Question IV: Whether acceptance of persons finds a place in the sentences of judges

IT IS CERTAIN from faith that there can be acceptance of persons in judgment. The holy Doctor proves it with those words: Deuter. 16: You shall not accept person in judgment; and Proverbs 18: To accept person in judgment is not good.

ST. BONAV. ADDS a valid reason, Part 1. on the Ecclesiastical Hierarchy, cap. 4. at the end, citing there the passage of Proverbs; for it departs from the Geometric mean, which is owed to each one's merits.

This therefore is a grave sin, and a kind of monster, that he who is Judge of men should act unjustly, as the Blessed Andrew said to Aegeas, judge of Achaia.

IT IS PROVED thirdly by the holy Doctor, l. 3. of the Pharetra, cap. 38. from the holy Fathers.

ST. ISIDORE, on the highest good, l. 3. cap. 57: Unjust judges err from the truth of the sentence, while they attend to the quality of the person; and they often wound the just, while they wickedly defend the unjust; and cap. 57: The rich man quickly corrupts the Judge with gifts; but the poor man, while he has nothing to offer, is not only despised and refused a hearing, but is also oppressed against the truth.

HENCE ST. GREGORY, lib. 9. Morals, cap. 17., cited by ST. Bonav. lib. 1. of the Pharetra, cap. 45: There are three acceptances of gifts, by which one hastens deceitfully to judgment. A gift from the heart is the favor sought by thought. A gift from the mouth is glory through favor. A gift from the hand is a reward through giving.

He goes on there to cite St. Isidore, on the highest good, cap. 58. sent. 7: In four ways human judgment is perverted: by fear, by covetousness, by hatred, by love. By fear, when dreading the power of someone we are afraid to speak the truth. By covetousness, when we are corrupted by the reward of some gift. By hatred, when we strive against someone. By love, when we strive to obey a friend or relatives. For other Fathers testifying the same you have question 2 of the preceding question.

SO MUCH do the Fathers exaggerate this crime of Judges that St. Jerome calls it the greatest, because since the Judge is the soul of Justice, or animated justice, as Aristotle teaches in 5 Ethics, injustice in him is a monstrous thing.

BUT there is a doubt: Whether a Judge, when he judges in a matter of commutative justice, punishing or rewarding this particular one, or that one against the just, while considering in him a condition not relevant to the cause, sins also against distributive justice.

IT MUST BE ASSERTED that a Judge so judging offends against distributive justice.

IT IS PROVED from Valencia, point 4. For judicial acts, as in the power [of the judge], are morally public goods to be distributed according to the Geometric proportion to those who deserve them: therefore the Judge, distributing these acts unjustly, sins against distributive justice, since that sentence was owed to another more worthy.

YET this reason seems metaphysical, not moral; otherwise all the acts of a Prince or Judge bound by some precept would look to distributive justice. They must therefore be considered in their practical application, whence the reason of distributive or commutative justice is considered.

THE TRUE and solid reason is that of St. Bonaventure, on the Ecclesiastical Hierarchy p. 1. cap. 4. at the end, and in the places of the Pharetra cited from the Fathers. Because, since the Judge holds in his hands the distribution of rewards and punishments and the other goods of the community, he is bound to observe the mean, remote from every extreme of vice; and accordingly, even if he now looks upon this defendant, this infant, and renders to them according to the commutative debt, he is bound to render it with that moderation which, the public good being reckoned along with the others to whom justice is ministered, is due according to the present state of affairs, so that with this one the utmost rigor is not applied; since, if it were applied with a just proportion to him, it ought not to be applied to the others, if he wishes to preserve the peace of the commonwealth. This exorbitance of disproportion arises either from ignorance of one's office, or from an affectation of attending to conditions irrelevant to the definition of causes, such as friendships, gifts, power, kinship, etc.; and this the holy Fathers openly intended, as cited by St. Bonaventure. Wherefore Valencia does not rightly say that others have not sufficiently explained this matter.

From these things I deduce what must be said when it is left to the Judge's discretion to give something, for example, when the law determines that the Judge shall grant a time to litigants at his discretion.

FOR I SAY that he cannot, on account of conditions irrelevant [to the cause], give more to one than to another; for the law leaves something to the discretion of the Judge because there are so many conditions subject to individuating circumstances that it would be difficult, and morally impossible, to define each one. Therefore it is left to the discretion of the Judge, all things being reckoned, to preserve what must be preserved; otherwise, if he distributes this out of favoritisms, he will not rightly consult the peace and public tranquillity; since all the members of the commonwealth have a right to those goods, for example to that convenience of time for appearing or paying, since all are equals in the causes, it must not be denied to one more than to another.

YET some things, which impose a proper inconvenience to be borne by the Judge himself, can be assigned rather to a friend, for example, to go to an inconvenient place, to the scene of the crime, or to plead a cause, as Valencia notes, loc. cit., Sotus l. 3. last quaest. art. 5. and others. But scandal must be avoided.