’s and their wards’ wrong-doings, that they may take proper measures to prevent further evil. Besides, the Doctor is properly in their service; he is paid by them, and, therefore, his contract is with them rather than with the children. He can, therefore, prudently inform them of what is wrong, but he cannot inform others.

It is a debated question in Medical Jurisprudence whether the Doctor’s professional knowledge of criminal acts should be privileged before the courts, so that he should not be forced to testify to a crime that he has learned from his patients while acting as their medical adviser. Dr. Ewell speaks thus on the subject (p. 2): “The medical witness should remember that, by the common law, a medical man has no privilege to avoid giving in evidence any statement made to him by a patient; but when called upon to do so in a court of justice, he is bound to disclose every communication, however private and confidential, which has been made to him by a patient while attending him in a professional capacity. By statute, however, in some of the United States, communications made by a patient to a physician when necessary to the treatment of a case are privileged; and the physician is either expressly forbidden or not obliged to reveal them. Such statutes exist in Arkansas, California, Indiana, Iowa, Ohio, Michigan, Minnesota, Missouri, Montana, New York, and Wisconsin. The seal upon the physician’s lips is not even taken away by the patient’s death. Such communications, however, must be of a lawful character and not against morality or public policy; hence, a consultation as to the means of procuring an abortion on another is not privileged, nor would be any similar conference held for the purpose of devising a crime or evading its consequences.

“A report of a medical official of an insurance company on the health of a party proposing to insure his life is not privileged from production; nor is the report of a surgeon of a railroad company as to the injuries sustained by a passenger in an accident, unless such report has been obtained with a view to impending litigation.”

The practical rule for a Doctor’s conscience on the subject of secrecy is, that he must keep his professional secrets with great fidelity, and not reveal them except in as far as he is compelled to do so by a court of justice acting within its legal power or competency. If so compelled, he can safely speak out; for his duty to his patient is understood to be dependent on his obedience to lawful authority.

As to the question of Jurisprudence whether the courts ought to treat the physician’s official secrets as privileged, in the same way as they do a lawyer’s secrets, this will depend on the further question whether the same reasons militate for the one as for the other. The lawyer’s privilege is due to the anxiety of the state not to condemn an innocent man nor a guilty man beyond his deserts. To avert such evil, the accused party needs the assistance of a legal adviser who can guide him safely through the mazes and technicalities of the law, and, even should he be guilty, who can protect him against exaggerated charges and ward off unmerited degrees of punishment. Now, this can scarcely be accomplished unless the attorney for the defence learn from his client the entire truth of the facts. But the client could not safely give such information to his lawyer if the latter’s professional secrets were not held sacred by the court of justice.

Can the same reasons or equivalent ones be urged in behalf of the physician? I do not see that they can. And I notice besides that, if he be excused from testifying against his patients, all their servants and attendants would seem to be entitled to the same privilege. Many persons, I think, labor here under a confusion of ideas; a Doctor is as sacredly bound to keep his patients’ secrets as a lawyer is in regard to his clients, but it does not follow that the law cannot grant a privilege to the one and refuse the same to the other, for reasons which require it in the case of the lawyer and not in that of the Doctor.

III. Besides the rights and duties which arise for the physician from his contracts with the state and with his patients, there are other claims on his conscience, which proceed from his character as a man, a Christian, and a gentleman.

1. As a man, he is a member of the human family, not a stranger dwelling amid an alien race, but a brother among brothers. He cannot say, as did the first murderer, Cain, “Am I my brother’s keeper?” But rather he must carry out the behest of the great Father of the human family: “God has given to each one care of his neighbor.”

The maxim of Freemasons is that every member of that secret society must come to the assistance of every brother-mason in distress. But the law of nature and of nature’s God is wider and nobler; it requires every man to assist every fellow-man in grievous need. The rich glutton at whose door lay Lazarus dying of want was bound, not by any human but by the higher law, to assist him; and it was for ignoring this duty that the soul was buried in hell, as the gentlest of teachers expresses it.

(a) As physicians, as men, you will have duties to the poor, who cannot pay you for your services; they are your fellow-men. Their bill will be paid in due time. He is their security who has said: “Whatsoever you have done to the least of these, you have done it unto Me.” He may pay you in temporal blessings, or in still higher favors, if you do it for His sake; but pay He will, and that most liberally: “I will repay,” says the Lord. The rule of charity for physicians is that they should willingly render to the poor for the love of God those professional services which they are wont to render to the rich for pecuniary compensation. While thus treating a poor patient they should be as careful and diligent as they would be for temporal reward; what is done for God should not be done in a slovenly fashion.

(b) In this connection of regard for the poor, allow me also to call your attention, gentlemen, to a point which students of medicine are apt to forget at times, and yet which both God and the world require you ever to bear in mind: it is the respect which every man owes to the mortal remains of a departed brother. I do not know that a people has ever been found, even among barbarians, who did not honor the bodies of their dead. For the good of humanity, dead bodies may at times be subjected to the dissecting-knife, but never to wanton indignities. Reason tells you to do by others as you wish to be done by, and Revelation adds its teaching about a future resurrection and glorification of that body of which the Apostle says that “it is sown in dishonor, but it shall rise in glory.” Be men of science, but be not human ghouls. There is such a thing as retribution. But lately a former millionaire died in a poorhouse and left his body as a cadaver for medical students. We cannot afford to ignore the mysterious ways of Divine Justice. Ever handle human remains in a humane manner; and as soon as they have answered the purpose of science, see that they be decently interred, if possible.

2. There are other duties that you owe not as men but as Christians. All of us enjoy the blessings of Christian civilization, even those who are not Christians themselves. We are dealt with by others on Christian principles, and we ought to treat others in the same spirit. What duties does this impose?

(a) When your patients are in real danger of death, let them have a good chance to prepare properly for their all-important passage into eternity. Give them fair warning of their situation. Doctors and relations are often afraid of alarming the patients and thus injuring their health. But those who attend Catholic patients at least soon find out by experience that the graces and consolations of the Last Sacraments usually bring a peace of mind that benefits even the bodily health. In any case, the interests of the future life are too important to be ignored.

(b) For the same reason, the physician should not prescribe such doses of morphine or other anæsthetics as will render the patient unconscious at a time when he ought to be preparing to meet his Judge. This would be not kindness but cruelty. A little suffering more in this life may save much suffering in the next. If a Catholic priest, on being called to a patient’s bedside, finds that the family’s physician has been so inconsiderate, he cannot help protesting against employing such a man in Catholic families.

(c) If you attend a woman in childbirth, you may be asked by a Christian mother not to let her child die without Baptism. The vast majority of Christians believe that this sacrament is necessary to obtain supernatural happiness. The ceremony is easily performed: no harm can come of it, but immeasurable good for eternity. It should properly be performed by the clergy. But if this cannot be done, any man, woman, or child, even one not a Christian himself, can administer the sacrament. Every Doctor in a Christian land should understand how to do it, and do it with unerring accuracy. It were a disgrace for him to be ignorant of what even an ordinary child is expected to know. The ceremony is so simple; and yet, being an institution of Christ, no man can modify it to suit his notions; if what is done is not just what Christ appointed to be done, it will be of no avail. Notice, therefore, carefully every detail. You will take a little water, say a cupful, real water—cold or lukewarm, that matters not—you will slowly pour it on the head of the child, and, while you do so, you will say, “I baptize thee in the name of the Father, and of the Son, and of the Holy Ghost.” That is all. Notice, you must say the words while the water is being poured on the child. For “I baptize” means “I wash”; pour, therefore, or wash while you say, “I wash.” Should you hereafter wish to refresh your memories on this matter, you can do so by consulting the “Century Dictionary,” which explains Baptism, and in particular Catholic Baptism, as “consisting essentially in the application of water to the person baptized by one having the intention of conferring the sacrament, and who pronounces at the same time the words, ‘I baptize thee in the name of the Father, and of the Son, and of the Holy Ghost.’” If a cup of water given to the thirsty brings a blessing, how much more the giving of the water of salvation! Should it happen that the child is in danger of dying before delivery, it should be baptized in the womb provided it be at all possible to cause the water to reach or wash its body, projected upon it by any instrument whatever; but the water should flow over the body, not merely over the cyst enclosing it, for the cyst is no part of the child. Even if but an arm or other minor portion of the body is washed, the baptism is probably valid. If any doubt about the valid administration is left, the infant after delivery should be carefully baptized under condition, as it is called; that is, with the condition added that, if the former ceremony was validly conferred, there is no intention of giving a second baptism. For that would not be right; since the sacrament cannot be validly received more than once; it is a sacred initiation, but it were mockery to initiate one that is already initiated.

Should a physician be present when a pregnant woman has recently expired, and the child may still be living in the womb, it will be an easy and important task to perform the Cesarean section as soon as possible, and baptize the little one before it dies. In all this there is no money, but what is far more precious, the securing of eternal happiness. I add with great pleasure that many physicians are wont to comply with all these instructions most carefully, and even to instruct midwives and nurses in the best manner of rendering such services.

3. Lastly, we must consider the duties which a Doctor owes to others and to himself as a gentleman. It may not be easy to define what is meant by “a gentleman,” and yet to some extent we all know it; we recognize a gentleman when we meet one, we pay him sincere homage in our hearts. We readily allow him to influence us and to guide us. We esteem him instinctively as a superior being, as we distinguish a precious stone from a common pebble; so we value a gentleman for precious qualities exhibited in the beauty of his conduct. His conduct ever exhibits two characteristic marks: a proper degree of dignity or respect for self, and a proper degree of politeness or respect for others. Self-respect will not allow him to do anything which is considered vulgar, unmannerly, gross, rude, or selfish; he will avoid the two extremes, of self-neglect on the one hand and self-display on the other. His respect for others will make him treat all around him so as to make them feel comfortable in his presence; he will avoid whatever gives pain or causes embarrassment to even the lowest member of society.

Gentlemanliness has much to do with every one’s success in life, and in particular with a Doctor’s success. It is especially when sick that we are sensitive to everything displeasing in the conduct of others. It is not then the bold thinker or the extensive reader that is the acceptable visitor to the sick-room; but the gentlemanly consoler who always says the right thing at the right time, whose very eye expresses and whose countenance reflects the thought and sentiment most appropriate on the occasion.

There are most able physicians who are not gentlemen, and there are in the medical profession gentlemen who are rather poor physicians; but as a rule, I believe, the gentleman will thrive where the genius will starve. It is more or less the same in other professions. I know learned lawyers to-day who are far from prosperous, while men ten times their inferiors in learning are getting rich. I remember a most skilful physician, now no more on earth, who was a very genius in the science of medicine; but he was so filthy in his habits, he would so unceremoniously chew tobacco at all times, that many dreaded his visits, and would sooner have a man of less ability but gentler manners as their family physician.

Gentlemen, habits good and bad cannot be put on and off like a dress-coat; they are lasting qualities, the growth of years, the result of constant practice and self-denial or self-neglect. And, as I wish you success in life, allow me to conclude this lecture by recommending to you the assiduous cultivation of gentlemanly habits. Cultivate them now, while you are preparing for future labors. You wrong yourselves, and you insult your companions and your professors, when you neglect in their presence the conventionalities of polite society.

153. Principle 1. For lawfully exercising his office the judge must a) be endowed with sufficient knowledge, and b) pronounce sentence according to just laws.

a) For sufficient knowledge there is required not only theoretical knowledge of the laws, but also a perfect, or at least sufficient, investigation of the case to be handled. Hence the judge sins both if he does not sufficiently know juridical science, and also if he neglects a sufficient investigation of the case on which he must judge. If a judge lacking either of these forms of knowledge, while exercising his office, has brought damage, he has wounded commutative justice, and therefore is held to reparation of the damage. For he is then an unjust damager, who truly, formally, and efficaciously brought unjust damage.²¹⁷

b) That the judge is held to judge according to just laws is evident of itself; for his whole office is to apply just laws in a particular case. Hence he is most certainly held to reparation of damage if, knowingly judging against a just law, he has brought grave damage. There are, however, authors, such as Lugo,²¹⁸ Lessius²¹⁹ (whose opinion St. Alphonsus²²⁰ calls probable), who teach that the judge is not held to restitution if his false sentence was the cause that a fine to be paid was not assigned to the treasury. For they think that the judge then wounds not commutative justice but only legal justice, and that fines of this kind are imposed principally as penalties of the guilty person and only secondarily as emoluments of the treasury. Indeed this opinion can be sustained in practice if there is question of rare and small fines, because then the legislator is not so reasonably unwilling that the judge should treat the guilty with benignity. But if there is question of great fines, and those frequently occurring, e.g., of great defraudations of customs duties,²²¹ the opinion set forth does not seem probable, because then the judge wrongly absolving transgressors causes great damage to the treasury, and therefore the legislator is reasonably and gravely unwilling in damages of this kind. Moreover, the judge who judges badly truly wounds commutative justice, because he fails in the office undertaken from contract.

