Sole Doubt: Whether a judge can, without the stain of acceptance of persons, decide in favor of friends when the law is doubtful among the doctors

WHEN there is on either side a probable opinion, most hold that the Judge can judge for either side at his pleasure. So Sanchez 7. 1. Decal. lib. 1. cap. 9. num. 45. Medina t. 2. quaest. 19. art. 6. fol. 309. Salon. 2. 2. quaest. 63. art. 4. controu. 2. Valencia 2. 2. disp. 5. quaest. 7. punct. 4. dub. 3. Rodriquez Tomo 1. of the summa, cap. 6. Sayrus lib. 1. cap. 11. Salas 2. 2. quaest. 21. tract. 8. dub. un. sect. 12. Petrus Ledesma T. 2. of the summa, Tract. 8. cap. 22. after the 11th conclusion, diff. 1. fol. 745. Fagundez on the eighth Precept of the Decal. l. 8. cap. 26. num. 35., where he says that all these assert that the Judge cannot divide the thing disputed in the lawsuit among the litigants, or, if it be indivisible, such as a Majorat, cannot divide the fruits (as Bannes 2. 2. quaest. 69. art. 4. disp. 1. and Malder. tract. 9. on justice, cap. 1. dub. 4. hold), but that the Judge is bound to determine himself and choose whichever opinion he prefers, and according to it adjudge the whole dispute to one party; but not all say the Judge is bound to do this, but that he can. Nor does it seem proved to me that he is bound; for since no greater reason compelling conscience is present on either side, but the probabilities are in equilibrium on both sides, I do not see why he should wish to compel. Indeed I think it probable that he is bound to divide, because each has an equal right to the thing, and therefore, by giving the whole to one, there will be a withered acceptance of persons, which judges not according to the reason of merit. On this I have also treated in prima secundae, Tract. on human acts, disp. 17. on probable conscience, quaest. 10. and on proposition 16. This many hold with Navarro, C. si quis, on penitence, dist. 7. num. 130.

I WONDER, however, that Fagundez should put forward little arguments and boast that they are admirably proved, which are taken from the fact that the Judge is bound to determine himself for some party.

FOR I SAY he is bound to determine himself according to the laws of justice, not against them. But to give the whole thing to one, taking it away from another who has an equal right to it — let Fagundez consider whether that is to determine oneself according to the rules of justice. This seems to be the opinion of St. Bonaventure, at the place cited.

I ADD that these freedoms of adjudicating usually bring scandals, when the people see that the same thing, numerically one, is judged one way and then the opposite way. It is confirmed. When the reasons and proofs on both sides are equal, the thing is to be divided: therefore that must also be done when the opinions on both sides rest on the same reasons.

Fagundez answers by denying the parity; for the proofs hold on the side of the cause, but the probabilities of the opinions on the side of the Judge, who is bound to choose the opinion according to which he judges. Sanchez also assents to this, lib. 1. Decal. cap 9. num. 45.

BUT both are mistaken; for the reasons of the opinions stand on the side of the cause, just as the proofs do. For they are the props of the cause, without which it perishes; and this is the royal sign, because when the reasons of the opinions are changed, the case essentially changes its face.

NEXT, he infers not very cleverly that, if the probabilities hold on the side of the judge, it lies in his power to judge against the reasons: for these generate probability in the judge.

Valencia ADDS that if the opinion is more probable for one side, the Judge is bound to judge for it; for then the law stands for the one whom the opinion favors more probably; otherwise he will be an acceptor of persons; and from this he deduces what the Confessor is bound to do in the forum of conscience, so as not to be an acceptor of persons.

BETTER is St. Bonaventure in the Confessionale, cap. 1. part. 6., whose words I shall quote: Let the Confessor also strive to guard against acceptance of persons, so that the confessor in the judgment of penance accept not a person, which is thus described by the Masters. Acceptance of a person is an injustice by which a person is preferred to a person on account of an undue cause. Attend diligently, O penitential judge, to what is said to thee, Leviticus 19: You shall not do that which is unjust, nor shall you judge unjustly. Do not consider the person of the poor; nor honor the countenance of the mighty, lest namely thou decline from the way of justice on account of compassion for the poor, or on account of flattery of the mighty. Attend also to what is said to thee, Deuter. 16: You shall not accept person nor gifts, for gifts blind the eyes of the wise, and pervert the words of the just. Nevertheless attend diligently, and consider that it was said universally to all confessors, Deuter. 1: Hear them, and judge what is just: whether he be a citizen or a stranger. There shall be no distinction of persons; you shall hear the small as the great; you shall not accept the person of anyone, for it is the judgment of God. Hear, I say, that is, attend diligently to the sins, examining the sins and their circumstances, and judge what is just, namely absolving the just, whether rich or poor, and condemning the impious, though they be also powerful and rich; nor shall you accept the person of anyone, unduly exasperating the poor, and flattering the rich and powerful. Do not, I say, accept a person, lest thou be struck by the prophetic malediction by which it is said, Isa. 5: Woe to you who justify the wicked for gifts, and take away the justice of the just from him. This is St. Bonaventure.

HENCE another question is born concerning Judges, whether, without the note of acceptance of persons, they can, through the intervention of gifts, judge for a side equally probable. We have examined this difficulty in tomo quarto, disp. 17. nu. 10., according to the decree of Alexander VII., who curbs the lust of opinions running riot too much, both in this and in other matters. It will not be tedious to treat of this question again in disp. on the Judge, quaest. 6.

FOR there are not obscure authors, some of whom we have already cited, who so make the Judge the arbiter of their own will that, for whichever side he pleases, equally probable on both sides, he may judge, and, by the determination of his liberty rather in one part than in the other, can licitly accept gifts: and some defend this, as far as the law of nature goes; others too do not blush to proclaim that it is lawful by every law. But in the place already cited I shall say how greatly these outrage Justice, both on the side of the Judge, who is otherwise sufficiently compensated for the function of his office, and on the side of the litigants, each of whom, by an equal probability of law, demands rather an equal division of the dispute than that the whole be adjudged to one.