§ 1. Concerning The Judge

2296. DEFINITION. - A JUDGE, so called because he declares the law, is a public person, constituted by legitimate authority, that according to the laws he may vindicate justice, and decree punishments against delinquents. - If he is constituted by the litigants themselves, he is called an ARBITER, to whom thereafter, by new law and with the required conditions observed, jurisdiction over the litigants belongs. We have said by new law; for Roman law imparts no jurisdiction to him.

Among moderns, in criminal matters certain judges of fact alone are constituted, who are called JURORS, from the oath which they make of issuing a vote according to conscience. It belongs to them to pronounce according to the allegations concerning the existence of the fact and the culpability of the accused; afterward, the judges of law decree the penalty according to the law. These are bound by the same obligations as the judges themselves.¹

2297. • Principles. I. In a JUDGE, that he may perform his office rightly and legitimately, THREE things are required, namely jurisdiction, knowledge, and integrity. - 1. JURISDICTION, or competence, failing which the sentence is null, unless there is a colored title and common error; whence, a civil judge sins, and indeed gravely, if he brings ecclesiastical causes before his tribunal, unless by Concordats or the tolerance of the Holy See, or also by special license, this is conceded to him. - 2. Suitable KNOWLEDGE of those things which pertain to his office. Wherefore, if from culpable ignorance he has injured the parties, whether in the substance of the suit, or in superfluous expenses, he is held to restitution; nor can he be absolved, unless he either resigns the office, or tries to acquire sufficient knowledge, with the damage or danger of his neighbor meanwhile removed. - 3. Incorruptible INTEGRITY, so that he constantly preserves justice, and yields neither to love nor to hatred.²

Wherefore two things here come to be NOTED: - 1) "If the judge recognizes an error committed by himself (although without grave fault) to the prejudice of a litigant, he is held, if he can do it without infamy, to impede the error, e.g. by secretly warning the injured party, that he may take counsel for himself by appeal or otherwise; because this pertains to the due execution of the office."³ - 2) "If the judge, in executing the cause and pronouncing sentence, is negligent or unjust, he is held not only to the injured party, but sometimes also to the fisc: e.g. if he remitted without cause a monetary fine which by custom, or common law, he ought to have imposed upon the defendant." Thus St. Thomas, Sylvester, and others. - Yet, "Lugo, etc., probably hold that the judge is held to nothing if the defendant has not yet been condemned to the fine; because, before sentence, no right to the penalty is acquired for the fisc; hence, if the judge unjustly absolves the defendant, he sins against legal justice, not commutative justice."⁴

NB. Concerning RESTITUTION to be made by judges, recall what was said n. 983 and 988.

2298. • II. The judge ought to institute judgment ACCORDING TO THE RULES OF LAW, both natural and positive, whether in the manner of proceeding, or in passing and executing sentence. - For he is not constituted to make laws, but to commit them to execution. But the RULES of natural law, to which he ought to conform himself, are the following:

Rule 1. - As to the MANNER OF PROCEEDING, he ought to take care lest, without a just cause, he inflict damage or infamy upon the litigants. - Hence: 1) He cannot institute a special inquisition concerning a certain crime and its author, unless infamy, half-proof, or something similar has preceded; because he would render the man against whom he proceeded by inquisition suspected and infamous. The sole case must be excepted in which there is question of graver crimes, which turn to the common damage of the republic.⁵ - 2) He cannot, without necessity or a grave motive, defer the dispatch of causes; otherwise he is held to compensate the injured party for the damages which have followed from unjust delay.⁶

2299. • Rule 2. - The judge ought, regularly speaking, in PASSING SENTENCE, to pronounce according to the things alleged and proved, and from knowledge juridically acquired. Thus commonly; and the reason is, because the judge bears a public and legal person. - Hence, he sins and is held to restitution, if he condemns him whom by private knowledge indeed he knows to be guilty, but whom the process declares innocent (see however n. 2302). - Likewise, if he condemns anyone unheard, or without witnesses, or from knowledge unjustly extorted, e.g. by force, fear, or fraud, by interrogations made without competent indications, etc.; because the acquisition of knowledge of this kind participates in the injustice of the means, which are against the necessary order of judgment, and consequently is unjust.⁷ The judge also sins, "if he opens to one party what that party could allege for himself; because this would be to perform the office of advocate, which is not lawful for the judge."⁸

2300. • Rule 3. - The judge ought, in criminal causes, TO FAVOR THE DEFENDANT, until his crime is certainly proved. For thus sounds the 11th rule of law in the Sext: "When the rights of the parties are obscure, the defendant is to be favored rather than the plaintiff." And Roman Law plainly agrees with this rule, prescribing that, for pronouncing a sentence of blood, proofs be brought which are clearer than light.⁹ - Hence: 1) The defendant is always to be absolved (both by jurors and by the judge), if probable reasons are brought for his defense, especially when there is question of capital punishment.¹⁰ - 2) Likewise he is to be absolved, although he has said nothing for his defense, if nothing is proved against him.