²¹⁷ Cf. Code of Canon Law c. 1625.

²¹⁸ De iust. et iure disp. 37, n. 97.

²¹⁹ De iust. l. 2, c. 13, n. 73.

²²⁰ Theol. mor. l. 4, n. 1906.

²²¹ Zolldefraudation.

154. You ask: Must, or at least can, the judge judge according to laws that are manifestly unjust? e.g., can the judge, according to the unjust law of several regions, punish a pastor who has blessed a Christian marriage before a civil marriage was entered?

This question, which is of the greatest moment especially in ecclesiastical and matrimonial causes, is solved with difficulty by a general response. Rather, in individual cases it is necessary to weigh whether such a sentence of the judge is an act intrinsically evil. The Angelic Doctor²²² teaches absolutely that judgment must not be made according to those positive laws which are opposed to the natural or divine law; therefore cases can occur in which the judge must rather resign his office than violate natural or divine law by a judicial sentence, e.g., a judge can never decree that a Catholic should deny the faith. But since in modern Codes the liberty of the judge is usually greatly limited, so that his office has been reduced almost to the inquiry of the fact and to the application of the law to the fact investigated, perhaps Catholic judges can sometimes be excused who are held to pronounce an unjust sentence, e.g., concerning divorce or concerning ecclesiastical persons and things. For on the one hand a Catholic judge cannot, without the gravest damage, refuse judgment in these cases; but on the other hand he himself commits no free injustice, but only applies an unjust law. Besides, as will appear from the things to be said below, a judge can condemn one whom by private knowledge he knows to be innocent, if juridically he is proved guilty. Therefore in that case the judge condemns an innocent person, because he is compelled to this by the testimony of false witnesses. Why could the judge not do something similar if he is compelled by an unjust legislator? The intrinsic reason of all these things is that the judge, thus most gravely compelled to apply an unjust law, seems only to furnish material cooperation in an evil thing. Now, when a grave cause exists, it is lawful materially to cooperate in evil, as was said above, I, n. 619. - Hence in practice a Catholic judge can be left in good faith if, e.g., he is most gravely compelled to pronounce judgment according to iniquitous laws; e.g., a judge who is held to liquidate the goods of religious according to iniquitous laws in force. The Sacred Penitentiary also seems to imply this, when on Aug. 5, 1907, it responded that "liquidators, insofar as in the name of the government they administer usurped goods and procure their sale, do not incur the censure."

Concerning the obligations of the judge in pronouncing civil divorce there will be treatment below, III, 902.

²²² S. theol. 2, 2, q. 60, a. 5 ad 1.

155. Principle 2. A sentence of the judge which is a) certainly just obliges in conscience; but one which b) is certainly unjust does not of itself oblige in conscience; c) nevertheless, by accident, it can oblige in the external forum for avoiding scandal or public disturbance.

a) A just sentence of a judge includes the precept of the supreme legislator, and therefore in a penal cause it demands obedience, but in a civil cause it defines strict right between the parties.

b) A judge can judge unjustly either formally, i.e., with the essential form of judgment neglected, e.g., without an accuser, without sufficient proof of the fact or of the delict; or objectively, i.e., by bringing forth a false sentence, e.g., condemning the innocent, assigning a good to him to whom it does not belong; or formally and objectively at the same time. It matters little in what way finally the judge has judged unjustly. For every unjust sentence of a judge does not of itself oblige in conscience, because a judgment is, as it were, a particular law.²²³ But no unjust law obliges of itself in conscience. Therefore neither does an unjust sentence of a judge oblige. - Besides, above, I, n. 219, it was proved that a law founded on a false presumption of fact does not oblige in conscience. But an unjust sentence is founded on a false presumption of fact, namely, on the false presumption that the conditions required by law in the present case have been fulfilled. Therefore an unjust sentence does not oblige in conscience. From all these things it follows that one unjustly condemned can compensate himself occultly, if otherwise he cannot obtain his certain right.²²⁴ But I say "his certain right"; for if the right is only doubtful, or the judge's sentence is doubtfully unjust, then one must stand by the sentence of the judge, because the presumption stands for him.

c) The third part of the principle is evident of itself, since private good must yield to public good.

²²³ S. theol. 2, 2, q. 67, a. 1.

²²⁴ Cf. St. Alphonsus, Theol. mor. l. 4, n. 215.

156. Principle 3. In doubt, a) if there is question of a crime to be punished, the judge must favor the accused; but if b) there is question of civil matters, the judge is held to judge according to the greater probability.

a) In criminal causes the judge must absolve the accused unless his guilt is morally certain, according to that saying: "No one is presumed evil unless he is proved," and according to Rule of Law 49: "In penalties the more benign interpretation is to be made."²²⁵

b) But in civil causes the judge must keep before his eyes the principle: "In doubt the condition of the possessor is better." Hence he cannot deprive anyone of possessed goods or rights unless by certainly more probable reasons it is shown that the possession is illegitimate. But if neither litigating party is in possession of the disputed thing, then, if there is equal probability on each side, let the judge urge an amicable composition; and if this is rejected, the judge can assign the thing to whichever one he prefers. But if there is greater probability on one side, the thing must be assigned to that one, because the judge must render right to the parties according to the merit of the cause. The proposition (2) was condemned by Innocent XI: "I probably think that the judge can judge according to an opinion even less probable";²²⁶ and the proposition (26) was proscribed by Alexander VII: "When litigants have opinions equally probable in their favor, the judge can accept money for rendering sentence in favor of one rather than the other."²²⁷

²²⁵ Cf. Code of Canon Law c. 1869, § 4.

²²⁶ Denz. n. 1152.

²²⁷ Denz. n. 1126.

157. Principle 4. In no way is it lawful for the judge to accept gifts properly so called from litigants.

Thus all laws establish.²²⁸ But the reason is that gifts of this kind introduce a grave danger of corruption. Hence it is said: "Presents and gifts blind the eyes of judges."²²⁹ But it is said: gifts properly so called; for the judge can accept a just stipend, to be paid either by the republic or by the litigants, as is evident of itself. Likewise there are not prohibited certain little gifts in food and drink which are offered from mere liberality,²³⁰ unless even this is specially prohibited, as in fact the Council of Trent²³¹ prohibited it to examiners of those who undergo a competitive examination for obtaining a parish. Therefore when the judge accepts gifts properly so called, he sins gravely; indeed he is held to restore them if he accepted and exacted them for rendering a just sentence, because truly such a judge already by force of his office is held to render a just sentence. Therefore he cannot exact some other gift for that which he is already held to do from another source.²³² But if the judge exacted gifts for rendering an unjust sentence, certainly he is held to restore these gifts before the sentence has been given, both because he accepted money for committing sin and because he is held to rescind this shameful contract. But after he has rendered the unjust sentence, he is indeed held to make good all the damages which are brought upon the one unjustly condemned; nevertheless he can retain the gift accepted, just as a prostitute can retain the price which she accepted for fornication done.²³³

²²⁸ Cf. Code of Canon Law c. 1624, 1627.

²²⁹ Eccli. 20, 31.

²³⁰ c. 2, T 3 in VI.

²³¹ Sess. 24, c. 18 de reform.

²³² Cf. St. Alphonsus, Theol. mor. l. 4, n. 216.

²³³ Cf. below, on a shameful contract, n. 253, and St. Alphonsus, l.c. l. 3, n. 712.

158. Scholion. On the obligation of the judge to judge according to the allegations of witnesses. Authors dispute most sharply whether the judge is always held to render sentence according to the allegations and proofs of witnesses, even if from private knowledge he knows that the matter is otherwise. Three opinions are enumerated. The first asserts that in that case the judge is held to disregard the allegations and proofs of witnesses and to judge according to his own private knowledge, which he certainly knows to be true. For it seems to be intrinsically evil to condemn an innocent man or to compel someone to pay who owes nothing. For this opinion Lessius,²³⁴ Bonacina,²³⁵ etc., are cited, and St. Alphonsus²³⁶ calls it very probable. - The second teaches that in civil causes and in lesser criminal causes the judge is held to judge according to the allegations and proofs of witnesses, notwithstanding any private knowledge whatever; but in greater criminal causes judgment must be rendered according to the truth, with the witnesses proving the contrary disregarded. Thus Lugo,²³⁷ Sylvius,²³⁸ Schindler,²³⁹ and others. The reason of this opinion is that it is of the greatest interest to the common good that the right judicial order be observed, and therefore the prince of the republic is presumed to have conferred all his power upon the judge for obtaining this end. But the prince can dispose of the goods of private persons on account of the common good; likewise he can impose lighter penal works on individual citizens on account of the common good; yet he can never punish an innocent man with the penalty of death. Therefore the judge also can act thus when he is compelled to this by the allegations of witnesses. - The third opinion teaches that the judge is indeed held with all his strength to judge according to the truth certainly known, and therefore ought to leave nothing unattempted so that he may render the allegations and proofs of witnesses conformable to the truth; but if nevertheless he has tried thus in vain, judgment must be made according to the proofs of the witnesses, although objectively the sentence is false. Thus St. Thomas,²⁴⁰ St. Raymond, St. Antoninus, Cajetan, Dominic Soto, Banez, Valentia, Sanchez, the Salmanticenses, Billuart, and others. The Angelic Doctor²⁴¹ writes to the point: "The judge, if he knows that someone is innocent who is convicted by false witnesses, must examine the witnesses more diligently, so that he may find an occasion of freeing the innocent man, as Daniel did. But if he cannot do this, he must leave him to a superior to be judged. But if he cannot even do this, he does not sin by rendering sentence according to the allegations, because he himself does not kill the innocent man, but those who assert him to be guilty do." - This whole controversy now is of less practical moment, since in greater criminal causes guilt is for the most part decided not by the judge but by "jurors." Now these jurors are held to render sentence according to their inward conviction, nor are they compelled to offer the motives of their sentence. Hence jurors must always judge according to objective truth and not according to the false proofs of witnesses. - If judgment must be rendered not concerning the penalty of death but concerning other lesser causes, theologians very commonly teach that the judge, as a public person, must judge according to those things which he publicly knows from the testimonies of witnesses, but not according to those things which he knows by private knowledge. Hence the same theologians also deduce, on the contrary side, that the judge acts unjustly and is held to reparation of damage who condemns him whom by private knowledge he certainly knows to be guilty, but whom the witnesses prove to be innocent.²⁴²

²³⁴ De iust. et iure l. 2, c. 29, dub. 10.

²³⁵ De octav. praec. disp. 10, q. 2, punct. 2, n. 2.

²³⁶ L.c. n. 208.

²³⁷ De iust. et iure disp. 57, sect. 4, n. 43.

²³⁸ In 2, 2, q. 67, a. 2, concl. 1.

²³⁹ Lehrbuch der Moraltheol. III, 803.

²⁴⁰ S. theol. 2, 2, q. 67, a. 2.

²⁴¹ S. theol. 2, 2, q. 64, a. 6 ad 3.

²⁴² Cf. Billuart, De iure et iust. diss. 12, a. 2 and 3. The Code of Canon Law c. 1896 also seems to favor the opinion of St. Thomas, establishing: "For the pronouncement of any sentence there is required in the mind of the judge moral certitude concerning the matter to be defined by the sentence. The judge must draw this certitude from the acts and proofs. But the judge must estimate the proofs from his conscience, unless the law expressly establishes something concerning the efficacy of some proof."

159. Notions. In a civil cause he who presses before the judge against another is called the actor (Kläger), but in a criminal cause the accuser (Ankläger). In the strict sense the accuser is distinguished from the denouncer, and accusation from denunciation. For accusation is usually defined: the delation of a defendant concerning a crime for public vindication, made by one who pledges that he will prove the crime. Therefore the end of accusation is the public vindication of crime for preserving the common good. The accuser is held strictly to prove the existence of the crime; otherwise the accused must be freed. In ancient Roman law, in modern laws, and in ecclesiastical law there are several requisites for legitimate formal accusation.²⁴³ Denunciation is the delation of a crime to a legitimate superior, so that he can investigate and punish; but it does not induce a strict obligation of proving. This denunciation indeed is either judicial, if it tends toward a delict to be punished, or evangelical, if a crime is denounced to the superior not as to a judge, but as to a father, for correcting the delinquent. - Therefore these are not to be confused: plaintiff, accuser, denouncer, or action, accusation, denunciation.

1. In more recent laws formal accusation is scarcely admitted except by persons destined for this from their office,²⁴⁴ e.g., by a procurator of public causes (commonly Staatsanwalt, procureur général), by guardians of forests, of customs, etc. But these persons are held to accuse, or at least judicially denounce, crimes found, unless there is question of certain matters of lighter moment. The reason is that they have been constituted for this end by legitimate superiors. Therefore officials of this kind sin if they neglect their offices; indeed they are held to reparation of damage if from the neglected accusation real damage has occurred either to the republic or to private men.

