 Question 66 of Summa Theologica Secunda Secunde, Triatis on the Cardinal Virtues, the Virtue of Justice. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Summa Theologica Secunda Secunde, Triatis on the Cardinal Virtues, the Virtue of Justice by St. Thomas Aquinas, translated by the Fathers of the English Dominican Province. Question 66 of Theft and Robbery in nine articles. We must now consider the sins opposed to justice, whereby a man injures his neighbor in his belongings, namely Theft and Robbery. Under this head, there are nine points of inquiry. First, whether it is natural to man to possess external things. Second, whether it is lawful for a man to possess something as his own. Third, whether Theft is the secret taking of another's property. Fourth, whether Robbery is a species of sin distinct from Theft. Fifth, whether every Theft is a sin. Sixth, whether Theft is a mortal sin. Seventh, whether it is lawful to thieve in a case of necessity. Eighth, whether every Robbery is a mortal sin. Ninth, whether Robbery is a more grievous sin than Theft. First article, whether it is natural for man to possess external things. Objection one, it would seem that it is not natural for man to possess external things, for no man should ascribe to himself that which is God's. Now the dominion over all creatures is proper to God, according to Psalm 23 verse 1. The earth is the Lord's, etc. Therefore it is not natural for man to possess external things. Objection two, further. Basil, in expounding the words of the rich man in Luke 12-18, I will gather all things that are grown to me and my goods, says, Tell me, which are thine? Where did you take them from and bring them into being? Now whatever man possesses naturally, he can fittingly call his own. Therefore man does not naturally possess external things. Objection three, further. According to Ambrose in On the Trinity 1, Dominion denotes power. But man has no power over external things, since he can work no change in their nature. Therefore the possession of external things is not natural to man. On the contrary, it is written in Psalm 8 verse 8. Thou hast subjected all things under his feet. I answer that external things can be considered in two ways. First as regards their nature, and this is not subject to the power of man, but only to the power of God, whose mere will all things obey. Secondly as regards their use, and in this way man has a natural dominion over external things, because by his reason and will he is able to use them for his own profit, as they were made on his account. For the imperfect is always for the sake of the perfect, as stated above in question 64 article 1. It is by this argument that the philosopher proves, in politics 13, that the possession of external things is natural to man. Moreover, this natural dominion of man over other creatures, which is competent to man in respect of his reason, wherein God's image resides. He is shown forth in man's creation. Confer Genesis 126 by the words, Let us make man in our own image and likeness, and let him have dominion over the fishes of the sea, etc. Reply to Objection 1. God has sovereign dominion over all things, and he, according to his providence, directed certain things to the sustenance of man's body. For this reason, man has a natural dominion over things, as regards the power to make use of them. Reply to Objection 2. The rich man is reproved for deeming external things to belong to him principally, as though he had not received them from another, namely from God. Reply to Objection 3. This argument considers the dominion over external things, as regards their nature. Such a dominion belongs to God alone, as stated above. Second article. Whether it is lawful for a man to possess a thing as his own. Objection 1. You would seem unlawful for a man to possess a thing as his own. For whatever is contrary to the natural law is unlawful. Now according to the natural law, all things are common property, and the possession of property is contrary to this community of goods. Therefore it is unlawful for any man to appropriate any external thing to himself. Objection 2. Further, Basil, in expounding the words of the rich man quoted above in article 1, Second Objection says, The rich who deem as their own property, the common goods they have seized upon, are like to those who by going beforehand to the play prevent others from coming and appropriate to themselves what is intended for common use. Now it would be unlawful to prevent others from obtaining possession of common goods. Therefore it is unlawful to appropriate to oneself what belongs to the community. Objection 3. Further, Ambrose says, and his words are quoted in the decretals, Let no man call his own that which is common property. And by common he means external things as is clear from the context. Therefore it seems unlawful for a man to appropriate an external thing to himself. On the contrary, Augustine says, on heresies forty. The apostolici are those who with extreme arrogance have given themselves that name because they do not admit into their communion persons who are married or possess anything of their own such as both monks and clerics who in considerable number are to be found in the Catholic Church. Now the reason why these people are heretics was because severing themselves from the church. They think that those who enjoy the use of the above things which they themselves lack have no hope of salvation. Therefore it is erroneous to maintain that it is unlawful for man to possess property. I answer that, two things are competent to man in respect of exterior things. One is the power to procure and dispense them, and in this regard it is lawful for man to possess property. Moreover, this is necessary to human life for three reasons. First, because every man is more careful to procure what is for himself alone than that which is common to many or to all. Since each one would shirk the labour and leave to another that which concerns the community as happens where there is a great number of servants. Secondly, because human affairs are conducted in more orderly fashion if each man is charged with taking care of some particular thing himself whereas there would be confusion if everyone had to look after any one thing indeterminately. Thirdly, because a more peaceful state is ensured to man if each one is contented with his own. Hence it is to be observed that quarrels arise more frequently where there is no division of the things possessed. The second thing that is competent to man with regard to external things is their use. In this respect, man ought to possess external things not as his own but as common so that to which he is ready to communicate them to others in their need. Hence the apostle says in 1 Timothy 6 verses 17 and 18 Charge the rich of this world to