I. On Judges

What is a judge? - A judge, as regards his nominal definition, is the same as one saying the law. As regards his real definition, a judge is a public person, constituted by legitimate authority, so that according to the laws he may vindicate justice, by rendering judgment or sentence between two litigating parties, by an authentic declaration and application of the laws. By declaration and application, not merely speculative, which pertains to jurists, but practical and obligatory, and by compelling that it also be observed. S. Th. 2. 2. q. 60. a. 1, 6; q. 67. a. 3. "We think that he says sentence who pronounces something with that mind, that according to it he wishes them to depart from the whole controversy." L. 19. de Receptis etc. Dig.

There are several divisions of judgments, among which especially the following division is to be attended to: into civil, criminal, and mixed. Civil is that in which the plaintiff seeks what is of interest to himself. Criminal is that in which there is question of punishing a crime. Mixed participates in both, when, for example, by the crime of homicide or theft public justice is injured and damage is inflicted on private persons. Into petitionary and possessory. Petitionary is the judgment in which there is question of the property or ownership of a thing, or quasi-ownership, or of a right in the thing or to the thing. Possessory is the judgment in which there is question only of the possession or quasi-possession of a thing. Hence a twofold action is also distinguished, petitionary and possessory. Into summary and full or solemn. In a summary judgment only those things are to be observed which belong to natural law: namely that there be present a judge, plaintiff, and defendant, and that citation of the parties, necessary proofs, and legitimate defenses not be lacking. Clem. Saepe contingit de Verbor. significatione. But in a full judgment all formalities prescribed by positive law must be observed. Marchant, Inst. Can., l. 2, t. 1, note 2; Barbosa, de Iudiciis, n. 7.

And thus the Apostolic Signatura proceeds in a criminal case, with procedural rules observed. "In other judgments it can proceed, the truth of the matter alone having been inspected, nevertheless always with the adverse or defendant party, or the party whose interest it is, cited, and with a suitable peremptory term fixed for the parties to present their rights." Constitution Sapienti consilio, canon 41, title 2.

What qualities are required in a judge? - In a judge there are required knowledge of law and prudence, by which he may know how to discharge his office rightly. The first reason is that anyone, generally speaking, is bound to know those things which pertain to his proper office, and without knowledge of which he cannot exercise it rightly. Besides, speaking in particular about a judge, it belongs to a judge to define and determine that which is just. But this cannot be done without knowledge of natural and positive law. The second reason is that it belongs to the judge to apply the dictum of the law to a particular business; and consequently, for his judgment to be right, it must be rendered "according to the right reason of prudence." S. Th. 2. 2. q. 60. a. 2 and 1 ad 1; Lugo, de Iust. et Iur., d. 31, s. 1.

You will resolve: Not ordinary nor mediocre knowledge of laws and prudence is required in a judge, so that he may be able to weigh intricate cases and to examine by his consideration all circumstances both of law and of fact. One seeking or accepting the office of judge, the same is true of a physician, surgeon, etc., for which he is unworthy, so that it is probable that notable damage to the neighbor will follow from it, sins mortally. A judge lacking necessary knowledge ought not to be absolved, unless resignation of the office has been made, or unless he has a firm purpose of resigning, or at least of acquiring it by diligent study, and meanwhile abstains from judging, or at least uses the counsels and work of one more learned; for otherwise he would expose his neighbor to the danger of damage. But he must resign altogether if there is no hope that by studying he will ever become fit. He must diligently examine cases and weigh well the reasons of the adverse parties. L. 195; l. 1, n. 170.

How ought a judge to exercise his office? - A judge is bound to fulfill his office duly with incorruptible integrity, with no acceptance of persons. The reason is that one accepting the office of judge is obliged to this by quasi-contract with society. Wherefore, acting otherwise, he will be guilty of violated justice, both legal and also commutative. Eccl. 7, 6; Deut. 1, 16, 17; C. Cum aeterni 1. de Sent. et re iud. in the Sixth; R. 12 de R. I. in the Sixth; S. Th. 2. 2. q. 63. a. 4.

What must a judge furnish, so that he may fulfill his office duly? - He must furnish two things. The first is to judge cases and to expedite them quickly, nevertheless with the delay prescribed by the laws observed. For a judge is bound by office to render to each one his own right. But he rather injures right if he either omits to judge a case, or illegitimately hastens or delays sentence without a just and proportionate cause. Hence he sins mortally against his office by omitting the judgment of a case, or by very notably anticipating or delaying it without a sufficient excusing cause; and moreover he is bound to compensate the damages to the injured party which followed from the unjust omission, anticipation, and delay of judgment, because he is their unjust cause. C. Iurgantium 2. de Sent. et re iudic.; Trent, sess. 24, c. 20 de R., sess. 25, c. 10 de R.; L. 196. The other is to render legitimate judgment. For a judge is the interpreter of justice and animated justice. But judgment is the definition or determination of the just, or of right. And in Deut. 16, 18 it is said: You shall appoint judges and magistrates in all your gates, that they may judge the people with just judgment. R. 26 de R. I. in the Sixth; L. 13 de Iudic. C.; L. ult. de Iure Fisci C.; L. 44 de Decurion. et de fil. eor. C.; L. 58 de Excusat. ff.; Nov. 83; S. Th. 2. 2. q. 60. a. 1, 2.

What is required for rendering a legitimate judgment? - Three things are required. The first is jurisdiction, without which, speaking in itself, there is mortal sin, and the sentence is null, unless there is a colored title and the error is common. But by canon law someone obtains an external forum by reason of domicile, thing, contract, or delict. C. Licet 20. de For. comp.; C. Cum quidam section 1 de Except. in the Sixth; C. Novit de Iudic.; C. 35 Quicumque cause 11, q. 1; C. 1 cause 3, q. 7; L. Barbatius Dig. de Offic. praetor.; S. Th. 2. 2. q. 60. a. 6; q. 67. a. 1; Lugo d. 37, s. 2, 3; Sanchez, de Matr., l. 3, d. 22.

The second is right process, for example, that the defendant be cited and heard, unless perhaps sometimes it is expedient, when the crimes are public, atrocious, and there is danger in delay, to punish immediately those apprehended in the very act of crime. Testimonies and documents offered in judgment must be followed. Likewise all other formalities of public judgments established by the laws are to be observed. For as the judge proceeds by public authority, so also he proceeds by public knowledge. L. 193; S. Th. 2. 2. q. 67. a. 3; Lugo d. 37, s. 6, 7; C. In causis 19. de Sent. et re iud.; CC. Si legitimus 1, Evidentia 9 de Accusationibus; Clem. 2 de Sent. et re iud.; title de Ord. iudic. C.

