Question — Noldin, Summa of Moral Theology
Question First. On the Judge and Jurors
719. Notions. 1. A judge is a public person constituted by legitimate authority to pronounce right.
He pronounces right either by deciding in a civil process a matter disputed between parties, or by imposing in a criminal process a suitable penalty on a delinquent.
- An ecclesiastical judge and a secular judge are distinguished according to the diverse authority by which he is constituted; a civil judge and a criminal judge according to the diverse matter in which he judges.
a. A judge who, either from the disposition of the law or by the litigants themselves, is constituted to settle a controversy existing between them, is called an arbiter.
b. From modern law in criminal causes sworn judges are customarily employed, who are only judges of fact: for they pronounce sentence only concerning the truth of the crime which is objected to the accused, or concerning his culpability; judges of law then decree the penalty.
We must treat: a. of the qualities of the judge; b. of the obligations of the judge; c. of the judicial sentence.
720. Qualities of the judge. In order that a judge can duly perform his office, he must have knowledge, jurisdiction, and integrity.
a. He must have sufficient knowledge, lest he be exposed to the danger of harming those whose causes he conducts. Therefore he must know the laws in force, according to which judgment must be instituted in the causes which are customarily brought to his tribunal.
a. A judge destitute of sufficient knowledge cannot be absolved unless he either leaves the office or acquires the due knowledge for himself and meanwhile abstains from the function, if he can, or at least strives to forestall the damages of others by seeking the counsel of one more learned, if he cannot abstain altogether.
b. A judge who, knowing his own lack of skill, conducts a cause is bound to repair the damages which the injured party has suffered.
c. If he has made an error to the damage of the litigant (even inculpably), he is bound (if he can without infamy) to warn him, so that he may provide for himself by appeal or another way.
b. Jurisdiction; for if this is lacking, he pronounces an invalid sentence (unless jurisdiction is supplied), and he can sin gravely, because he injures the right of the competent judge, whose power he usurps, and the right of the defendant, against whom he unjustly employs coercive force.
Therefore if a secular judge handles ecclesiastical causes in his own forum or drags ecclesiastical persons to his tribunal, he acts invalidly, sins gravely both against justice and against religion, and sometimes incurs excommunication.1 Nevertheless today, through concordats, it has happened in most places that secular judges can licitly judge not only civil causes, but under certain conditions also criminal causes of ecclesiastical persons. Where this faculty has not been granted through concordats, it must be sought in individual cases; and indeed, in order that a cleric can be summoned, from the ordinary; in order that a bishop can be summoned, from the Apostolic See.2 Genicot rightly judges that a judge who omits to seek this license ordinarily does not sin gravely where he is commanded by civil law to conduct causes of this kind. In the same way an ecclesiastical judge sins because of usurped foreign power if he judges merely temporal causes.
c. Integrity, by which in all things he preserves justice and is not bent to injuring right by respect of persons, by the passion of hatred or love, or by prayers or gifts.
1 To this belongs the twofold excommunication (I, 6, 7) from the constitution Apostolicae sedis.
2 Holy Office, Jan. 23, 1886.
721. On the acceptance of gifts. 1. It is not lawful for a judge to demand gifts from litigants as a stipend for judicial action or for a sentence to be rendered: for the judge is bound from office to dispatch causes brought to his tribunal and to render a just sentence; but it is repugnant to commutative justice that a price be received for a thing already otherwise due from justice.
If a judge, from a contract for rendering an unjust sentence, received a gift, before the sentence has been rendered he is bound to restore it, but after the sentence has been rendered he can retain it, unless either positive law has declared the contract concerning receiving the gift invalid, or he himself has been condemned to restitution, because he actually furnished the promised thing (n. 538). But if from a contract for rendering a just sentence he received a gift, he must return it even after the sentence has been rendered.
- It is not lawful for a judge to receive gifts from litigants as presents offered from mere liberality, unless they are of small moment. For in order that every danger of corruption in the judge be cut off, the acceptance of gifts is prohibited both by natural and by positive law. It is prohibited by natural law, because one accepting gifts exposes himself to the danger of rendering an unjust sentence: for presents and gifts blind the eyes of judges.1 But in positive law, both ecclesiastical and civil, this prohibition is contained in express words.2 Small gifts, however, are not judged to have the force of enticing a judge to an unjust sentence.