2. A private man is held to denounce crimes a) if this is prescribed by positive law, e.g., denunciation of one soliciting to shameful things on the occasion of confession; b) if the common good demands this, e.g., denunciation of counterfeiters of money; c) if there is question of grave damages to be averted from a private neighbor. - In other cases denunciation can indeed sometimes be done laudably, but it is not necessary. But a man is never held to denounce or defame himself.²⁴⁵

3. Judicial denunciation can be made from a reasonable cause, even if fraternal correction has not preceded, because this denunciation chiefly intends the punishment of the delinquent for preserving the common good. Evangelical denunciation also can often be made without fraternal correction having been previously given, namely, if the amendment of the delinquent is thus obtained more efficaciously, or if fraternal correction appears too difficult, as was said above, I, n. 602.

²⁴³ Cf. ibid. diss. 13, a. 1.

²⁴⁴ Code of Canon Law c. 1934.

²⁴⁵ Cf. below, on the defendant.

160. 1. Generally speaking, the statutes of civil laws concerning giving or refusing testimony can be considered as obliging in conscience, since they seem to be sufficiently just.²⁴⁶ A much greater obligation rests upon those who by force of their office are held to furnish an oath or testimony (commonly Amtseid) than upon other men, who by transgressing those statutes of themselves wound only legal justice.

2. The obligation of giving testimony can arise:

a) from charity, namely, if testimony is necessary for avoiding damage of the neighbor or of the republic. Since this obligation of charity arises from natural law, anyone is held even spontaneously and unasked to offer himself for testifying if otherwise notable damage of the neighbor or of the republic cannot be avoided.²⁴⁷ Hence if someone has been condemned for a homicide which you certainly know was committed by another, you must appear spontaneously as a witness for freeing the innocent man.²⁴⁸ But when testimony is joined with damage of the one testifying, the rules given above, I, n. 579 sqq., concerning the order of charity must be applied. For no one is held from charity to forestall another's damage with equal or greater damage of his own.

b) from commutative justice, namely, if someone by force of his office is held to give testimony; e.g., a guard who is asked by a legitimate superior about some crime seen.²⁴⁹

c) from legal justice or from obedience, namely, if someone is lawfully cited by a legitimate judge to testify.²⁵⁰ For this citation of witnesses is necessary for the common good and for preserving judicial order.

3. Excuses from giving testimony. Several cases are found in which a cited witness either can or must refuse testimony. Cases of this kind are:

a) The secret of the confessional seal to be observed. For those things which the priest knows from sacramental confession he does not know as a man, but as a minister of God. Hence the confessor never ought, indeed cannot even, testify concerning those things which he knows from confession.²⁵¹ And truly the greatest inconveniences would arise for the Christian religion if ever a confessor could, without the express permission of the penitent, disclose a secret had from sacramental confession. Indeed it has been salutarily established in canon law that a priest, even if released from the bond of the seal, can never in ecclesiastical judgment testify concerning those things which he knew from sacramental confession.²⁵²

b) Professional secret also for the most part prohibits testimony from being given. Hence physicians, advocates, pharmacists, etc., neither can nor ought to testify concerning matters known from their office.²⁵³ I say "for the most part"; for if it is necessary for averting grave damage, whether common²⁵⁴ or another's or one's own, there can be an obligation of testifying; e.g., a physician who from his office knows that some woman procures abortion rather often in other women is held to render testimony for avoiding the gravest evils of several abortions.

c) If from the testimony grave damage arises either for the one testifying himself or for the near relatives of the one testifying. This excusing cause is usually admitted by modern Codes and also by the Code of Canon Law c. 1755. Hence, e.g., no one is held to give testimony against his own parents.

d) If the judge is not legitimate, or if he does not interrogate legitimately. Hence, e.g., a cleric, speaking absolutely, is not held to furnish testimony before a civil judge. Nevertheless, because modern laws are not accustomed to acknowledge this immunity of clerics, and because illegal refusal of testimony is gravely punished, hence in practice a cleric neither can nor ought to refuse testimony from the sole title of clerical immunity.

e) If the witness came to knowledge of the matter through injury, e.g., because he secretly opened another's letters.²⁵⁵ For the acquisition of the knowledge was already unjust, and the testimony of that knowledge would be still more unjust.

f) If there is question only of the punishment of someone's crime, which is not so necessary for the common good; e.g., one knowing of a homicide committed by someone drunk can sometimes by lawful means withdraw himself from giving testimony, provided that from this no suspicion of the crime falls upon another or other grave damage arises.

4. The fault of false testimony. He who gives false testimony of himself sins gravely against justice; hence a false witness in Sacred Scripture is called hateful before God.²⁵⁶ According to St. Thomas,²⁵⁷ false testimony has a threefold deformity: a) from perjury, because witnesses are not usually admitted to testifying unless sworn. But perjury is a very grave sin against the virtue of religion, which is a potential part of justice. b) from violation of justice, whether legal justice, which gravely commands true testimony to be given by a witness legitimately cited, or commutative justice, since almost always from false testimony grave real damages of the neighbor or of the republic arise. c) from the lie itself; for false testimony is directly opposed to the virtue of truthfulness, which likewise is a potential part of justice. Therefore St. Augustine deservedly says: "A false-speaking witness is liable to three persons: first to God, whose presence he contemns; then to the judge, whom he deceives by lying; last to the innocent man, whom he wounds by false testimony."²⁵⁸ - By accident (but rather rarely) false testimony furnished without an oath can be a light sin, namely, if it arose from inadvertence or forgetfulness, or from very slight matter.

²⁴⁶ For ecclesiastical law see Code of Canon Law c. 1755.

²⁴⁷ Cf. S. theol. 2, 2, q. 70, a. 1.

²⁴⁸ The contrary opinion of Lugo (De iust. disp. 39, n. 1) and of his followers does not seem probable.

²⁴⁹ The obligation of giving true testimony is grave for officials of this kind, both because an oath (Amtseid) intervenes and because, by freely undertaking such offices, they have entered a contract of denouncing to legitimate superiors those things whose care was imposed upon them. Hence officials of this kind are held to restitution if real damage has come about from their false testimony or from the omission of due testimony.

²⁵⁰ Code of Canon Law c. 1766.

²⁵¹ S. theol. 2, 2, q. 70, a. 1 ad 2.

²⁵² Code of Canon Law c. 1757, § 3, n. 2.

²⁵³ Ibid. c. 1755, § 2.

²⁵⁴ S. theol. 2, 2, q. 68, a. 1 ad 3.

²⁵⁵ St. Alphonsus, Theol. mor. l. 4, n. 268 (5).

²⁵⁶ Cf. Prov. 6, 19.

²⁵⁷ S. theol. 2, 2, q. 70, a. 4.

²⁵⁸ It is also found in c. 1, X 5, 20.

161. 5. The obligations of a false witness. He who knowingly and voluntarily has given false testimony and in this way has truly wounded commutative justice is held to repair all damages arisen from this false testimony. But from false testimony commutative justice is not always wounded; e.g., he who by false testimony has freed a guilty person from the penalty of prison quite often has brought grave real damage upon no one and therefore is not held to restitution. The matter stands somewhat otherwise if someone by false testimony has freed the guilty person from a monetary fine to be paid to the government. On this matter Noldin²⁵⁹ writes after Lessius: "If a witness from the false testimony given is the cause on account of which the guilty person is absolved and by this reason the treasury is deprived of a monetary fine, he is not held to reparation of damage toward the treasury. For the judge is not held to repair damages which have come to the treasury from a monetary fine not imposed; therefore neither is the witness." But whatever is to be said concerning the obligation of the judge, which seems to have to be judged according to the diverse laws which he violates, insofar as they are either merely penal laws or preceptive laws,²⁶⁰ the false witness impeding a monetary fine to be paid to the treasury is held to restitution if this fine is imposed for repairing damages caused, but not if this fine is the effect of a merely penal law. E.g., Peter, who brought damage to a public building, is freed from the obligation of repairing the damage by the perjury of Paul. If Peter does not repair this damage, the obligation falls upon Paul. But Peter, who is just about to be condemned to pay a fine of one hundred francs on account of injurious words against the emperor, is freed from this fine on account of the perjury of Paul. In this case neither Peter nor Paul is held to pay the fine.

When the false witness has culpably wounded commutative justice, he is held to repair the damage caused, even if he himself must suffer equal or even somewhat greater damage. The reason is that the false witness is an unjust damager, who is held to repair every damage which he caused with grave theological fault. If a witness by bringing forth false testimony from inadvertence or with light fault has caused grave damage, he is held to revoke his testimony and thus repair the damage. But what if the false witness cannot repair the damage caused unless by gravely defaming himself and incurring the greatest damages, e.g., the penalty of a rather long imprisonment? - Lehmkuhl²⁶¹ asserts against Schwane that the false witness is held to confess his crime. But in the work Cases of Conscience²⁶² he speaks more mildly. And truly the common adage says: "No one is held to defame himself." Besides, it seems to be a heroic act, which cannot be exacted from a penitent, that he should confess that he voluntarily committed perjury and that he should accept the harshest penalties of prison and deprivation of honor imposed against perjurers. Hence the obligation of gravely defaming oneself in practice is not to be imposed upon the penitent, unless nevertheless there is question of avoiding the death of another. It is sufficient that he repair the damages caused to others by whatever better ways he can.²⁶³ The quantity of this reparation can sometimes be determined with difficulty.

6. Price for testimony. A witness of himself can exact nothing for giving the testimony itself.²⁶⁴ Nevertheless modern civil laws and also ecclesiastical law determine the fitting compensation due to him for expenses of the journey or for time spent.²⁶⁵

²⁵⁹ De praeceptis n. 241.

²⁶⁰ Cf. above, n. 153.

²⁶¹ Theol. mor. I, n. 982.

²⁶² I, n. 639.

²⁶³ Cf. Gopfert, Moraltheol. II, 263.

²⁶⁴ Cf. S. theol. 2, 2, q. 71, a. 4 ad 3.

²⁶⁵ Cf. Code of Canon Law c. 1787.

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.

For the sake of clarity we distinguish the obligations of the accused before and after the sentence of the judge. Before the sentence of the judge the defendant a) is not held to confess the crime committed by himself; b) can defend himself by all just means.

163. 1. Confession of the defendant.²⁷⁴ The opinions of older authors in this matter are not always applicable today, since the judicial order of the Middle Ages differs very greatly from the discipline now in force, both ecclesiastical and civil. For in ancient times an accused person whose crime had been half-fully proved was held to confess the truth, and if he refused this, he was subjected to torture for extorting confession. This way of acting indeed is not repugnant to natural law and sometimes produced good effects. Nevertheless it must be confessed that not a few abuses also crept in from it. Today this torture has become antiquated among cultivated nations. It is never strictly exacted by modern civil laws that an accused defendant confess his crime. But in ecclesiastical law Benedict XIII already gravely commanded that an oath by no means be exacted from defendants, except however that they be examined as witnesses concerning others. "Otherwise an examination so constituted and all the acts are by that very fact null and void and lack every effect against the defendants."²⁷⁵ But if it is not lawful to impose an oath on defendants, it is a sign that the Church does not wish to compel the defendant that he himself confess the crime committed. Since these things are so, the principle placed by all the older theologians, "A defendant legitimately interrogated by the judge and with the order of law observed is held to confess the truth," is indeed true even today, but according to modern common law the judge now cannot under grave obligation oblige the defendant to confess his own delict.

Lehmkuhl²⁷⁶ writes on this matter: "I judge that there is never a grave obligation of confessing; nevertheless, that there is a venial sin of lying in persisting in denying a crime when no broad mental restriction can any longer be conceived." Noldin²⁷⁷ speaks still more absolutely: "The defendant is not held to confess the crime committed by himself; wherefore he must indeed abstain from lies, but to the interrogations of the judge he can respond with mental restriction; indeed the very denial of the crime in this case is not a lie, but a broad mental restriction, since he denies that he committed a crime which he is held to confess." This doctrine indeed is not contrary to St. Thomas teaching: "If [the defendant] is unwilling to confess the truth which he is held to say, or if he denies it mendaciously, he sins mortally."²⁷⁸ For the Angelic Doctor proves this opinion of his from the fact that the defendant in that case gravely wounds the obedience due to the legitimate superior commanding. This indeed was true at that time, both according to Roman law and according to ecclesiastical law. But today this is no longer true, neither according to civil laws nor according to ecclesiastical law (at least common law, and ordinarily speaking). For the Code of Canon Law c. 1743, § 1 establishes: "Parties are held to respond to the judge legitimately interrogating and to confess the truth, unless there is question of a delict committed by themselves."