The third is that he proceed from an inclination and intention of justice, according to the laws and the right norm of prudence. For if he does not proceed from an inclination of justice and according to the laws and prudence, the judgment is unjust and depraved. C. Sententia 1 de Sent. et re iud.; L. 14 de Iudic. C.; S. Th. 2. 2. q. 60. a. 2; L. 194; Decretals l. 2; Trent, sess. 13, c. 17 ff. de R.; sess. 24, c. 20 de R.; sess. 25, c. 6, 10 de R.

Note: Cases to be treated are some ecclesiastical, concerning sacred things or things annexed to them; others civil, concerning profane things; others are mixed. The former are directly of the ecclesiastical forum, the latter of the secular forum, unless they are cases of clerics, and indirectly also of the ecclesiastical forum, and the latter are of mixed forum, when the rights are at once civil and ecclesiastical; and in these there is place for the Rota. To the Rota are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. As regards ecclesiastical cases, once a supplicatory petition for obtaining a matter, whether pertaining to grace or to justice, has been brought and received by some office of the Roman Curia, no one for any reason is permitted of his own accord to approach another office for the same end; but the consent of the office itself with which business has begun is necessary, or a decree of the Consistorial Congregation, by which permission is given for transferring the business. Matrimonial cases pertain to the Church; and except in the case of the Church's toleration, lay judges cannot take cognizance of them.

The process concerning the validity of marriage must be instituted according to the Constitution Dei miseratione of Benedict XIV, November 3, 1741, and the Instruction of the S. C. C., August 22, 1840, unless the impediment is clear, for example, the impediment of bond; for then the Bishop, with the intervention of the defender of the bond, will be able to declare the marriage null. The tribunal in matrimonial cases is constituted of the judge, the chancellor, and the defender of the bond. Besides the plaintiff and the defendant, there are present witnesses of the seventh hand, indicated by the husband and wife, and they are seven persons joined to them by blood or affinity, if they can be had; or otherwise seven neighbors of good reputation who can testify, seven on the part of the man and seven on the part of the woman. Nevertheless others are not excluded who know the matter and are worthy of trust.

A dispensation from a ratified but non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. In this cause the Bishop cannot, without a special faculty obtained from the S. C. of the Sacraments, institute the process in this cause. But in other causes the Bishop is the competent judge in first instance. Constitution Sapienti Consilio, A. A. S. v. 1, p. 7 ff.

Rota: To it are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. The Proper Law must be observed by the S. R. Rota, which is appended to the praised Constitution Sapienti consilio. In it are established the constitution of the Tribunal, its competence, and the mode of judging. Moreover, in judgments the Rules approved by the Supreme Pontiff Pius X on August 2, 1910, and promulgated on October 25 of the same year, are to be observed. Finally, those things also are to be observed which pertain to it in the Constitution Sapienti consilio and in the Order to be observed in the Roman Curia. "Each Auditor of the Sacred Rota, after nomination, before he undertakes the office of judge, before the whole College, with one of the notaries of the sacred tribunal standing by, who will draw up the act, will take an oath concerning the office to be fulfilled duly and faithfully." "The same oath will be taken by each of the assistants of the Auditors and the ministers of the tribunal before the Dean of the Sacred Rota, with one of the notaries likewise standing by." Canon 7, title 1, Proper Law, A. A. S. v. 1, p. 21. "In a criminal matter, in spiritual causes, and in others, when from the revelation of some act prejudice can come upon the parties, or secrecy has been imposed by the tribunal itself, the Auditors, assistants of the Auditors, and ministers of the tribunal are held to the secrecy of office." Canon 8, title 1, ibid. "Auditors who have violated secrecy, or who from culpable negligence or deceit have brought grave detriment to litigants, are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the Apostolic Signatura, confirmed by the Most Holy One, they can be punished. "The ministers of the tribunal and procurators who have done similar things likewise are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the rotal College, according to the measure of damage and fault, they can be punished." Canon 9, title 1, ibid. Moreover, according to the Rules to be observed in judgments of the S. R. Rota: If it concerns a criminal case, the Promoter of justice must assist the Instructor.... But in causes regarding the bond of marriage, or the validity of religious profession or of sacred ordination, the intervention of the Defender of the bond is required according to the norm of the Constitutions Dei miseratione and Si datam.... It will belong to the Instructor in criminal accusations to assign to the accused a defender, who is to assist him even in the period of instruction, if he does not have an advocate, nor can sufficiently attend to his own defense by himself. Title 4, c. 1, sections 108, 109. From the same Constitution Sapienti consilio, the Proper Law of the S. R. Rota and Apostolic Signatura, if, after a case has been introduced, the plaintiff wishes to renounce the instance, or the lawsuit, or the acts of the case, this will always be permitted to him. Canon 34, title 1.

Sacred Congregations: "In cases to be conducted before the Sacred Congregations by the path of administration and discipline, the joinder of issue having been removed, the hearing of witnesses excluded, and no writings of patrons received, the question will be held; nevertheless the parties whose interest it is will always be heard, and the documents produced by them will be examined." Order to be observed in the Roman Curia, Special Norms, chapter 3, article 2, number 7.

Once a question has been instituted in a disciplinary manner before one Sacred Congregation, it is no longer lawful to institute a strictly judicial action. Pius X, Constitution Sapienti consilio, Order to be observed, special norms, c. 3, a. 2, n. 10.

Council of Trent: Council of Trent, sess. 25, c. 6 de R., establishes that in exempt Chapters, at the beginning of any year, the Chapter is to choose two from the Chapter, by whose counsel and consent the Bishop, when he proceeds outside visitation, is bound to proceed both in forming the process and in the other acts against anyone from the capitulars. But one vote belongs to both adjuncts, and one of them can accede to the Bishop. Lugo, Resp. Mor., l. 5, d. 23.

