Question VII

GRATIAN. Part I. That one whom an equal or greater stain with the defendant infects cannot be a judge is proved by many authorities. For the holy Roman Synod says:

An infamous person can be neither a procurator nor a cognitor. GRATIAN. There are three things by which some persons are impeded from becoming judges. By nature: a deaf person, a mute, one permanently insane, and a minor below puberty, because they lack judgment. By law: one who has been removed from the senate. By custom: women and slaves, not because they do not have judgment, but because it has been received as custom that they do not discharge civil offices. Yet if a slave, while he was thought to be free, rendered a sentence by delegation, although he was afterward reduced to slavery, the sentence rendered by him possesses the firmness of a matter adjudged.

Infamous persons cannot be procurators or advocates in cases. There are three classes of those who are prohibited from pleading. § 1. To plead is to set forth one's own desire or that of one's friend before the person who presides over the jurisdiction, or to oppose the desire of another. § 2. As we stated before, there are three classes of those who do not plead. Certain persons are prohibited from pleading altogether, either on account of age, as those less than seventeen years old, or on account of an accident, as a deaf person who does not hear at all. Others are prohibited from pleading for other persons, either on account of sex, as women, or on account of an accident, as those deprived of both eyes, or on account of a mark of turpitude, as those who have submitted to the part of a woman with their body, unless perhaps they are proved to have been violated by force by robbers or enemies. Similarly, those who have been condemned for a capital crime or for calumny in a public judgment, or who hired out their services to fight with beasts in the arena, are prohibited from pleading for others. These persons are permitted to argue for themselves and prohibited from doing so for another, unless perhaps they administer a guardianship of minors below puberty or a curatorship of adolescents that was not sought but was necessary. For they are permitted to plead for those whose care they bear. All other persons who are marked as infamous can plead only for themselves and for certain persons, unless they have received restitution in full. § 3. They are permitted to plead for a parent; for a patron or patroness; for the children and parents of a patron and patroness; also for their own children, a brother, a sister, a father-in-law, a mother-in-law, a son-in-law, a daughter-in-law, a stepfather, a stepmother, a stepson, a stepdaughter, a male ward, a female ward, an insane man, an insane woman, a simple-minded man, a simple-minded woman, a deaf person, a spendthrift, and an adolescent. § 4. Likewise, for those to whom curators are customarily given on account of infirmity and who, because of some permanent disease, cannot attend to their own business. § 5. But all who discharge an office not voluntarily but necessarily can plead without offense, even if they are among those who are permitted to plead only for themselves. § 6. By affinities, however, we ought to understand not those which once existed, but those presently existing. § 7. Under the designation of daughter-in-law and son-in-law are also included father-in-law and mother-in-law and those more remote, for whom the prefix “great-” is customarily added.

Part II. § 8. Those who, under the name of honoraria, are found demanding for themselves as compensation a fixed share of the very suits they have undertaken to defend, with grave loss to the litigant and plundering of him, are also excluded from the profession of advocates, as is found in book II of the Code, under the title On Pleading. § 9. Likewise, if anyone has been so insolent that he thinks the contest is to be conducted not by reason but by insults, he will suffer diminution of his reputation. § 10. Furthermore, an advocate is not permitted to enter any contract or make any compact with the litigant whom he has received under his own protection, nor deliberately to prolong the dispute. § 11. At the city of Rome, even men of honored rank who have thought this ought to be chosen may plead as long as they wish, provided, namely, that this occasion is not seized for shameful profit and a dishonorable stipend. For if they are captivated by gain and money, they will be numbered among the vilest as abject and degenerate men. § 12. But if in one court there have been only two, or more than the others, whose reputation is more distinguished, it shall belong to the office of the judge that an equal distribution of advocates be made and the assistance of each side be rendered equal. § 13. But if anyone, after being admonished by the judge, has denied his advocacy to either party on an excuse which cannot be proved, let him be barred from the forum; and let him know that the opportunity to act can never be restored to him. § 14. But if any litigant has been discovered to have consulted separately with several advocates and to have taken from his adversary the opportunity of equal defense, he will show beyond doubt that an unjust suit is being fostered by him, and he will experience that the judicial authority has been mocked by him. § 15. Likewise, although those who have conducted a case for the fisc are prohibited from providing advocacy against the fisc, nevertheless today they can provide advocacy for private persons even against the fisc, provided they decline to undertake the case which they handled while they were advocates of the fisc. § 16. Likewise, if you conducted a case against the father of a ward, after you have been appointed tutor or curator you are not prohibited from defending the same case. § 17. Cognitors are understood to act by office, not by choice. For it makes no difference whether one who undertakes an arbitration is of unimpaired reputation or ignominious. § 18. A son can also be an arbiter in his father's matter. For it is also held by very many that he can be a judge. § 19. But if anyone is a judge, he is prohibited from undertaking arbitration of the same matter in which he is judge and ordering that the compromise be made with himself; and if he has rendered a sentence, enforcement of the penalty is not to be granted. A slave cannot be an arbiter; a freedman can. § 20. Infamy, moreover, is imposed in many ways. Sometimes it is incurred by the kind of delict declared through a sentence, as when a judge pronounces: “You committed injury; you plundered an inheritance; you brought a calumnious accusation.” Sometimes by the kind of punishment, as in the case of those who are condemned to public labor: they indeed retain their former status, but are also subjected to the penalty of infamy even after the time has been fulfilled. Sometimes by the kind of punishment and of delict declared through a sentence, as when, after someone has been beaten with clubs, it is said by the herald: “Thus to sycophants,” that is, “to a calumniator.” Sometimes by the very kind of deed, as in the case of those who practice wicked usury and unlawfully exact interest upon interest, and a woman who contracts marriage within the period in which it is customary to mourn a husband, and a man who knowingly married her. [GRATIAN.] Pope Felix attests the same, and in the same words. § 1. Likewise, in the Gospel the one who bears a beam in his eye is proved unable to draw out the speck from his brother's eye. § 2. Likewise David in the book of Psalms: “But to the sinner God said: Why do you recount my justices? etc.” § 3. Likewise Gregory: “When a person's life is despised, it remains that his preaching be contemned.”

