Summa Theologica by Saint Thomas Aquinas (whitelam books .TXT) 📕

their way." Secondly, a man appeals in order to cause a delay, lest a just sentence be pronounced against him. This is to defend oneself calumniously, and is unlawful as stated above (A. 2). For he inflicts an injury both on the judge, whom he hinders in the exercise of his office, and on his adversary, whose justice he disturbs as far as he is able. Hence it is laid down (II, qu. vi, can. Omnino puniendus): "Without doubt a man should be punished if his appeal be declared unjust."

Reply Obj. 1: A man should submit to the lower authority in so far as the latter observes the order of the higher authority. If the lower authority departs from the order of the higher, we ought not to submit to it, for instance "if the proconsul order one thing and the emperor another," according to a gloss on Rom. 13:2. Now when a judge oppresses anyone unjustly, in this respect he departs from the order of the higher authority, whereby he is obliged to judge justly. Hence it is lawful for a man who is oppressed unjustly, to have recourse to the authority of the higher power, by appealing either before or after sentence has been pronounced. And since it is to be presumed that there is no rectitude where true faith is lacking, it is unlawful for a Catholic to appeal to an unbelieving judge, according to Decret. II, qu. vi, can. Catholicus: "The Catholic who appeals to the decision of a judge of another faith shall be excommunicated, whether his case be just or unjust." Hence the Apostle also rebuked those who went to law before unbelievers (1 Cor. 6:6).

Reply Obj. 2: It is due to a man's own fault or neglect that, of his own accord, he submits to the judgment of one in whose justice he has no confidence. Moreover it would seem to point to levity of mind for a man not to abide by what he has once approved of. Hence it is with reason that the law refuses us the faculty of appealing from the decision of judges of our own choice, who have no power save by virtue of the consent of the litigants. On the other hand the authority of an ordinary judge depends, not on the consent of those who are subject to his judgment, but on the authority of the king or prince who appointed him. Hence, as a remedy against his unjust oppression, the law allows one to have recourse to appeal, so that even if the judge be at the same time ordinary and chosen by the litigants, it is lawful to appeal from his decision, since seemingly his ordinary authority occasioned his being chosen as arbitrator. Nor is it to be imputed as a fault to the man who consented to his being arbitrator, without adverting to the fact that he was appointed ordinary judge by the prince.

Reply Obj. 3: The equity of the law so guards the interests of the one party that the other is not oppressed. Thus it allows ten days for appeal to be made, this being considered sufficient time for deliberating on the expediency of an appeal. If on the other hand there were no fixed time limit for appealing, the certainty of judgment would ever be in suspense, so that the other party would suffer an injury. The reason why it is not allowed to appeal a third time on the same point, is that it is not probable that the judges would fail to judge justly so many times. _______________________

FOURTH ARTICLE [II-II, Q. 69, Art. 4]

Whether a Man Who Is Condemned to Death May Lawfully Defend Himself
If He Can?

Objection 1: It would seem that a man who is condemned to death may lawfully defend himself if he can. For it is always lawful to do that to which nature inclines us, as being of natural right, so to speak. Now, to resist corruption is an inclination of nature not only in men and animals but also in things devoid of sense. Therefore if he can do so, the accused, after condemnation, may lawfully resist being put to death.

Obj. 2: Further, just as a man, by resistance, escapes the death to which he has been condemned, so does he by flight. Now it is lawful seemingly to escape death by flight, according to Ecclus. 9:18, "Keep thee far from the man that hath power to kill [and not to quicken]" [*The words in the brackets are not in the Vulgate]. Therefore it is also lawful for the accused to resist.

Obj. 3: Further, it is written (Prov. 24:11): "Deliver them that are led to death: and those that are drawn to death forbear not to deliver." Now a man is under greater obligation to himself than to another. Therefore it is lawful for a condemned man to defend himself from being put to death.

On the contrary, The Apostle says (Rom. 13:2): "He that resisteth the power, resisteth the ordinance of God: and they that resist, purchase to themselves damnation." Now a condemned man, by defending himself, resists the power in the point of its being ordained by God "for the punishment of evil-doers, and for the praise of the good" [*1 Pet. 2:14]. Therefore he sins in defending himself.

I answer that, A man may be condemned to death in two ways. First justly, and then it is not lawful for the condemned to defend himself, because it is lawful for the judge to combat his resistance by force, so that on his part the fight is unjust, and consequently without any doubt he sins.

Secondly a man is condemned unjustly: and such a sentence is like the violence of robbers, according to Ezech. 22:21, "Her princes in the midst of her are like wolves ravening the prey to shed blood." Wherefore even as it is lawful to resist robbers, so is it lawful, in a like case, to resist wicked princes; except perhaps in order to avoid scandal, whence some grave disturbance might be feared to arise.