How one must proceed in causes of those defecting from Religion you have in the Council of Trent, sess. 25, c. 19 de Reg.; in causes of clerics who are concubinarians, ibid., c. 14 de Ref.; in causes of exempt persons, ibid., sess. 7, c. 14 de R.; in criminal and civil causes, ibid., sess. 7, c. 14 de R., sess. 24, c. 5, 20. Cf. also various decrees issued concerning this matter, Ferraris, supplement, v. Processus in causis clericorum; E. M. "It is unlawful for clerics, even those having lay power, to condemn the guilty to the penalty of death, from C. Continentia 2 de Cler. percuss. Yet the Pope can dispense in this. And Bishops themselves, or similar persons, having temporal dominion of some place, can licitly commit their power to laymen for cases of blood." L. 1. 3, n. 378; l. 7, n. 566; S. Th. 2. 2. q. 64. a. 4. A lay judge cannot drag ecclesiastical persons before his own tribunal unless this is permitted by Canonical Dispositions, Concordats, approved custom, or at least toleration. For this would be against the privilege of forum.

A judge sins by fraudulently inducing the defendant, or contrary to the order of law, to betray himself, or by using some knowledge unjustly extorted.

How must right process be instituted? - In a civil case the process must be instituted at the petition of the plaintiff. Plaintiff is so called from action. Action is the right of pursuing in judgment what is owed to oneself. Hence he who proceeds in judgment by actions is called plaintiff.

But it is necessary that he be able to stand in judgment; that he have an action in judgment according to the laws; that he manifestly prove what he seeks. Proofs are made by examination of laws and facts, by sentences given in other similar cases, by presumptions, by sworn witnesses, by writings, by the sworn confession of the party. C. I. 1312 ff., 2142; C. G. 1315 ff., 2275; C. L. 2404 ff. But actions are repelled on the part of the defendant by exceptions, which he himself likewise is bound to prove. "Exception is so called as a certain exclusion, which is customarily interposed against the action of any matter in order to exclude that which has been brought into the intention or condemnation." L. 2 de Except. Wherefore one exception is of fact, another of law. By the former the fact is excluded, for example, the loan received. By the latter the law is excluded, for example, if a homicide, not criminal, was committed in order to defend oneself.

Other proofs having been omitted, either an interrogatory or an oath can be tendered to the defendant. If an interrogatory is tendered, the defendant must answer, and if he has not answered, it will be taken as confessed. C. I. civil procedure 216 ff. But an oath is twofold, decisory and supplementary. A decisory oath is a certain species of settlement for ending a lawsuit, and therefore it is tendered by one party to the other. Hence, if the defendant does not furnish the oath, he is condemned; likewise, if the plaintiff does not furnish the oath tendered to him, he is condemned. But if the defendant furnishes it, even if he is perjured, he is absolved. C. I. 1364 ff.; C. G. 1358 ff. Namely, he is absolved, even if perjured, in the external forum, but he is not freed from obligation in the forum of conscience; for the settlement was made by oath, not by perjury. The oath is tendered concerning one's own fact, and also concerning the fact of another, if there is a presumption that it is known by the one swearing, and if it is necessary for expediting the case to know that fact. A supplementary oath is one which is tendered by the judge to complete proofs, but not to the defendant himself in a criminal case. C. I. penal procedure 232. Cf. L. 11 de Act. rer. amot. ff. As regards the forum of conscience, the judge cannot tender it to one who probably will perjure himself, without injuring charity and justice. For it is in his power to tender it or not. C. I. 1314 ff.; C. G. 1366 ff. Cf. Rules of the S. R. Rota, title 4; L. fin. de Iureiur. ff.; C. L. 2520 ff.

In a criminal case from Roman Law, and also from more recent law as regards the very substance of the matter, the process can be instituted in three ways: 1. By way of accusation, when there is some accuser who promises that he will prove the crimes objected. 2. By way of denunciation, when the one reporting the crime does not wish to assume the burden of proving. 3. By way of inquisition, which the magistrate institutes.

In the accusatory process the whole case is conducted between the accuser and the accused. The accuser objects the crime; the accused responds, denies or confesses the fact, and if he confesses he is as condemned. Witnesses are all examined before both, and orally. For no one is to be condemned unheard and without witnesses. Formerly the defendant was tortured on the rack, so that full proof might be made from his confession. But by present laws no one can be compelled to bear testimony against himself. Then the sentence of innocence or guilt is pronounced, and punishment is imposed by law on the guilty person. If the accuser has failed in proof of the crime and from malice has brought someone into danger of grave penalty, formerly he suffered a similar or talion penalty. Today an action of calumny and defamation is granted against the accuser. S. Th. 2. 2. q. 68. a. 4; Deut. 24, 19 ff.; Decretal de Calumniator.

The way of denunciation falls back into inquisition. For when the matter has come to the knowledge of the magistrate through denunciation, either from one lodging complaint, or from an informer, or from ministers of public order, then he begins to inquire into the delict and the delinquent. He can inquire into the delict from the slightest indications, but into the delinquent only from grave ones. Once the inquisition has been completed, the delinquent is subjected first to summary examination, then to ordinary examination. Then the criminal process is instructed before him, and witnesses are examined in it. If from it the defendant is proved guilty, he is condemned; if he is proved innocent, he is absolved; if neither is established from the acts and proofs, he is dismissed.

Moreover, inquisition is threefold. The first is general, namely when it is asked in general whether the laws are observed, whether there are transgressors. The second is special, when inquisition is instituted concerning a certain crime and concerning a certain person as its author. The third is mixed, when either the person alone or the crime alone is special, for example, whether Titius is guilty, or who killed Caius. L. 197; S. Th. Quodl. 11, a. 13.

Therefore by whatever way the process is instituted, there is always some accuser, whether a private or public person, whether physical or moral. Accusation can be both formal and virtual. Hence the evidence of the fact, public infamy, or notoriety of the crime supplies the place of the plaintiff or accuser. In judgments three persons are required: judge, plaintiff, defendant. For judgment is an act of justice, which is not toward oneself, as are the other virtues by which man is ordered in himself, but is toward another, ordering man to another. S. Th. 2. 2. q. 67. a. 3.

By canon law a previous admonition of the defendant is often required, for example, in causes of clerics who are concubinarians, and where excommunication is to be inflicted. Trent, sess. 25, c. 3, 14 de R.

Decretals l. 2; L. Qui crimen C. de iis, qui accusare non possunt; L. ult. C. de Accusat. et inscript.; Sanchez, Cons., l. 6, c. 2, proem.; Lessius, l. 2, c. 29, n. 106; Lugo d. 27, n. 75; E. M.

The rack: It is a kind of torment, namely a wooden machine put together in the manner of a horse, cavalletto, upon which those concerning whom there was inquiry about some crime were stretched out and tortured, so that full proof might be made from their confession.

