CHAPTER I: ON THE OBLIGATIONS OF JUDGES

1052. • A judge is a public person, constituted by legitimate authority, so that according to the laws he may vindicate justice and decree due punishments upon delinquents.

It is said: a public person, constituted by legitimate authority, so that he may be distinguished from an arbiter, who undertakes the office of judging not by public authority, but by the spontaneous election of the contending parties.

Principles. - I. A judge is held from a quasi-contract with society and private persons to fulfill his office rightly: if he does not provide this, he will be guilty of violated justice both legal and also commutative.

II. That a judge may rightly perform his office, he must have 1° more than common intelligence, so that he can look into intricate causes; 2° sufficient knowledge, so that he may have account of all the circumstances both of law and of fact, so that whoever seeks or undertakes the office of judge, knowing himself to be so unequal to it that he probably foresees grave damage to his neighbor will follow, sins mortally. But whether he has done this conscious or unconscious of his poverty, he ought not to be absolved unless renunciation of the office has been made, or unless he has the firm purpose of renouncing;¹ 3° incorruptible integrity, so that he yield neither to love nor to hatred.

III. A judge is held to pronounce 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. Except the special case in which the mind of the law must be followed by the judge rather than the bark of the words; then indeed account must be had both of the age, and of the condition and fortune of him on whom he must impose the punishment.

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

1° In criminal matters favor must be shown to the accused, unless the crime is clear, i.e. both concerning the existence of guilt and concerning the merits of the punishments. - Reg. Jur. Can. 11. in 6°.

2° In doubt concerning ownership and possession at the same time one must judge according to the more probable reasons, as is clear from natural law and proposition 2 condemned by Innocent XI. See p. XV. But if the reasons are equally probable from each side, the thing must be divided. Cf. n. 60. II. 3°.

3° In doubt concerning ownership alone, one must stand for the possessor certainly of good faith. This is clear from Reg. Jur. 65. in 6°: "In equal fault or cause, the condition of the possessor is better." Cf. n. 60. II. 3°. Except pious causes and certain others in St. Alphonsus,¹ in whose favor one must judge, although they are actors. Yet our laws do not favor them.

1053. Questions. - Query 1° Whether a judge can condemn an accused person whom he knows to be guilty only by private knowledge, or an innocent person who juridically is convicted as guilty?

Resp. to the 1st Negatively altogether according to all. The reason is that a judge is held to judge according to the things alleged, and according to the forms prescribed by law. For there is no danger in sometimes dismissing a hidden guilty person, while there would be great danger in violating the established forms of judgment.

Resp. to the 2nd It is greatly controverted. St. Thomas affirms.² - St. Bonaventure denies. - St. Alphonsus³ admits the affirmative opinion as undoubted if it is a question of civil causes, or even pecuniary punishments: but if a case concerning greater criminal matters, and especially capital ones, occurs, he thinks the opinion of St. Bonaventure very probable. The reason is that in the former case the Republic for the common good, which exists from judgment rendered according to public knowledge, rightly transfers the dominion of goods. But otherwise in the latter case; and therefore then to condemn an innocent person seems intrinsically evil.

Besides, this question in our law and in causes which we call criminal offers itself under an altogether different aspect; for among us jurors alone pronounce concerning the innocence or guilt of the accused; but the judge only declares what punishment according to the laws is to be applied to him who has been pronounced guilty by the jurors. But in declaring this he performs his office only mechanically, so to speak; nor does he, but the jurors, seem to be the efficacious cause of the punishment to be pronounced. Yet he is held to do what is in him, so that he whom he knows to be innocent not undergo the punishment, which for the most part he can prevent either by intercession with the Governor, or, if the sentence of the jurors does not rest on the acts and proofs, but has been pronounced from a malignant spirit or rashly from ignorance, by indicating that they have exceeded the limits of their office, and labor under error of fact or of law, and thus obtain a new judgment for the innocent person, by which the error may be removed.

Query 2° Whether 1) a Catholic Judge can pronounce a sentence of divorce as to the bond according to the laws of this region; whether 2) it is licit for a Catholic, in any event of things, to demand a sentence of this kind, and what 3) concerning an advocate seeking it in the name of a client?

Resp. to the 1st "Since a Catholic could scarcely perform the office of judge, if he did not wish to decree divorce, the offense" (on account of which it is sought according to the laws) "having been proved in judgment; and the civil effects are chiefly regarded, I think the judge is not to be condemned who furnishes his service." Thus Kenrick.¹ But certainly, as is clear of itself, he can pronounce a sentence of divorce in the case in which a Catholic licitly demands it.

Resp. to the 2nd The bond of matrimony subsists before God, or not. In the former case again one must distinguish; for civil divorce is sought either with the intention of entering new nuptials, or without this intention. If the former, it is not licit, as is clear of itself. If the latter, and a most grave reason presses, e.g. lest the husband be compelled to pay the foreign debt of the wife and so that every right to inheritance be taken away from her,² let divorce from cohabitation be sought where the law grants it. But if the law, as in most States, grants only divorce from the bond, or where the option of either is given, this alone is chosen as the sole efficacious barrier against foreign troubles, it seems this can be sought in certain most grave circumstances; for he who is not going to use the civil liberty which he asks to be restored to himself is not judged to approve the exercise of civil power upon the bond.

