Article I: On Judges

S. Th. II-II, q. 67.

636. The office and qualities of a judge. A judge is a public person, constituted by legitimate authority for authentically declaring and defining right. It is not enough that laws be established and promulgated; it is also required that they be sedulously and faithfully observed. But for the observance of laws, judicial power is necessary, which settles disputes arising among private persons concerning their rights, and punishes those perpetrating crimes or offenses. In the former case, the cause is called civil or commercial; in the latter, criminal or correctional.

In a judge three gifts or qualities are required: jurisdiction, competent knowledge, and perfect integrity.

A. Jurisdiction (rechtsgezag of bevoegdheid), or the power of passing sentence and imposing it as a superior upon a subject. Jurisdiction is necessary for the validity of the sentence; St. Thomas shows this in this way, a. 1:

"The sentence of a judge is as it were a certain particular law in some particular fact. And therefore, just as a general law must have coercive force, ... so also the sentence of a judge must have coercive force, by which each party is constrained to observe the sentence of the judge; otherwise judgment would not be efficacious. But in human affairs, only he who holds public power licitly has coercive power, and those who hold it are reckoned superiors with respect to those over whom they receive power as over subjects, whether they have ordinary power or power by commission. And therefore it is manifest that no one can judge someone unless he is in some way subject to him, either by commission or by ordinary power."

Jurisdiction, however, is necessary both as regards subjects and as regards the cause: for just as not all subjects, so also not all causes are subject to every judge or tribunal, but the forum must be competent.¹

¹ He must sedulously study the laws in force in his region and jurisprudence.

B. Competent knowledge is necessary for a judge, that he may pass equitable judgment; otherwise he would expose himself to the danger of inflicting damage upon those who present themselves before the tribunal. Therefore:

1. Thus, for Belgium, one can consult the Cod. proc. civ. and the Cod. instr. crim., with the law of June 18, 1869, concerning judicial organization, together with the royal decree of February 22, 1892, and November 14, 1935. Besides ordinary civil, commercial, and criminal tribunals, there are special ones, such as the council of war for soldiers, the council of arbiters (C. Prov. civ., art. 1003 sq.), and the council of prudent men (law of March 23, 1876; July 21, 1879; May 15, 1910; and July 9, 1926).

2. The higher and more difficult the office entrusted to him is, the greater the knowledge in which he must excel, so that for cases ordinarily to be judged by him his knowledge may suffice, and for extraordinary cases he may be able to complete it by consulting books or those more expert.

3. He who accepts the office without sufficient knowledge sins effectively against legal justice, and affectively against commutative justice, which he foresees that he will injure.

4. A judge must use at least common diligence in knowing the particular cause concerning which he must pass judgment, and in hearing the arguments which are brought forward for and against by advocates; otherwise he could easily be deceived about the facts. He is held to this both from legal justice and from commutative justice.

Hence a) a judge who is deprived of competent knowledge cannot be absolved unless a) he resigns the office, or b) learns juridical knowledge and meanwhile abstains from exercising the office, if it can be done, or c) at least takes the counsel of one more learned, if he absolutely cannot abstain;

b) He who culpably inflicted damage upon some party, whether through lack of skill or through known negligence, is held to repair the damage which the injured party suffered, and of which he is truly, efficaciously, and formally an unjust cause;

c) He who inculpably, from inadvertence, caused damage must, if it can be done without grave inconvenience, warn the injured party so that this party may provide for himself by way of "appeal" or in another way.

C. Perfect integrity and incorruptibility ought to be as it were the distinctive mark of a judge, by which, namely, he is so disposed that he yields neither to love nor hatred, neither to entreaties nor threats, neither to benefits nor inconveniences, but follows only the norm of justice and the dictate of conscience.