What concerning general inquisition? - A judge, without any special occasion having been given, from his office alone can institute a general inquisition, in which nevertheless his power does not extend to eliciting hidden delicts, concerning which there is no report, or which turn to the damage of no one. The reason for the former is that this is necessary for the republic, and no injury is done to anyone. And although the crimes of some persons may be uncovered, this occurs accidentally, beyond intention, and the common good prevails over that inconvenience. The reason for the latter is that otherwise the reputation of the neighbor would be injured directly and in itself; and this right, speaking in itself, neither the judge nor society itself has. Then the greatest inconveniences of scandals, quarrels, etc., would follow, and public peace would be disturbed. Wherefore, for the common good of society itself, always speaking in itself, it is more profitable that delicts remain hidden than that they be made public, so that scandal may be removed, lest others be stirred up by the example of others to perpetrating similar crimes. Nevertheless always except cases of imminent danger of common or private damage, in which the judge can and must inquire even concerning secret delicts. C. Perniciosa 1. de Off. iud. ord.; L. 198.

199; Lugo d. 38, s. 6; Lessius, de Iust. et Iur., l. 2, c. 29, dub. 13; S. Th. Quodl. 11, a. 13; 2. 2. q. 33. a. 7.

What concerning special inquisition? - "For a judge to make a special inquisition, there must, at least regularly, precede infamy, or something equivalent, which gives a just cause. The reason is both because otherwise he would defame without cause, and because a judge must proceed from public knowledge, which he does not have except through accusation, or the confession of the defendant, or evidence of the fact, or through infamy; for which two witnesses are not sufficient, who swear that they have seen the crime committed, because it is still hidden, but it is required that rumor be spread through the greater part of the community, that is, of the city, neighborhood, or monastery, and that it not have arisen from slanderers, although in this matter it is safe to follow the common practice of good men and republics." L. 801.

Regularly; for again there are excepted cases, namely if there is imminent danger of common damage, or of grave damage to another person, or if it concerns graver crimes, homicides, thefts, and other things disturbing the republic, and if there is some suspicion arising from indications not slight, lest delicts left unpunished provide occasion for wicked men to disturb the republic by their crimes and to injure the innocent. Wherefore the judge must then use great prudence, and have regard to persons, and until he sees whether the matter can be proved, he must take information in such a way that reputation is injured as little as possible. Hence, if he sees that it cannot be proved, he must desist. Lessius, l. 2, c. 29, dub. 15.

But lest meanwhile the defendant be able to corrupt witnesses or himself flee, the judge can command that he be enclosed in prison. But this cannot be done without grave delict and grave indications. Lev. 24, 12. Indeed by common Law it is provided that an innocent citizen not be enclosed in prison; and likewise to defendants the faculty is given, pledges having been furnished, of enjoying liberty until they have undergone judgment, unless they are accused of greater crimes with a great presumption of delict. S. Th. 2. 2. q. 14. a. 3; Quodl. 11, a. 13; Lugo, l. c.; CC. Accedens 23, Qualiter et quando 24, Cum oporteat 19, Inquisitioni 21 sections 1-2 de Accusationibus; Trent, sess. 25, c. 6 de R.; C. I. penal procedure, l. 1, title 1, c. 2, title 2, c. 1-4.

What concerning mixed inquisition? - Mixed inquisition also is licit; namely, when the crime is manifest and the author is unknown, it is lawful for the judge to ask in general who committed it; nevertheless not in particular, for example, whether Peter did it, unless some infamy and manifest indications have preceded. The former part is clear both from the practice of all even fearful judges and from the contrary inconveniences; for crimes and delicts would easily be multiplied. But the latter part is established from this, that this would be to defame the neighbor without legitimate cause. L. 189, 200.

Hence the same Holy Doctor, 201, says that "it must be noted that prelates cannot inquire against religious in doubt whether sufficient indications are present... for inquisition, because in doubt their reputation possesses, which would then be stained by inquisition. Understand, however, unless danger of common damage is imminent; for then the right of religion prevails"; or also if grave damage of a private person is imminent, whose certain right prevails. This, as is clear, is general and not proper only to religion. Lugo, l. c.

Note: If it concerns inquisition that is not judicial, unto penalty, but paternal, unto the amendment of the defendant, there is indeed a broader faculty in this matter, as is established from common practice itself. For Bishops and regular superiors in visitation, which ordinarily they make only paternally, are accustomed to investigate even in particular concerning clerics and religious: how they conduct themselves, how they themselves are content with others and others with them, whether they observe the laws, etc. But even this paternal inquisition, if it is not made about all according to custom, but about one or another in particular, cannot be made unless some special reason is present and due caution is observed, lest anyone thereby be defamed. Otherwise an investigation of this kind becomes vicious and reprehensible, because it degenerates into detraction, "and because it generates scandals and provides occasion for hatreds and dissensions. For men bear it with difficulty when their deeds are scrutinized by others, and by its very nature such an inquisition inflicts injury on the neighbor, whose honor it opposes, and the estimation which all desire to have as best concerning themselves." Diana t. 7, tr. 4, res. 25, n. 3.

Can a judge condemn a defendant whom by private knowledge alone he knows to be guilty, or an innocent person who is juridically proved guilty? - R. To the first: Negatively. For a judge judges as a public person, and therefore he must follow public knowledge and proceed according to the things alleged and proved, especially in favor of the defendant. Besides, the judge would then proceed without an accuser, which is against justice and against the order of public judgments. S. Th. 2. 2. q. 67. a. 2, a. 3; L. 207. But, speaking not of an inferior judge, but of the Prince himself, and of civil causes and the removal of offices, etc., Lugo observes, d. 37, s. 5, n. 54: "perhaps the Prince has greater power for this, that from private knowledge he can sometimes condemn a defendant not convicted; for since the republic has greater dominion over these things and can dispose of them in order to the public good, it can more easily happen that it is expedient for the public good to take goods or an office from someone because of the testimony of the Prince alone. But an inferior judge cannot do the same; "for he cannot dispense in the law of a superior, especially in a matter of such great moment." Lugo, l. c., n. 50.

R. To the second: "One whom the judge privately knows to be innocent, if he has juridically been proved guilty, the judge is bound by every means to free, if he can, for example, by impeding the accusation, drawing out the judgment, opening the prison, if he can do so without a greater evil, or remitting the case to a superior." L. 208; S. Th. 2. 2. q. 64. a. 6 ad 3; q. 67. a. 2 c.

