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

are worthy of death, not only they that do" a sin, "but they also that consent to them that do" it. Hence it was stated above (Q. 62, A. 7), that all such are bound to restitution. Now it is evident that an advocate provides both assistance and counsel to the party for whom he pleads. Wherefore, if knowingly he defends an unjust cause, without doubt he sins grievously, and is bound to restitution of the loss unjustly incurred by the other party by reason of the assistance he has provided. If, however, he defends an unjust cause unknowingly, thinking it just, he is to be excused according to the measure in which ignorance is excusable.

Reply Obj. 1: The physician injures no man by undertaking to heal a desperate malady, whereas the advocate who accepts service in an unjust cause, unjustly injures the party against whom he pleads unjustly. Hence the comparison fails. For though he may seem to deserve praise for showing skill in his art, nevertheless he sins by reason of injustice in his will, since he abuses his art for an evil end.

Reply Obj. 2: If an advocate believes from the outset that the cause is just, and discovers afterwards while the case is proceeding that it is unjust, he ought not to throw up his brief in such a way as to help the other side, or so as to reveal the secrets of his client to the other party. But he can and must give up the case, or induce his client to give way, or make some compromise without prejudice to the opposing party.

Reply Obj. 3: As stated above (Q. 40, A. 3), it is lawful for a soldier, or a general to lay ambushes in a just war, by prudently concealing what he has a mind to do, but not by means of fraudulent falsehoods, since we should keep faith even with a foe, as Tully says (De offic. iii, 29). Hence it is lawful for an advocate, in defending his case, prudently to conceal whatever might hinder its happy issue, but it is unlawful for him to employ any kind of falsehood. _______________________

FOURTH ARTICLE [II-II, Q. 71, Art. 4]

Whether It Is Lawful for an Advocate to Take a Fee for Pleading?

Objection 1: It would seem unlawful for an advocate to take a fee for pleading. Works of mercy should not be done with a view to human remuneration, according to Luke 14:12, "When thou makest a dinner or a supper, call not thy friends . . . nor thy neighbors who are rich: lest perhaps they also invite thee again, and a recompense be made to thee." Now it is a work of mercy to plead another's cause, as stated above (A. 1). Therefore it is not lawful for an advocate to take payment in money for pleading.

Obj. 2: Further, spiritual things are not to be bartered with temporal things. But pleading a person's cause seems to be a spiritual good since it consists in using one's knowledge of law. Therefore it is not lawful for an advocate to take a fee for pleading.

Obj. 3: Further, just as the person of the advocate concurs towards the pronouncement of the verdict, so do the persons of the judge and of the witness. Now, according to Augustine (Ep. cliii ad Macedon.), "the judge should not sell a just sentence, nor the witness true evidence." Therefore neither can an advocate sell a just pleading.

On the contrary, Augustine says (Ep. cliii ad Macedon.) that "an advocate may lawfully sell his pleading, and a lawyer his advice."

I answer that, A man may justly receive payment for granting what he is not bound to grant. Now it is evident that an advocate is not always bound to consent to plead, or to give advice in other people's causes. Wherefore, if he sell his pleading or advice, he does not act against justice. The same applies to the physician who attends on a sick person to heal him, and to all like persons; provided, however, they take a moderate fee, with due consideration for persons, for the matter in hand, for the labor entailed, and for the custom of the country. If, however, they wickedly extort an immoderate fee, they sin against justice. Hence Augustine says (Ep. cliii ad Macedon.) that "it is customary to demand from them restitution of what they have extorted by a wicked excess, but not what has been given to them in accordance with a commendable custom."

Reply Obj. 1: Man is not bound to do gratuitously whatever he can do from motives of mercy: else no man could lawfully sell anything, since anything may be given from motives of mercy. But when a man does give a thing out of mercy, he should seek, not a human, but a Divine reward. In like manner an advocate, when he mercifully pleads the cause of a poor man, should have in view not a human but a Divine meed; and yet he is not always bound to give his services gratuitously.

Reply Obj. 2: Though knowledge of law is something spiritual, the use of that knowledge is accomplished by the work of the body: hence it is lawful to take money in payment of that use, else no craftsman would be allowed to make profit by his art.

Reply Obj. 3: The judge and witnesses are common to either party, since the judge is bound to pronounce a just verdict, and the witness to give true evidence. Now justice and truth do not incline to one side rather than to the other: and consequently judges receive out of the public funds a fixed pay for their labor; and witnesses receive their expenses (not as payment for giving evidence, but as a fee for their labor) either from both parties or from the party by whom they are adduced, because no man "serveth as a soldier at any time at his own charge [*Vulg.: 'Who serveth as a soldier,']" (1 Cor. 9:7). On the other hand an advocate defends one party only, and so he may lawfully accept fee from the party he assists. _______________________

QUESTION 72

OF REVILING
(In Four Articles)

We must now consider injuries inflicted by words uttered extrajudicially. We shall consider (1) reviling, (2) backbiting, (3) tale bearing, (4) derision, (5) cursing.

Under the first head there are four points of inquiry:

(1) What is reviling?

(2) Whether every reviling is a mortal sin?

(3) Whether one ought to check revilers?