2301. • Rule 4. - The judge ought, in civil matters, to favor the CERTAIN POSSESSOR, until convincing reasons are given against him. But if there is DOUBT concerning the possession itself, or if neither litigant possesses in good faith, he ought to adjudicate the thing to the one bringing notably more probable reasons; and in equality of reasons, to divide the thing, unless there is question of a privileged cause. Thus commonly, with St. Alphonsus.¹¹

It is said 1. he ought to favor the possessor. And this indeed is indubitable, whenever the reasons are equal, as is clear from the 65th rule of Law in the Sext: "In equal offense or cause, the condition of the possessor is the stronger"; and from rule 128 ff. of Roman Law: "In an equal cause, the possessor can be held stronger." Moreover, St. Alphonsus affirms that the same rule must be admitted, according to the most common opinion, even if more probable, or solely probable, reasons militate against the possessor in good faith; because the title of legitimate possession bestows a certain right, which is not destroyed except by another certain and proved right, that is, by convincing reasons (cf. n. 45 and 946). Nor does it stand in the way that the judge is held to judge according to the more probable reasons; for, in favoring the possessor, he judges not only according to the more probable opinion, but according to the most probable opinion founded upon another rule of law cited above: "When the rights of the parties are obscure (as they are, when certainty is not present on the part of the plaintiff), the defendant is to be favored rather than the plaintiff."¹²

It is said 2. if there is doubt concerning the possession itself, i.e. if there is doubt as much concerning possession as concerning ownership: e.g. if the suit is concerning a thing possessed by no one, or if the possessor is of doubtful good faith, or at least if it is not established that he is in good faith (as commonly happens in the external forum): then the one bringing stronger reasons is certainly to be favored, as is had from the 2nd proposition condemned by Innocent XI: "I probably think that a judge can judge according to an opinion even less probable." For deservedly was that proposition proscribed, because the judge is held to render to each one his own right, and that party certainly has the greater right who brings more probable reasons (cf. n. 84, 4; 945, 3).¹³

It is said 3. in equality of reasons, whether of fact, or even of law, as the Salmanticenses more rightly teach with Roncaglia, he ought to DIVIDE equally between the litigants the thing certainly possessed by no one; for the judge ought, from his office, to render to each one his own right according to the merits of the cause; therefore, since an equal right belongs to each from parity of cause, it is clear that the thing is to be divided equally, nor can the judge ever judge at will; because to judge is to declare the law, to declare, not to constitute. - Hence deservedly was this 26th proposition condemned by Alexander VII: "When litigants have opinions equally probable for themselves, the judge can receive money for passing sentence in favor of one before the other" (cf. n. 945, 3).¹⁴

"Exception is made [in ROMAN and CANON law], if there is question of causes of matrimony, dowry, widow, ward, and of other pious causes; for then judgment must be made for them, when the rights are equal, even if they are plaintiffs (from cap. Ex litteris 3 de Probationibus, and from cap. final de sent. et re judicata). - But otherwise, if the opposite party rather has the right (from law Si pars ff. de inoff. testam.)." - Recall what was said n. 1027-1028.

2302. • Questions. - QUAER. 1. Whether a judge can condemn an innocent man who is juridically proved guilty?

Resp. 1. It is certain that the judge is held to do as much as is in him, that he whom by private knowledge he knows to be innocent may not undergo punishment. This will often be possible, e.g. by impeding the accusation, prolonging the judgment, suggesting means of defense, remitting the cause to the Superior, or even by opening the prison, if he can execute this without a greater evil.¹⁵ It is also certain that jurors or judges of fact can never cast a vote against an accused man whom by private knowledge they certainly know to be innocent; for by pronouncing thus, they would sin against their own office and oath.¹⁶

Resp. 2. It is very much controverted, in the case in which the judge is compelled to pass a sentence of punishment. - Some with St. Thomas¹⁷ say that the innocent man can then be condemned according to the things alleged and proved. Others with Bonacina,¹⁸ Lessius, etc., deny this; because to condemn an innocent man seems intrinsically evil: just as it would be evil to compel a woman to live with him whom the judge privately knows not to be her husband. - St. Alphonsus distinguishes and says: "1) In monetary penalties, and in civil causes, the judge, without doubt, ought to judge according to that which has been proved....; while the republic, for the common utility, which is had while judgment is passed according to public knowledge, can certainly transfer ownerships of goods."¹⁹ 2) But in corporal penalties, in which there is question of death or mutilation, the holy Doctor holds the opposite as very probable; and the reason can be assigned, because the republic neither could nor willed to confer on the judge the power of killing or mutilating an innocent man, since this is intrinsically evil (cf. n. 738).