But if the bond of matrimony subsists from civil law alone, and not before God, because, for example, one or the other lacked Baptism, it will be licit for a Catholic to seek the protection of the civil law. This is gathered from the response of the S. C. Inq. to the questions of the Bishop of New Orleans, Sept. 9, 1824, concerning marriages which were invalid on account of the impediment of clandestinity. Namely the S. Congregation advises that every effort be applied to induce them to contract with each other in a Catholic manner; "but to suggest to one asking to enter a new marriage with another that he should first consult both for himself and for the Parish Priest, acting namely so that both civil liberty may be restored to himself, and nothing evil may come thence to the Parish Priest, this would not be to approve the custom of civil repudiation, provided the one asking is rightly instructed that this is done not for this reason, that the bond of matrimony may be dissolved, because he is now detained by no bond, but only that he may free himself and the Parish Priest from legal penalties and civil vexations. ... But Missionaries ought not to involve themselves in these things to be transacted with the Government. He who asks to marry, let him conduct his own business."¹

Resp. to the 3rd. 1° It is certain that it is licit for an advocate to do what I said is licit for the client in Resp. to the 2nd. - 2° It also seems certain that an advocate is not held to inquire from the client either concerning the intention with which he seeks divorce, namely whether with the intention of entering other nuptials or not, or concerning the true cause on account of which he seeks it, so that he may know namely whether it is sufficiently grave, or concerning the value of the marriage before God; for he is judged to undertake only the civil cause of the client and this to be defended only by a civil title. - But whether 3° it is licit for him to undertake this civil cause in the case in which from the sayings of his own client or from public and certain fame, he knows that divorce is sought in a marriage valid before God and with the intention of passing to other nuptials, or from a cause not sufficiently grave, I would rather leave to the judgment of the wiser. It is indeed true that the client will easily find another advocate who will act his part; but the advocate is not able to be excused by the same reason of necessity as a judge, since he can refuse his service with impunity.

1054. • Query 3° Whether a judge can accept gifts for pronouncing sentence?

Resp. Negatively. For this is prohibited by every law; and 1° By natural law, in the case in which either scandal or danger of perversion, or of favoring the donor more than is fair, is present.² But if the judge sins by receiving gifts, by this very fact whoever offers them also sins; for he cooperates with the sin of another. Except the rude, whom ignorance generally excuses. Likewise except if gifts are given to redeem unjust vexation, when an unjust sentence otherwise prudently seems to be feared: but these must be restored, and can also be sought back in judgment after the sentence.³ 2° By Canon Law; for Boniface VIII¹ established that judges accept neither any gift nor anything else, except perhaps food and drink offered by mere liberality.

Query 4° Whether a judge is held to restitution if he has accepted gifts from litigants?

Resp. Negatively, probably before the sentence; because although he acts illicitly by accepting gifts, nevertheless he does not sin against justice. - Thus more commonly, - against others, who also probably affirm. - St. Alphonsus² says that each opinion is sufficiently probable.

Yet judges at least must be impelled to restore gifts accepted, or to expend them on pious works. Sometimes this could be enjoined as penance to turn the judge away from relapse.

Query 5° Whether a judge is held to restore what he has accepted by pact for pronouncing some sentence?

Resp. 1° Affirmatively, if he accepted it for pronouncing a just sentence, i.e. for furnishing that which from justice he owed. The reason is that whatever is already owed from office, and therefore from justice, cannot be matter of a contract. A fortiori he is held to restore those things which he has extorted by force, threats, or unjust vexation.

Resp. 2° If he accepted it for pronouncing an unjust sentence, he certainly is held to restitution before he pronounces a sentence of this kind; but after sentence has been rendered it is controverted, according to the things said concerning a contract in a shameful matter, n. 834.

1055. • Query 6° Whether a judge is held to repair damage which he did not impede, or whose reparation he does not procure, when he can?

Resp. Affirmatively, because he is an unjust and efficacious cooperator. Recall the things said concerning negative cooperators, n. 773 and following.

Query 7° Whether a sentence of a judge doubtfully just, or certainly unjust, obliges?

Resp. to the 1st Affirmatively altogether. For presumption favors the Superior or judge. (n. 65. 3°.)

Resp. to the 2nd Negatively of itself, as is clear. Yet except unless there is present a reason of scandal or of disturbance of public order; because private good must always yield to public good. But he who obtains a cause through an unjust sentence cannot receive the thing adjudged to himself, or must restore it, and moreover he is held to repair all damages and expenses to the adverse party. Yet if he was in good faith, when this vanishes he must only return the thing of another according to the things said concerning a possessor of good faith, n. 722.