give easily to communicate it to others etc. Reply to Objection 1 Community of goods is ascribed to the natural law not that the natural law dictates that all things should be possessed in common and that nothing should be possessed as one's own but because the division of possessions is not according to the natural law but rather arose from human agreement which belongs to positive law as stated above in question 57 articles 2 and 3. Hence the ownership of possessions is not contrary to the natural law but an addition thereto devised by human reason. Reply to Objection 2 A man would not act unlawfully if by going beforehand to the play he prepared the way for others but he acts unlawfully if by so doing he hinders others from going. In like manner, a rich man does not act unlawfully if he anticipates someone in taking possession of something which at first was common property and gives others a share but he sins if he excludes others indiscriminately from using it. Hence Basil says in his homily on Luke 12 18 Why are you rich while another is poor unless it be that you may have the merit of a good stewardship and he the reward of patience. Reply to Objection 3 When Ambrose says let no man call his own that which is common he is speaking of ownership as regards use wherefore he adds he who spends too much is a robber. Third article whether the essence of theft consists in taking another's thing secretly Objection 1 you would seem that it is not essential to theft to take another thing secretly for that which diminishes a sin does not apparently belong to the essence of a sin. Now to sin secretly tends to diminish a sin just as on the contrary it is written as indicating an aggravating circumstances of the sin of some according to Isaiah 3 9 they have proclaimed abroad their sin as Sodom and they have not hid it therefore it is not essential to theft that it should consist in taking another's thing secretly Objection 2 further Ambrose says and his words are embodied in the decretals it is no less a crime to take from him that has than to refuse to sucker the needy when you can and are well off therefore just as theft consists in taking another's thing so does it consist in keeping it back Objection 3 further a man may take by stealth from another even that which is his own for instance a thing that he has deposited with another or that has been taken away from him unjustly therefore it is not essential to theft that it should consist in taking another's thing secretly on the contrary Isidore says in his etymologies 10 fur, thief, is derived from furvus and from fuscus, dark because he takes advantage of the night I answer that three things combine together to constitute theft the first belongs to theft as being contrary to justice which gives to each one that which is his so that it belongs to theft to take possession of what is another's the second thing belongs to theft as distinct from those sins which are committed against the person such as murder and adultery and in this respect it belongs to theft to be about a thing possessed for if a man takes what is another's not as a possession but as a part for instance if he amputates a limb or as a person connected with him for instance if he carry off his daughter or his wife it is not strictly speaking a case of theft the third difference is that which completes the nature of theft and consists in a thing being taken secretly and in this respect it belongs properly to theft that it consists in taking another's thing secretly reply to objection one secrecy is sometimes a cause of sin as when a man employs secrecy in order to commit a sin for instance in fraud and guile in this way it does not diminish sin but constitutes a species of sin and thus it is in theft in another way secrecy is merely a circumstance of sin and thus it diminishes sin both because it is a sign of shame and because it removes scandal reply to objection two to keep back what is due to another inflicts the same kind of injury as taking a thing unjustly where for an unjust detention is included in an unjust taking reply to objection three nothing prevents that which belongs to one person simply from belonging to another in some respect thus a deposit belongs simply to the depositor but with regard to its custody it is the depositaries and the thing stolen is the thiefs not simply but as regards its custody fourth article whether theft and robbery are sins of different species objection one you would seem that theft and robbery are not sins of different species for theft and robbery differ as secret and manifest because theft is taking something secretly while robbery is to take something violently and openly now in the other kinds of sins the secret and the manifest do not differ specifically therefore theft and robbery are not different species of sin objection two further moral actions take their species from the end as stated above in the paris prima secunde question one article three as well as in question eighteen article six now theft and robbery are directed to the same end notably the possession of another's property therefore they do not differ specifically objection three further just as a thing is taken by fours for the sake of possession so is a woman taken by fours for pleasure therefore is it or says in anemologies ten that he who commits a rape is called a corruptor and the victim of the rape is said to be corrupted now it is a case of rape whether the woman be carried off publicly or secretly therefore the thing appropriated is said to be taken by fours whether it be done secretly or publicly therefore theft and robbery do not differ on the contrary the philosopher in ethics five two distinguishes theft from robbery and states that theft is done in secret but that robbery is done openly I answer that theft and robbery are vices contrary to justice in as much as one man does another an injustice now no man suffers an injustice willingly as stated in ethics five nine where for theft and robbery derive their sinful nature through the taking being involuntary on the part of the person from whom something is taken now the involuntary is twofold namely through violence and through ignorance as stated in ethics three one therefore the sinful aspect of robbery differs from that of theft and consequently they differ specifically reply to objection one in the other kinds of sin the sinful nature is not derived from something involuntary as in the sins opposed to justice and so where there is a different kind of involuntary there is a different species of sin reply to objection two the remote end of robbery and theft is the same but this is not enough for identity of species because there is a difference of proximate ends since the robber wishes to take a thing by his own power but the thief by cunning reply to objection three