Chapter I. On the Obligations of Judges

1. • A judge is a public person, constituted by legitimate authority ¹, in order that according to the laws he may vindicate justice, and decree the due punishments against delinquents.

¹ By this the judge is distinguished from an arbiter, who assumes the office of judging not by public authority, but by the spontaneous choice of the contending parties.

Principles. - I. A judge is bound, from a quasi-contract with society, to fulfill his office rightly; and unless he does this, he will be guilty of violated justice, both legal justice and also commutative justice.

II. In order that a judge may be able to discharge his office rightly, he must have 1º intelligence equal to the office, so that he may be able to look into intricate causes; 2º sufficient knowledge and sagacity, so that he may take account of all the circumstances both of law and of fact ²; 3º incorruptible integrity, so that he yield neither to love nor to hatred.

² Whoever seeks or undertakes the office of judge, knowing himself to be so unequal to it that he foresees that probably grave damage to his neighbor will follow, sins mortally. But whether knowingly or unknowingly he has done this through his insufficiency, he ought not be absolved unless he resigns the office, or unless he has a firm purpose of resigning, or at least, if there is hope that he will become fit by study, of supplying meanwhile for his insufficiency by using the counsels and work of another endowed both with ability and with knowledge. St. Alphonsus, Bk. 4, n. 195.

III. A judge is bound to pass sentence according to the laws and the order determined by the laws; for he is not constituted to change or reform the laws, but to put them into execution ³. Except a special case, in which the mind of the law is rather to be followed by the judge than the bark of the words; but then account must also be taken of the age, and of the condition and fortune of him upon whom he must impose punishment ⁴.

³ These things hold for an inferior judge, who ordinarily cannot relax or lessen a penalty, even if the plaintiff consents, unless at times epikeia should dictate that it be done otherwise for the good of the republic, or unless the matter concerned only the private injury of the plaintiff. Yet the supreme judge can do this for a just cause; and if this is lacking, he would sin gravely, because he would embolden delinquents and would concur in sin. St. Alphonsus, Bk. 4, n. 205.

⁴ Account of these circumstances is taken in the laws themselves. Wherefore, not even in these circumstances is the matter fully left to the discretion of the judge.

IV. In a doubtful cause let him hold these rules:

1º In criminal matters the accused is to be favored ⁵, unless the crime is established. - Rule of canon law 11 in 6º.

⁵ Understand this both of the existence of guilt and of the merits of punishments.

2º In doubt about ownership and possession at the same time, judgment must be made according to the more probable reasons, as is clear from natural law and from the 2nd proposition condemned by Innocent XI, which sounds thus: “I probably judge that a judge can judge according to an opinion even less probable.” But if the reasons are equally probable on each side, the thing must be divided ⁶.

⁶ ** Gury ought not to have passed over in silence another opinion, which several have embraced (see Lugo, On Justice, disp. 37, nn. 114, 115), and they, as the Salmanticenses say (tr. 29, ch. 1, n. 41), very grave Doctors, and which Lugo (l.c.) expresses thus: “When each opinion is equally probable, the judge indeed will do better by seeking to bring the parties back to agreement; nevertheless absolutely he can choose one of them.” And Sanchez (Dec., bk. 4, ch. 9, n. 45): “It is truer that it is open to the judge to choose the opinion which he shall have preferred, and to judge according to it; indeed, scandal ceasing, now according to one, now according to another.” I said that this opinion ought not to have been passed over in silence, since the opposite opinion, which alone Gury proposes, even the Salmanticenses themselves (l.c. n. 42) merely hold as the more probable for themselves.

This also must not be omitted, that for that opinion of the Salmanticenses and Gury, St. Alphonsus also alleged Villalobos, Prado, Sayrus, etc., since he found them cited by the Salmanticenses. But these authors, and others whom St. Alphonsus tacitly indicates, the Salmanticenses were adducing not where the question is about equal probability on the part of the law, but where there is equal probability on the part of the fact. For where there is discourse about equal probability of law, even the Salmanticenses (ibid. n. 41) acknowledge that the aforesaid authors think with Lugo and Sanchez against Gury.

