Question II: Whether a judge ought to follow the truth, and therefore be wise

In the Treatise on Justice disput. 20. quaest. 7. I showed that Judges ought to be jurists and learned men. I showed the same in several places in this treatise disput. 1.; wherefore P. Eliseus says that they sin from a threefold defect, tract. 1. quaest. 11. num. 17., namely from a defect of rectitude, of power, and of prudence.

For they ought to conduct the causes of fortunes and of the lives of men prudently, not rashly, which the S. Doctor proves of judges even of conscience in the Confessionale, cap. 1. particula 5., by that passage Deuter. 17: If thou perceive that there be among you a hard and doubtful matter in judgment, etc., thou shalt come to the priests of the Levitical race, and to the judge who shall be in those days: and thou shalt ask of them, who shall judge for thee, the truth of the judgment. This authority Sayrus urges, lib. 12. cap. 8.

Now there is a twofold truth: one of the thing, another of conscience. And indeed Conscience is as it is thought to be; the truth of the thing is as it stands on the side of the thing itself. And that the truth may be obtained, and conscience be right, the Judge ought to be learned in Jurisprudence; for he ought to pronounce sentence according to the dispositions of the common law, arg. cap. 1. de sent. et re iudic. in 6. He ought to be learned in the municipal laws, which often detract from the common law.

But if the cause to be decided is not had expressly in the laws, he ought to weigh probable opinions and conduct himself as I said in prima 2. tract. 2. disput. 17. Thus acting he will be safe even from the Sindicatus, Felinus cap. 1. de constitut. num. 54., Sayrus lib. 12. cap. 9. Otherwise, if ignorant, he is in an evil state, nor can he be absolved unless he resign, Reginaldus lib. 25. num. 657., Nauar. lib. 2. cap. 25. num. 12. For rightly does D. August. lib. 9. de civit. cap. 6. say: The ignorance of the judge often becomes the calamity of the innocent. Therefore he is bound to restore the damages of the injured party, the expenses, etc.

He requires not exquisite, but competent knowledge, arg. the chapter cum nobis olim, de elect. It is indeed conceded that he may take an Assessor because of a defect of knowledge, at the expense of both parties, the chapter statutum, §. Assessorem de rescript. in 6. If he has erred, he is bound to admonish the injured party, that he provide for himself, as the Doctors say in the chapter Praeterea, de test. cogendis. So Caietan. 2. 2. quaest. 70. art. 4., Lugo de just. disp. 37. sect. 1., Bassaeus V. Iud. 11.

It is DISPUTED here: whether one who knows someone to be innocent can condemn him, if he be guilty on the evidence alleged. On this I treated in quaest. 12. of the preceding disp.

They have also discussed whether he is bound to judge according to the words of the law; or rather to use Epieikeia. And indeed, as regards the natural laws which are comprehended in the Decalogue, it is not permitted, because they are indispensable, as I showed in the Tract. de Legibus, disp. 3. quaest. 7. The reason is, because the just in these laws arises from the very nature of things.

AS regards other positive [laws], the Judge is bound to judge according to the laws of superiors, because the Judge does not judge the law, but the matter according to the law, as is commonly said by all with D. Bonaventure in 1, dist. 3. part. 1. art. 1. quaest. 1. ad 4, and D. Augustine de vera relig. cap. 31., whom follow D. Thomas 2. 2. quaest. 60. art. 5., Salon. and Aragon. there, Sotus de Iust. Lib. 3. quaest. 4. art. 5., Valencia disp. 5. quaest. 4. puncto 2., Sayrus Lib. 12. cap. 9. num. 3. The reason of D. Bonaventure, upon which all rest, is, because to judge something, so as to approve or reprove it, denotes a pre-authority over it: but a Judge of this kind is subject to those laws which superiors have enacted: whence against a Judge nullity can be opposed if he has omitted these laws, Canons, or statutes in judging. So P. Eliseus tract. 2. quaest. 4. num. 16.

AS regards laws enacted by himself, enough has been done in the Tract. de Legibus, disp. 5. quaest. 14., where I showed that the Legislator cannot dispense in his own laws without a cause; for although before he was free to enact those Laws, nevertheless after they have been published for the common good, he is bound to keep them unimpaired.

INDEED, if, the words of the law being preserved, there would follow by reason of place, person, etc. some injustice, then they ought to judge according to Epieikeia. So D. Thom. 2. 2. quaest. 60. art. 5. ad 2., Salon. and Aragon. there, Sotus L. 3. quaest. 4. art. 3., Sayrus num. 4., and others.

The REASON is, because Law is the rule and the explication of the just; but the judge is the guardian of Justice. It is confirmed, because a law, if it is unjust by reason of some circumstance, is no longer a law, nor a rule able to direct our actions, but a corruption, as D. Th. says most excellently in prima secundae, quaest. 96. art. 4., just as a clock, which does not agree with the motion of the Sun, is not a clock, but a disturbance of the hours.

From the very name of Judge also it is evident that he ought to pronounce sentences according to the laws; for he is called Judge whose it is to terminate a cause according to the laws, as D. Bonaventure says in 2. dist. 25. part. 1. dub. 1. litt., or from declaring law (ius dicendo), as I admonished above from P. Eliseus ab Oriano, and as Becanus says, tract. 3. miscell. fol. 340., Fagundez num. 1. cap. 18.

Fagundez truly notes, L. 8. cap. 18., that which he says Alensis noted, part. 3. quaest. 40. memb. 4., and Gabriel, 4. dist. 15. quaest. 6. not. 3.: in sacred page, Deuter. 1., this judgment is called the Judgment of God; for the judge bears the place of God; whence he ought to be conformed to God in three things: in Power or jurisdiction; in Truth, and in Goodness. Power consists in authority and superiority; the Truth of the Judge in discretion; Goodness in rectitude of soul. Whence in Deuter. 16. it is said: Thou shalt appoint judges and masters in all thy gates: behold authority. That they may judge the people with just judgment: behold the judgment of truth. And they shall not decline to either side: behold rectitude of soul. These things, however, the S. Doctor resolves more broadly in the places adduced, in the Tract. de Prudentia, and in this Treatise, disp. 3., especially part. 2. de Ecclesiastica Hierarchia, cap. 2., and on cap. 6. of Sapientiae.

From the defect of an incompressible power women are excluded; whence Deuter. 1. says: Give men from among you. And cap. 18: Provide men;¹ and because it was said to her in Genes.: Thou shalt be under the power of the husband. From which chapter servants also are excluded, whom Peter exhorts, prima, c. 1.: be ye subject. ¹ Editor's note: the print reads 'cap. 18. Provide vires'; 'vires' (strengths) is apparently a print slip for 'viros' (men), as in the parallel Deuter. 1 'Date ex vobis viros'; rendered 'Provide viros' (provide men).

Because of a defect of judgment of discretion the deaf, the mute, the mentally deranged, the furious, and minors are rejected, as the Seraphic Doctor shows at length in the places adduced.

Because of a defect of probity heretics, the infamous, the excommunicate, and others probably suspect are rejected, as enemies or blood relations of the actor.