the robbery of a woman cannot be secret on the part of the woman who is taken therefore even if it be secret as regards the others from whom she is taken the nature of robbery remains on the part of the woman to whom violence is done fifth article whether theft is always a sin objection one it would seem that theft is not always a sin for no sin is commanded by God since it is written in Ecclesiasticus 1521 he hath commanded no man to do wickedly yet we find that God commanded theft for it is written in Exodus 12 verses 35 and 36 and the children of Israel did as the Lord had commanded Moses and they stripped the Egyptians therefore theft is not always a sin objection two further if a man finds a thing that is not his and takes it he seems to commit a theft for he takes another's property yet this seems lawful according to natural equity as the jurists hold therefore it seems that theft is not always a sin objection three further he that takes what is his own does not seem to sin because he does not act against justice since he does not destroy its equality yet a man commits a theft even if he secretly take his own property that is detained by or in the safekeeping of another therefore it seems that theft is not always a sin on the contrary it is written in Exodus 20 verse 15 thou shalt not steal I answer that if anyone consider what is meant by theft you will find that it is sinful on two counts first because of its opposition to justice which gives to each one what is his so that for this reason theft is contrary to justice through being a taking of what belongs to another secondly because of the guile or fraud committed by the thief by laying hands on another's property secretly and cunningly therefore it is evident that every theft is a sin reply to objection one it is no theft for a man to take another's property either secretly or openly by order of a judge who has commanded him to do so because it becomes his due by the very fact that it is educated to him by the sentence of the court and still less was it a theft for the Israelites to take away the spoils of the Egyptians at the command of the Lord who ordered this to be done on account of the ill treatment accorded to them by the Egyptians without any cause therefore it is written significantly in wisdom 1019 the just took the spoils of the wicked reply to objection two with regard to treasure trove a distinction must be made for some there are that were never in anyone's possession for instance precious stones and jewels found on the seashore and such the finder is allowed to keep the same applies to treasure hidden underground long since and belonging to no man except that according to civil law the finder is bound to give half to the owner of the land if the treasure trove be in the land of another person hence in the parable of the gospel Matthew 1344 it is said of the finder of the treasure hidden in a field that he bought the field as though he proposed thus to acquire the right of possessing the whole treasure on the other hand the treasure trove maybe nearly in someone's possession and then if anyone take it with the intention not of keeping it but of returning it to the owner who does not look upon such things as unappropriated he is not guilty of theft unlike manner if the thing found appears to be unappropriated and if the finder believes it to be so although he keep it he does not commit a theft in any other case the sin of theft is committed where for Augustine says in a homily if thou hast found a thing and not returned it thou hast stolen it reply to objection three he who by stealth takes his own property which is deposited with another man burdens the depository who is bound either to restitution or to prove himself innocent hence he is clearly guilty of sin and is bound to ease the depository of his burden on the other hand he who by stealth takes his own property if this be unjustly detained by another he sins indeed yet not because he burdens the retainer and so he is not bound to restitution or compensation but he sins against general justice by disregarding the order of justice and we're surping judgment concerning his own property hence he must make satisfaction to God and endeavor to allay whatever scandal he may have given his neighbor by acting this way sixth article whether theft is a mortal sin objection one you would seem that theft is not a mortal sin for it is written in Proverbs 630 the fault is not so great when a man has stolen but every mortal sin is a great fault therefore theft is not a mortal sin objection two further mortal sin deserves to be punished with death but in the law theft is punished not by death but by indemnity according to Exodus 22 verse 1 if any man steal an ox or a sheep he shall restore two oxen for one ox and four sheep for one sheep therefore theft is not a mortal sin objection three further theft can be committed in small even as in great things but it seems unreasonable for a man to be punished with eternal death for the theft of a small thing such as a needle or a quill therefore theft is not a mortal sin on the contrary no man is condemned by the divine judgment save for a mortal sin yet a man is condemned for theft according to Zachariah 5.3 this is the curse that goeth forth over the face of the earth for every thief shall be judged as is there written therefore theft is a mortal sin I answer that as dated above in question 59 article 4 as well as in the parts Prima Secunde in question 72 article 5 a mortal sin is one that is contrary to charity as the spiritual life of the soul now charity consists principally in the love of God and secondarily in the love of our neighbor which is shown in our wishing and doing him well but theft is a means of doing harm to our neighbor in his belongings and if men were to rob one another habitually human society would be undone therefore theft as being opposed to charity is a mortal sin reply to objection one the statement that theft is not a great fault is in view of two cases first when a person is led to thieve through necessity this necessity diminishes or entirely removes sin as we shall show further on in article 7 hence the text continues for he stealeth to fill his hungry soul secondly theft is stated not to be a great fault in comparison with the guilt of adultery which is punished with death hence the text goes on to say of the thief that if he be taken he shall restore seven fold but he that is an adulterer shall destroy his own soul reply to objection two the punishments of this life are medicinal rather than retributive for retribution is reserved to the divine judgment which is pronounced against sinners according to truth Romans 2 2 therefore according to the judgment of the present life the death punishment is inflicted not for every mortal sin but only for such as inflict