But what if particular law, e.g., in some religious Institutes, still after the Code prescribes confession of a crime? A distinction must be made: If in such an Institute all statutes oblige not under fault, but under penalty only (which is more common), then even this confession of crime does not oblige under fault; but if in such an Institute certain statutes oblige under sin, then perhaps confession of crime can also be imposed under sin. In practice, however, ecclesiastical superiors can indeed admonish the accused person to confess freely the fault committed, because this confession is usually an act of virtue; but let them wholly beware lest they impose upon the accused person a grave precept of confessing his delicts. - A confessor accused on account of solicitation to shameful things, according to the Instruction of the Holy Office of Feb. 20, 1866,²⁷⁹ is held to confess the truth. For thus it is contained in that Instruction, n. 11: "These diligences having been completed, the defendant is brought into judgment, and before the judge... concerning the individual circumstances of each denunciation and examination, bound by the oath of telling the truth, he must respond." But since this Instruction does not have preceptive force but only directive force (because at its end the indicated norms are not commanded but recommended), it does not yet clearly appear that the confessor sins mortally if he refuses confession of the crime; and this all the more because the Code of Ecclesiastical Law c. 1744 simply and without limitation establishes: "The judge cannot tender to the accused an oath concerning the truth to be told in criminal causes."²⁸⁰ Thus, saving a better opinion.

2. Defense of the defendant. An accused defendant can defend himself by all just means. The reason is that the accused defendant, before the condemnatory sentence of the judge, is still considered innocent. Hence, necessity demanding, the accused can, e.g., narrate the hidden crimes of witnesses, if this is necessary for breaking their false testimony; he can interpose an appeal from the lower judge to the superior.²⁸¹ But it is by no means lawful to use unjust means, e.g., calumniously to impose false crimes upon others. This is plain from proposition 44 condemned by Innocent XI: "It is probable that he does not sin mortally who imposes a false crime on someone in order to defend his own justice and honor. And if this is not probable, scarcely any opinion will be probable in theology."²⁸² - He who is unjustly captured or condemned can defend himself, e.g., by taking flight even with breaking out of prison, by resisting guards, etc. The reason is that natural right permits each person to defend himself against unjust aggressors with the moderation of blameless defense. Nevertheless, in today's times positive resistance is often illicit, because it is not only useless but also harmful both to the accused himself and to the common good.²⁸³

²⁷⁴ Defendant in general is called he from whom a thing is sought in judgment, whether civil or criminal (cf. c. 10, X 5, 40). We are speaking of that defendant who is accused in criminal judgment; but the thing which is sought is the punishment of the accused.

²⁷⁵ Roman Council, a. 1725. The Code of Canon Law c. 1744 establishes the same.

²⁷⁶ Cas. consc. I, n. 502.

²⁷⁷ De praeceptis n. 732.

²⁷⁸ S. theol. 2, 2, q. 69, a. 1. Cajetan, the best interpreter of St. Thomas, notes on this place that there are three cases in which alone the defendant is held to confess the truth: 1. when infamy concerning some crime has preceded; 2. when manifest indications of the crime have appeared; 3. when half-full proof has preceded. But he limits these cases in such a way that a grave obligation of confessing the crime committed is rarely present. In today's practice the defendant can indeed sometimes be admonished by the confessor, but not compelled under penalty of absolution to be denied, to confession of the truth. You may see very many diverse opinions of authors on this question in Piat, Prael. iur. regul. II, 406 sqq.

²⁷⁹ Collect. de Prop. Fide n. 1282 (11).

²⁸⁰ Cf. ibid. c. 1830, § 3.

²⁸¹ In a criminal cause the defendant can almost always lawfully use the means of appeal; but in civil causes appeal requires solidly probable reasons. Cf. St. Alphonsus, Theol. mor. l. 4, n. 285; Banez, Comm. in 2, 2, q. 69, a. 3, concl. 3.

²⁸² Denz. n. 1194; cf. also S. theol. 2, 2, q. 69, a. 2.

²⁸³ The proposition 18 condemned by Alexander VII is to be noted: "It is lawful to kill a false accuser, false witnesses, and also the judge from whom an iniquitous sentence certainly threatens, if by another way the innocent person cannot avoid damage" (Denz. n. 1118). - This proposition indeed seems to have been condemned because by a killing of this kind the moderation of blameless defense is wounded.

164. 3. Penalties to be sustained by the defendant. After the sentence of the judge, a defendant justly condemned cannot positively resist custodians or guards. The reason is that then he would resist legitimate power and therefore, the Apostle bearing witness, he would acquire damnation for himself.²⁸⁴ Yet theologians commonly teach that even one justly condemned can flee from prison, or even break prison by force.²⁸⁵ But the reason is that the imposition of prison is a penal precept, which does not oblige with great inconvenience, and especially not to a heroic act, such as spontaneously remaining in prison, notwithstanding that there is a founded hope of escaping. - But is the defendant thus fleeing or breaking prison held to repair the damages which he has caused either to the treasury or to the custodians? Although certain authors deny it, the affirmative opinion seems truer, if nevertheless the fugitive truly brought notable damage, which rarely happens in our times. The reason is that although the fugitive did not commit theological fault by fleeing, nevertheless, with liberty recovered, he has become, as it were, richer, and therefore he is fittingly held to make good the damages which he caused by fleeing. But if the flight was vain, namely, because the fugitive was captured again, then he does not seem to be obliged to make good any damage, because then he will be punished more gravely and for a longer time in prison, and this penalty can be regarded as compensation of the damage caused.

Special prohibition being excluded, it is lawful for other private men not only to advise flight and prison-breaking to the defendant, but also to furnish him the necessary instruments. For this seems to be material cooperation in an act which is not intrinsically evil. But it would not be lawful directly to help one imprisoned to break prison, because this would be an unjust damaging of another's good, and besides because then public security would be endangered too greatly.²⁸⁶ A defendant detained in prison can also deceive the custodians so that flight becomes possible. Thus he can give them little gifts, administer intoxicating drink, etc., but he cannot directly corrupt them or induce them to other sins of neglected office.

Note. The doctrine explained above concerning penalties to be declined by the defendant, which is commonly proposed by older authors, today seems to have to be tempered somewhat on account of circumstances wholly changed. For in ancient times prisons were very harsh, and a captive who once escaped prison was with difficulty captured again. But today prisons are not usually so harsh, while escape is not only very difficult, but also sometimes joined with imminent danger of death or of another most grave inconvenience. Hence today flight from prison often is against right and necessary love of oneself, and therefore illicit.

²⁸⁴ Cf. Rom. 13, 2.

²⁸⁵ Cf. S. theol. 2, 2, q. 69, a. 4 ad 2.

²⁸⁶ Cf. St. Alphonsus, Theol. mor. l. 4, n. 283.

I say 1st. A judge is bound from a quasi-contract with society and with private persons rightly to fulfill his office, namely to vindicate justice according to the laws and to decree due penalties against delinquents; and unless he furnishes this, he will be guilty of violated justice, both legal and also commutative. - But because he cannot discharge that office rightly unless he has the gifts of sufficient intelligence and rectitude, he sins mortally if, being destitute of these, he seeks or even accepts the office of judge; but if he is ignorant of his own want, indeed he will not sin formally, but he ought not to be absolved unless renunciation of the office has been made, or unless he has a firm purpose of renouncing it. The reason is that otherwise he would daily freely expose himself to the danger of damaging his neighbor. - Cf. St. Alphonsus, n. 195.

I say 2nd. If the case is certain, the judge is bound to render sentence according to the laws and the order determined by the laws; for he is not constituted to change or reform laws, but to commit them to execution, with always excluded the special case in which the end of the law is to be attended to rather than the shell of the words. But if the case is doubtful, it must be distinguished thus:

1st. In criminal matters, favor must be shown to the accused, unless the crime is established, according to the 11th rule of law in the Sixth, which reads thus: Since the rights of the parties are obscure, favor is to be shown rather to the accused than to the plaintiff.

2nd. In civil matters, and in the case in which the doubt regards ownership and possession together, judgment must be made according to the more probable reasons if they are present, because proposition 2 was condemned by Innocent XI, which thus sounds: "I probably judge that a judge can judge according to an opinion even less probable." - But if the reasons are equally probable on each side, the thing seems to have to be divided. - Cf. Baller., note (e), p. 2.

3rd. Likewise in civil matters, but in the case in which the doubt regards only ownership, one must stand for the certain possessor if equal reasons contend on each side, according to rule 65 of law in the Sixth, which reads thus: In equal fault or case, the condition of the possessor is better. - But if the more probable reasons stand for the plaintiff, then according to some judgment would still have to be made for the possessor; but others say that the judge is free, and that the aforesaid rule of law cannot be invoked, for then the case is not equal. - Cf. St. Alphonsus, n. 210. - Sanchez, Decal., lib. 1, cap. 9, nn. 43 et seq. - Salmant., tract. 29, cap. 1, n. 41. - Baller., note (a), p. 3.

Question 1. Can a judge condemn an accused whom by private knowledge alone he knows to be guilty, or an innocent man who is juridically convicted as guilty?

Resp. To the 1st, negatively, absolutely, because the judge, since he is a public person, is bound to judge according to the things alleged and proved and according to the forms prescribed by law, unless perhaps by some necessity of a higher order he is compelled to pass them over. - But to the 2nd there is much controversy. St. Thomas indeed affirms, on account of the same reason, namely because the judge is a public person, and because neither the public good nor another good of a higher order otherwise demands recourse to private knowledge in this case. But St. Bonaventure denies, because to kill an innocent man is something intrinsically evil. Finally St. Alphonsus admits each opinion as probable, if there is question of civil cases or even criminal cases of lesser moment; but if the case occurs concerning greater criminal matters and especially capital ones, he thinks the opinion of St. Bonaventure more correct; because in the former case, he says, it can be said that private inconvenience ought to yield to the common good, since it is not so great, but not in the latter. But among us, where it pertains to jurors to decree concerning the existence of the crime, although the judge ought wholly to strive that the truth appear, nevertheless he sins in no way by condemning an innocent man, because he acts as if mechanically, only applying the penalty. - Cf. St. Thomas, 2-2, q. 64, art. 6, ad 3; and q. 67, art. 2. - St. Alphonsus, n. 208. Lugo, disp. 37, n. 41. - Kenrick, tract. 8, n. 113.

Question 2. Whether at least a juror can by his vote condemn an accused who indeed is juridically convicted of the crime, but whose innocence he certainly knows by private knowledge?

Resp. Negatively, and the reason is that this seems contrary to the mind of the law; for jurors ought to pronounce only about the fact, and according to the intimate conviction which they have concerning its existence, nor are they in any way bound to render a legal reason for the opinion which they bring forward. Cf. Kenrick, loc. cit.

Question 3. Can judges, as such, receive gifts?

Resp. Absolutely negatively, both because gifts blind the mind and impel more than is just toward favoring the giver, and because in canon law, lib. 1, tit. 3, cap. 11, in the Sixth, Boniface VIII expressly prohibited judges from accepting any gift, except perhaps food and drink offered by mere liberality. Yet if judges accept gifts spontaneously offered and without any pact concerning the sentence to be rendered, they indeed sin, but are not bound to restitution because they do not violate justice. I said without any pact, etc., because if gifts are accepted for rendering some just sentence, most certainly they must be restored, since whatever already was owed by office and therefore by justice cannot be matter of a contract. But if they are accepted with a pact of rendering an unjust sentence, again they certainly must be restored before this kind of sentence is rendered; but after the sentence has been given, there is controversy, and the opinion which holds that they can be retained is probable. Cf. St. Alphonsus, nn. 212 et seq. - Laymann, lib. 3, tract. 4, cap. 4, n. 9. - Baller., note (b), p. 5.

Question 4. Is it licit among us for a Catholic judge to render a sentence of divorce, when it is sought according to the civil laws?

Resp. 1st. The question posited generally is much controverted. Those who say that it is not licit argue thus: This law of full divorce is intrinsically evil, because it is repugnant to divine and natural law. But the judge by his sentence of divorce applies an intrinsically evil law; and therefore his sentence is intrinsically evil; his action is the efficient and principal cause of a thing intrinsically evil; he attempts to dissolve an indissoluble bond against divine law, practically and with authority obliging the parties, he applies the law in singular cases. Besides, there is more than one response of the Sacred Congregations favoring the stricter opinion.

But others not improbably affirm that the thing can be licit where, in the course of time, that sentence of the judge is held as an authoritative declaration of immunity from civil penalties, not regarding the conscience of the subjects and their religious obligations. In these places, on account of a grave cause, for example, lest Catholics be compelled never to undertake this office, it is licit for a Catholic judge to render the sentence, because it is not an evil action. The responses of the Sacred Congregations do not contain a General Decree; indeed one or another seems rather to suggest that such a sentence can sometimes be given. Now then, in our region such a law easily admits this interpretation; indeed here and there it has been said by a judge that by his sentence the religious bonds are in no way touched, but a legal formality is placed. Wherefore among us such an action of a judge seems wholly licit when grave causes are present. - Cf. Wernz, Jus Decretalium, v. 4, n. 750, and Bucceroni, v. 2, n. 983. - Lehmkuhl, n. 921, note, 11th ed. - Kenrick, tr. 8, n. 114. - The Pastor, v. 4, pp. 368 et seq. - Nouv. Rev. Théol., v. 18, pp. 376 and 461; v. 19, p. 73; v. 20, p. 6.

