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Index [<< | >>]
Second Part of the Second Part [<< | >>]
Question: 68 [<< | >>]
We must now consider matters pertaining to unjust accusation. Under this
head there are four points of inquiry:
(1) Whether a man is bound to accuse?
(2) Whether the accusation should be made in writing?
(3) How is an accusation vitiated?
(4) How should those be punished who have accused a man wrongfully?
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Question: 68 [<< | >>]
Article: 1 [<< | >>]
Objection 1: It would seem that a man is not bound to accuse. For no man is
excused on account of sin from fulfilling a Divine precept, since he
would thus profit by his sin. Yet on account of sin some are disqualified
from accusing, such as those who are excommunicate or of evil fame, or
who are accused of grievous crimes and are not yet proved to be innocent
[*1 Tim. 1:5]. Therefore a man is not bound by a Divine precept to accuse.
Objection 2: Further, every duty depends on charity which is "the end of the
precept" [*Can. Definimus, caus. iv, qu. 1; caus. vi, qu. 1]: wherefore
it is written (@Rm. 13:8): "Owe no man anything, but to love one another."
Now that which belongs to charity is a duty that man owes to all both of
high and of low degree, both superiors and inferiors. Since therefore
subjects should not accuse their superiors, nor persons of lower degree,
those of a higher degree, as shown in several chapters (Decret. II, qu.
vii), it seems that it is no man's duty to accuse.
Objection 3: Further, no man is bound to act against the fidelity which he
owes his friend; because he ought not to do to another what he would not
have others do to him. Now to accuse anyone is sometimes contrary to the
fidelity that one owes a friend; for it is written (@Prov. 11:13): "He
that walketh deceitfully, revealeth secrets; but he that is faithful,
concealeth the thing committed to him by his friend." Therefore a man is
not bound to accuse.
On the contrary, It is written (Lev. 5:1): "If any one sin, and hear the
voice of one swearing, and is a witness either because he himself hath
seen, or is privy to it: if he do not utter it, he shall bear his
iniquity."
I answer that, As stated above (Question [33], Articles [6],7; Question [67], Article [3], ad 2), the
difference between denunciation and accusation is that in denunciation
we aim at a brother's amendment, whereas in accusation we intend the
punishment of his crime. Now the punishments of this life are sought, not
for their own sake, because this is not the final time of retribution,
but in their character of medicine, conducing either to the amendment of
the sinner, or to the good of the commonwealth whose calm is ensured by
the punishment of evil-doers. The former of these is intended in
denunciation, as stated, whereas the second regards properly accusation.
Hence in the case of a crime that conduces to the injury of the
commonwealth, a man is bound to accusation, provided he can offer
sufficient proof, since it is the accuser's duty to prove: as, for
example, when anyone's sin conduces to the bodily or spiritual corruption
of the community. If, however, the sin be not such as to affect the
community, or if he cannot offer sufficient proof, a man is not bound to
attempt to accuse, since no man is bound to do what he cannot duly
accomplish.
Reply to Objection 1: Nothing prevents a man being debarred by sin from doing
what men are under an obligation to do: for instance from meriting
eternal life, and from receiving the sacraments of the Church. Nor does a
man profit by this: indeed it is a most grievous fault to fail to do what
one is bound to do, since virtuous acts are perfections of man.
Reply to Objection 2: Subjects are debarred from accusing their superiors, "if it
is not the affection of charity but their own wickedness that leads them
to defame and disparage the conduct of their superiors" [*Append. Grat.
ad can. Sunt nonnulli, caus. ii, qu. 7] ---or again if the subject who
wishes to accuse his superior is himself guilty of crime [*Decret. II,
qu. vii, can. Praesumunt.]. Otherwise, provided they be in other respects
qualified to accuse, it is lawful for subjects to accuse their superiors
out of charity.
Reply to Objection 3: It is contrary to fidelity to make known secrets to the
injury of a person; but not if they be revealed for the good of the
community, which should always be preferred to a private good. Hence it
is unlawful to receive any secret in detriment to the common good: and
yet a thing is scarcely a secret when there are sufficient witnesses to
prove it.
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Question: 68 [<< | >>]
Article: 2 [<< | >>]
Objection 1: It would seem unnecessary for the accusation to be made in
writing. For writing was devised as an aid to the human memory of the
past. But an accusation is made in the present. Therefore the accusation
needs not to be made in writing.
Objection 2: Further, it is laid down (Decret. II, qu. viii, can. Per scripta)
that "no man may accuse or be accused in his absence." Now writing seems
to be useful in the fact that it is a means of notifying something to one
who is absent, as Augustine declares (De Trin. x, 1). Therefore the
accusation need not be in writing: and all the more that the canon
declares that "no accusation in writing should be accepted."
Objection 3: Further, a man's crime is made known by denunciation, even as by
accusation. Now writing is unnecessary in denunciation. Therefore it is
seemingly unnecessary in accusation.