an irreparable harm or again for such as contain some horrible deformity hence according to the present judgment the pain of death is not inflicted for theft which does not inflict an irreparable harm except when it is aggravated by some grave circumstance as in the case of sacrilege which is the theft of a sacred thing or of peculation which is theft of common property as Augustine states and of kidnapping which is a stealing of man for which the pain of death is inflicted according to Exodus 21 16 reply to objection three reason accounts as nothing so a man does not consider himself injured in very little matters and the person who takes such things can presume that this is not against the will of the owner and if a person take such like very little things he may be proportionately excused from mortal sin yet if his intention is to rob and injure his neighbor there may be a mortal sin even in these very little things even as there may be through consent in a mere thought seventh article whether it is lawful to steal through stress of need objection one you would seem unlawful to steal through stress of need for payments is not imposed except on one who has sinned now it is stated if anyone through stress of hunger or nakedness steal food clothing or beast he shall do penance for three weeks therefore it is not lawful to steal through stress of need objection two further the philosopher says in ethics 2 6 that there are some actions whose very name implies wickedness and among these he reckons theft now that which is wicked in itself may not be done for a good end therefore a man cannot lawfully steal in order to remedy a need objection three further a man should love his neighbor as himself now according to Augustine in against lying seven it is unlawful to steal in order to sucker one's neighbor by giving him an arms therefore neither is it lawful to steal in order to remedy one's needs on the contrary in cases of need all things are common property so that there would seem to be no sin in taking another's property for need has made it common I answer that things which are of human right cannot derogate from natural right now according to the natural order established by divine providence inferior things are ordained for the purpose of suckering man's needs by their means where for the division and appropriation of things which are based on human law do not preclude the fact that man's needs have to be remedied by means of these very things hence whatever certain people have in superabundance is due by natural law to the purpose of suckering the poor for this reason Ambrose says and his words are embodied in the decretals it is the hungry man's bread that you withhold the naked man's cloak that you store away the money that you bury in the earth is the price of the poor man's ransom and the freedom since however there are many who are in need while it is impossible for all to be suckered by means of the same thing each one is entrusted with the stewardship of his own things so that out of them he may come to the aid of those who are in need nevertheless if the need be so manifest and urgent that it is evident that the present need must be remedied by whatever means be at hand for instance when a person is in some imminent danger and there is no other possible remedy then it is lawful for a man to sucker his own need by means of another's property by taking it either openly or secretly nor is this properly speaking theft or robbery reply to objection one this decretal considers cases where there is no urgent need reply to objection two it is not theft properly speaking to take secretly and use another's property in a case of extreme need because that which he takes for the support of his life becomes his own property by reason of that need reply to objection three in a case of a like need a man may also take secretly another's property in order to sucker his neighbor in need eighth article whether robbery may be committed without sin objection one you would seem that robbery may be committed without sin for spoils are taken by violence and this seems to belong to the essence of robbery according to what has been said in article four now it is lawful to take spoils from the enemy for Ambrose says when the conqueror has taken possession of the spoils military discipline demands that all should be reserved for the sovereign in order to it that he may distribute them therefore in certain cases robbery is lawful objection two further it is lawful to take from a man what is not his now the things which unbelievers have are not theirs for Augustine says you falsely call things your own for you do not possess them justly and according to the laws of earthly kings you are commanded to forfeit them therefore it seems that one may lawfully rob unbelievers objection three further earthly princes violently extort many things from their subjects and this seems to savor of robbery now you would seem a grievous matter to say that they sin in acting thus for in that case nearly every prince would be damned therefore in some cases robbery is lawful on the contrary whatever is taken lawfully may be offered to God grace and oblation now this cannot be done with the proceeds of robbery according to Isaiah 61.8 I am the Lord that love judgment and hate robbery in a holocaust therefore it is not lawful to take anything by robbery I answer that robbery implies a certain violence and coercion being unjustly from a man that which is his now in human society no man can exercise coercion except through public authority and consequently if a private individual not having public authority takes another's property by violence he acts unlawfully and commits a robbery as burglars do as regards princes the public power is entrusted to them that they may be the guardians of justice hence it is unlawful for them to use violence or coercion save within the bounds of justice either by fighting against the enemy or against the citizens by punishing evildoers and whatever is taken by violence of this kind is not the spoils of robbery since it is not contrary to justice on the other hand to take other people's property violently and against justice in the exercise of public authority is to act unlawfully and to be guilty of robbery and whoever does so is bound to restitution reply to objection one a distinction must be made in the matter of spoils for if they who take spoils from the enemy are waging a just war such things as they seize in the war become their own property this is no robbery so that they are not bound to restitution nevertheless even they who are engaged in a just war may sin in taking spoils through cupidity arising from an evil intention if to it they fight chiefly not for justice but for spoil for Augustine says in a homily that it is sin to fight for booty if however