2nd. A fortiori civil judges can licitly render a sentence of separation from bed and board when the reason for it, for example adultery, is known to ecclesiastical authority; indeed also a civil sentence of full divorce when the invalidity of the prior contract has already been declared by the Church on account of some diriment impediment, or when the bond of a ratified marriage has been dissolved by the Pontiff, or the Pauline privilege has rightly been employed. In all these cases the spouses themselves also can rightly betake themselves to the civil court so that they may obtain liberty and protection from the officials of the state; indeed in some circumstances this would be wholly necessary for them, lest they be compelled to live with those who are not their spouses. Cf. Wernz, v. 4, n. 750, notes 110 and 111. - Bouvier, Law Dictionary, under the word Divorce.

Question 5. What is to be said concerning laymen, judges, and others of this sort, before whom according to the civil laws marriages can be entered?

Resp. The question is very involved. Therefore we say, first, that ordinarily there does not fall upon these officials the obligation of investigating whether the betrothed are held by ecclesiastical impediments, but only whether civil capacity is present; secondly, that very many of these marriages are valid, for example those contracted between two heretics or two infidels; but to assist at an illicit celebration is not of itself illicit, since it is licit also for a priest sometimes to assist at the marriages of the unworthy; thirdly, that cases arise where such marriages are wholly invalid, for example, of two Catholics, of a Catholic with a heretic or with an infidel, indeed also of those separated by divorce; concerning these we judge that it must be said that officials ought to refuse their office, or leave it to another, for charity urges that we avoid the evil of our neighbor when this can conveniently be done. But we cannot say that such assistance of lay officials is evil of itself; the responses of the Sacred Congregation do not prove this, for they were given for France shortly after civil divorce was introduced, and for Italy. The cooperation which is had in the case seems able to be permitted. Charity does not oblige with grave prejudice to the one cooperating; and certainly grave reasons can be present for the official for permitting assistance, the debt of office, the danger of losing it. Indeed a most grave damage in certain places can arise, not only to the official, but to the city itself, because otherwise any Catholic whatever would be turned away from these public offices. To a question similar to this the S. Inq. responded, 22 March 1892: "In the case of which there is question, the circumstances having been inspected, that it can be tolerated that the official assist at the merely civil ceremony of those who have obtained divorce from a civil tribunal, provided that he openly and plainly profess Catholic doctrine concerning marriage, and therefore by his assistance neither wishes nor is able to attribute the value of marriage to this contract, and that he assists or has assisted only compelled by law." Besides, among us any scandal easily ceases to exist. Cf. Gennari, Consultazioni, v. 1, p. 200; v. 2, p. 802. - Wernz, v. 4, n. 208. - Gasparri, "De Matrimonio," n. 1231.

Question 6. How are judges, Senators, or others of this sort obligated from whom an oath is exacted of preserving those secrets which are treated in the tribunal?

Resp. These oaths oblige in conscience; nevertheless they do not oblige under grave sin in every matter, but according to the nature of the matter of which there is question. Hence if it is gravely important that this matter be kept secret, they sin gravely by revealing it; otherwise, in a light matter, lightly. - Cf. Lugo, disp. 37, n. 193.

Question 7. Are laws obliging a judge to restore any gifts whatever accepted to be understood concerning restitution before condemnation?

Resp. There is controversy, and the negative opinion is probable; for such a law obliging before sentence would be most harsh, and not accommodated to the frailty of men, and would serve for nothing except to ensnare consciences.

Question 8. Is a judge bound to restore those things which he accepts for redeeming vexation?

Resp. Affirmatively, because the acceptance is unjust and the owners are unwilling; as is said concerning a price for a just sentence.

Nor does it seem that a judge can accept anything for dispatching this business before another, or for this judgment before that, where each is equally probable. For as often as he himself is bound by justice to do some one thing from a disjunctive obligation, he can accept nothing. - Ibid. Lugo.

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.

Those are called accused persons who are accused in judgment, whether criminal or civil, whether they are guilty or innocent. Various doubts occur concerning them, especially concerning confession of a crime and flight. Hence:

Question 1. Are accused persons questioned by a judge bound to confess the truth?

Resp. Negatively, if they are not legitimately questioned; namely when the judge is not legitimate, or when he does not observe the judicial form, as if he were to question without prior accusation, etc.; they also add, when there is not at least half-full proof of the crime. Whence it follows that accused persons among us ordinarily are not bound to manifest their crime, because the interrogations are made before juridical proof. Besides, according to the Constitution itself by which we are governed, no one can be compelled to give testimony against himself in a criminal case. Yet note that this is not the same as lying, for those words, "I am not guilty," signify by the consent of all that the accused does not wish to confess the crime. Cf. St. Alphonsus, n. 272 et seq. - Kenrick, tract. 8, n. 133. - Constit. of U. S. Amend., Art. V.

Question 2. Is it licit for an innocent accused person to flee or resist?

Resp. It is certainly licit for him to flee and to snatch himself from the hands of the officers; but it is not licit to repel force by force, by killing or wounding, because he would violate the rights of public power. - Cf. St. Alphonsus, n. 279.

Question 3. Is it licit even for an accused person who has truly committed a crime to flee?

Resp. Affirmatively, if he has not yet been condemned to punishment by juridical sentence, because no one before sentence is bound to pay the penalty. Likewise if he has already been condemned to a most grave penalty and prison has been assigned to him for custody until the established penalty is inflicted. But the Doctors more commonly deny, if prison has already been assigned for punishment by the sentence of the judge; because the accused is bound to obey in the execution of a just sentence. Nevertheless several except the case in which necessary things are not given to him, or if the prison is most harsh; because the obligation of not freeing oneself from a most grave penalty seems to exceed human powers when someone can accomplish this without force and resistance. - Cf. St. Alphonsus, nn. 280 et seq.

After setting forth this common doctrine, thus, so far as pertains to us, Kenrick continues: "I judge that all penalties are established by law and decreed by the judge in such a way that they are to be inflicted by the ministers of justice; and therefore I do not dare to condemn him who, without injury to another's right, withdraws himself, provided nevertheless that he does not employ force and does not disturb the public order." - Cf. Kenrick, n. 138.

I say 1st. No one is bound by justice spontaneously to offer himself for testifying; but sometimes there is given such an obligation from charity, for example, if someone can by his testimony easily free an innocent man, impede a grave injustice, etc. - Cf. St. Alphonsus, n. 264.

I say 2nd. A witness legitimately cited is bound to present himself before the judges, to pronounce the oath prescribed by law, to say the whole truth and nothing except the truth, and then to respond simply according to conscience to the things asked. The reason is that, a citation legitimately applied being supposed, an obligation arises by force of legal justice.

I say 3rd. A witness who maliciously has testified falsely is perjured and a violator of justice, if by his lie he positively influenced the harm of others; and therefore he is bound to reparation of all damages, and also to revocation of the false oath, even with equal damage to himself, even with danger of life, if by force of the false testimony an innocent man has been condemned to death. - Cf. St. Alphonsus, n. 269.

Question 1. To what is a witness bound who said what was false from invincible ignorance, or from inculpable inadvertence or forgetfulness?

Resp. He is bound to disclose the false testimony and to impede the damage in that manner in which he can; nevertheless he is not bound to reparation of damage already following, since he is free from theological fault. Cf. St. Alphonsus, n. 269.

Question 2. When is a witness excused from giving testimony?

Resp. He is excused in the following cases: 1st. if he accepted the matter only under the secret of confession; 2nd. if he knew the matter under committed secrecy, even if it was not explicitly promised; 3rd. if he accepted the matter from men not worthy of faith; 4th. if he foresees that grave damage will come to himself or to his own. Except, however, with regard to the 2nd and 4th case if common damage threatens from it. - Cf. St. Alphonsus, n. 268. - Lugo, de just. et jur., disp. 39, n. 12.

Question 3. Is a witness bound to reveal an altogether hidden crime, for example, one which he alone knows?

Resp. Affirmatively, according to the laws which establish that even one witness alone can suffice for condemning the accused. Cf. Kenrick, n. 123.

Question 4. Whether and how a witness sins who hides himself, lest he be cited by the judge, or who flees after citation?

Resp. A witness who hides himself lest he be cited sins neither against obedience, because no one is bound to obey the precept of a superior before it is imposed upon him, nor against commutative justice, because he conducts himself merely negatively. Yet he can sin against charity toward the neighbor, as was said above. But a witness who flees after citation sins gravely against legal justice and against obedience owed to the judge in a grave matter and one necessary to society; but more probably he does not sin against commutative justice, because that citation does not impose an obligation of justice, but only of obedience. - Cf. St. Alphonsus, n. 270. - Vogler, n. 337.

Question 5. Is a witness bound to restitution who, legitimately questioned, conceals the truth, yet does not say what is false?

Resp. Negatively, probably, and the reason is that the witness then conducts himself merely negatively, nor is he bound to depose the truth except from the precept of the judge; and therefore, by concealing it then, he sins against only the obedience owed to the judge, or also against religion on account of the oath given about saying the truth. - Cf. St. Alphonsus, ibid.

I say 1st. Physicians are bound before all things under grave sin to have sufficient knowledge and skill, and to employ diligence proportioned to the gravity of the matter which is committed to their care. But if they fail in these things, they are bound for all damages which follow from it. Besides, they ought to furnish their work gratuitously to the poor who are in necessity, as was said above concerning advocates.

I say 2nd. But in curing the sick they ought to observe the following rules: 1st. they are bound to follow the secure and safe opinions of physicians, at least ordinarily, because danger to the sick person cannot be removed by probability; 2nd. when it is certain that some medicine will benefit the sick, they are bound to apply it, with the doubtful one omitted; but if the certain is lacking, they ought to prefer the more probable one. Hence:

A physician sins gravely: 1st. if without sufficient capacity he undertakes to cure a grave disease; 2nd. if, when a grave and unusual disease occurs, he does not spend special work; 3rd. if he applies untested medicines for the sake of testing; 4th. if, without the nature of the disease well examined, he rashly prescribes dangerous remedies, especially with risk of life or grave injury; 5th. if, when danger has been recognized, he is not present opportunely, visiting the sick person day and night if there is need, and does not apply all means suitable for driving away the disease; 6th. if he does not permit other physicians to be called, where this would be proper, or if, calling others for the sake of consultation, he attends to friendship rather than to skill; 7th. if, on the contrary, without necessity he calls other physicians with useless expenses to the sick person, or if against his own conscience he adheres to their counsels; 8th. if he prolongs treatment for the sake of profit, uselessly multiplies visits where a salary is exacted for each one, or if he exacts too great a price; 9th. if, in order to favor apothecary friends, he prescribes superfluous medicines; 10th. if he counsels abortion, or means of procuring it, or himself carries it out; 11th. if he counsels vasectomy to a man unwilling to have offspring; 12th. or rashly employs a means which can render a woman sterile. - Cf. St. Alphonsus, n. 291; on the second precept of the Decalogue, n. 182; and on the Sacrament of Penance, n. 664.

Where the sick person is despaired of, a remedy probably going to benefit must be applied if he has no other certain one; if the remedy is certainly not going to harm and doubtfully going to benefit, it must wholly be applied; in a positive doubt whether the remedy is going to benefit or to harm, outside the case of a sick person despaired of, it is not to be furnished, but the sick person is to be left to nature.

A physician is bound to the secret of office, which can never be violated except when a dominant reason exists. Hence it is not licit for a physician to manifest the diseases of a family or individual to an agent of an insurance company without their consent; nor is it licit for him to tell a man, without the woman's consent, of an operation, suppose ovariotomy, performed by him on the woman before marriage; nor to make known to a bride before marriage the ordinary diseases of the man which induce no danger of contagion. But if the man previously labored under syphilis, yet now is wholly cured, the physician cannot reveal that previous condition to the woman. But if his condition from that disease is such that he truly ought not now enter the conjugal covenant, let him gravely warn the man concerning his obligation of deferring the celebration, and let him threaten the grave difficulties that will arise from the nuptials. Finally, if the man refuses, the physician has of itself a right to reveal the matter. Yet he will easily be excused if the circumstances are such that he himself would lose the trust of the people from it. Nevertheless, often there can be circumstances which prove that an obligation is present, for example, the law of the place or the custom of physicians; for then there will scarcely be an excusing cause from the burden of protecting the woman, when this can be done without grave inconvenience. - Cf. Bulot, n. 460, 3. - Lehmkuhl, n. 1444. - Genicot, n. 432.