Besides, whichever opinion at last you prefer in this question, the authors rightly warn (p. 926) that an exception must be made, as St. Alphonsus has it (Bk. 4, n. 410), if there is question of causes of matrimony, dowry, widow, ward, and other pious causes; for then one must judge for these, when the rights are equal, even if they are plaintiffs, from the final chapter De sentent. et re iudicata. Yet one must confess that hence a difficulty arises against the opinion of Gury, which otherwise St. Alphonsus (l.c.) says must be held entirely, namely that generally the thing must be divided among the parties. For this opinion St. Alphonsus after Roncaglia and Reiffenstuel brings this reason, because the judge is not the owner of things, but a distributor, and, as Reiffenstuel says, a minister of justice according to the rights of the parties; and therefore if the rights are equal, he must divide the thing equally between them. But when Canon Law, alleged by St. Alphonsus, commands that, if there is question of widows and wards, judgment in the case must be made for these, does it command that the rights of justice be violated? And if it is not lawful to affirm this, and otherwise the right of the other party must by no means be said to perish of itself because the right of the ward or widow is equal, how, while the laws of justice are preserved, will the judge not decree that the thing be divided, but be able to adjudge the whole thing to the other party? Therefore it is not without reason that very grave theologians, say the Salmanticenses, and very many and those not of slight name, as Roncaglia calls them (tr. 15, q. 2, ch. 1, q. 9), gave little or nothing to the argument which both Roncaglia and Reiffenstuel, and after them St. Alphonsus, thought most firm.

4º^† In doubt about ownership alone, one must stand for the certain possessor. This is established from the rule of law: In equal fault or cause ⁷, the condition of the possessor is better. - St. Lig., n. 210.

⁷ In order that the cause may be called equal, the reasons of each party must be equally probable. But if the reasons of the plaintiff are more probable, that rule of law, as St. Alphonsus admits, has no place; nor does the opinion, though more common, of those who oblige the judge to pass sentence for the possessor exceed the limits of probability. See St. Alphonsus, Bk. 4, n. 210, q. II.

2. Questions. - QUESTION 1º. Can a judge condemn an accused person whom by private knowledge only he knows to be guilty, or an innocent person who juridically is proved guilty?

Resp. to the 1st: By no means, according to all. The reason is that a judge is bound to judge according to the things alleged, and according to the forms prescribed by law. For there is no danger in sometimes releasing a hidden guilty man, whereas there would be great danger in violating the established forms of trial ⁸.

⁸ Understand this of an inferior judge, who cannot dispense from the law, especially in a matter of such great moment. For although power to kill someone from private knowledge is denied to a prince when there is question of a crime, nevertheless this is lawful for him if there is question of preventing an evil which threatens the republic through some person. Thus the common opinion apud Lugo, On Justice, disp. 57, n. 50. Moreover, speaking about civil causes and about the removal of offices, etc., perhaps a greater power is in the prince for this, that from private knowledge he can sometimes condemn an accused person not convicted. Thus Lugo (l.c. n. 54), in whose work you may see the reasons for this doctrine.

Resp. to the 2nd: It is much disputed. St. Thomas, 2.2, q. 64, art. 6, affirms. St. Bonaventure denies. St. Ligorius, n. 208, admits each opinion as probable, if there is question of civil causes, or even of criminal causes of lesser moment; but if a case occurs concerning greater criminal causes, and especially capital ones, he thinks the opinion of St. Bonaventure the more right. The reason is that in the former case it can be said, at least probably, that a private inconvenience must yield to the common good, since it is not so great. But it is otherwise in the latter case; and therefore then to condemn the innocent seems intrinsically evil ⁹.