But if the judge by acting thus can accomplish nothing toward freeing the innocent person, then there are three opinions, all probable. The first opinion, of the Angelic Doctor, teaches that the judge can always in any case whatsoever render sentence according to the things alleged and proved. The reason is that the judge does not judge as a private person, but as a public person. Therefore in judging he must follow not private knowledge, but public knowledge. "He must follow them (the proofs introduced) in judging." 2. 2. q. 67. a. 2 c. Moreover, the common good requires that the order of law be preserved intact in judgments. Finally, "if a judge knows that someone is innocent who is convicted by false witnesses... he does not sin by rendering sentence according to the things alleged, because he himself does not kill the innocent man, but those who assert him to be guilty." 2. 2. q. 64. a. 6 ad 3.

The second opinion, very probable to St. Alphonsus, denies that in any case whatsoever the judge can render sentence against him whom he certainly knows to be innocent. The reason is "because to condemn the innocent is intrinsically evil; just as it would be to compel a woman to live with him whom she privately knows not to be her husband." L. 208.

The third opinion, of Lessius and Lugo, distinguishes between criminal cases in which there is question of the penalty of life or mutilation, and civil cases or criminal cases in which there is question of a monetary penalty, or of simple detention, or of exile or deprivation of offices. In the former it denies that it is lawful for the judge to condemn the innocent. In the latter, however, it grants that this is lawful. The reason for the former part is that it is evil in itself to kill or command someone to be killed without authority. But the judge has no authority over the life of an innocent person, since society itself lacks such authority. The reason for the latter is "because the republic has authority of disposing concerning the fortunes of its citizens and transferring them from one to another, as it has been expedient for the public good; as is clear from the laws of usucaption. But here there seems to be a just cause, both lest the form of public judgments be perverted with scandal of the people, and because a reason does not offer itself for averting the inconvenience of this man. Therefore it can establish that the judge in such a case follow the public form of judgments, even if from this it happens that he must despoil of fortunes one whom privately he knows to be innocent or to have a good case." Lessius, l. 2, c. 29, dub. 10, n. 84; Lugo d. 37, s. 4, n. 42 ff.; C. Inquisitionis suae de Sent. exc.; Ithur. Cas. 34; L. 1. 6, n. 999, 1502; E. M.

Moreover, in modern Codes jurors judge concerning the crime, and the judge only renders the sentence of the law by which the penalty is sanctioned. If the judgment of the jurors does not rest upon the acts and proofs, Carriere, de Iust. et Iure, n. 2, n. 753, thinks that the judge can render sentence against the innocent man, "since he does not have to pronounce concerning the innocence or guilt of the accused, but only concerning the application of the penalty." But if the judgment of the jurors has evidently been rendered not from the acts and proofs, but rashly from malice or from ignorance, the judge cannot render sentence against an innocent man; for although he has been declared guilty, nevertheless he has not been proved guilty. C. Italian Penal Procedure, a. 509.

Does the sentence of a judge oblige in conscience; and to what is the judge bound who has rendered an unjust sentence? - R. To the first: Affirmatively, if it is certainly just. The reason is that a legitimate precept of a superior obliges in conscience. But the sentence of a judge is compared by law to the precept of a superior, commanding or prohibiting some matter in a certain particular case. "The sentence of a judge is as it were a certain particular law in some particular fact." S. Th. 2. 2. q. 67. a. 1 c. From this the Angelic Doctor deduces that "just as a general law must have coercive force... so also the sentence of a judge must have coercive force." Similarly, as a general law must have the force of obliging, so also the sentence of a judge must have the force of obliging.

R. Negatively, if it is certainly unjust. For just as one is not bound to obey him who does not have authority of commanding, so much more one is not bound to obey him who abuses authority by commanding unjust things. C. Inter ceteras 9 de Sent. et de re iud.; S. Th. 2. 2. q. 60. a. 6 c. ad 4. Wherefore someone can secretly compensate himself, unless the other has justly prescribed. It is said negatively, that is, not to oblige in conscience, "because in the external forum, where not so much the truth of the fact as juridical proof is regarded, the sentence pronounced is to be observed, in order to avoid scandals and inconveniences (if indeed they are present and cannot otherwise be avoided); nor, after the term has elapsed within which it was lawful to appeal, is an action granted to him, the law so establishing, both as a penalty for sluggishness and on account of the public good, that there be an end of lawsuits." L. 215.

R. Affirmatively, if it is doubtfully just. The reason is that presumption favors the superior or judge, and in practice there would be very grave inconveniences, and there would never be an end of lawsuits. Besides, obedience must be given to a superior legitimately commanding. But in the case of the aforesaid doubt and probability, the superior or judge still commands legitimately. Moreover, he certainly possesses the right of urging execution, of which he cannot be despoiled unless the opposite certainty of injustice is present.

But it is permitted to appeal from the sentence of an inferior judge to a superior judge, even if the sentence is only probably unjust; and once appeal has been interposed, the sentence rendered ceases meanwhile. The reason is that that inferior sentence of itself is neither absolute nor simply definitive, but only if it is accepted as such and no appeal is interposed. But after the sentence has passed into a matter adjudged, it is now absolute and definitive, and it must be stood by even in the forum of conscience, even in doubt whether it is just. C. Cum super 17 de Sent. et re iud.; C. L. 2502 ff.; Lugo d. 37, s. 15, n. 185 ff.; S. Th. 2. 2. q. 69. a. 3; Quodl. 4, q. 8, a. 14. Cf. n. 86.

The sentence of a judge is one thing when interlocutory, concerning an incidental question; another when definitive, concerning the principal controversial case. And one is a sentence of absolution of the defendant, another of condemnation of the defendant, another of dismissal because the crime has not been proved. But a condemnatory sentence is one thing simply condemnatory, another declaratory of crime and penalty.

The commands of the praetor, spoken between two parties, are called interdicts. In several cases interdicts were given by the Praetor, but especially the Praetor interposed his authority in ending lawsuits concerning possession or quasi-possession. Inst. 4 de Interdictis.

Generally speaking, appeal in suspensive effect is not given as regards merely disciplinary decrees, but only in devolutive effect. Benedict XIV, Constitution Ad militantis, March 30, 1742.

