Question VI: On the external purity of the hands of the judge

EXTERNAL purity, necessary for a Iudici, consists especially in the hands, arg. cap. statuum, §. Insuper de rescript. in 6.; and it is twofold: The first is to refrain from injuries, contumelies, etc. The second, from gifts.

AGAINST the first he sins by beating, Lex Nec magistratibus, ff. de iniuriis, and he is bound to compensation for the injury inflicted.

AGAINST the second he sins by extortions, Titul. de concussione. Concussion, however, as is gathered ex cap. Iubemus, et seq., is when someone threatens another unless he give or do this or that; or when he puts his sentence up for sale, which otherwise he would not give, or the contrary. Therefore he who by extorsion of money, through the fear of extortion, receives something, steals, and is bound to restitution; or if on account of money received he omits to proceed further, he incurs the crime of concussion Leg. 1. et 2. de concuss., and beyond the precept Levit. 6., where nothing extorted is commanded to be taken. This the S. Doctor pursues in speculo animae, cap. 2. ante medium.

The chiefest cleanliness of hands is from gifts, concerning which the S. Doctor, in the place just cited, says: §. quartus fructus rapinae est munerum acceptio.

I suppose, however, that Iudices and other Ministers of justice have just stipends from the Laws. Therefore if they receive anything further for exercising their office, they sin against justice, and are bound to restitution before the sentence of a judge, to be made to the party giving; after the sentence, however, to Superiors, or it is to be made to him to whom the sentence decrees. So S. Bonavent. loco citato, Molina tom. 1. de Iust. disp. 83., Covar. ad reg peccatum, part. 2. §. 3., Navar. summa lat. cap. 17. numero 23., Adrianus quodl. 10. art. 1. et in 4. quaest. 19., Gabriel in 4. dist. 15. quaest. 6. concl. 9., Lessius Lib. 2. cap. 14. dub. 9. num. 63., Caietanus 2. 2. quaest. 32. art. 7. This sin pertains to concussion and calumny, from D. Augustino, as related in cap. militare, dist. 23. quaest. 1., by whom Ioannes Baptista Lucae 3. admonished the soldiers ut abstinerent: Neminem concutiatis; contenti estote stipendiis vestris, as S. Bonavent. explains in comment.

Both Laws condemn these acceptances of gifts.

The Canonical law indeed, cap. statuimus, §. si quid, et §. insuper de rescript. lib. 6., where Iudices delegati are commanded to restore those things which beyond what is due to them and granted them by law they have received from the parties; and there it is said that the mere remission of him to whom this restitution is due does not suffice for the Iudex to be absolved from restitution. Panormitanus notes in cap. cum ab omni de rescript., and Molina disput. 84., Fagundez Lib. 8. cap. 16. numero 2., that this applies a fortiori to ordinary judges.

Of the common law also it is plain in Leg. Plebiscito, ff. de offic. Praesid. et Leg. solet, §. ult. ff. de off. Proconsulis; et Authentica: Ut Iudices sine quoquo suffragio fiant, §. Scriptura est exemplar, where, however, Xenia are not forbidden but granted, that is, little edible gifts, which are consumed within the space of two or three days; these the S. Doctor first calls Munera granted by law.

Navar. admonishes, however, opusc. de datis, et promiss. num. 47., Molina disp. 83., Fagundez num. 12., that if anyone asks of a judge some diligence beyond that to which he is bound, for instance that he make a journey; or requests a Tabellionem to write more diligently on parchment, etc., he may give something moderate.

It is proved by reason, because the Public gives them just stipends, as I suppose, on account of which he has obligated himself to those offices, and by the just law other things are forbidden him.

Many say, however, that a Iudex can receive something for handing down a sentence for one party, when, since there is probability on both sides, it is in his discretion to pass sentence for either. But I laugh at this; for it is not in the power of the judge, when the reasons on both sides remain equal, to give to one by taking away from the other, but this will be a flaccid acceptance of persons, as I taught in prima secundae, Tract. 2. disp. 17. de conscientia probabili, ad prop. 26. et hic disput. 25. quaest. 4.

They raise the question also: Whether a Iudex or tabellio can, under the title of mere liberality and friendship, receive gifts from litigants, or from him for whom he passed sentence; and whether they are bound to restitution.

Some suppose, however, considering the mere law of nature, that these gifts are not illicit, since anyone may give what is his own to whom he pleases. So Molina disp. 88., Lessius Lib. 2. cap. 14. num. 72., Fagundez cap. 27. num. 3.

Nor does it stand in the way (they say) that of Exodus 23: Non accipies munera; quia excaecant prudentes, et subvertunt verba iustorum. Because here it is only held that they can rightly be forbidden.

But D. Bonavent. locis allegatis refers these to rapine, and the S. Doctor gives the reason; for gifts naturally corrupt justice, which ought to be done from the motive of honesty, as a judgment constituted by God, for which reason it is called the judgment of God, 2. Paral. 19.

Then also, since a Iudex is bound, as Fagundez concedes, to do these things from honest stipends, he infers violence, and they are almost never given from friendship; and even if they were given under that title, they would still perilously tend to corrupting justice.

That these things are prohibited by the law of nature, the S. Doctor proves from Deuter. 16: Non accipies personam, nec munera; quia munera excaecant oculos sapientum, et mutant verba iustorum. Iuste quod iustum est persequeris: Behold, to justice belongs not receiving gifts; Wherefore by its nature he is bound to restitution. Very many hold this, even though they concede that gifts are forbidden only by positive law. Fagundez relates them Lib. 8. cap. 27. num. 7., Ioan. Medina de restit. quaest. 20., Bartholomaeus Medina de modo administrandi sacram. Poenit. fol. 226., Sotus lib. 4. quaest. 7. art. 1. de Iustitia, Gabriel 4. dist. 15. quaest. 6. concl. 4., Sylvester V. Iudex 1. num. 23. quaest. 8.; Lessius lib. 2. cap. 14. dub. 9. num. 72. inclines to it, Baldaeus V. Iud. 12., with Ghisler. de iud. cap. 6., Boverius in direct. cap. 3.

The ratio of this is, because the laws render judges incapable of taking dominion over these things. Wherefore it matters little whether we hold this corruption of Iudicum to be forbidden by the law of nature or by positive law, concerning which see more Juxta Decretum Alexandri VII. tomo 4. disp. 17. quaest. 10. ad proposit. 26.