⁹ There are three principal opinions, says Lugo (disp. 57, n. 42), on this point. The first denies that it is ever lawful for a judge to pronounce sentence against him whom he certainly knows to be innocent. The second, extremely contrary, affirms that a judge can always pronounce sentence in any cause according to the things alleged and proved. St. Thomas holds this, and without doubt theologians and jurists commonly incline to this side. The third, a middle opinion, distinguishes concerning criminal causes in which there is question of the penalty of life or mutilation, and in these it denies that it is lawful for a judge to condemn the innocent; but in civil causes, or where there is question of a pecuniary penalty or exile, or deprivation of offices, it concedes that it is lawful. They give this reason for this last part (n. 44), that although the republic does not have dominion over the life and members of subjects, nevertheless it does have it over these other goods, so that, a just cause arising on account of the common good, it can dispose of them, and take away goods, deprive men of offices, expel citizens from the city, etc. Therefore it is credible that it gave this power to the judge for this end, that judgment be made according to the laws and proofs, lest the judicial order be contemned, the observance of which conduces supremely to the peace and quiet of the republic. These things indeed more clearly define and explain the doctrine of the Author, and give its more inward reason.

But the judgment of Cardinal de Lugo concerning the aforesaid opinions is this (ibid. n. 45): “Among these opinions the second is very probable because of the authority of St. Thomas and the common opinion; yet the third perhaps has more efficacious reasons: for although not all its arguments prove the point, some nevertheless have great force.”

Each one can see for himself the reasons for each of these opinions in the same de Lugo; here it is better to subjoin, from the same author (ibid. n. 41), those things which are outside controversy: “It is certain in the first place,” he says, “that that judge is bound to try all means and to use every diligence to liberate that accused man. First, by devising causes sufficient to repel the accusation. Second, by examining the witnesses with the greatest dexterity, after the example of Daniel, by questioning the circumstances of place, time, etc., until he finds them disagreeing. Third, he will be able, if it can be done without scandal, to dissemble in the custody of the prison, so that the innocent man can flee. Fourth, to remit the cause to a superior judge, and before him to testify to the innocence of the accused, which he himself knows. Fifth, if the judge is the supreme prince, he can more easily absolve the accused by absolute power, according to which a prince can sometimes remit a due penalty.” The sum of these things is taken from St. Thomas, 2.2, q. 64, art. 6, ad 3, and q. 67, art. 2. And from these Lugo rightly concludes that it can happen very rarely that a judge cannot liberate him whom he certainly knows to be innocent.

3. • QUESTION 2º. Can a judge accept gifts for passing sentence?

Resp. No. For this is prohibited by every law: 1º by natural law, at least in some way ¹⁰, because gifts blind the mind and impel it to favor the giver more than is just; and hence arises the vice of acceptance of persons; 2º by canon law; for in 6º (bk. 1, tit. 3, ch. 2), Boniface VIII established that judges should accept neither any gift, nor anything else, unless perhaps food and drink offered from mere liberality; 3º positive law, both Roman and French, is consonant. Thus in art. 177 of the Penal Code every corruption of magistrates by gifts and promises is punished with grave penalties, both in the corrupted and in those corrupting ¹¹.

¹⁰ It is said, “in some way”; for the matter concerns only temptation, or the danger of prevarication, which the law of nature commands to be removed. Hence St. Alphonsus (Bk. 4, n. 216) only says that sin is sometimes committed.

¹¹ If a judge sins by receiving gifts, by that very fact whoever offers them also sins; for he cooperates in another’s sin. Except, however, the unlearned, whom ignorance very often excuses. Likewise except, if gifts are given to redeem an unjust vexation, when otherwise an unjust sentence seems prudently to be feared; nevertheless these must be restored, and also can be recovered in court after the sentence. St. Alphonsus (Bk. 4, n. 212) with the common opinion. Except also, besides other cases apud Lugo, disp. 37, n. 132, with Laymann (Bk. 3, tr. 4, ch. 4, n. 9), if the judge has been engaged without sufficient stipend, or if he increases his labor to expedite someone’s cause more swiftly, without damage to others. Laymann adds that he does not dare condemn an accepted gift, considered by natural law, if a judge expedites the cause of one before others, when it is within his discretion whom he should prefer to whom; yet he subjoins that the matter is not free from danger; and Lugo (l.c. n. 136) reproves it absolutely, because whenever he is bound from justice to do something gratuitously from among alternatives, he cannot accept anything for the choice of this part.