Hence by every law it is prohibited:

a) That the judge favor one party during the course of the process, for example, by indicating means of defense to an advocate;

b) Likewise, that for considering the matter or passing sentence he receive money or gifts, by which, namely, he would be enticed to pronounce sentence in favor of the giver: for he receives a stipend for faithfully fulfilling his office, and therefore he has no right to obtain anything else. And indeed, if he receives gifts by pact for passing a just sentence, or if he exacts them, he is held to restore them because he cannot receive the price twice for the same thing; but if for an unjust sentence, the principles concerning a base contract come to be applied, and therefore before the sentence is passed he is held to return what he received; but after an iniquitous sentence has been passed, he will be able to retain them, unless he is judicially compelled to restore, but he will be held to repair all damages inflicted upon the other party.²

² Cod. poen., arts. 246 and 247.

c) Indeed, that he receive gifts from litigants as gifts offered from mere liberality, lest thus his integrity come into suspicion. Yet this is not per se unjust, but is positively prohibited; hence he is not held to restore them unless after a judicial sentence condemning him to this;

d) Finally, neither is it fitting to accept money freely offered to him, that he may expedite one cause before another, or expedite it more diligently: by force of his office he is held to expedite all causes quickly and equally.

In the aforesaid cases, the judge is held to restore to the other injured party for the damages inflicted; but if after the fact no damage was really inflicted unjustly upon anyone, then on this account there will not be present a strict obligation of restoring.

637. The duties of a judge. The judge must proceed according to the laws as regards the order and form of the judgment, and pass sentence according to the knowledge which he has as judge. For he is not the founder of the law, but its interpreter; nor does he act as a private person according to the private knowledge which he has, but as a public person, according to the public knowledge which he possesses as judge.

"To judge," says St. Thomas, q. 67, a. 2, "belongs to the judge according as he holds public power; and therefore in judging he must be informed not according to that which he himself knows as a private person, but according to that which becomes known to him as a public person. But this becomes known to him in common and in particular: in common indeed through public laws, whether divine or human, against which he must admit no proofs; but in some particular affair through instruments and witnesses and other legitimate documents of this kind, which he must follow in judging rather than that which he himself knows as a private person."

Therefore the judge must: 1. Judge according to what has been alleged and proved in the judgment;

2. He cannot abstain from passing judgment; hence, where explicit laws are lacking, he must judge according to similar laws, or according to natural equity (C. C., art. 4; C. I. C., can. 1625, § 1);

3. He can pronounce only for one case, but not by way of a general disposition after the manner of a rule for similar cases (C. C., art. 5).

Hence a) a judge who by private knowledge knows someone to be guilty, who juridically has not been convicted, must absolve him.

b) On the contrary, one who by certain private knowledge knows someone to be innocent, who nevertheless has juridically been proved guilty, must examine the witnesses more diligently that he may find an occasion of freeing the innocent man, or even leave him to be judged by a superior. But if he cannot do even this, he must judge according to what has been alleged and proved in the judgment, and consequently condemn him, as St. Thomas shows, loc. cit. and q. 64, a. 6, ad 3. Yet to this principle some append a restriction: unless it concerns the penalty of death or of a more prolonged prison; but this restriction is not logically founded.³

³ Cf. art. 118 of the Belgian law of June 18, 1869, and Cod. instr. crim., arts. 352, 363.

Today, however, that dispute is scarcely practical, since among civilized nations, quite generally in the greater criminal causes, it is now not the judges themselves but jurors who pass sentence concerning the fact of the crime, and indeed according to their intimate persuasion and conscience. Once this has been done, nothing more remains for the judges except to declare the penalty, which is to be imposed not so much according to the proofs brought forward, but rather according to the law for the crime; hence, in that case, a judge certain of the innocence of the accused could do nothing except inflict the minimum penalty which the law permits,⁴ or perhaps omit a certain legal form so that place can be given for cassation of the sentence and for a new examination of the cause.

⁴ In Belgium, moreover, art. 118 of the law of June 18, 1869, and art. 352 of the Cod. instr. crim. can be considered, and sometimes also arts. 363 and 364.

c) In the case in which the arguments brought forward on each side leave the matter doubtful, in criminal and penal causes favor is to be given to the accused, who consequently is to be absolved. Namely, no one is to be punished unless the crime is morally certain: for crimes are not presumed but must be proved, and it is better for the public good that a guilty man be absolved undeservedly than that an innocent man be punished unjustly.

But in civil causes, if one party is in legitimate possession of the thing, it is to be left to him, for in doubt the condition of the possessor is better, unless the contrary is much more probable (C. C., art. 1315); but if neither party possesses, the thing must be adjudicated according to the merits of the cause and consequently to him whom the greater probability favors,⁵ first according to the rules of interpretation of law and the rules prescribed in law, then according to the proper opinion which the judge will try to form for himself.