Reply Obj. 1: Reason was given to man that he might ensue those things to which his nature inclines, not in all cases, but in accordance with the order of reason. Hence not all self-defense is lawful, but only such as is accomplished with due moderation.

Reply Obj. 2: When a man is condemned to death, he has not to kill himself, but to suffer death: wherefore he is not bound to do anything from which death would result, such as to stay in the place whence he would be led to execution. But he may not resist those who lead him to death, in order that he may not suffer what is just for him to suffer. Even so, if a man were condemned to die of hunger, he does not sin if he partakes of food brought to him secretly, because to refrain from taking it would be to kill himself.

Reply Obj. 3: This saying of the wise man does not direct that one should deliver a man from death in opposition to the order of justice: wherefore neither should a man deliver himself from death by resisting against justice. _______________________

QUESTION 70

OF INJUSTICE WITH REGARD TO THE PERSON OF THE WITNESS
(In Four Articles)

We must now consider injustice with regard to the person of the witness. Under this head there are four points of inquiry:

(1) Whether a man is bound to give evidence?

(2) Whether the evidence of two or three witnesses suffices?

(3) Whether a man's evidence may be rejected without any fault on his part?

(4) Whether it is a mortal sin to bear false witness? _______________________

FIRST ARTICLE [II-II, Q. 70, Art. 1]

Whether a Man Is Bound to Give Evidence?

Objection 1: It would seem that a man is not bound to give evidence. Augustine says (QQ. Gen. 1:26) [*Cf. Contra Faust. xxii, 33, 34], that when Abraham said of his wife (Gen. 20:2), "She is my sister," he wished the truth to be concealed and not a lie be told. Now, by hiding the truth a man abstains from giving evidence. Therefore a man is not bound to give evidence.

Obj. 2: Further, no man is bound to act deceitfully. Now 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 always bound to give evidence, especially on matters committed to him as a secret by a friend.

Obj. 3: Further, clerics and priests, more than others, are bound to those things that are necessary for salvation. Yet clerics and priests are forbidden to give evidence when a man is on trial for his life. Therefore it is not necessary for salvation to give evidence.

On the contrary, Augustine [*Can. Quisquis, caus. xi, qu. 3, cap. Falsidicus; cf. Isidore, Sentent. iii, 55] says: "Both he who conceals the truth and he who tells a lie are guilty, the former because he is unwilling to do good, the latter because he desires to hurt."

I answer that, We must make a distinction in the matter of giving evidence: because sometimes a certain man's evidence is necessary, and sometimes not. If the necessary evidence is that of a man subject to a superior whom, in matters pertaining to justice, he is bound to obey, without doubt he is bound to give evidence on those points which are required of him in accordance with the order of justice, for instance on manifest things or when ill-report has preceded. If however he is required to give evidence on other points, for instance secret matters, and those of which no ill-report has preceded, he is not bound to give evidence. On the other hand, if his evidence be required by authority of a superior whom he is bound to obey, we must make a distinction: because if his evidence is required in order to deliver a man from an unjust death or any other penalty, or from false defamation, or some loss, in such cases he is bound to give evidence. Even if his evidence is not demanded, he is bound to do what he can to declare the truth to someone who may profit thereby. For it is written (Ps. 81:4): "Rescue the poor, and deliver the needy from the hand of the sinner"; and (Prov. 24:11): "Deliver them that are led to death"; and (Rom. 1:32): "They are worthy of death, not only they that do them, but they also that consent to them that do them," on which words a gloss says: "To be silent when one can disprove is to consent." In matters pertaining to a man's condemnation, one is not bound to give evidence, except when one is constrained by a superior in accordance with the order of justice; since if the truth of such a matter be concealed, no particular injury is inflicted on anyone. Or, if some danger threatens the accuser, it matters not since he risked the danger of his own accord: whereas it is different with the accused, who incurs the danger against his will.

Reply Obj. 1: Augustine is speaking of concealment of the truth in a case when a man is not compelled by his superior's authority to declare the truth, and when such concealment is not specially injurious to any person.

Reply Obj. 2: A man should by no means give evidence on matters secretly committed to him in confession, because he knows such things, not as man but as God's minister: and the sacrament is more binding than any human precept. But as regards matters committed to man in some other way under secrecy, we must make a distinction. Sometimes they are of such a nature that one is bound to make them known as soon as they come to our knowledge, for instance if they conduce to the spiritual or corporal corruption of the community, or to some grave personal injury, in short any like matter that a man is bound to make known either by giving evidence or by denouncing it. Against such a duty a man cannot be obliged to act on the plea that the matter is committed to him under secrecy, for he would break the faith he owes to another. On the other hand sometimes they are such as one is not bound to make known, so that one may be under obligation not to do so on account of their being committed to one under secrecy. In such a case one is by no means bound to make them known, even if the superior should command; because to keep faith is of natural right, and a man cannot be commanded to do what is contrary to