Question XII: Whether a judge can condemn to death an innocent man who has been proved guilty at the trial

Thus far we have dealt with homicide committed by private authority; now we must deal with homicide by public power.

First, I suppose that a judge is bound by CHARITY under pain of mortal sin to deliver an innocent man from death, if he can by any means, even if he is proven guilty, whether he does so by terrifying or obstructing the accusers, or by examining the witnesses most rigorously, etc.

Secondly, many admit that a judge, when he cannot deliver the innocent man, is bound to make his innocence manifest in the courtroom.

Thirdly, they say that an inferior judge, bound by the allegations and proofs made to condemn the innocent man, is bound to send to the superior with the information, proofs, and indications of his innocence.

The whole difficulty is: whether, when none of these things can be done, it is lawful to condemn the innocent man to death or to another punishment.

The first opinion is that the judge is indeed bound to condemn him. So St. Thomas 2. 2. quaest. 67. art. 2, and quaest. 64. art. 6. ad 3, and there all the Thomists; Soto L. 5. de Iustitia, quaest. 4. art. 2; Petrus Navarrus L. 2. de restitut. cap. 3. num. 157, speaking only of civil matters; Covarruvias lib. 1. var. cap. 1. num. 6; Navarrus summa Latina, cap. 25. num. 13; Bartolus Lex, Illicitas, §. Veritas, ff. de offic. praesidis; Innocent cap. Venerabilis, de censibus; the Archdeacon in cap. 1. de offic. ordin; Cardinal and John Andrea in cap. Pastoralis, de offic. delegati, with the Gloss there, §. quia vero; Sylvester V. Iudex 2. num. 5. and 6; Toletus Lib. 5. summa, cap. 6. num. 11; Fagundez in 5. Praeceptum Decal. cap. 14; Cajetan, Bannes, Salon, Aragon 2. 2. quaest. 67. art. 2; Valentia Tom. 2. disp. 5. q. 11. punct. 2; Sayrus L. 12. cap. 8. n. 13; Sirouerd tf. de Iustitia, 2. 2. quaest. 67. art. 2; Lezan V. Iud.; Tanner tract. 3. disp. 4. quaest. 4. dub. 2. num. 51. Corduba is finally inclined to this, as cited in Diana, part. 5. tract. 4. Resol. 22.

The second opinion denies altogether, both in civil and in criminal matters, that a judge can condemn an innocent man in the manner described; but that he is bound to resign his office, even if he knows nothing will come of it, when he can deliver him by no other way. Nay, this opinion adds that he is bound to deliver him, even if he were to lose his life. So teach Lessius Tom. 1. dub. 29. L. 2. num. 78. and 82; Lyranus in cap. 23. Exodi, expounding that: The innocent and the just, etc.; Adrian quodl. 6. art. 3; Angelus V. iudicare, num. 7; Petrus Navarrus L. cit. num. 161; Hostiensis, Calderinus, Panormitanus cap. Pastorali de offic. deleg.; Corduba lib. 1. quaest. 37, where he fights with 16 arguments (though defeated at the end); Raynaldus in gloss. cum Syl. V. Iud. 2. quaest. 5. Sà num. 13; Bonacina tract. 1. disp. 20. q. 2. punct. 2; Filliucius tract. 40. cap. 6. q. 5; Sylvius 2. 2. quaest. 67. art. 2; Bassaeus V. Iudex, num. 5; Biel, sent. quaest. 138.

The third opinion is that indeed in civil causes, and grave ones, and in criminal causes of lesser moment, the Judge can proceed according to what is proven; but in causes of death he is bound to acquit the accused. So Lessius Tom. 1. L. 2. cap. 29. disp. 10. num. 84; Petrus Navarrus L. 2. de restit. cap. 3. num. 157; Aragon 2. 2. quaest. 60. art. 5. DIANA part. 5. Tract. 4. resol. 22 concludes: If a grave loss should befall the Judge from the deposition of his office, he is not bound to lay it down; but he can condemn: and he refers to Filliucius Tom. 1. tract. 48. cap. 6. num. 171, and others. Tostatus holds almost the same ad cap. 25. Exodi, quaest. 6.

What St. Bonaventure thought I shall make clear. Therefore serm. 6. de decem praeceptis, he says, the Public Minister of the Law can kill, provided there be a just cause, a just order, and a just mind. A just cause must be present, because it is said in Deuteronomy 16: That which is just thou shalt execute justly. Hence there must also be a just order of proceeding. Likewise it must be done from love of Justice, not from lust for vengeance, and thus there will be a just mind. And in the speculo animae, cap. 2. post medium, he has almost the same.

He brilliantly defends the second opinion, however, in part. 2. de Ecclesiastica Hierarchia, cap. 2, and proves it. And again in part. 4. cap. 3 he subscribes.

This opinion is so deeply fixed in me that I greatly wonder that so many Princes of Theology depart from it.

I ASSERT, therefore, that a judge can by no means condemn an innocent man to any punishment, and especially to death, however much, according to the allegations and proofs, he may deserve death.