those who take the spoil are waging an unjust war they are guilty of robbery and are bound to restitution reply to objection two unbelievers possess their goods unjustly insofar as they are ordered because of earthly princes to forfeit those goods hence these may be taken violently from them not by private but by public authority reply to objection three it is no robbery if princes exact from their subjects that which is due to them for the safeguarding of the common good even if they use violence and so doing but if they extort something by means of violence it is robbery even as burglary is hence Augustine says in on the city of God four four if justice be disregarded what is a king but a mighty robber since what is a robber but a little king and it is written in Ezekiel 22 verse 27 her princes in the midst of her are like wolves ravening the prey where for they are bound to restitution just as robbers are and by so much do they sin more grievously than robbers as their actions are fraught with greater and more universal danger to public justice whose wardens they are ninth article whether theft is a more grievous sin than robbery for theft adds fraud and guile to the taking of another's property and these things are not found in robbery now fraud and guile are sinful in themselves as stated above in question 55 articles four and five therefore theft is a more grievous sin than robbery objection to further shame is fear about a wicked deed as stated in ethics 49 now men are more ashamed of theft than of robbery therefore theft is more wicked than robbery objection three further the more persons a sin injures the more grievous it would seem to be now the great and the lowly may be injured by theft whereas only the weak can be injured by robbery since it is possible to use violence towards them therefore the sin of theft seems to be more grievous than the sin of robbery on the contrary according to the laws robbery is more severely punished than theft I answer that robbery and theft are sinful as stated above in articles four and six on account of the involuntariness on the part of the person from whom something is taken yet so that in theft the involuntariness is due to ignorance whereas in robbery it is due to violence now a thing is more involuntary through violence than through ignorance because violence is more directly opposed to the will than ignorance therefore robbery is a more grievous sin than theft there is also another reason since robbery not only inflicts a loss on a person in his things but also conduces to the ignominy an injury of his person and this is of graver import than fraud or guile which belong to theft hence the reply to the first objection is evident reply to objection two men who adhere to sensible things think more of external strength which is evidenced in robbery than of internal virtue which is forfeit through sin therefore they are less ashamed of robbery than of theft reply to objection three although more persons may be injured by theft than by robbery yet more grievous injuries may be inflicted by robbery than by theft for which reason also robbery is more odious end of question 66 read by Michael Shane Craig Lambert LC question 67 of summa theologica secunda secunde triates on the cardinal virtues the virtue of justice this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org summa theologica secunda secunde triates on the cardinal virtues the virtue of justice by St. Thomas Aquinas translated by the fathers of the English Dominican province question 67 of the injustice of a judge in judging in four articles we must now consider those vices opposed to commutative justice that consist in words injurious to our neighbors we shall consider one those which are connected with judicial proceedings and two injurious words uttered extra judicially under the first head five points occur for our consideration one the injustice of a judge in judging two the injustice of the prosecutor in accusing three the injustice of the defendant in defending himself four the injustice of the witnesses in giving evidence five the injustice of the advocate in defending under the first head there are four points of inquiry first whether a man can justly judge one who is not his subject two whether it is lawful for a judge on account of the evidence to deliver judgment in opposition to the truth which is known to him third whether a judge can justly sentence a man who is not accused fourth whether he can justly remit the punishment first article whether a man can justly judge one who is not subject to his jurisdiction objection one it would seem that a man can justly judge one who is not subject to his jurisdiction for it is stated in daniel 13 the daniel sentenced the ancients who are convicted of bearing false witness but these ancients were not subject to daniel indeed they were judges of the people therefore a man may lawfully judge one that is not subject to his jurisdiction objection two further Christ was no man's subject indeed he was king of kings and lord of lords according to apocalypse 1916 yet he submitted to the judgment of a man therefore it seems that a man may lawfully judge one that is not subject to his jurisdiction objection three further according to the law a man is tried in this or that court according to his kind of offense now sometimes the defendant is not the subject of the man whose business it is to judge in that particular place for instance when the defendant belongs to another diocese the court is exempt therefore it seems that a man may judge one that is not his subject on the contrary Gregory in commenting on Deuteronomy 23 verse 25 if thou go into thy friend's corn et cetera says thou mayest not put the sickle of judgment to the corn that is entrusted to another I answer that a judge's sentence is like a particular law regarding some particular fact therefore just as a general law should have coercive power as the philosopher states in ethics 10 9 so too the sentence of a judge should have coercive power whereby either party is compelled to comply with the judge's sentence else the judgment would be of no effect now coercive power is not exercised in human affairs saved by those who hold public authority and those who have this authority are accounted the superiors of those over whom they preside whether by ordinary or by delegated authority hence it is evident that no man can judge others than his subjects and this inverts you either of delegated or of ordinary authority reply to objection 1 in judging those ancients Daniel exercised an authority delegated to him by divine instinct this is indicated where it is said in Daniel 1345 that the Lord raised up the spirit of a young boy reply to objection 2 in human affairs a man may submit of his own accord to the judgment of others although these be