R. To the second: If the judge from inculpable error has rendered an unjust sentence, he is bound to revoke it, if he can do so without grave inconvenience. The reason for the assertion is that he is bound by office to impede the evil of the neighbor, "otherwise, if, while he can, he does not impede his error, that will now be imputed to him as conserving it, which before, because of inculpable inadvertence, was not imputed." Lugo d. 37, n. 3. Nevertheless he is not bound to sustain grave inconvenience, since justice was not formally injured, nor in the quasi-contract of accepting an office or munus is anyone judged to be obliged also that he correct inculpable errors with notable inconvenience to himself. R. 23 de R. I. in the Sixth. If by deceit, or by culpable great imperitia, he rendered an unjust sentence, he must revoke it, if he can, even with grave inconvenience to himself; and he is bound to repair all damages coming from it to the injured party. For he is the unjust, efficacious, culpable cause of such damage, and therefore he is bound to reparation. L. 195, 214; C. Tum ex litteris 5 de In integr. restit.; C. B. 839; C. L. 2401 ff.

14 bis. Note: There are various grades of judgments. Three grades are regularly constituted in judgments: first instance, appeal, and recourse to the supreme Curia.

From the Constitution Sapienti consilio, the Sacred Roman Rota judges in first, in second, and in last instance. Cf. canon 14. Moreover, "it also sees concerning recourses for restitution in entirety from any sentences whatever which have passed into a matter adjudged and cannot find a remedy before the judge of second instance, according to the title de Rest. in integr.; provided nevertheless that it does not concern a matter adjudged from a sentence of the Sacred Roman Rota: and in these it judges both concerning form and concerning the merit." Canon 14, section 4, title 1.

Besides the Sacred Roman Rota there is the Supreme Tribunal of the Apostolic Signatura, which takes cognizance and judges concerning suspicion against some Auditor, concerning violation of secrecy, concerning damage inflicted by Auditors from an act of theirs null or unjust in judging, concerning a complaint of nullity against a rotal sentence, concerning a petition for restitution in entirety against a rotal sentence which has passed into a matter adjudged. Canons 35, 37, title 2.

Is a judge, gravely negligent or unjust in executing a case and rendering sentence, bound to restore not only to the injured party, but also to the treasury, for example, if without cause he remitted a monetary fine which by law he ought to have imposed on the defendant? - Busembaum and others probably affirm. The reason is that he is the unjust cause of the damage which the treasury suffers. But others also probably deny this, if the defendant has not yet been condemned to the fine. "The reason is that before sentence no right to the penalty is acquired by the treasury; hence, if the judge unjustly absolves the defendant, he sins against legal justice, not commutative justice." L. 196, 238. That is, the judge from his office must coerce the guilty, but so that others not offend, not so that the treasury or private persons may become richer. Except if from the unjust remission of penalty damage would come to a private person or to the republic; for by force of his office he is bound to impede that. S. Th. 2. 2. q. 67. a. 4 ad 3; L. l. c. and n. 237; Lugo d. 37, s. 8, n. 97. Cf. 61.

Must a judge judge according to written laws? - R. Affirmatively. "Augustine says: In these temporal laws, although men judge concerning them when they institute them, nevertheless when they have been instituted and confirmed, it will not be lawful for judges to judge concerning them, but according to them.... Judgment is nothing other than a certain definition or determination of that which is just. But something becomes just in two ways. In one way from the very nature of the thing, which is called natural right; in another way from a certain agreement among men, which is called positive right.... But laws are written for the declaration of each right, yet in different ways. For the writing of law indeed contains natural right, but does not institute it; for it does not have force from law, but from nature. But the writing of law both contains and institutes positive right, giving to it the force of authority. And therefore it is necessary that judgment be made according to the writing of law; otherwise judgment would fall short either of the naturally just or of the positively just." S. Th. 2. 2. q. 60. a. 5; Inst. l. 3, t. 17; L. Rem non novam C. de Iudiciis; C. 1 de Sent. et de re iudic.

You will resolve: An inferior judge, speaking in itself, ordinarily cannot relax or diminish a penalty, even if the plaintiff or accuser consents, unless sometimes epikeia dictates that something else is necessary for the good of the republic, or unless the judge justly interprets the will of the superior, or unless another just cause is present, in which the end of the law rather than the bark of the words is to be attended to. The supreme judge himself cannot do this without a just cause, whence, acting otherwise gravely, he would sin, because he would render delinquents more bold, and thus would concur in sin. Nevertheless in all things the chief account is of justice and equity rather than of strict law. L. 8 de Iudic. C.; S. Th. 2. 2. q. 66. a. 6 ad 2; q. 67. a. 4; q. 60. a. 5 ad 2; 4 d. 46, q. 1, a. 2, q. 2; Lugo d. 37, s. 8.

Speaking in itself; for practically today penalties are determined by the laws themselves, and their limits, of maximum and minimum penalty, are defined, which judges cannot exceed. C. I. penal 1.

A judge can supply those things which have been omitted by the litigating parties and their advocates, and which are of law. But those things which are of fact he regularly ought not supply, for otherwise he would assume to himself the office of the contending parties. But he can supply even these if the fact is known from the public acts of the judgment, or if the fact is both manifestly and publicly known, if it concerns public good, miserable persons, the good of the soul, or a pious and religious cause. L. 1 Ut quae desunt adv. part. etc. C.

What must the judge do when the law is not clear, but obscure, and on both sides there are opposed probable opinions? In criminal matters the defendant is to be favored, both as regards the existence of the crime and as regards the infliction of penalties. The reason is that according to the rules of Law: In doubt no one is presumed evil unless it is proved; when the rights of the parties are obscure, the defendant is to be favored rather than the plaintiff; hates should be restricted and favors should be expanded; in obscure things the minimum is to be followed; in penalties the more benign interpretation is to be made; it is more satisfactory that the crime of the guilty be left unpunished than that an innocent man be condemned. R. 49 de Reg. Iur. in the Sixth; L. Absentem 5 de Poenis; L. 25 de Probat.; S. Th. 2. 2. q. 60. a. 4; Elbel, de Actib. human., 197 ff.; C. L. 2515.

In civil cases, probability of fact and probability of law must be distinguished. A doubt of fact, for example, is: whether the man was master of himself when he made the testament; whether Titius committed such a delict, falsified writings, etc. In such a doubt sentence must be rendered according to the Rules of natural and positive Law: In doubt a fact is not presumed, but must be demonstrated; in doubt the deed is presumed, or presumed to have been rightly done, which had to be done by law; in doubt one must stand for the validity of the act; in doubt one must stand for him for whom presumption stands; once evil, always presumed evil; ignorance of fact, not of law, excuses; in obscure things we inspect what is more likely, or what is usually accustomed to happen, etc., de Reg. Iur. in the Sixth.