IT IS PROVED by St. Bonaventure, first, serm. 6. in Decal. on Deuter. 16: Judges and Masters shalt thou constitute in all thy gates, which the Lord thy God shall give thee, throughout thy tribes: that they may judge the people with just judgment, and not decline to either side. Thou shalt not accept person nor gifts: for gifts blind the eyes of the wise, and change the words of the just. Justly thou shalt pursue that which is just: that thou mayest live, etc. Where the Hebrew has: Justice, justice shalt thou pursue, that thou mayest live.

He alludes, however, to Exodus 23, as the Marginal postils note, where it has: The innocent and just thou shalt not kill: because I abhor the wicked, where Pagninus has: for I will not justify the wicked.

But that we may understand this phrase, we must note with St. Bonaventure loco cit. and Tostatus quaest. 6. in 16. Deuter., that it is not enough to do a just thing, unless it be done justly, because the manner belongs in moral matters to the species of the act. For it does not suffice to do a just thing, but it must be done justly; yet it is not just to condemn an innocent man, even if it be just to judge according to the allegations and proofs; for to condemn an innocent man is a most grave crime against the natural law: but to judge according to allegations and proofs is only according to human laws extra de constitut. cap. Canonum statuta, and cap. Ne innitaris prudentia tua, and Cod. de legibus, and Cod. de iuris, et facti ignorantia in Lege, Constitutiones.

Indeed Laws and Canons, according to the Politicians, fall under part of the natural law or part of the positive law, as is clear in 5. Eth.; nevertheless, if they per accidens depart from the natural law, they are not to be interpreted as if they commanded in every eventuality: they decree, however, that judgment be given according to allegations and proofs from the fact that right knowledge of the accused is required of the judge, that he may give sentence; but among things proven, those of lesser weight are those which are true, whencever they come.

Therefore God, who is above the Laws, commands that two be not killed, namely the innocent, and that the just be not killed. Indeed it would be the same thing repeated, because in such a case the innocent and the just would be the same. Now he forbids the innocent to be condemned, that is, him who is proven guilty by false witnesses, but is in truth innocent; and thou, O Judge, knowest this, as a private person, thou shalt not kill this man. But the just thou shalt not kill, that is, him who has been thus proven in judgment; and in this way Tostatus himself expounds it.

Behold that double justice, Deuter. 16: Justice, justice thou shalt pursue, that is, delivering both the innocent, proven guilty in the forum, and him who has been proven just.

By this argument you dissolve all the opposing foundations, taken from the necessity of the Laws of judging according to allegations and proofs. For against them stands here the law Divine and of Nature in this case.

IT IS PROVED, secondly, by St. Bonaventure loco cit. Ecclesiastica Hierarchia, from Proverbs 24: Deliver them that are led to death: and cease not to deliver those that are dragged to destruction. If thou say: Strength is not enough: he that is the inspector of the heart, he understandeth, and nothing deceiveth the keeper of thy soul, and he shall render to a man according to his works.

Behold: in order to the internal judgment of conscience he commands that the innocent, condemned to death by the laws, be diligently delivered, because, namely, it is Divine and Natural law, as our Doctors cry out.

I LAUGH at the answer of the opponents, that judgment is rendered justly according to nature, when judgment is given according to allegations and proofs, because the public good is preferred, while innumerable scandals are warded off.

THESE are flattering little words. For where is the scandal, while an innocent man is being weighed and the Judge publicly protests that he knows it, in attestation of his own honor?

NAY, these opinions are received with the applause of the whole world, just as the deliverance of Susanna was received, who by the sole slight diversity of the tree under which she was accused of having fallen was proven innocent.

But that which they keep forever in their mouths, that the natural law commands that judgment be given according to allegations and proofs, and that although this order is of positive law, one is nevertheless bound by the natural law to keep it, as Fagundez answers; it is so ridiculous that it provokes even the scant smiles of the wise to loud laughter. For where does any merely positive law compel its observance by the law of nature? Surely the law of observance arises from the law of the law itself. And is the public good really that the innocent be condemned? Is it because again the laws condemn according to the allegations? Be it so; since nevertheless the laws are human, must they not at least be taken with their epieikeiai?

FURTHERMORE the end of the law is the heart of the law, and it commands judgment according to allegations and proofs, that judgment may be given justly according to the truth, which is ever the companion of justice. But if, as a public person, the judge is bound to smile upon the public clamor, as Fagundez and the others cry in their principal foundation; then let them believe the clamoring and tumultuous people crying against CHRIST: Crucify him, who nevertheless had been proven innocent by a private interrogation alone. Surely Pilate is not thereby excused.

The public GOOD is that which is more profitable for the Republic. But nothing is more necessary than to foster and protect the innocent, as the Saintly Doctor expounds at length part. 2. Ecclesiast. Hier. cap. 2. These zealots fear scandals. What greater scandal than to pave the ways for calumnies and to lay snares of death for the innocent? Away with that scandal.

They URGE that the judge is a public person, and therefore must not follow what he knows as a private person.