not his superiors an example of which is when parties agreed with settlement by arbitrators where for it is necessary that the arbitrator should be upheld by a penalty since the arbitrators through not exercising authority in the case have not of themselves full power of coercion accordingly in this way did Christ of his own accord submit to human judgment and thus 2 did Pope Leo submit to the judgment of the emperor reply to objection 3 the bishop of the defendants diocese becomes the latter's superior as regards the fault committed even though he be exempt unless perchance the defendant offend in a matter exempt from the bishops authority for instance in administering the property of an exempt monastery but if an exempt person commits a theft or a murder or the like he may be justly condemned by the ordinary 2nd article whether it is lawful for a judge to pronounce judgment against the truth that he knows on account of evidence to the contrary objection 1 it would seem unlawful for a judge to pronounce judgment against the truth that he knows on account of evidence to the contrary for it is written in Deuteronomy 179 thou shalt come to the priests of the lehidical race and to the judge that shall be at that time and thou shalt ask of them and they shall show thee the truth of the judgment now sometimes certain things are alleged against the truth as when something is proved by means of false witnesses therefore it is unlawful for a judge to pronounce judgment according to what is alleged and proved in opposition to the truth which he knows objection 2 further in pronouncing judgment a man should conform to the divine judgment since it is the judgment of God according to Deuteronomy 117 now the judgment of God is according to the truth according to Romans 2 and it was foretold of Christ in Isaiah 11 verses 3 and 4 he shall not judge according to the sight of the eyes nor reprove according to the hearing of the ears but he shall judge the poor with justice and shall reprove with equity for the meek of the earth therefore the judge shall not not to pronounce judgment according to the evidence before him if it be contrary to what he knows himself objection 3 further the reason why evidence is required in a court of law is that the judge may have a faithful record of the truth of the matter wherefore in matters of common knowledge there is no need of judicial procedure according to 1 Timothy 524 some men sins are manifest going before to judgment consequently if the judge by his personal knowledge is aware of the truth he should pay no heed to the evidence but should pronounce sentence according to the truth which he knows objection 4 further the word conscience denotes application of knowledge to a matter of action as stated in the first part question 79 article 13 now it is a sin to act contrary to one's knowledge therefore a judge sins if he pronounces sentence according to the evidence but against his conscience of the truth on the contrary Augustine says in his commentary on the Psalter a good judge does nothing according to his private opinion but pronounces sentence according to the law and the right now this is to pronounce judgment according to what is alleged and proved in court therefore a judge ought to pronounce judgment in accordance with these things and not according to his private opinion I answer that as stated above in article 1 as well as in question 60 articles 2 and 6 it is the duty of a judge to pronounce judgment in as much as he exercises public authority where for his judgment should be based on information acquired by him not from his knowledge as a private individual but from what he knows as a public person now the latter knowledge comes to him both in general and in particular in general through the public laws whether divine or human and he should admit no evidence that conflicts therewith in some particular matter through documents and witnesses and other legal means of information which in pronouncing his sentence he ought to follow rather than the information he is acquired as a private individual and yet this same information may be of use to him so that he can more rigorously sift the evidence brought forward and discover its weak points if however he is unable to reject that evidence juridically he must as stated above follow it in pronouncing sentence reply to objection 1 the reason why in the passage quoted it is stated that the judges should first of all be asked their reasons is to make it clear that the judges ought to judge the truth in accordance with the evidence reply to objection 2 to judge belongs to God in virtue of his own power wherefor his judgment is based on the truth which he himself knows and not on the knowledge imparted by others the same is to be said of Christ through God and through man whereas other judges do not judge in virtue of their own power so that there is no comparison reply to objection 3 the apostle refers to the case where something is well known not to the judge alone but both to him and to others so that the guilty party can by no means deny his guilt as in the case of notorious criminals and is convicted at once from the evidence of the fact if on the other hand it be well known to the judge but not to others or to others but not to the judge then it is necessary for the judge to sift the evidence reply to objection 4 in matters touching his own person a man must form his conscience from his own knowledge but in matters concerning the public authority he must form his conscience in accordance with the knowledge attainable in the public judicial procedure 3rd article whether a judge may condemn a man who is not accused objection 1 it would seem that a judge may pass sentence on a man who is not accused for human justice is derived from divine justice now God judges the sinner even though there be no accuser therefore it seems that a man may pass sentence of condemnation on a man even though there be no accuser objection 2 further an accuser is required in judicial procedure in order that he may relate the crime to the judge now sometimes the crime may come to the judge's knowledge otherwise than by accusation for instance by denunciation or by evil report or through the judge himself being an eyewitness therefore a judge may condemn a man without there being an accuser objection 3 further the deeds of holy persons are related in holy writ as models of human conduct now Daniel was at the same time the accuser and the judge of the wicked ancients according to Daniel 13 therefore it is not contrary to justice for a man to condemn anyone as judge while being at the same time his accuser on the contrary Ambrose in his commentary on 1st Corinthians 5 2 expounding the apostles sentence on the fornicator says that a judge should not condemn without an accuser since our lord did not