But as to those things which depend only on positive law, Lugo adds another observation (l.c. n. 132), namely that in some places fees are accepted from litigants beyond the public stipend; and the acceptance of these fees in certain places has been established by custom. “In general,” he continues, “observe that all those things which in this kind are held by legitimately prescribed custom are presumed lawful, provided they are not against natural law; but where that custom does not exist, one must stand by the particular law of each kingdom or province; for individual ones are accustomed to have their own laws on this point, more or less strict, which will oblige as long as they are not abrogated by a contrary custom.”

QUESTION 3º. Is a judge bound to restitution if he has accepted gifts from litigants?

Resp. Probably no, before sentence; because even if he acts illicitly by accepting gifts, nevertheless he does not sin against justice. Thus more commonly: Lugo, Lessius, St. Antoninus, Azor, against others, who also probably affirm. St. Ligorius, n. 216, says that each opinion is sufficiently probable ¹².

¹² St. Alphonsus in this place reports the doctrine of the Salmanticenses from tr. XIII, ch. 1, nn. 170-173, where the discussion is not about this special question, but generally: whether from an illicit donation, and one reprobated by the laws, there arises in the receiver an obligation of restitution. And indeed, while the Salmanticenses mingle together both things which are given for sins perpetrated, and things which merely foster the avarice of the receivers, and things which are acquired simoniacally or in a game of chance forbidden by the laws (to which pertain the two places of St. Thomas alleged by them, one of which St. Alphonsus brings here after them), they introduce such confusion that it is not permitted to extract anything in reality from them.

Therefore it is better to retain the opinion which St. Alphonsus (l.c.) reports thus from Busembaum: “Even if a judge, by accepting liberal gifts from the parties, sometimes sins either because of scandal or because of danger of perverting justice, nevertheless he acquires ownership of the things accepted.” Concerning this St. Alphonsus subjoins: “This is common and certain.” Busembaum adds: “Even if a positive law prohibits the acceptance of gifts, nevertheless he who accepts is not bound to restitution before the sentence of a judge, unless the law expresses that the acceptance is not only illicit, but also invalid.” See Bonacina, On the Eighth Precept, q. 2, punct. 8, whose allegation regards the obligation of restoring to the poor if someone has received something for obtaining favor or justice in the Roman Curia; Laymann, Bk. 3, tr. 4, ch. 4, nn. 9 and 10. And Cardinal de Lugo is authority that this opinion is handed down by many and very grave doctors (disp. 37, n. 134), who subjoins that it is proved from the common practice of all judges, even those fearing God, who never restore those gifts when they were given liberally, nor are they obliged to this by confessors. Indeed this practice of confessors also warns us not to use easily and without the greatest discretion the counsel which the Author subjoins, lest we cast unnecessary snares upon penitents.

Nevertheless judges should at least be urged to restore gifts received, or to expend them on pious works. Sometimes this could be enjoined as a penance to draw the judge away from relapse ¹³.

¹³ ** From what has been said it is plain that here the matter is merely of giving counsel; for neither can the confessor command that which it is probable penitents are not bound to perform, nor will prudence easily agree that it be enjoined as a sacramental penance.

QUESTION 4º. Is a judge bound to restore what he has accepted by agreement for passing some sentence?

Resp. 1º Yes, if he accepted it for passing a just sentence, that is, for performing that which he already owed from justice. The reason is that whatever is already owed from office, and therefore from justice, cannot be the matter of a contract. A fortiori he is bound to restore those things which he extorted by force, threats, or unjust vexation.

Resp. 2º If he accepted it for passing an unjust sentence, he is certainly bound to restitution before he passes that sort of sentence; but after the sentence has been passed, it is disputed, according to what has been said about a contract in a base matter, vol. 1, n. 760 ¹⁴.

¹⁴ If the question is made merely according to the principles of natural law, from what was said in the note to n. 760, vol. I, it must be beyond controversy that a price of this sort can be retained in conscience; for no probability, unless fictitious, can be attributed to the opposite opinion. But if positive law is considered, the question seems to be solved from what was said in the preceding note.

