OBLIGATION
192
OBLIGATION
restitution, as there is no just title to retain the price
of justice. Natural equity requires that all should
be jiresuined to be innocent who have not been proved
to be sjuilty of crime, and so a judge must give those
who are accused the benefit of the doubt, ulicii llie
crime imputed to them cannot be clearly pinvrd. In
ci\il actions he is bound to give sentciirr aironliii'; lo
the merits of the case, and so in default of certainty
of riglit, he must decide in favour of the party who
has the better claim. What has been said of judges
is applicable in due measure to magistrates, referees,
arbitrators, and jurymen, all of whom are invested
with .some of the functions of a judge.
.Vdvocates and lawyers are persons skilled in the law who for payment undertake the legal business of clients. They are obliged to have the knowledge and skill which are reciuireii for the ilue discharge of their oflice, and which tlicy implicitly profess to have when they offer their scr\iics (cj the public. They must also employ at least ordinary diligence and care in the con- duct of the business entrusteil to them. They must keep faith with their clients and use only just means to obtain the objects which they desire. As they act for and in the name of their clients, they must not undertake a cause which is clearly unjust, otherwise they will be guilty of co-operating in injustice, and will be bound to make restitution for all the unjust damage which they cause to others. However, pre- vious certainty of thejusticeof acauseisnot necessary in order that a lawyer may rightly undertake it; it will be sufficient if the justice of the cause to be under- taken is at least probable, for then it may be hoped that the truth will be made clear in the course of the trial. As soon as an advocate is satisfied that his client has no case, he should inform him of the fact, and should not proceed further with the case. An ad- vocate may always undertake the defence of a crimi- nal, whether he be guilty or not, for even if his de- fence of a real culprit is successful, no great harm will usually be done by a guilty man escaping the punish- ment which he deserves. To justify a criminal ac- cusation of another there must be morally certain evidence of his guilt, as otherwise there will be danger of doing serious and unjust harm to the reputation of one's neighbour.
From the Decree of the Holy Office, 19 Dec, 1860, in answer to the Bishop of Southwark, it is clear that in England an advocate may undertake a case where there is question of judicial separation between hus- band and wife. Even in an action for divorce in a civil court he may defend the action against the plain- tiff. If the marriage has already been pronounced null and void by competent ecclesiastical authority, a Catholic advocate may impugn its validity in the civil courts. Moreover, for just reason, as, for example, to obtain a variation in the marriage settlement, or to prevent the necessity of having to maintain a bastard child, a Catholic lawyer may i^etition for a divorce in the civil court, not with the intention of enabling his client to marry again while his spouse is still living, but with a view to obtaining the civil effects of divorce in the civil tribunal. This opinion at any rate is de- fended as probable by many good theologians. The reason is becau.se marriage is neither contracted nor dissolved before the civil authority; in the formalities prescribed for marriage by civil law there is only ques- tion of the civil authority taking cognizance of who are married, and of the civil effects which now therefrom.
In canon law excommunicated and infamous persons, accomplices, and others are debarred from prosecuting criminals, but as a general rule any one who has full use of his senses may prosecute according to American and English law. Nobody should undertake a prose- cution when greater evil than good would follow from it, or when there is not moral certainty as to the guilt of the accused. However, it may be done for the sake of the public good, and there may be an obliga-
tion to do it, as when one's office compels one to under-
take the task, or the defence of the innocent or the
public good requires it, or a precept of obedience com-
mands it. Thus by ecclesiastical law heretics and
priests guiltv of solicitation in the sacred tribunal are
to l.e ,li'i[oinieed lo the ordinary.
Till- (li'liiKhint ill:i riiiiiinal trial is not himself sub- jecti-d loexaniiiKilion, aec'oriUng to English law, unless he offers liiniself voluntarily to give evidence, and then he may be examined like a witness. In canon law the accused is examined, and the question arises whether he is bound to tell the truth against himself. He is bound to tell the truth if he is interrogated ac- cording to law; canon law prescribes that when there is semiijlind pmlmlio of the crime and this is made clear to the defendant he should l>e interrogated.
The defendant may in self-defence make known the secret crime of a witness against him, if it really con- duces to his defence; but, of course, he may never im- pute false crimes to anybody. A criminal maj- not de- fend himself against lawful arrest, for that would be to resist lawful authority, but he is not compelled to deliver himself up to justice, and it is not a sin to es- cape from justice if he can do so without violence. The law prescribes that he shall be kept in durance, not that he shall voluntarily remain in custody. A criminal lawfully condemned to death is not obliged to save his life by escape or other means if he can do so; he should submit to the execution of the sentence passed upon him, and may do so meritoriously.
Charity or obedience may impose an obligation to give evidence in a court of justice. If serious harm can be prevented by offering one's self as a witness, there will as a rule be an obligation to do so, and obedi- ence imposes the obligation when one is summoned by lawful authority. A witness is bound by his oath and by the obedience due to lawful authority to tell the truth in answer to the questions lawfully put to him. He is not bound to incriminate himself, nor, of course, may the seal of confession ever be broken.
The canon law laid it down that the testimony of two witnesses of unsuspected character was neces- sary and sufficient evidence of any fact alleged in a court of justice. The testimony of a solitary witness was not usually sufhcient or admissible evidence of a crime, and in keeping with this the theologians d(«ided that a solitary witness should not declare what he knew of a crime, inasmuch as he was not lawfully interrogated. English law, however, with most modern systems, admits the testimony of one wit- ness, if credible, as sufficient evidence of a fact, and so as a rule there will be an obligation on such a one of answering according to his knowledge when ques- tioned lawfully in a court of justice.
A doctor who holds himself out as ready to under- take the care of the sick must have competent knowl- edge of his profession and must exercise his office at least with ordinary care and diligence; otherwise he will sin against justice and charity in exposing himself to the risk of seriously injuring his neighbour. Unless he is bound by some special agreement he is not ordi- narily obliged to undertake any particular case, for there are usually others who are willing and able to give the necessary a.ssistance to the sick. Even in time of pestilence he will not commit sin if he leave the neighbourhood, unless he is bound to remain by some special contract.
He should not make exorbitant charges for his ser- vices, nor multiply visits uselessly and thus increase his fees, nor call in other doctors without necessity. On the other hand, even at serious inconvenience, he should visit a patient whose case he has undertaken when called as far as is reasonable, and he should be ready to call in other doctors for consultation when necessary or when he is asked to do so. He is some- times bound by the general law of charity to give his assistance gratis to the poor.