banish Judas if yet was not accused I answer that a judge is an interpreter of justice wherefore as the philosopher says in Ethics 5 4 men have recourse to a judge as to one who is the personification of justice now it's stated above in question 58 article 2 justice is not between a man and himself but between one man and another hence a judge must needs judge between two parties which is the case when one is the prosecutor and the other the defendant therefore in criminal cases the judge cannot sentence a man unless the latter has an accuser according to acts 25 16 it is not the custom of the Romans 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 crimes of which he is accused reply to objection 1 God in judging man takes the sinner's conscience as his accuser according to Romans 2 15 their thoughts between themselves accusing or also defending one another or again he takes the evidence of the fact as regards the deed itself according to Genesis 4 10 the voice of thy brother's blood cryeth to me from the earth reply to objection 2 public disgrace takes the place of an accuser hence a gloss on Genesis 4 10 the voice of thy brother's blood etc. says there is no need of an accuser when the crime committed is notorious in a case of denunciation as stated above in question 33 article 7 the amendment not the punishment of the sinner is intended wherefore when a man is denounced for a sin nothing is done against him but for him so that no accuser is required the punishment that is inflicted is on account of his rebellion against the church and since this rebellion is manifest it stands instead of an accuser the fact that the judge himself was an eyewitness does not authorize him to proceed to pass sentence except according to the order of judicial procedure reply to objection 3 God in judging man proceeds from his own knowledge of the truth whereas man does not as stated above in article 2 hence a man cannot be accuser, witness and judge at the same time as God is Daniel was at once accuser and judge because he was the executor of the sentence of God by whose instinct he was moved as stated above in article 1 first reply 4th article whether the judge can lawfully remit the punishment objection 1 it would seem that the judge can lawfully remit the punishment for it is written in James 2 13 judgment without mercy shall be done to him that hath not done mercy now no man is punished for not doing what he cannot do lawfully therefore any judge can lawfully do mercy by remitting the punishment objection 2 further human judgment should imitate the divine judgment now God remits the punishment to sinners because he desires not the death of the sinner according to Ezekiel 18 23 therefore a human judge also may lawfully remit the punishment for who repents objection 3 further it is lawful for anyone to do what is profitable to someone and harmful to none now the remission of his punishment profits the guilty man and harms nobody therefore the judge can lawfully loose a guilty man from his punishment on the contrary it is written in Deuteronomy 13 verses 8 and 9 concerning anyone who would persuade a man to serve strange gods neither let thy eye spare him to pity and conceal him but thou shalt presently put him to death and of the murderer it is written in Deuteronomy 19 verses 12 and 13 he shall die thou shalt not pity him I answer that as may be gathered from what has been said in articles 2 and 3 with regard to the question in point two things may be observed in connection with a judge one is that he has to judge between accuser and defendant while the other is that he pronounces the judicial sentence in virtue of his power not as a private individual but as a public person accordingly on two counts a judge is hindered from loosing a guilty person from his punishment first on the part of the accuser whose right it sometimes is that the guilty party should be punished for instance on account of some injury committed against the accuser because it is not in the power of a judge to remit such punishment since every judge is bound to give each man his right secondly he finds a hindrance on the part of the commonwealth whose power he exercises and to whose good it belongs that evildoers should be punished nevertheless in this respect there is a difference between judges of lower degree and the supreme judge that is the sovereign to whom the entire public authority is entrusted for the inferior judge has no power to exempt a guilty man from punishment against the laws imposed on him by his superior wherefore Augustine in commenting on John 1911 thou shouldest not have any power against me says the power which God gave pilot was such that he was under the power of Caesar so that he was by no means free to acquit the person accused on the other hand the sovereign who has full authority against the commonwealth can lawfully remit the punishment to a guilty person provided the injured party consent to the remission and that this do not seem detrimental to the public good reply to objection one there is a place for the judge's mercy in matters that are left to the judge's discretion because in like matters a good man is slow to punish in ethics 510 but in matters that are determined in accordance with divine or human laws it is not left to him to show mercy reply to objection two God has supreme power of judging and it concerns him whatever is done sinfully against anyone therefore he is free to remit the punishment especially since the punishment is due to sin chiefly because it is done against him he does not however remit the punishment except in so far as it becomes his goodness which is the source of all laws reply to objection three if the judge were to remit punishment inordinately he would inflict an injury on the community for whose good it behooves ill deeds to be punished in order that men may avoid sin hence the text after appointing the punishment of the seducer ads in Deuteronomy 1311 that all Israel hearing may fear and may do no more anything like this he would also inflict harm on the injured person who is compensated by having his honor restored in the punishment of the man who has injured him in the punishment of question 67 read by Michael Shane Craig Lambert LC Question 68 of Summa Theologica Secunda Secunde triates on the cardinal virtues the virtue of justice this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org Summa Theologica Secunda Secunde triates on the cardinal virtues the virtue of justice by St. Thomas Aquinas translated by the fathers of the English Dominican province Question 68 of Matters Concerning Unjust Accusation in four articles we must now consider matters pertaining to unjust accusation under this head there are four points of inquiry first whether a man is bound to accuse second whether the accusation should be made in