The same in the Moralia, [book XIV, on Job, c. 15]. Part III. “Let the one among you who is without sin cast the first stone at her.” For they were going to punish the sins of others and had left their own behind. Therefore, let them be called back inwardly to conscience, so that they first correct their own and then rebuke those of others. Hence it is that, when the tribe of Benjamin had been overwhelmed by a crime of the flesh, all Israel assembled and wished to avenge the iniquity, but nevertheless Israel itself was overthrown once and again in the contest of battle. For when the Lord was consulted whether they ought to go to avenge it, they were commanded to go; the people who proceeded according to the command of the divine voice lost once and a second time, and then at last, striking the sinful tribe very severely, almost entirely extinguished it. What does it mean that the people are inflamed in vengeance for a crime and yet are themselves overthrown first, except that those through whom the faults of others are struck must first be purified, so that those who hasten to correct the vices of others may themselves, now clean, come to vengeance?

Likewise Ambrose upon “Blessed are the undefiled,” [sermon XX, on the verse “Your mercies, O Lord”]. Let that person judge another's error who has nothing which he condemns in himself. Let that person judge who does not do the same things which he has thought ought to be punished in another, lest, when he judges another, he render sentence against himself. Let that person judge who is led to pronounce by no hatred, no offense, and no fickleness. And a little later: § 1. A good judge does nothing from his own discretion and from the purpose of his private will, but pronounces according to laws and rights, obeys the known rules of law, does not indulge his own will, brings forth from home nothing prepared and premeditated, but judges just as he hears and determines just as the nature of the matter stands; he complies with the laws, does not oppose them, examines the merits of the case, does not alter them. Learn, judges of the world, what disposition you ought to maintain in judging, what sobriety, what sincerity. And a little later: § 2. One who judges ought not to obey his own will, but to maintain what belongs to the laws. And a little later: § 3. In judging, the guardianship of truth is more dear to the heart than obedience to will.

Likewise Gregory, [preface to Job, c. 3, otherwise 6]. When anyone is placed amid grave sins, while he is pressed down by his own, he does not wipe away those of another. § 1. For it is clear to all that, when the person sent to intercede is displeasing, the mind of the angry person is without doubt provoked to worse things. § 2. For it is written: “The sacrifices of the impious are abominable to God; the vows of the just are pleasing.” For in the judgment of almighty God, not what is given, but by whom, is considered. § 3. Hence it is that it is written: “God had regard to Abel and to his gifts, but to Cain and his gifts he had no regard.” For, about to say that the Lord had regard to the gifts, Scripture carefully prefaced that he had regard to Abel. From this it is plainly shown that the offerer did not please because of the gifts, but the gifts because of the offerer. § 4. “For the Most High does not approve the gifts of the iniquitous, nor does he regard their offerings, nor by the multitude of their sacrifices will he be propitiated for their sins.” § 5. Likewise: “The Lord is far from the impious, and he will hear the prayers of the just.”

The same. When the Lord was asked to judge concerning the sinful woman, he did not immediately give judgment, but first, bending himself downward, wrote on the earth with his finger; and only then did he judge that which he was earnestly asked to judge. He was plainly instructing us in a figure that, when we behold any errors of our neighbors, we should not judge those errors beforehand by rebuking them until, having humbly returned to our own conscience, we carefully trace it with the finger of discernment and determine by examination what in it pleases the Creator and what displeases him, according to the statement of the Apostle: “Brothers, even if a man has been overtaken in some transgression, etc.” § 1. “The one among you who is without sin”: that is, first fulfill the justice of the law yourselves, and thus run with innocent hands to stone the guilty woman.

Likewise Augustine to a certain Count. Let a priest, as a wise and perfect physician, know first how to wash away his own sins and afterward to cleanse and heal those of others, and not to make them public. GRATIAN. Likewise, in the Gospel salt which has lost its savor is said to be useful for nothing except to be cast outside and trampled by men. From all these things it is given to be understood that a criminal cannot be the judge of another person's crime and condemns himself when he renders a sentence concerning another person's crime. § 1. But it is objected: when Saul had been rejected by the Lord, he judged the people of God, and the whole people sought his judgment. Likewise David, when he was an adulterer and homicide, upon being questioned by the prophet, rendered sentence against the rich man who carried off the poor man's sheep, saying: “The judgment of death is upon this man.” Likewise Solomon, when through love of women he worshiped the gods of the gentiles, nevertheless the whole Israelite people flowed to his judgment. So too Ahab, although he worshiped Baal, nevertheless judged the ten tribes. Many others are also found both in the Old Testament and in the New whose life, although blasphemable, nevertheless had its sentence maintained because it proceeded from their office with the integrity of the judicial order preserved. Hence also the Lord says in the Gospel: “The scribes and Pharisees have sat upon the chair of Moses, etc.” From this it is clearly established that evil pastors, when they strike the crimes of others with a sentence of just examination, harm themselves when they take care to correct others' vices without the example of their own amendment; but they benefit their subjects if, corrected by their rebuke or restrained by their sentence, the subjects have learned to change their life for the better. And by this fact, while they are tolerated by the Church, it is not permitted to evade their judgment.