A doubt of law is when it is doubted what the law commands in such a case, whether the law is extended or not extended to it, etc.; and on both sides there are probable opinions. In such a doubt of law, either no one possesses the thing, or someone is possessor of the thing.

In the first case, that no one possesses the thing, if it is doubtful to which of the parties the law favors more, or if, without doubt, the law equally favors the parties, there is a twofold opinion. The first opinion holds that the thing must be divided. The reason is that the judge is not the master of things, but the declarer of law in a particular case, and consequently the distributor of things not according to his pleasure, but according to the rights of the parties; and therefore, if the rights are equal, he must divide the thing equally between them. The other opinion holds that "the judge indeed does better by trying to reduce the parties to concord, yet absolutely he can choose one from among them (equally more probable opinions)... because the judge by the debt of his office is bound only to investigate the truth diligently, so that he may judge according to it; but in our case he judges most probably that this is the truth, and that this man has right: therefore he can judge for him with that equal probability." Lugo d. 37, s. 10, n. 115. And indeed, since each party then has, according to a probable opinion, an entire right to the thing, the judge will well be able to conform himself to one of these opinions, and he inflicts no injury on the other party. Nor is it valid to object that by judging the truth to be for one party the judge exposes himself to the danger of deviating from the truth and of depriving the other party of his right. For the judge cannot avoid this danger. For the danger is equal if he judges for the other party. But if he divides the thing, "then the danger will be more certain; for then it will be not only probable but most certain that the true owner is deprived of his thing as to the half part: therefore it is better to undergo that probable danger with a probable judgment concerning the justice of him for whom sentence is rendered, than most certainly to deprive the owner of his thing as to the half part." Lugo l. c. n. 118. This latter opinion is consonant with present laws and practice, and is confirmed by canon law and Roman law, so that in equal right the causes of marriage, dowries of widows, wards, and other pious causes always prevailed. L. 1. 4, n. 410.

But if, in the same case, that no one possesses the thing, a truly more probable opinion in a question of law favors one party, and a less probable opinion favors the other party, the common opinion holds that the judge must render sentence for that party for whom the more probable opinion stands. The reason is taken, first, from proposition 2 condemned by Innocent XI: "I probably judge that a judge can judge according to an opinion even less probable." But from this condemned proposition it follows only that the judge cannot render sentence for the less probable opinion, but by no means that he must render sentence for the more probable opinion and cannot divide the thing among the parties according to the proportion of probability. The reason is taken, secondly, from this, that the judge is constituted by the republic so that he may define the matter according to the merits of the case and according to the opinion which seems to him more conformable to law; for otherwise he would be an accepter of persons. But neither does this reason truly prove the assertion.

For if he must judge according to the merits of the case, he must divide the thing according to the proportion of greater or lesser probability. But that he is constituted by society so that he may render sentence for the more probable opinion, by ascribing the whole right to that party, is indeed asserted, but it is not established. Only this can be asserted, and is established in itself: namely, if the thing cannot be divided according to the proportion of greater or lesser probability, but the whole is ascribed to one party, because this is, for example, the practice of tribunals, then surely it is to be attributed to him who has the greater probability. But this practice of tribunals could be rendered honorable under a twofold head: 1. if it concerns a far greater probability, because then moral certitude is almost had, which often is difficult to distinguish from great probability; 2. if, while the judge ascribes the whole thing to one party, he frees the other from all expenses of the judgment and from reparations of damages, because then an equitable compensation is had. Therefore the better reason seems to be that which was just brought forward for the case of equal probability, namely because there is less danger of injustice, and the judge, as interpreter of justice, is bound to choose an opinion at least less dangerous, since a certain one cannot be had.

And this opinion again corresponds to present laws and practice.

In the other case, that someone possesses the thing, while equal probability of right stands on each side, the thing is to be adjudged to the legitimate possessor; for by reason of possession his right prevails absolutely. This is confirmed from R. 65 of Law in the Sixth: "In equal delict or cause, the condition of the possessor is the stronger." But if unequal probability is had, the first opinion holds that the judge is bound to adjudge the thing to him who has the greater probability for himself, although he is not the possessor. For first, possession in itself does not bestow a right of property, but only detention of the thing, until someone is legitimately despoiled; but the right of property is greater for the other party. Moreover, the dispute is about the property itself, not about the simple detention of the thing, which is extrinsic to it. Therefore, as in the case of greater probability, with no one possessing, greater probability prevails, so also it prevails in the case of possession. For that presumption of property which arises from possession is destroyed by greater probability of right. Besides, R. I. 65 in the Sixth evidently has force in an equal case, not in an unequal case. The other opinion holds that the judge cannot despoil the possessor. The reason is that legitimate possession, with human morals considered, speaking in itself, argues a morally certain right, even of property itself; for men are not accustomed to be negligent in guarding their own things. And upon this reason the law of prescription is founded, which is had by the very possession of the thing. Legitimate possession; for it would be otherwise if the possession itself were not certain, or not certainly legitimate. Moreover, legitimate possession, besides the very fact of possession, requires two things: title and good faith. Title is donation, inheritance, purchase, and similar things, through which ownership of some thing is customarily acquired. This title must be at least reasonably presumed. But good faith is the judgment by which, on account of such a title, someone prudently believes the thing to be his own. "And therefore judges commonly adjudge things to those having the more probable right, because in the external forum the good faith of the possessor can be proved only with difficulty." L. 210; l. 1, n. 47. Lugo d. 37, s. 10; Ithur. Cas. 34; Viva on proposition 2 condemned by Innocent XI; E. M.

Can a judge render sentence when the law itself is certainly unjust and inequitable? - If it concerns a civil law contrary only to ecclesiastical laws in which the Supreme Pontiff can dispense, as, for example, is the law of ecclesiastical immunity, the judge can and must, if judgment must be rendered, speaking in itself, seek the due faculty from the Holy See, or from the Bishop of the place, according to the various laws and various cases that occur. But he will easily obtain this faculty, since it is especially expedient for the good of society that there be honest judges in it. The reason for seeking the faculty is the usurpation of the rights of the Church which otherwise would be had, and the public scandal to be guarded against.