COME NOW! I should like to know: does he not use the knowledge of the sciences and arts which, as a private person, he imbibed in the University amid his studies?

But let us hear St. Bonaventure in the cited place on Ecclesiastical Hierarchy, Part 2, cap. 2: The Virtues are called Angels on account of their strong and unchangeable manliness in imitation of God, a Deiform motion that does not sin. All these things, understood figuratively, are to be referred to those who receive the power of judging. For that peace and concord may be had in the Church of Christ, justice is ordained of the Lord; Psalm 71: Let the mountains receive peace for the people, and the hills justice. He shall judge the poor of the people, and shall save the children of the poor, and shall humble the calumniator. Because he shall deliver the poor from the mighty, and the poor that had no helper. Because there would be no peace in the mountains, that is, in proud men; unless there were justice in the hills, that is, in good and humble prelates and Judges, in whom Angelic manliness, or virtuousness, is required, so that by neither blessing nor cursing are they moved from the rectitude of justice, as of David, 2 Kings 14: But thou, my Lord the King, art as an Angel of God, who is moved by neither malediction nor benediction. Therefore the Judge must be strong and manly, lest through fear, hatred, or love he be deflected from justice. Hence counsel is given in Ecclesiasticus, cap. 7: Seek not to be made a judge, unless thou have strength in virtue to dash down iniquities, lest thou haply fear the face of the powerful, and lay a stumblingblock in thy equity; and Wisdom 6: Hear, O ye kings and judges, that judge the earth: to you is given power from the Most High, who shall question your works, and search out your thoughts, because, being ministers of his kingdom, you have not judged rightly, nor kept the law of justice, nor walked according to the will of God. Horribly and speedily shall he appear to you, for a most severe judgment shall be for them that bear rule. To you therefore, O kings, are these my words, that you may learn wisdom, and not fall away. For they that have kept just things justly shall be justified. And Ecclesiasticus 44: Men rich in virtue, etc. Making peace in their houses: they are therefore the Virtues as regards the manly execution of justice.

Likewise, on account of the virtuous defense of justice: For it is said Ecclesiasticus 4: Fight for justice, and strive even unto death for Justice, etc.

Likewise, on account of the imitation of Divine Wisdom. For human justice ought to imitate the Divine, as far as is possible, and, that it may not err through ignorance, to be enlightened by the divine light; Hence it is said, Wisdom 6: Love the light of wisdom, all ye that are over the peoples.

Likewise, on account of the swift and manly deliverance of the oppressed, the Judges are called Virtues: For the virtuous judge manfully snatches away the oppressed innocents, and sets himself with all his strength against him who does the injury. Whence in Proverbs 24: Deliver them that are led to death. But if thou say: Strength is not given to me: he that is the inspector of the heart, he himself understandeth, and nothing deceiveth the keeper of thy soul, and he shall render to everyone according to his works. Where the Hebrew: Deliver them that are carried captive unto death, and thou shalt forbid them that stagger unto slaughter; and Job 29: Because I had delivered the poor man that cried out, and the orphan that had no helper. The jaws of the wicked I broke, and out of their teeth I snatched away the prey: the blessing of him that was perishing came upon me. Where the Hebrew: The blessing of those perishing came upon me.

Isaiah first: Judge for the orphan, help the oppressed. Where the Hebrew: Direct your affection to the injured.

Behold the duties of the public person expounded by St. Bonaventure from the storehouse of the Scriptures.

And on Wisdom 6 he observes the apparatus of the Holy Spirit, to admonish judges: Better is wisdom than strength. Hear therefore, ye kings; learn, ye judges, etc. — the reason taken from the peril of their office. Hence also Proverbs 1: The wise man hearing will be wiser: and understanding, he shall possess governments; and on John, cap. 19, he observes that Pilate, who had known in secret the innocence of CHRIST, nevertheless condemned him unjustly on the testimony, and he brings forward Proverbs 17: He that justifieth the wicked, and he that condemneth the just, both are abominable before God. And he considers gravely that Christ discoursed so gravely with Pilate about the truth, because in it consisted the whole equity of the judgment, that the Governor might judge according to the truth, snatching the innocent from the hands of the calumniators. But because knowing the innocent he condemned him, most certainly, the Divine Justice so ordaining, he was condemned by the Emperor and rejected by God.

All of them, crowding in ranks, hurl the argument of St. Thomas, which indeed Bannes calls a moral demonstration. The judge in judging sustains the public person of the Republic: therefore he ought to use only public knowledge, which is rendered probable to the community itself. It is confirmed, because a man ought not to use that opinion which opens the way to frauds. They labor to prove the same by the authorities of the Fathers and the Canons, which Tannerus reports in number 52.

It is answered easily with St. Bonaventure in the cited places. The public person is bound to the defense of the innocent, and therefore so to bear himself that in the face of the Republic he be an asylum of innocence, as I showed above. Nor indeed does he open the way to frauds who uses certain private knowledge; nay, rather there is to be feared the false witnesses, with whom the whole world overflows.

Furthermore, the Holy Fathers and the Canons enjoin a due public skillfulness in conducting causes.