Just as a physician, so also a surgeon is bound under grave sin to have sufficient knowledge, skill, and dexterity. Regularly he cannot perform any operation without the prior consent of the sick or of those under whose care they are. Since the matter being treated is one which is under the absolute dominion of God and not of man, there is not permitted to him an operation whose expressly intended end is to render men sterile. - Cf. above, n. 264, Q. 5.

Question. To what is a physician specially bound with regard to the soul of the sick person whose care he has undertaken?

Resp. He is bound of himself under grave sin to warn him, prudently however, concerning the grave danger in which he is placed, and concerning the necessity of receiving the sacraments. This is established 1st. from natural law or from the precept of charity; 2nd. from the very well known Decretal issued by Innocent III in the general Lateran Council, year 1245, cap. Cum infirmitas, 13 de Paenit. et remiss., and confirmed and renewed by other subsequent Pontiffs, especially by St. Pius V in the Motu Proprio Super gregem, year 1566.

IN this matter it is certain, first, that among Christians there can be just Judgments, against the error of the Waldensians and the Anabaptists, as Tannerus warns, disp. 4. quaest. 4. dub. 1.

IT IS PROVED

IT IS PROVED at length by the Saintly Doctor, p. 2. de Eccles. Hier. cap. 2., where the Saintly Doctor shows that Judges and Princes ought to be like the supernal Virtues, so that they may judge rightly. He brings forward several Scriptures on this point, 1. Reg. 14., where of King David it is said: But you, my lord the King, are as an Angel of God, who is moved neither by blessing nor by cursing. From this he deduces that the Judge must be strong, in order to judge rightly. Therefore Eccles. 7. Do not seek to be made a Judge, unless you have the strength to break through iniquities, lest perhaps you fear the face of the mighty. Sap. 6. Hear, O Kings and Judges, who judge the earth: to you is Power given by the Most High. The same is found in Psalm. 2. in the New Testament: Be instructed, you who judge the earth. Therefore in Exodus 32. rules for judging are given to the faithful: You shall not accept gifts, etc., and Deuter. 16. You shall not respect persons nor accept gifts, for they blind, etc. Second Paral. 19. See what you do: for you do not exercise the judgment of men, but of God. Isa. 1. Judge for the orphan, help the oppressed.

THUS David judged, 1. Reg. 30.: David rescued all that the Amalekites had taken, nor was anything missing from the spoils: but all things whatsoever they had seized, he brought back and restored. And 2. Reg. 22. Whom he shall repay fourfold, where he is called by the holy prophet to judge. And Solomon, 3. Reg. 3., judged — while he was holy — over those two little harlots concerning the stolen child. Many other passages from the Scriptures the Saintly Doctor brings forward in the Biblia pauperum, cap. 50. also for the law of grace.

THESE he also pursues at length ad cap. 6. Sap., in these words: Power has been given to you by the Lord, and strength by the Most High, who will question your works; for, though you were ministers of his kingdom, you did not judge rightly, nor keep the law of justice. Where he adduces that Rom. 13. There is no power but from God; Ioan. 19. You would have no power against me unless it had been given you from above. That Isa. 1. They do not judge for the orphan, and the cause of the widow does not come to them. The same he laments, Hierem. 5.

THE SAME authorities the Saintly Doctor pursues at length on that Ioan. 19. You would have no power, etc., where in the New Testament the power of judging is asserted by Christ, and by the Apostle, Rom. 13., and by St. Peter.

THE SAME he pursues in serm. 22. Hexaëmer., where he observes that it was promised in Isaiah, chapter 1: I will restore your judges as they were at the first: after this you shall be called the city of the just, the faithful city of Sion; she shall be redeemed in judgment, etc. Whence it follows that judgments erected in the Old Testament were not destroyed in the New, as regards power.

THEREFORE Paul also appealed to Caesar, Act. 25. and 26., and therefore, together with Peter, he exhorted the faithful to submit to the judgment of Princes, Rom. 13. Let every soul be subject to the higher powers, etc. For he does not carry the sword without cause: for he is God's minister: an avenger into wrath upon him who does evil, as the Saintly Doctor shows in 2. dist. 44. art. 3. quaest. 1., and in the first Epistle of Peter, 2. Servants, be subject to your masters, not only to the good, but also to the froward, etc. Therefore in the first Epistle to the Corinthians, 6., Paul praises judgments.

IT IS PROVED more fully by the Saintly Doctor in Hexaëmer. serm. 16. from the constant usage of the Church from the times of the Apostles onward; for St. Peter condemned Ananias and Sapphira, Act. 5., and in the following centuries there were always ecclesiastical and secular judgments in the Church, as is shown in the Tract. de Legibus, and p. 1. Tract. 1. Disputationibus Prooemialibus. These are confirmed by the ancient monuments of Councils, histories, and Decretals. Only this was most constantly provided: that ecclesiastical judgments should be held among ecclesiastics, as appears in the Decretis; and secular judgments among the faithful, if they could be held, as the Apostle teaches, prima Corinth. 6.

IT IS PROVED thirdly by the Saintly Doctor, in 2. dist. 44. art. 2. quaest. 1. ad 1., by the most solid argument of St. Peter, prima cap. 2., where, having described the state of the holy liberty of the New Testament, he concludes: Be subject, therefore, to every human creature for God's sake: whether to the King, as excelling: or to governors, as sent by him to punish malefactors, but for the praise of the good: for so is the will of God. From this the reason is drawn out, which he magnifies against the fourth argument of the following quaestio, and which Valencia uses, disp. 5. quaest 4 punct 2.: What is useful and necessary by natural law for the good of the commonwealth is not abolished, but established by the decrees of the Christian Religion; for Religion does not destroy, but perfects, the law of nature. But judges and judgments are necessary for the Christian commonwealth: Therefore. The minor is proved by the example of all nations, and from God's ordinance, Deuter. 16. Judges and Magistrates you shall constitute, that they may judge the people. Then the minor is evident: for if there were no judges and judgments by which the disputes of men would be terminated, and punishments assigned to crimes, and rewards to rightly performed political works, the greatest disturbance and overthrow would appear. With this reasoning he argues at greater length in p. 2. de Ecclesiastica Hier. cap. 2., as I shall say below.

NOR do the heretical adversaries lean on a firm foundation.

THEY OPPOSE, indeed, Matth. 5.: If any one will contend with you in judgment and take away your tunic, give him also your cloak.

THE SAINTLY DOCTOR ANSWERS on this passage, Lucae 6., that judgments are not forbidden; but contentions and quarrels, and the lust of vengeance, as St. Augustine says, epist. 5. Therefore, in sum, it must be held (says the Saintly Doctor) that the correction of a neighbor, or the hindering of evil, or the punishment of a crime committed by one who can and ought to hinder it — such as the Minister of the law — is not forbidden; but here the lust of revenge is forbidden and restrained, both as to the hand, and as to the sign, and as to the mind. In the same way St. Augustine says it is to be understood of what he said there also: And whoever shall strike you on one cheek, offer him the other also, and yet he himself, Ioan. 19., corrected the striker and did not offer the other cheek: similarly Paul, Actorum 23., struck on the cheek, answered: God shall strike you, you whited wall, and yet both were most patient in spirit, as the Saintly Doctor observes, loc. cit. ad locum Ioan., from St. Augustine, tract. 113. and epist. 5. — see him. Thus answers Valencia, disp. 3. quaest. 16. punct. 1. col. 742. and disp. 5. quaest. 4. p. 2., and Tannerus in the cited place.

THEY OPPOSE, secondly, Matth. 7.: Judge not, that you be not judged.

THE SAINTLY DOCTOR ANSWERS, p. 1. Concil. sect. 10., from St. Augustine, lib. 2. de serm. Domini in monte, cap. 28., that not every judgment is forbidden; but one rashly passed without firm reason. The same is the judgment of St. Hilar., Can. 5. in Matth.

THE SAINTLY DOCTOR ANSWERS, de septem Itineribus aeternitatis, Itinere primo, dist. 4., from St. Jerome, that the order of correction is taught, so that first, judging ourselves, we amend ourselves, casting the beam out of our own eye, before we contemplate the mote in another's eye.

THAT indeed he does not condemn every judgment is found in Ioan. 12.: Judge not according to the face, but judge just judgment, as St. Bonaventure there observes.

THEY OBJECT also from the first Epistle to the Corinthians, 6.: Brother contends with brother in judgment: and that before unbelievers? Indeed already altogether it is a fault in you, that you have judgments among yourselves.

IT IS ANSWERED, not that judgment is condemned, as I said above — indeed it is instituted; but that an undue one is reproved. Four conditions, however, are laid down by the Doctors that a judgment be just: thus St. Thomas, 2.2. quaest. 60. art. 1. and 6.; St. Bonaventure, in 2. dist. 44., in the cited places, and lib. 1. Pharetra, cap. 45.

T H E F I R S T is legitimate authority, such as ordinary Judges have, or Delegates, or even Arbitrators, who have that power by the law of nations over those who freely commit themselves to them. And such also would be one who, by a special judgment of God, fulfilled that office, as Phinees, Numer. 25., slew the Madianite and the Hebrew man, as the Saintly Doctor notes in the Biblia pauperum, cap. 51.

Because of the lack of this condition a Judgment is said to be unjust by usurpation, as St. Thomas says, art. 6.; St. Bonaventure, 2. dist. 44. art. 2. quaest. 1.

Y E T it can happen that the judgment of some Tyrant, who truly lacks legitimate power, be otherwise just and bind, namely if he be in peaceful possession. For otherwise the peaceful state of the commonwealth could not stand, unless what the ruler justly decreed is obeyed: Thus Valencia, punct. 2., who says that Victoria is held to have thought so, and it is the opinion of St. Bonaventure in the cited place, in the body and ad 2., where he teaches that the Tyrant, although he rules without legitimate power, and accordingly decides unjustly by reason of usurpation, must nevertheless be heard, if he decide justly, for the punishment of malefactors and the praise of the good, as is said in the first Epistle of Peter, 2.; and accordingly his decrees are just, and it is just to subject oneself to them.

T H E S E C O N D condition is, that the Judgment be conformed to the rule of Justice, namely, that what is decreed be just, even if the judge does not act from the virtue of Justice; but from the political rule, lest he be deprived — such was that Judge, Luc. 16., who finally sanctioned what was just for the Widow out of fear of punishment; as Valencia observes after St. Bonaventure on that passage. By the lack of this condition, the Judgment is said to be unjust, and it does not bind in conscience, as Innocent and Panormitanus teach, in cap. Plerique, extra de immunitate Ecclesiae; Sylvest., under the word Sententia, quaest. 11.; Sotus, lib. 3. de Iustitia, quaest. 4. art. 2.

¶ T H E T H I R D condition is the due judicial order: citation, hearing of the Accused, defenses, etc.

T H E F O U R T H condition, that he judge from the affection of Justice. So all the Interpreters of St. Thomas, quaest. 60. art. 2.; Suarez, 3. p. Tom. 5. disp. 4. sect. 7.; Tannerus, in the cited place.

Note, however, that this condition does not render the judgment invalid, as the cited authors warn. But an order failing in essentials renders it null. But of this there will be a sub-disputation.

A F I F T H condition is added: its conformity with the rules of Prudence. Now for this it ought to have two conditions: one, that it decide with due consideration; the other, that it not be from a depraved affection of hatred, or some other affection, or of gifts, etc.

¶ I T O U G H T also to be asserted that a Judge does not straightway lose his power because he lies in mortal sin, against Wicleph, whose error is condemned in the Council of Constant., sess. 8.

I T I S P R O V E D at length by the Saintly Doctor, in 2. dist. 44., where Peter, prima cap. 2., commands obedience to Masters, even to the froward. Iob 34. He makes the Hypocrite to reign. Osee 13. I will give them a King in my wrath. Ioan. 19. You would have no power unless it had been given you from above. The Saintly Doctor adduces examples of these in the Biblia, cap. 102. For thus of Nabuchodonosor it is said, Danielis 4.: Your power reaches to the ends of the whole earth. The same is asserted in cap. 5.; and to Ieroboam, 3. Reg., the Lord gave the kingdom of Israel, and to other wicked men, as the Saintly Doctor observes in the cited place. And Matth. 22.: Render to Caesar the things that are Caesar's. Now Tiberius was impious, which the Saintly Doctor elegantly discourses upon in serm. 5. Dom. 22. post Pentecosten.

T H E R E A S O N also is that of St. Bonaventure which Valencia uses: because the foundation of jurisdiction is not the grace of God, but his will in the order of political governance, and often also for the punishment of peoples, as he discourses in 2. dist. 44. art. 2.

N O W it is controverted: whether the judgment of a judge is rendered mortally evil because it is passed by a judge constituted in mortal sin — and indeed in the times of St. Bonaventure most Theologians held this, at least concerning Ecclesiastical Judges: Alens., 3. p. quaest. 40. membr. 3.; St. Thomas, 4. dist. 19. quaest. 2. art. 2. St. Bonaventure seems to suspect it in those words, Ioan. 8.: He who is without sin among you, let him cast the first stone, where he speaks of the danger for such judges, and more especially for those living in public sin, because they scandalize the peoples whom they ought to admonish and call away from evil.

