C. Defaming by Denial of a True but Hidden Crime Publicly Charged

261. In the case of the third member [n.252] I say similarly that he is not bound to retract his denial, whereby he denied in public a true crime charged against him, because no one is bound to confess himself guilty at once in court who is not convicted at once. He is however bound, as was said in the preceding article [n.160], to restore reputation to him whom he indirectly marked with calumny, by saying, “Do not hold him for a calumniator; for I believe he had a good intention in making the charge, or perhaps he believed that he was proving his charge, and was deceived.”

262. But about him who denies such a true but private crime against himself in public, does he not surely sin mortally?

It seems that he does, because he lies with a pernicious lie, both against the republic (because the republic is prevented, on account of his public lie, from the just punishment of him) and against the person accusing him (because thereby he is marked a calumniator).

263. I reply, “You will justly carry out what is just,” Deuteronomy 16.20. The republic, therefore, should not punish all evils, but those which, together with the fact they are to be punished, the power of the republic can justly punish; but such evils are those that can be adequately proved before a court of law. And so the republic is not harmed if divine judgment exceeds its judgment, so that some things are reserved to divine judgment over which there cannot be a just judgment of the republic, for “a man sees the things that appear, but God looks at the heart” [I Kings (aka I Samuel), 16.7]. From this the response to the objection against the republic is apparent.

264. And when the addition is made that this is pernicious against the accuser I reply: I say no, but rather he is pernicious to himself who brought a charge in the way that he had no obligation to bring it, indeed an obligation not to bring it; and therefore let him impute it to himself if some infamy follow, because he himself is the cause and not he who denies it, for the latter is defending his innocence in public where, until he has been convicted, he is not guilty nor to be held guilty.

265. But a difficulty remains in itself, whether he sins by lying on his own behalf. Hard would it seem to be that anyone accused in public should at once be bound, by necessity of salvation, to confess in public, and thus to expose himself at once to the gibbet in a cause of blood. But also, if one looks not only at the penalty but at the honorable and dishonorable, it does not appear that, honorably and according to right reason, he should confess in front of such a judge, because he himself, more than any other individual, would, by accusing himself, take away reputation from himself, because belief is reposed in one who publicly confesses in court against himself.

266. What then? The cautious response of the jurists is ‘I deny the charges as charged’; this can indeed be said, in the issue at hand, without lying, because the charges are made in public, and as public, and as to be proved in public; but to deny them thus he can do who knows that they cannot be proved in public.

267. But what if the judge urge him to confess the charge made or to deny it publicly? He could reply that he himself has given sufficient response to the accusation, and just as it is the manner of jurists to respond, and he does not wish to deviate from that response; let the judge do to the accuser what belongs to right.

268. But surely, if he deny it, intending however to deny it as it is there charged, namely as public (just as a confessor says of someone he has confessed “I know of no evil that this man has done,” because he is speaking as he has heard him in public or some other forum), is not he, who denied it, bound to be penitent about this denial?

269. I reply: “It is a mark of good minds to acknowledge fault where no fault is,” Gratian, Decretum, p.1 d.5 ch.1, and it is entitled ‘Gregory’ [taken from a letter attributed to Gregory the Great, Epistle 11, ‘Response to Augustine, bishop of the English’]; and therefore much more is it a mark of a good mind to acknowledge fault where there is doubt if there is fault and fault of what sort. And therefore is it safe in such a case, after such a denial, to be penitent indistinctly, and indistinctly as to the sort that it is, namely under indistinctness of this sort: as of a mortal sin if mortal, of venial sin if venial.