⁵ Hence proposition 2 was condemned by Innocent XI: "I probably think that a judge can judge according to an opinion even less probable."

If the reasons from each side are equal, a friendly settlement is to be advised, or even imposed, unless the law prescribes that sentence be passed, as in French and Belgian law: for then the judge is held to form an opinion for himself.

d) If the civil law is manifestly unjust, and indeed by reason of competence alone, as if it is opposed to ecclesiastical law, the judge can seek from ecclesiastical superiors the faculty of judging the cause, which generally is easily conceded to him on account of the great damage to which he is exposed; but if it is unjust by reason of the thing commanded, as if it imposes something contrary to natural or divine law, the judge cannot pass an unjust sentence, but must abstain from judging the matter or resign the office: for the application of a law which commands an unjust thing is intrinsically evil.

Some, however, admit an exception if there is question of a light penalty unjustly imposed: then indeed, they say, the innocent person is deservedly judged to consent to this penalty on account of the public good, lest, namely, the judge be compelled to resign an honorable office. But others say: this is the application of an iniquitous law, and therefore evil, which also easily causes scandal, because the law is thereby strengthened in practice.⁶

⁶ The controversy is well set forth in Billuart, diss. 12, a. 2 and 3.

638. Corollaries. 1. A judge who has passed an unjust sentence, whether by condemning an innocent person, or by inflicting a penalty greater than is just, is held to repair the damage inflicted, in the better way in which he can, if he was its efficacious cause;⁷ and indeed a) if he did this culpably, he must revoke the sentence while he can, even with proportionately great inconvenience to himself; otherwise he must warn the innocent person to appeal to a higher tribunal, and repair the damages inflicted under this heading. b) If he did it inculpably, from mere inadvertence, he is held to revoke the sentence if it can be done without great inconvenience, or to suggest an appeal; but he is not strictly held to repair at his own expense damage inculpably inflicted (n. 296, A).

⁷ Cf. art. 118 of the Belgian law of June 18, 1869, and Cod. instr. crim., arts. 352, 363.

2. A judge who should have imposed a fine and did not impose it, although he has sinned against legal justice, is not held to restitution, because there is not a strict right to a fine before it has been inflicted by the judge.

3. A judicial sentence a) certainly just produces an obligation in conscience: for it is an authentic declaration of the law, which has the force of a particular precept as regards the litigants themselves. On the contrary, b) if it is certainly unjust, it has no force in conscience, because it is founded upon a false presumption of a particular fact; but if place is given for appeal, ordinarily it is expedient to use this privilege rather than openly resist authority or use hidden compensation. c) If it is doubtfully just, appeal can be made to a higher judge, but meanwhile the sentence has force even in conscience, because in doubt the presumption stands for the superior (n. 91, C).

639. Observation concerning jurors. Among many civilized nations, in criminal causes, arbiters of two kinds are now employed: jurors, so called because they promise by oath duly to perform their office, who judge concerning the very fact of the crime; and judges properly so called, who decree the penalty proportionate to the crime.

Now it belongs to the jurors themselves to judge not only concerning the material culpability, but also concerning the formal culpability, of the deed subjected to their examination, with attention to all circumstances of persons, facts, etc., and indeed according to the intimate persuasion which they have acquired from all these things and according as they judge concerning them according to their conscience; nor are they ever held to render an account of their judgment. This also has force if in a criminal cause a civil party is also constituted and a civil action is joined to it: for it remains principally a criminal action and thus is to be considered.

Since jurors are chosen from among all upright citizens, and juridical knowledge is not exacted from them but true probity, hence:

a) They can accept that office, even if they are ignorant of jurisprudence, provided they have a just mind, free from disordered affections and prejudices, and are capable and prepared diligently to attend to all those things which will be set forth in the judicial action: for this suffices so that they can judge concerning the facts and concerning their culpability; but they must not pronounce concerning juridical questions.

b) In a criminal question, they cannot affirm culpability unless it is morally certain; otherwise they would incur the danger of condemning an innocent person. They can acquire this certitude principally indeed from the judicial acts, yet also from private knowledge: for since civil law asks them to judge according to their conscience, they can use every right knowledge acquired in whatever way.

c) But if someone appears innocent from the acts of the judgment, but from private knowledge is certainly known otherwise to be guilty, the jurors ought rather to absolve him, because then no proof is present in the external forum.