(4) Of the origin of reviling. _______________________

FIRST ARTICLE [II-II, Q. 72, Art. 1]

Whether Reviling Consists in Words?

Objection 1: It would seem that reviling does not consist in words. Reviling implies some injury inflicted on one's neighbor, since it is a kind of injustice. But words seem to inflict no injury on one's neighbor, either in his person, or in his belongings. Therefore reviling does not consist in words.

Obj. 2: Further, reviling seems to imply dishonor. But a man can be dishonored or slighted by deeds more than by words. Therefore it seems that reviling consists, not in words but in deeds.

Obj. 3: Further, a dishonor inflicted by words is called a railing or a taunt. But reviling seems to differ from railing or taunt. Therefore reviling does not consist in words.

On the contrary, Nothing, save words, is perceived by the hearing. Now reviling is perceived by the hearing according to Jer. 20:10, "I heard reviling [Douay: 'contumelies'] on every side." Therefore reviling consists in words.

I answer that, Reviling denotes the dishonoring of a person, and this happens in two ways: for since honor results from excellence, one person dishonors another, first, by depriving him of the excellence for which he is honored. This is done by sins of deed, whereof we have spoken above (Q. 64, seqq.). Secondly, when a man publishes something against another's honor, thus bringing it to the knowledge of the latter and of other men. This reviling properly so called, and is done by some kind of signs. Now, according to Augustine (De Doctr. Christ. ii, 3), "compared with words all other signs are very few, for words have obtained the chief place among men for the purpose of expressing whatever the mind conceives." Hence reviling, properly speaking, consists in words: wherefore, Isidore says (Etym. x) that a reviler (contumeliosus) "is hasty and bursts out (tumet) in injurious words." Since, however, things are also signified by deeds, which on this account have the same significance as words, it follows that reviling in a wider sense extends also to deeds. Wherefore a gloss on Rom. 1:30, "contumelious, proud," says: "The contumelious are those who by word or deed revile and shame others."

Reply Obj. 1: Our words, if we consider them in their essence, i.e. as audible sounds, injure no man, except perhaps by jarring of the ear, as when a person speaks too loud. But, considered as signs conveying something to the knowledge of others, they may do many kinds of harm. Such is the harm done to a man to the detriment of his honor, or of the respect due to him from others. Hence the reviling is greater if one man reproach another in the presence of many: and yet there may still be reviling if he reproach him by himself, in so far as the speaker acts unjustly against the respect due to the hearer.

Reply Obj. 2: One man slights another by deeds in so far as such deeds cause or signify that which is against that other man's honor. In the former case it is not a matter of reviling but of some other kind of injustice, of which we have spoken above (QQ. 64, 65, 66): where as in the latter case there is reviling, in so far as deeds have the significant force of words.

Reply Obj. 3: Railing and taunts consist in words, even as reviling, because by all of them a man's faults are exposed to the detriment of his honor. Such faults are of three kinds. First, there is the fault of guilt, which is exposed by reviling words. Secondly, there is the fault of both guilt and punishment, which is exposed by taunts (convicium), because vice is commonly spoken of in connection with not only the soul but also the body. Hence if one man says spitefully to another that he is blind, he taunts but does not revile him: whereas if one man calls another a thief, he not only taunts but also reviles him. Thirdly, a man reproaches another for his inferiority or indigence, so as to lessen the honor due to him for any kind of excellence. This is done by upbraiding words, and properly speaking, occurs when one spitefully reminds a man that one has succored him when he was in need. Hence it is written (Ecclus. 20:15): "He will give a few things and upbraid much." Nevertheless these terms are sometimes employed one for the other. _______________________

SECOND ARTICLE [II-II, Q. 72, Art. 2]

Whether Reviling or Railing Is a Mortal Sin?

Objection 1: It would seem that reviling or railing is not a mortal sin. For no mortal sin is an act of virtue. Now railing is the act of a virtue, viz. of wittiness (eutrapelia) [*Cf. I-II, Q. 60, A. 5] to which it pertains to rail well, according to the Philosopher (Ethic. iv, 8). Therefore railing or reviling is not a mortal sin.

Obj. 2: Further, mortal sin is not to be found in perfect men; and yet these sometimes give utterance to railing or reviling. Thus the Apostle says (Gal. 3:1): "O senseless Galatians!," and our Lord said (Luke 24:25): "O foolish and slow of heart to believe!" Therefore railing or reviling is not a mortal sin.

Obj. 3: Further, although that which is a venial sin by reason of its genus may become mortal, that which is mortal by reason of its genus cannot become venial, as stated above (I-II, Q. 88, AA. 4, 6). Hence if by reason of its genus it were a mortal sin to give utterance to railing or reviling, it would follow that it is always a mortal sin. But this is apparently untrue, as may be seen in the case of one who utters a reviling word indeliberately or through slight anger. Therefore reviling or railing is not a mortal sin, by reason of its genus.

On the contrary, Nothing but mortal sin deserves the eternal punishment of hell. Now railing or reviling deserves the punishment of hell, according to Matt. 5:22, "Whosoever shall say to his brother . . . Thou fool, shall be in danger of hell fire." Therefore railing or reviling is a mortal sin.

I answer that, As stated above (A. 1), words are injurious to other persons, not