4. • QUESTION 5º. Is a judge bound to repair damage which he did not prevent, or whose reparation he does not procure, when he can?

Resp. Yes, because he is an unjust and efficacious cooperator. Recall what was said about negative cooperators, vol. 1, n. 690 and following, and elsewhere throughout ¹⁵.

¹⁵ Concerning this question have these things more distinctly from St. Alphonsus:

1º If a judge has passed an unjust sentence by fraud, he has made the lawsuit his own, that is, he has transferred to himself the damage of the injured party, to whom he is bound to restore (Bk. 4, n. 214). Understand this with the order among those liable to restitution preserved; for before the others he is bound to restore who has in his possession the thing owed to another.

2º If a judge judges badly through great incompetence, he is bound to indemnify the injured party and to pay the expenses of the lawsuit, and this whenever notable damage occurs to the parties, whether in the substance of the lawsuit or in superfluous expenses, because of his culpable ignorance. This is common (ibid. n. 195).

3º If otherwise worthy of his office, even if by seeking it he obtained it while others more worthy were neglected, he erred through forgetfulness from human frailty, he is not obliged in conscience to restitution from his own goods, since he did not inflict a formal injury, nor did he receive any advantage from such a sentence, or rather, according to others, since he did not commit theological fault; nevertheless he ought to revoke the sentence if he can without grave inconvenience (ibid. n. 214). And more clearly: “If a judge recognizes an error committed by himself, even without grave fault, to the prejudice of a litigant, he is bound, if he can without infamy, to prevent the error, for example by secretly warning the injured party to provide for himself by appeal or otherwise; because this pertains to the due execution of his office” (ibid. n. 195).

4º A judge sins mortally against his office by delaying very notably the dispatch of causes without just cause. Likewise he is bound to restore to the injured party the damages and expenses which have followed from the unjust delay, because he is their unjust cause (ibid. n. 196).

These things St. Alphonsus says; concerning which, nevertheless, note that the legitimate order must always be preserved among those who are liable to restitution. For before the others the first debtor of all is he who has the thing, or who from another’s thing has been made richer. Hence if the judge restores, the holder of the other’s thing will be bound to restore to the judge himself, who otherwise could also use occult compensation.

QUESTION 6º. Does a sentence of a judge that is doubtfully just, or certainly unjust, oblige?

Resp. to the 1st: Entirely yes. For presumption favors the superior or judge. See On Conscience, n. 75, etc.

Resp. to the 2nd: Of itself, no, as is plain ¹⁶. Except, however, unless there is present a reason of scandal or of disturbance of public order; because a private good must always yield to the public good. But he who obtains the cause through an unjust sentence cannot receive the thing adjudged to him, or he must restore it, and besides he is bound to repair all damages and expenses to the opposing party ¹⁷. Yet if he was in good faith, when this ceases he must only return the other’s thing, according to what was said about the possessor in good faith, n. 635 ¹⁸.

¹⁶ More clearly St. Alphonsus (Bk. 4, n. 215): “An unjust sentence, either from the nature of the thing or from omission of an order of law simply necessary, whether it is passed through things falsely alleged and proved, or from the iniquity of the judge, has no force in the forum of conscience; and the injured party’s right remains to him, even if he does not appeal, and it will be lawful, if he can do it without scandal, to recover his goods. I said, in the forum of conscience: because in the external forum, where not so much the truth of the fact as juridical proof is considered, a proved sentence is to be observed to avoid scandals and inconveniences; nor, after the term has elapsed within which it was permitted to appeal, is an action granted to him, the law so establishing both as a penalty of sloth and for the public good, so that there may be an end of lawsuits.”

¹⁷ For this reason the injured person can, unless the other has prescribed justly, recover his own goods by occult compensation, because he recovers his own right. St. Alphonsus, Bk. 4, n. 215.

¹⁸ He who in good faith petitioned a thing from the judge, and in good faith accepts it, and possessed the thing in good faith for the time necessary for prescription, is not bound to restore, because he has legitimately prescribed. St. Alphonsus, Bk. 4, n. 215.