F O L L O W I N G this were Paludanus, 4. dist. 19. quaestione 3. artic. 3.; Sylvester, under the word correctio fraterna, quaestione 16.

T H E O P P O S I N G opinion, however, is the common one: Thus St. Thomas, hic, art. 2. ad 3., where he abandoned the former opinion. Thus Caietanus; Sotus, lib. 3. de Iustitia, quaest. 4. art. 2.; Navar., in Comment. super Rubricam, de Iud. num. 42.; Valencia, disp. 5. quaest. 4. punct. 2.; and it is St. Bonaventure's, in the cited place.

I A S S E R T with St. Bonaventure that there is some sin in that case, but I do not lay down that it is always mortal, but dangerous, lest it lead to mortal sin.

I T I S P R O V E D first by St. Bonaventure, loc. cit., from that saying of Christ, He who is without sin among you, let him cast the first stone, which passage Anselm there expounds thus, and St. Augustine, tract. 33., who say that those unworthy to judge the woman were brought forward by Christ. Since, therefore, such judges are unworthy, it follows in some way that they sin, as Valencia confesses, freely responding.

I T I S P R O V E D secondly by St. Bonaventure, lib. 1. Pharetrae, cap. 45., from many Fathers.

St. G R E G O R Y, homil. 26. in Evang.: It is hard, that one who knows not how to hold the measures of his own life should become judge of another's life. Lo, the peril to which a depraved man exposes himself, when he makes himself judge of another's life.

St. I S I D O R E, de summo bono, cap. 55. sent. 1.: None of the foolish or the wicked ought to be a judge: for the fool by sloth, the wicked man by wickedness, corrupts the truth which he has learned.

St. A U G U S T I N E, epistol. 174.: It is unjust that anyone should wish to judge another and be unwilling to be judged himself.

St. A M B R O S E, in 2. Apol. David, cap. 2.: Let each one who is about to judge another first judge himself, and let him not condemn lesser errors in another, when he himself has committed graver ones.

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.

Titius, a Catholic layman, in order to show how far the efforts of those who passively resist the payment of the tax for schools extend, and because he thinks that unjust burdens are imposed upon Catholics by the school law, refused to pay the school tax as being against conscience. Paul, however, a Catholic magistrate, compelled Titius, when brought before him, to pay the tax under penalty of undergoing imprisonment. Philip, another Catholic, being scandalized by this, thought that either the one or the other must necessarily have done wrong. Hence it is asked:

1. What kind of obligation do English civil laws impose upon subjects?

2. Can or must unjust laws be obeyed?

3. Is it lawful for a Catholic judge to pronounce sentence according to an unjust law?

4. What is to be said concerning the case?

1. See this question answered, p. 90; also see Manual of Moral Theology, p. 127.

2. May one and ought one to obey unjust laws?

We may not obey a law which commands us to do something contrary to the law of God, for “we ought to obey God rather than men.” If the law is unjust because it lays an unjust burden on a particular person or class, it will not be morally wrong, as a rule, to submit to it, for we may, without sin, forego our strict right. Whether we ought to submit to it or not, will depend upon circumstances. If resistance would produce greater harm than good, as is often the case, there will be a duty of submission to prevent greater evil. If the contrary is true, we are not bound to submit.

3. May a Catholic judge pass sentence according to an unjust law?

Here we must distinguish. If the law prescribes the doing of something that is against the law of God, as idolatry, for example, a judge may not give sentence according to such a law. To command any one to commit idolatry is, and must be, always wrong. Sometimes civil laws are unjust because they are against the rights of the Church. In such cases, if the Church can forego her right, she sometimes does so. Thus, although the civil laws about judicial separation of Catholic married couples are a usurpation of ecclesiastical jurisdiction, yet the Church permits such cases to be tried in the civil courts in England with due precautions.¹

1 Holy Office, Jan. 23, 1886.

If the law is unjust because it is against the rights of the subject, we must distinguish again. Some rights, as that to life, are inalienable; and a judge can not pass sentence according to a law which unjustly imposes the death penalty. If the law merely imposes a fine or imprisonment, such a penalty may be submitted to without sin, and if the judge can not escape the obligation of imposing the penalty without forfeiting his position, it is a probable opinion that he may impose it, and the subject should then submit to it for the common good, at any rate, when resistance would be useless, or would cause greater harm.²

2 Bucceroni, vol. ii, no. 19.

4. The case. Titius, a Catholic, refused to pay the school rate in order to give an object-lesson to the passive resisters, and because he thought it unjust to Catholics. Titius can be excused from sin on the general principle that English law does not bind under pain of sin, and because of his good faith, and also because his assertion is well grounded that Catholics are unduly burdened, inasmuch as they do not get a fair share of the public money contributed to education. Nor does this doctrine excuse the passive resisters, whose case is quite different. For they combine together to resist the law without justification, seeing that they get more than their share of public money for education. Whether they are in good faith or not can be known only to God.

Titius was brought up before Paul, a Catholic magistrate, who sentenced him to go to prison or to pay the tax. Paul acted rightly in passing sentence according to law, as is clear from what was said above. Nor need Philip be scandalized, for neither Titius nor Paul need necessarily have committed any sin in acting as they did.

Titius, a good Catholic, recently deceased, had left in his will one hundred pounds to be expended on Masses to be celebrated for his soul; Caius, the executor, intended to pay this legacy according to the will of the deceased. Julius, however, a Catholic and the residuary legatee of Titius’s goods, opposed this and brought the case before Marcus, a judge who was also a Catholic. Marcus, however, in accordance with English laws, declared the legacy of one hundred pounds invalid as having been assigned to superstitious uses, whence the whole sum accrued to Julius’s residue. Finally Philip, the priest upon whom devolved the spiritual care of all those who have been mentioned, asks about their obligations that have been violated or perhaps still remain to be fulfilled. Hence it is asked:

1. What is a will for pious causes, and what is required for its validity?

2. Can a Catholic judge render judgment according to the unjust laws of his country?

3. What is to be said of the case?

1. What is a will in favor of pious causes and what is required for its validity?

Pious causes, or objects, are such as belong to the service of God and religion. Alms left for the support of religion or for charitable purposes, if the main object was the honor of God, are considered as left for pious causes. Such pious causes are subject to the legislation of the Church, which lays down that no special formalities are required for the validity of wills and legacies to pious objects; all that is requisite is that there should be moral certainty resting on the evidence of two or more witnesses about the intention of the testator.¹

1 Ballerini-Palmieri, Opus Morale, tract, viii, pt. iii, c. iii, n. 703.

2. May a Catholic judge give sentence according to an unjust law?

If the law commands what is contrary to the law of God, no Catholic judge may pass sentence according to it. If the unjust law only affects the liberty of the subject or property rights, many theologians hold that a Catholic judge, like any other, may pass sentence according to such a law. His refusal to do so would not ordinarily benefit the accused, and the only effect would be to compel the judge to resign his office, and make it impossible for Catholics to hold such offices. Hence the accused may reasonably be presumed to submit to the action of the judge as long as the unjust law remains in force.²

2 Manual of Moral Theology, vol. i, p. 587.

3. The case. The legacy was void according to English law. Julius, however, was not justified in invoking the law to get the legacy declared void. He is a Catholic and is bound by the law of the Church, and for him, subjectively as well as objectively, the legacy is valid. Mark could not help doing as he did and so he may be excused. Philip, the parish priest, should admonish

Julius, if the admonition will do any good, and tell him that he is bound in conscience to pay over the £100 for Masses to be said for the soul of the testator according to the testator’s intention. It is a case where he can not have the benefit of the law.¹

1 Manual of Moral Theology, vol. i, p. 506.

Lucia, Caia’s maidservant, knew that Caia had committed adultery. When, however, she was summoned to give testimony on a future day concerning the adultery committed, in an action for divorce brought against Caia by her husband, she doubted whether she could and ought to reveal her mistress’s crime, since she alone besides the parties themselves knew it. Hence she went to a confessor, who, insofar as by divine, civil, and ecclesiastical law two witnesses are required to prove a crime and a single witness is not lawfully questioned by a judge about a crime which that witness alone knows, replied that Lucia ought not reveal the crime. When Titius, another priest, heard this, he judged that the confessor had sinned against justice, since by his reply he had prevented the husband from obtaining a good, namely a divorce, to which he had a right. Hence it is asked:

1. What are the obligations of witnesses, and whence do they arise?

2. To what extent do the prescriptions of ecclesiastical law and English law differ concerning the number of witnesses required to prove a crime, and is the English law just?

3. What is to be said of the case?

1. What are the duties of witnesses, and whence do they arise?

The question concerns witnesses in Courts of Justice, and in general any one may be under an obligation to give evidence about what he knows when this is necessary to prevent great harm to others or to the State. One who is summoned by lawful authority is also bound to give evidence by the obedience which he owes to that authority. As he has sworn to tell the truth, he will be bound also by his oath to tell the truth in answer to the questions that are put to him lawfully.¹

1 Manual of Moral Theology, vol. i, p. 504.

2. How does English law differ from canon law concerning the number of witnesses necessary to prove a crime, and is English law on the point just?

In canon law, as in the Mosaic and Roman law, two witnesses were necessary and sufficient to prove a crime. Except in the case of treason and one or two other crimes, one witness is held sufficient to prove a fact in English and many modern systems of law. This provision of modern law can not be called unjust, for practically always the evidence of the one witness is corroborated by other circumstantial evidence of the crime.²

2 Stephen’s Commentaries, vol. iv, p. 357; Génicot, vol. ii, n. 17.

3. The case. If the trial were about to take place in an ecclesiastical Court, in which Caia’s husband wished to obtain a divorce a toro et mensa, Lucy would not be bound to tell what she knows, unless there were already semiplena probatio of Caia’s guilt. To avoid needless complications in the case we will waive the question about the State’s competence in marriage cases. In England it is at least competent in cases of judicial separation. If, then, Lucy were summoned in such a case she would practically be bound to tell what she knows. Nor is this substantially at variance with the provisions of canon law,' for ordinarily when a witness is summoned, there is semiplena probatio, or infamy, or evident signs of guilt, and in those circumstances a single witness was obliged to give evidence even according to canon law. From what has been said it will be clear how far the confessors were right or wrong.

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.”

In a certain parish, where it is difficult to enforce the civil law, the illegal sale of intoxicating liquors was causing much trouble, and in particular it had a baneful effect on the morals of the young peo-- ple. The parish priest, in order to put a stop to this illegal liquor traffic, asked the civil authorities to take action in the matter, and caused B and other witnesses to be subpoenaed to give their evidence in court, on a certain day, against A, an illegal liquor dealer. On the day appointed for the court none of the witnesses appeared. Some of the witnesses were willing to appear, but both A and B persuaded all the witnesses not to appear at the court. This caused some trouble and expense to the civil authorities. Warrants were issued for the arrest of all the witnesses. Some of them were arrested and fined, but B and others escaped. Evidence enough was obtained to convict A.

Now B comes to Confession, but the priest refuses him absolution until he would consent to make some settlement with the civil authorities. B refuses to do this. Then the priest offers B that he will intercede with the civil authorities in his behalf so that they would be as lenient with him as possible, but B refuses to submit under any consideration, and says that he is satisfied if the civil authorities will take him by force.

Did the priest act right or wrong in refusing him absolution?

Answer.—Strictly speaking, we think the priest exceeded his powers when he refused absolution to B because B refused to make restitution to the civil authorities for the expense his refusal to testify caused them. B was subpoenaed by lawful authority to appear in court and give evidence against an illegal liquor dealer.

The cause was a just cause, the public good. Therefore, B was bound in conscience to obey the summons. In fact, objectively speaking, he was bound sub gravi to obey the mandate of the court or of the grand jury and to appear in court and to tell what he knew. Of this there is no doubt. In a grave matter we are obliged to obey sub gravi legitimately constituted authority, when there is no sufficient reason for refusing to obey. In the present instance we suppose that B had no good and sufficient reason for refusing to give his evidence against the liquor dealer. He might have had what seemed to him a good reason for not appearing, but we suppose that he did not have any such reason. He was bound, therefore, in conscience, sub gravi, to obey the subpoena, and to go into court and to testify. He was bound by the virtue of obedience to do so. The civil authorities had a right to subpoena him. He, on his part, had a corresponding obligation to obey, and that obligation was binding in conscience. B was also bound to obey the summons of the magistrate by reason of the obligation laid on him by the virtue of legal justice. Every citizen is bound to render to the State his just share of service in order to promote the public good. Among these services is the duty of serving on juries and appearing as a witness, when commanded by the civil authorities to do so. All this, of course, is known and admitted by all. B was guilty, theoretically or objectively, of a grave sin of disobedience to lawful authority in refusing to obey the court in a grave matter. But obedience and legal justice do not impose an obligation of restitution, if they are violated. B was guilty of a sin of disobedience and of neglect of his civil duties, but to hold him bound to make restitution, one would have to show that B in refusing to testify, violated also the virtue of strict commutative justice. For only those who violate commutative justice are bound to restitution.