QUAER. 2. Whether it is lawful for a judge to receive GIFTS from litigants?

Resp. Neg., even if they are offered freely; for it is said in Deut. 16:19: "You shall not accept a person, nor gifts: because gifts blind the eyes of the wise, and change the words of the just." - Foods and drinks spontaneously offered are excepted; both because, in law, under the name of gifts there do not come xenia, that is, small gifts; and because it cannot be supposed that the judge, on account of a small gift, will pass an unjust sentence. At least in this, as Lugo says, custom ought not to be reproved, where it is found legitimately prescribed.²⁰

QUAER. 3. Whether and when a judge is held TO RESTORE gifts received?

Resp. 1. It is certain that he is held to restitution: - 1) If he has received gifts from a pact, for passing a just sentence, or for furnishing that which he owed from justice (cf. n. 1036, q. 2); - 2) If by force, threats, or unjust vexation he extorted them; - 3) If the law makes an acceptance of this kind invalid, and a declaratory sentence of the crime has already been passed; - 4) If he has received them for passing an unjust sentence, and the crime (namely of barratry) has not yet been completed (cf. n. 1036, q. 1).

Resp. 2. It is probable that he is not held to restitution, although he has acted illicitly: - 1) if the gifts were offered spontaneously, and he protested that he would nevertheless judge according to justice; 2) if he has already completed the pact concerning an unjust sentence to be passed, and has not been condemned to restitution (cf. 1036, q. 1).¹

QUAER. 4. Whether he sins who GIVES GIFTS to a judge, or to his ministers?

Resp. Dist. 1. If he gives without a just cause, he indeed sins, by cooperating with unjust reception. Yet simple persons are often excused because of ignorance. - 2. If he gives with a just cause, namely for redeeming unjust vexation, he does not sin; "provided that there is probable danger that otherwise manifest injustice would be inflicted upon him; for then this is not corruption, but caution that his right be rendered to him.... Nor do prohibiting laws stand in the way of this; for laws intend to avoid lest those giving gifts corrupt judges by gifts, but not that they obtain a just sentence (otherwise not to be obtained)."²

QUAER. 5. Whether an unjust or doubtfully just sentence of the judge OBLIGES?

Resp. 1. "If the sentence is unjust, or null on account of defect of jurisdiction, or of substantial form, or if it proceeds from false principles and from ignorance of the facts which is opposed to the order of law simply necessary, whether it is passed through things falsely alleged and proved, or from the iniquity of the judge, it has no force in the forum of conscience; and his right remains to the injured party, even if he does not appeal, and it will be lawful for him, if he can do it without scandal, to recover the goods.... We have said in the forum of conscience: because in the external forum, where not so much the truth of the fact as juridical proof is regarded, the sentence passed must be observed, for avoiding scandals and inconveniences; nor, once the term has elapsed (within which it was lawful to appeal), is action granted to him, the law so establishing, both as a punishment for sluggishness and on account of the public good, that there may be an end of lawsuits."³ (cf. n. 191 and 1272).

Resp. 2. A doubtfully just sentence certainly obliges, in each forum, unless appeal is made. For presumption favors the judge (cf. n. 52).

QUAER. 6. To what is a judge HELD, who has passed an unjust sentence?

Resp. 1. "If he did this by deceit, or great unskillfulness, he made the suit his own, that is, he transferred to himself the damage of the injured party, to whom he is held to make restitution.

2. If otherwise worthy of his office, he erred through forgetfulness, from human frailty, he is not obliged in conscience to restitution from his own goods, since he did not inflict formal injury, nor received any advantage from such a sentence;... nevertheless he ought to revoke the sentence, if he can do so without grave inconvenience"⁴ (cf. n. 983, and 988).

NB. But if the law itself applied or to be applied by the judge has been unjust, recall what was said n. 2292. - If there is question specifically of Divorce, see n. 2126, 3.