On the contrary, It is laid down (Decret. II, qu. viii, can.
Accusatorum) that "the role of accuser must never be sanctioned without
the accusation be in writing."
I answer that, As stated above (Question [67], Article [3]), when the process in a
criminal case goes by way of accusation, the accuser is in the position
of a party, so that the judge stands between the accuser and the accused
for the purpose of the trial of justice, wherein it behooves one to
proceed on certainties, as far as possible. Since however verbal
utterances are apt to escape one's memory, the judge would be unable to
know for certain what had been said and with what qualifications, when he
comes to pronounce sentence, unless it were drawn up in writing. Hence it
has with reason been established that the accusation, as well as other
parts of the judicial procedure, should be put into writing.
Reply to Objection 1: Words are so many and so various that it is difficult to
remember each one. A proof of this is the fact that if a number of people
who have heard the same words be asked what was said, they will not agree
in repeating them, even after a short time. And since a slight difference
of words changes the sense, even though the judge's sentence may have to
be pronounced soon afterwards, the certainty of judgment requires that
the accusation be drawn up in writing.
Reply to Objection 2: Writing is needed not only on account of the absence of the
person who has something to notify, or of the person to whom something is
notified, but also on account of the delay of time as stated above (ad
1). Hence when the canon says, "Let no accusation be accepted in writing"
it refers to the sending of an accusation by one who is absent: but it
does not exclude the necessity of writing when the accuser is present.
Reply to Objection 3: The denouncer does not bind himself to give proofs:
wherefore he is not punished if he is unable to prove. For this reason
writing is unnecessary in a denunciation: and it suffices that the
denunciation be made verbally to the Church, who will proceed, in virtue
of her office, to the correction of the brother.
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Question: 68 [<< | >>]
Article: 3 [<< | >>]
Objection 1: It would seem that an accusation is not rendered unjust by
calumny, collusion or evasion. For according to Decret. II, qu. iii
[*Append. Grat. ad can. Si quem poenituerit.], "calumny consists in
falsely charging a person with a crime." Now sometimes one man falsely
accuses another of a crime through ignorance of fact which excuses him.
Therefore it seems that an accusation is not always rendered unjust
through being slanderous.
Objection 2: Further, it is stated by the same authority that "collusion
consists in hiding the truth about a crime." But seemingly this is not
unlawful, because one is not bound to disclose every crime, as stated
above (Article [1]; Question [33], Article [7]). Therefore it seems that an accusation is not
rendered unjust by collusion.
Objection 3: Further, it is stated by the same authority that "evasion
consists in withdrawing altogether from an accusation." But this can be
done without injustice: for it is stated there also: "If a man repent of
having made a wicked accusation and inscription* in a matter which he
cannot prove, and come to an understanding with the innocent party whom
he has accused, let them acquit one another." [*The accuser was bound by
Roman Law to endorse (se inscribere) the writ of accusation. The effect
of this endorsement or inscription was that the accuser bound himself, if
he failed to prove the accusation, to suffer the same punishment as the
accused would have to suffer if proved guilty.] Therefore evasion does
not render an accusation unjust.
On the contrary, It is stated by the same authority: "The rashness of
accusers shows itself in three ways. For they are guilty either of
calumny, or of collusion, or of evasion."
I answer that, As stated above (Article [1]), accusation is ordered for the
common good which it aims at procuring by means of knowledge of the
crime. Now no man ought to injure a person unjustly, in order to promote
the common good. Wherefore a man may sin in two ways when making an
accusation: first through acting unjustly against the accused, by
charging him falsely with the commission of a crime, i.e. by calumniating
him; secondly, on the part of the commonwealth, whose good is intended
chiefly in an accusation, when anyone with wicked intent hinders a sin
being punished. This again happens in two ways: first by having recourse
to fraud in making the accusation. This belongs to collusion
[prevaricatio] for "he that is guilty of collusion is like one who rides
astraddle [varicator], because he helps the other party, and betrays his
own side" [*Append. Grat. ad can. Si quem poenituerit.]. Secondly by
withdrawing altogether from the accusation. This is evasion
[tergiversatio] for by desisting from what he had begun he seems to turn
his back [tergum vertere].
Reply to Objection 1: A man ought not to proceed to accuse except of what he is
quite certain about, wherein ignorance of fact has no place. Yet he who
falsely charges another with a crime is not a calumniator unless he gives
utterance to false accusations out of malice. For it happens sometimes
that a man through levity of mind proceeds to accuse someone, because he
believes too readily what he hears, and this pertains to rashness; while,
on the other hand sometimes a man is led to make an accusation on account
of an error for which he is not to blame. All these things must be
weighed according to the judge's prudence, lest he should declare a man
to have been guilty of calumny, who through levity of mind or an error
for which he is not to be blamed has uttered a false accusation.