The question, therefore, arises: Did B, by refusing to testify when he was summoned by lawful authority to do so, violate the virtue of commutative justice, and make himself responsible thereby for the expenses his refusal to testify caused the court in securing the liquor dealer’s conviction? St. Liguori, De Lugo, Lessius, etc., etc., maintain that B in refusing to obey the summons of the court sinned against charity, or against obedience, or against legal justice, but not against commutative justice, and that, therefore, he incurred no obligation to make restitution for any expense caused to others. B would not be bound to make any restitution, even though through his refusal to obey the court’s summons and to testify, an innocent defendant might lose his suit and incur heavy damage. According to these theologians the mandate of the court or the subpoena imposes an obligation of obedience, but not of justice, and whoever disobeys it commits a sin of disobedience, but not of injustice. The words of St. Liguori are:

“Is a witness who flees after being summoned bound to restitution?

“Sotus, Sanchez, and others affirm that he is, because by the very fact that a witness has been summoned, he is bound in justice to give testimony; just as, if a judge orders someone to produce a document pertaining to a case, he is bound in justice to exhibit it, otherwise he must restore the loss to the party. But Lugo and Molina more commonly and more probably deny it, and Bonacina and Lessius with Sylvius consider the denial probable. The reason is that the summons imposes not an obligation of justice but only of obedience. Nor does the comparison with producing a document stand in the way; for Lessius rightly answers that the document must without doubt be produced in justice, since it is an external thing which the commonwealth can justly dispose of, as it can of the other goods of citizens when this is necessary to protect their rights; it is not so with the obligation of testifying” (lib. 5, c. 3, 270).

De Lugo admits that if a witness gives false evidence in civil or criminal suits and thereby injures another, he sins against justice and is bound to make restitution. But when a witness acts merely in a negative manner, that is to say, when he refuses to testify or conceals the truth and thereby injures another, does such a witness sin not only against obedience and charity, but also against justice, and is he bound in conscience to make restitution? “The more common opinion,” says De Lugo, “teaches that he sins against justice and with the burden of restitution; so Sotus, Navarrus, and others. Hence many infer that the same applies to a witness whom a judge wishes to summon, but who deliberately hides himself so that the judge’s order cannot be served upon him; or at least, after he has been summoned, fraudulently evades the summons so that he does not appear, or after he has appeared, so that he is not questioned; so Sanchez. Others teach that this is not a sin against commutative justice, but against charity, against obedience, or against legal justice, or against the sanctity of the oath; and therefore it does not entail a debt of restitution. Lessius says that this opinion is probable, and he himself seems to incline toward it, yet does not venture to decide. Molina expressly teaches the same,” etc. This latter opinion De Lugo calls verior, because although a witness has been subpoenaed to testify, still the law does not bind him or constrain him as yet; indeed, Malderus admits this very thing in the case of one upon whom the judge’s summons has already been lawfully served and who put forward a false pretext as an impediment in order to excuse himself. Even if the witness should appear in court and were examined or questioned by the judge, De Lugo holds that he would be bound to testify to the truth only by reason of his oath or on account of the command of the court, he is not otherwise bound to testify to the truth, except either from the sanctity of his oath or from the command of the judge; therefore, by keeping silent about the truth he does not sin against another virtue. It can not be affirmed of the witness, as it can of the judge, that his office of witness obliges him to testify to the truth. The judge has a quasi-contract binding in justice to investigate the truth, once he accepts the office of judge. The witness, on the contrary, refuses to accept the office of witness in our case, and sins by disobedience in thus refusing, but does not sin against justice, since he refuses the office of witness.

Now some will say that, although a witness refuses to testify, even though subpoenaed, still the State may supply for him the consent which he refuses, and thus he does in reality assume the office and duties of a witness, even against his will, because the State supplies his consent. The State can do this in the transfer of property and why not in imposing on him the duty of giving evidence? This, says Lugo, would be quite harsh and novel, that the commonwealth or magistrate should impose upon subjects an obligation in justice concerning personal acts.... Therefore it does not seem that it should be said that the judge can bind witnesses in justice to give testimony, but only in obedience.

The conclusion that De Lugo arrives at, after much discussion, is this:

“We therefore hold that a witness who does not testify sins indeed against obedience, not against justice, and therefore is not bound to restitution unless, by positively testifying falsely, he was the cause of the harm inflicted” (De Lugo, de justitia et jure, disp. 39, sect. 1).

B is not answerable for the damage or expense that his refusal to testify may have caused the town authorities or private individuals. The priest, therefore, could not lawfully condition the absolution upon the restitution of the penitent. B refused to accept the office of witness which the magistrate sought to impose on him by sub-poenaing him; therefore, B had no quasi-contract, binding in justice and entailing restitution, to give evidence against the liquor dealer. In refusing to accept such office, he may have sinned against obedience and legal justice or the duties of a good citizen, but he did not sin against commutative justice; and the violation of commutative justice alone entails the obligation of making restitution. If B were duly sorry for his sin of disobedience, if he looked on it as a sin, and were otherwise disposed, he had a right to receive absolution.

An innkeeper is in the habit of serving every customer who asks for drink, even if he is plainly drinking too much or is already intoxicated. The man may be wasting on drink money that belongs to his wife and children, but the innkeeper pays no attention. Is not such behavior a grievous sin? And can an innkeeper receive absolution if he habitually acts thus and will not promise to alter?

A question of this kind touches one of the difficulties in Moral Theology. The point is whether and under what conditions it is permissible to connive at another's sin.

The doctrine of cooperation forms probably the most difficult part of practical moral theology. It is easy enough to say, as do the writers of most books on the subject, that formal cooperation is never permissible, but that material cooperation is allowed for comparatively important reasons. What is meant by formal and material cooperation? It is often difficult to distinguish them, and still more difficult to decide whether the existing reasons are sufficient to justify material cooperation. Lehmkuhl says (I. n. 648): "Not all difficulties in this matter can be solved. The theologian can give only principles and certain rules, the application of which in individual cases he must entrust to the practical prudence of the person acting or giving counsel"

There can be no doubt that formal cooperation occurs whenever no an innkeeper invites or urges those already half or wholly intoxicated to go on drinking. Lehmkuhl says in this connection: "To incite someone to drink more copiously is certainly intrinsically evil" (Theol. mor., I. n. 403). Berardi writes (Praxis confessariorum, pag. 169, n. 786): "Precisely to incite someone to drunkenness is intrinsically evil."

Let us imagine a case in which the innkeeper was aware that his customer intended to commit some great crime, possibly murder, and was drinking spirits in order to nerve himself for his task;—would it then not be permissible for the innkeeper to encourage him to go on drinking, until he was incapable of any action, and so was prevented from committing the intended crime? No, it would not be permissible, if such encouragement is a formal cooperation in the sin of intemperance, for formal cooperation is never allowed; it is intrinsece evil, so that we must apply to it the Apostle's words (Rom. iii, 8): " Non faciamus mala, ut veniant bona." St. Augustine lays down this principle very clearly in his work contra mendacium (c. 20, n, 40): "No one is to be led even to eternal salvation with the assistance of a lie." The end can never justify bad means, means recognized as bad.

To prove how difficult it often is to distinguish formal from material cooperation, we may refer to the debated question, whether it is right to encourage some one to commit a sin, in order to deter him from committing some more grievous offense, which he is on the point of doing. This question bears a close resemblance to the one under discussion. St. Alphonsus (Theol. mor., lib. 3, tract. 3, n. 57) considers the theory that it is right " probabilior," giving as his reason that in such a case the lesser sin is no longer an evil but a good action, being less bad (the person advising does not seek evil but good, namely, the choice of the lesser evil).

Following this line of argument, some writers maintain that it is right to advise a man to drink too much in order to preserve him from immorality. Schwane, however, in his Moraltheologie (Part 1, § 47, p. 147), says: "A lesser sin may be called a lesser evil, but not a good thing, and not a moral advantage, which is the point to be proved. It is always forbidden to cooperate in any sin by counsel. Other theologians, such as Laymann, Gury, Collet, etc., state the matter more precisely, and say that it is permissible to advise a man to commit a lesser sin in order to prevent his sinning more grievously, if the lesser sin forms a part of the greater. For instance, it is permissible to say to one about to commit a murder: ' Stop, do not kill him, only wound him.' By saying this, we should not give any formal cooperation to the sin, but we should only be preventing its complete committal."

To return, therefore, to our original question: An innkeeper might set some strong wine before that particular customer, foreseeing that he would get drunk, yet not urging him to drink it. Setting wine before him is only a material cooperation in the sin of ebrietas and is permissible for relatively important reasons. The wish to prevent the intended crime is certainly a sufficient reason for allowing the sin of drunkenness. Lehmkuhl says ( Theol. mor., I. n. 744): "It will probably be lawful to induce someone to drunkenness, even one that is formal for him, for this end and this end alone: that he himself may be prevented from a greater sin upon which he is resolved—for example, homicide."

Let us now ask: May the innkeeper supply spirituous liquors to his customers at their request, when he sees that they are drinking to excess?

In this case, too, the cooperation in the sin is only material, and is therefore permissible for relatively important reasons. We ought therefore to examine the reasons, and see whether they are sufficient or not. If the innkeeper fears to refuse to serve his customers, lest they should use oaths and foul language, he may certainly choose the lesser of two evils, and tolerate their drunkenness in order to prevent blasphemy. Again, if he fears to refuse to serve them, because of great loss to himself, knowing that his profits will be greatly diminished, he is not bound to refuse to supply what is ordered. Berardi says (J. c.): a moderately grave cause suffices, such as would exist if otherwise the innkeepers were notably harmed by a reduction in customers.” St. Alphonsus writes (lib. 3, tract. 3, n. 70).: “They are sufficiently excused by fear of any grave harm whatsoever.” Lehmkuhl says (J. c. n. 673): “A moderately grave cause seems both to be required and to suffice for there to be an excuse from sin.”

The innkeeper is bound not ex justitia, but ex caritate, to prevent his customers from committing the sin of intemperance. If charity be exclusively taken into consideration, the desire to avert some serious damage is enough to justify him in cooperating in another’s sin by good or indifferent actions,—in this case by supplying the drink that is ordered. It cannot be laid down as a general rule that innkeepers ought to refuse to serve such customers, since a rule of this kind would certainly inflict great loss upon them in their business. In special cases, however, it is undoubtedly an innkeeper’s duty to refuse to supply any more drink to a man ebrietati proximus, when such a refusal would not cause him any serious loss. Berardi says (J. ¢.):“The motive of profit alone—namely, because this or that drunken person pays the price of the wine requested—does not suffice.”

The expression “belonging to their wives and children” is probably not to be taken in the literal sense that the drunkard pays his reckoning with money that is not his own. If this were the meaning, the question would require special discussion. It most likely means that he wastes on drink what should be the family income, and reduces himself and his relations to poverty and want. In this case the innkeeper is not bound by justice, but only by charity, to avert ruin and want from the family. Although he is bound only by charity, it is clear that in such a case it is his duty to put up with considerable incommodum, and that he ought to have very strong reasons to justify him in supplying such drunkards with spirituous liquors when they order them in excess.

We have, finally, to notice the case where there are other inns in the neighborhood in which the innkeepers will not hesitate to supply a customer, so that a refusal on the part of one to serve him will not keep him sober. On this subject we may quote Schwane, who says in his Speciale Moraltheologie (Part I, § 48, n. 3): " Occasionally a decisive importance is ascribed to the circumstance that the action in question is the conditio sine qua non of another's sin, in such a way that material cooperation is allowed when the sin will certainly be committed quite apart from it, but it is not allowed when the sin depends upon that action, and if there were no cooperation the sin would not be committed at all." This circumstance has certainly a bearing upon the imputation of cooperation, but not in such a degree as to render the cooperation permissible as soon as it ceases to be the conditio sine qua non. An innkeeper may foresee that a customer who is evidently drinking to excess will go elsewhere and obtain what he wants if he is not served in the house where he now is. This reason does not justify the innkeeper in cooperation, *. e., in supplying spirits in excessive quantities—all that can be said is, that in cases where very probably a refusal on his part to sell would prevent the sin of drunkenness altogether, much stronger reasons are required to justify the sale than in other cases.

Enough has been said to enable us to see how an innkeeper ought to be dealt with in the confessional with regard to this point. The first thing to ascertain is whether he is in the habit of sinning grievously. If so, he must be admonished to be truly contrite for his sins, and to resolve firmly to avoid them in future. If he cannot be brought to these dispositions, absolution must of course be refused. The confessor must, however, be certain, as the result of his examination, that the penitent's action is really sinful.