If it concerns a civil law contrary to divine and natural laws, then either the judge must command something directly against this right, or he must only apply some penalty. The first is evidently not lawful, and thus he ought rather to relinquish his office than to oblige by military force a concubine to remain at home with her lover. Thus also it is not lawful to render a sentence of divorce according to the law, namely, by which the bond of marriage is dissolved, power being granted to the spouses to enter new nuptials. For this is openly against natural, divine, and ecclesiastical right. For as it is inequitable to execute an inequitable matter, so it is inequitable to command its execution. S. Th. 2. 2. q. 60. a. 5.

The other seems to some also altogether illicit, because it is intrinsically evil to condemn an innocent person, namely when the law itself is evidently unjust, whose transgression is punished. But to others it seems that it can be excused. For to decree some temporal penalty is not always evil in itself; and there is present a most grave reason on the part of the judge, lest he be compelled to renounce his office, and on the part of consenting society, for which it is better that judges be good rather than bad, scandal always having been removed, either from approved custom and the practice of the fearful, or from due faculty previously sought. And thus he can decree a fine because of the omitted formality of civil marriage, which the Church tolerates in this sense, scandal always having been removed, as was said.

But although there is question only of decreeing a penalty, one must distinguish between penalty and penalty. For if it concerns the penalty of death, for example, mutilation, etc., since neither the person himself can yield his right, nor can society by its authority sanction such a penalty, it is altogether inequitable to impose it. "For positive right has place where, as regards natural right, it makes no difference whether it is done thus or otherwise." S. Th. l. c.

But if it concerns some monetary penalty, or another similar one, since anyone in this matter can yield his right, and society can consent, the judge surely can impose some slight penalty of this kind, lest he be compelled to renounce his office with grave damage to himself and to society itself. Consent is then reasonably presumed. Yet this also seems to be limited to the case in which it does not concern a law directly against nature, although it is rather harsh and not sufficiently just. For since the sentence of a judge is not any declaration whatever, but an authoritative one, authoritatively to confirm a law against nature, even by determining a monetary and slight penalty, is against nature. It is against nature to condemn to death a Christian who refuses to adore idols; it is against nature to condemn him to a penalty and fine, even of only five small coins, because he did not wish to genuflect before an idol. Certainly of such a judgment it cannot be said that it is a "definition or determination of the just or of right," nor can it be said of the judge that he is "interpreter of justice" or "animated justice." S. Th. 2. 2. q. 66. a. 1; a. 5 ad 1; q. 67. a. 3; E. M.

Can a judge licitly receive gifts? - It is wicked for a judge to receive gifts of grave moment, which indeed seem at least indirectly in some way to be exacted, or in which some danger of corruption is to be seen. But it does not seem that receiving only slight little gifts, offered altogether spontaneously, in which there is no danger of corruption, and which are not even indirectly exacted, can be reproved. The reason for the first part is that it is wicked to receive those gifts for a just sentence; for this must be rendered from office.

Likewise it is wicked to receive them for an unjust sentence, because this is not to be rendered. Besides, this is positively prohibited in Deut. 16, 18, 19, and in Canon Law, C. Statutum 11 de Rescriptis in the Sixth, section Insuper. It is also prohibited by Civil Law, by which every corruption of magistrates through gifts and promises is punished with grave penalties, both in those corrupted and in those corrupting. L. 18 Dig. de Offic. praesid.; C. I. penal 171-173. The reason for the second part is that, since they are offered from courtesy alone, they would be refused almost discourteously. This is confirmed by Canon and Roman Law, ll. cc.; for it is said that perhaps food or drink offered by mere liberality can be received, which can be consumed in a few days. Cf. also C. Cum ab omni 15 de Vit. et honest. cler.; C. I. 1458; Lugo d. 37, s. 11; S. Th. 2. 2. q. 71. a. 4 ad 3. Cf. n. 40.

If against the prohibition made a judge has received gifts, is he bound to restitution? - If the judge received gifts from litigants by donation, he is probably not bound to restitution before sentence. For "the aforesaid laws and others are understood either only for the external forum, or concerning restitution as a penalty of crime, for which a sentence is always required, even if not one inflicting the penalty, at least one declaratory of the crime." L. 216. But if he received by agreement for rendering a just sentence, that is, for furnishing that which by justice he owed, he is bound to restitution. The reason is that whatever is already owed by office, and therefore by justice, cannot be the matter of a contract. Much more, however, is he bound to restore those things which he extorted by force, threats, or unjust vexation. Likewise, if he received by agreement for rendering an unjust sentence, he certainly is bound to restitution before he renders such a sentence; but once the sentence has been rendered, he can retain it, since the sin has already been committed, and there is no sin in retaining the thing received; but since what had been promised and was not owed has been furnished, then the innominate contract is verified: I give so that you may do. And thus also "on account of fornication... a woman can retain for herself what has been given to her." S. Th. 2. 2. q. 62. a. 5 ad 2; Lugo l. c.; C. I. penal 171-174.

Can a judge at least receive money for expediting someone's case before another's? - "Laymann says that, considering natural law, he does not dare condemn this, because that new obligation which he undertakes is worthy of a price. But the Salmanticenses, n. 66, more truly contradict, because a judge from justice is bound quickly to expedite the cases of those who have equal right to expedition; unless he should undertake an extraordinary labor, to which by force of his office he would not be held." L. 196. Lugo also absolutely reproves this, d. 37, n. 136, for "whenever from justice he is held disjunctively to do something gratis, he cannot receive anything for the election of this part."

When litigants have for themselves equally probable opinions, can a judge receive money for rendering sentence in favor of one rather than the other, according to the opinion reported above? Cf. 18. - R. Negatively; for this proposition is proposition 26 condemned by Alexander VII. The reason is that "he would receive a price for a thing not worthy of a price; for from justice he owed to render sentence for one: but the determination to that part, although it makes the sentence more useful to me, nevertheless does not add labor, or anything on the part of the judge worthy of a price. Just as, if someone from justice owed to give a dowry to one of two virgins, he could not ask anything from her for choosing her. But the reason a priori is that it is repugnant to owe from justice to give an entire thing to one of two, and yet to be able to ask a price for it; for then it would not be given entire to one of the two, although from justice he is held to give it entire. Therefore he cannot, with justice preserved, subtract anything; otherwise he could receive as price half of the thing to be given, which would be manifestly against justice." Lugo d. 37, n. 119.