writing third how is an accusation vitiated fourth how should those be punished who have accused a man wrongfully first article whether a man is bound to accuse 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 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 proven to be innocent 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 wherefore it is written in Romans 13.8 oh 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 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 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 in Proverbs 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 contrary it is written in Leviticus 5.1 if any one sin and hear the voice of one swearing and is a witness either because he himself have seen or is privy to it if he do not utter it he shall bear his iniquity I answer that as stated above in question 33 article 6 and 7 as well as in question 67 article 3 second reply the difference between denunciation and accusation is that in denunciation we aim at a brothers 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 insured by the punishment of evildoers 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 one 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 virtuous acts are perfections of man reply to objection to 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 or again if the subject who wishes to accuse his superior is himself guilty of crime 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 three 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 to the common good and yet a thing is scarcely a secret when there are sufficient witnesses to prove it second article whether it is necessary for the accusation to be made in writing objection one 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 two further it is laid down 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 in on the trinity ten one therefore the accusation should not be in writing and all the more that the canon declares that no accusation in writing should be accepted objection three further a man's crime is made known by denunciation even by as accusation now writing is unnecessary in denunciation therefore it is seemingly unnecessary in accusation on the contrary it is laid down in the decretals the role of accuser must never be sanctioned without the accusation be in writing I answer that as stated above in question sixty seven article three 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 one 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 two 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 in the first reply 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 three 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 third article whether an accusation is rendered unjust by calamny collusion or evasion objection one it would seem that an accusation is not rendered unjust by calamny collusion or evasion for according to the decretals calamny 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 two 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 in article one as well as in question 33 article 7 therefore it seems that an accusation is not rendered unjust by collusion objection three further it is stated by the same authority that evasion consists in withdrawing altogether from 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 translator's note the accuser was bound by roman law to endorse say inscribere the writ of accusation the fact of this endorsement were 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 unadjust 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 felony or of collusion or of evasion I answer that as stated above in article one 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 that is by calaminating him secondly on the part of the common wealth 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 pre varicazio for he that is guilty of collusion is like one who rides a straddle varicator because he helps the other party and betrays his own side secondly by withdrawing altogether from the accusation this is evasion tergiversazio for by desisting from what he had begun he seems to turn his back reply to objection one 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 culminator 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 calamity who through levity of mind or an error for which he is not to be blamed has uttered a false accusation reply to objection two 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 three 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 fourth article whether an accuser who fails to prove his indictment is bound to the punishment of retaliation objection one 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 the decretals therefore the accuser who fails to prove his indictment is not bound to punishment of retaliation objection two 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 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 three further the one same sin does not deserve a twofold punishment according to Nahum 1.9 God shall not judge the same thing a second time but he who fails to prove his accusation is the punishment due to defamation which punishment even the pope seemingly cannot remit according to a statement of Pope Gelatius 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 in his chapter 52 he that fails to prove his accusation must himself suffer the punishment which is accusation inferred I answer that as stated above in article 2 in a case where the pursuer 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 the equality of justice requires that a man should himself suffer whatever harm he has intended to be inflicted on another according to Exodus 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 in Ethics 5-5 justice does not always require counter passion 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 has punished on both counts this is the meaning of what is written in Deuteronomy 19 verses 18-20 and when after most diligent inquisition they shall find that the false witness hath told a lie against his brother they shall render to him as he meant to do to his brother and this refers to the injury done to the person and afterwards referring to the injury done to the commonwealth the text continues and thou shalt take away the evil out of the midst of thee that others hearing may fear and may not dare to do such things especially 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 columniously but out of levity of mind but if the accuser desists 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 objections free 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 columniously 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 Jalasius 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 end of question 68 read by Michael Shane Craig Lambert, LC