Reply to Objection 2: Not everyone who hides the truth about a crime is guilty of
collusion, but only he who deceitfully hides the matter about which he
makes the accusation, by collusion with the defendant, dissembling his
proofs, and admitting false excuses.
Reply to Objection 3: Evasion consists in withdrawing altogether from the
accusation, by renouncing the intention of accusing, not anyhow, but
inordinately. There are two ways, however, in which a man may rightly
desist from accusing without committing a sin ---in one way, in the very
process of accusation, if it come to his knowledge that the matter of his
accusation is false, and then by mutual consent the accuser and the
defendant acquit one another---in another way, if the accusation be
quashed by the sovereign to whom belongs the care of the common good,
which it is intended to procure by the accusation.
Index [<< | >>]
Second Part of the Second Part [<< | >>]
Question: 68 [<< | >>]
Article: 4 [<< | >>]
Objection 1: It would seem that the accuser who fails to prove his indictment
is not bound to the punishment of retaliation. For sometimes a man is led
by a just error to make an accusation, in which case the judge acquit the
accuser, as stated in Decret. II, qu. iii. [*Append. Grat., ad can. Si
quem poenituerit.] Therefore the accuser who fails to prove his
indictment is not bound to the punishment of retaliation.
Objection 2: Further, if the punishment of retaliation ought to be inflicted
on one who has accused unjustly, this will be on account of the injury he
has done to someone---but not on account of any injury done to the person
of the accused, for in that case the sovereign could not remit this
punishment, nor on account of an injury to the commonwealth, because then
the accused could not acquit him. Therefore the punishment of retaliation
is not due to one who has failed to prove his accusation.
Objection 3: Further, the one same sin does not deserve a twofold punishment,
according to Nahum 1:9 [*Septuagint version]: "God shall not judge the
same thing a second time." But he who fails to prove his accusation,
incurs the punishment due to defamation [*Can. Infames, caus. vi, qu. 1],
which punishment even the Pope seemingly cannot remit, according to a
statement of Pope Gelasius [*Callist. I, Epist. ad omn. Gall. episc.]:
"Although we are able to save souls by Penance, we are unable to remove
the defamation." Therefore he is not bound to suffer the punishment of
retaliation.
On the contrary, Pope Hadrian I says (Cap. lii): "He that fails to prove
his accusation, must himself suffer the punishment which his accusation
inferred."
I answer that, As stated above (Article [2]), in a case, where the procedure is
by way of accusation, the accuser holds the position of a party aiming at
the punishment of the accused. Now the duty of the judge is to establish
the equality of justice between them: and the equality of justice
requires that a man should himself suffer whatever harm he has intended
to be inflicted on another, according to Ex. 21:24, "Eye for eye, tooth
for tooth." Consequently it is just that he who by accusing a man has put
him in danger of being punished severely, should himself suffer a like
punishment.
Reply to Objection 1: As the Philosopher says (Ethic. v, 5) justice does not
always require counterpassion, because it matters considerably whether a
man injures another voluntarily or not. Voluntary injury deserves
punishment, involuntary deserves forgiveness. Hence when the judge
becomes aware that a man has made a false accusation, not with a mind to
do harm, but involuntarily through ignorance or a just error, he does not
impose the punishment of retaliation.
Reply to Objection 2: He who accuses wrongfully sins both against the person of
the accused and against the commonwealth; wherefore he is punished on
both counts. This is the meaning of what is written (@Dt. 19:18-20): "And
when after most diligent inquisition, they shall find that the false
witness hath told a lie against his brother: then shall render to him as
he meant to do to his brother," and this refers to the injury done to the
person: and afterwards, referring to the injury done to the commonwealth,
the text continues: "And thou shalt take away the evil out of the midst
of thee, that others hearing may fear, and may not dare to do such
things." Specially, however, does he injure the person of the accused, if
he accuse him falsely. Wherefore the accused, if innocent, may condone
the injury done to himself, particularly if the accusation were made not
calumniously but out of levity of mind. But if the accuser desist from
accusing an innocent man, through collusion with the latter's adversary,
he inflicts an injury on the commonwealth: and this cannot be condoned by
the accused, although it can be remitted by the sovereign, who has charge
of the commonwealth.
Reply to Objection 3: The accuser deserves the punishment of retaliation in
compensation for the harm he attempts to inflict on his neighbor: but the
punishment of disgrace is due to him for his wickedness in accusing
another man calumniously. Sometimes the sovereign remits the punishment,
and not the disgrace, and sometimes he removes the disgrace also:
wherefore the Pope also can remove this disgrace. When Pope Gelasius
says: "We cannot remove the disgrace," he may mean either the disgrace
attaching to the deed [infamia facti], or that sometimes it is not
expedient to remove it, or again he may be referring to the disgrace
inflicted by the civil judge, as Gratian states (Callist. I, Epist. ad
omn. Gall. episc.).