If a judge accepted a prohibited gift offered from mere liberality, he can retain it both from natural law and from positive law, because neither invalidates the donation. Positive law indeed is preceptive; therefore one accepting prohibited gifts sins, but he is not bound to restitution unless he has been condemned to make it by the sentence of a judge. What has been established particularly concerning ecclesiastical judges, canon law teaches.3
2 C. Statutum 11, de rescriptis in 6 (I, 3); cf. Deut. 16:19; l. 18, Dig. de officio praesidis. With Roman law all recent codes prohibit judges the acceptance of gifts.
3 Cf. Aichner, Compendium iuris eccles., 9th ed. (Brixen: Weger, 1900), p. 756 ss.
722. Obligations of the judge. The judge from justice, both legal and commutative, must conduct causes with due diligence and with justice: for by the quasi-contract which he enters into, in accepting the office with political power and in accepting the cause with the parties, he obligates himself to this.
- Diligence, which must be employed in conducting causes, demands first that he employ that care which by the prudent judgment of prudent persons is necessary for the gravity of the cause; then, that he not prolong causes without necessity so long that damages arise for the parties.
If from excessive delay of a cause, and that gravely culpable, damages have arisen to a party, he is bound to repair them; and if from gravely culpable negligence he pronounced a false sentence, he is bound to restitution toward the injured party.
- Justice, which he must observe in conducting causes, demands that he institute process and render sentence according to the laws in force, provided they are just: for he has been constituted to render sentence according to law. If he violates laws, he sins against legal justice, unless at the same time he acts against the strict right of another.
a. Therefore he injures commutative justice and is bound to restitution if in civil causes he does not give to litigants the right which belongs to them from law; likewise if in criminal causes he imposes penalties greater than legal ones. But if he unjustly frees a defendant from a pecuniary fine, he violates not commutative justice but only legal justice.
b. It is not lawful for a judge to suggest to one of the litigating parties that which the party can allege for himself, because this would be to act the part of an advocate, which is not lawful for a judge, who by his own office must judge only according to the things alleged and proved.
723. On the judicial sentence. The judge must render sentence according to juridical knowledge, which he acquired from judicial acts, or according to the things alleged and proved, not according to private knowledge: for he acts as a public person, and therefore must proceed according to public knowledge.
a. Therefore he must absolve him whom by private knowledge he knows to be guilty, if he has not been juridically convicted, so that he acts against justice and is bound to restitution if he condemns him.
b. But if by private knowledge he knows an innocent person who juridically has been proved guilty:
a. First he is bound to attempt all that he can in order to free the innocent person from undergoing the penalty, because from charity he is bound to avert a grave evil of the neighbor, especially an unjust one; and very rarely, says Lugo, can it happen that a judge cannot free him whom he certainly knows to be innocent.1 But if he can rescue him by no means, practically, at his pleasure, let him absolve or condemn him, since the matter is much controverted among theologians.
b. For some teach that it is lawful for a judge to render sentence against an innocent person in all causes in which there is question of imposing a penalty in external goods, such as a pecuniary penalty or deprivation of office, over which goods public authority has power in view of the common good. For in this case public authority deprives a subject of his goods for the common good, which demands that the judicial order be preserved, unless natural right is violated, and gives the judge power of condemning the innocent. But if there is question of imposing a penalty in goods over which society has no power, such as the penalty of death or imprisonment, it is not lawful for a judge to pronounce sentence against an innocent person: for since society has no power over the life or liberty of an innocent person, it cannot confer on the judge the power of condemning the innocent.2 Others, however, with St. Thomas, hold that the judge can always pronounce sentence according to the things alleged and proved, even if there is question of imposing the most grave penalty of death, because the judge is a public person, who must proceed according to public knowledge.3 But it must be demonstrated that it is not against the law of nature, and therefore not intrinsically evil, to condemn an innocent person, even if he is legitimately proved harmful. Besides, this question at the present time is not of great moment: for since almost everywhere there are sworn judges, this case can occur only where jurors affirm someone guilty whom the judge knows to be innocent.
1 Lugo, De iustitia, disp. 37, n. 41.
2 Cf. Lugo, disp. 37, n. 42 ss., with whom Laymann, Lessius, St. Alphonsus (n. 208), and others hold the same.
3 Cf. St. Thomas, II-II, q. 64, a. 6, ad 3; q. 67, a. 2.
724. On the force of a judicial sentence. 1. A certainly just sentence of a judge produces obligation in conscience: for it is like a precept of a legitimate superior in a particular case, which obliges in conscience.
a. A sentence of a judge in a penal cause produces an obligation of obedience, because penal laws are to be observed from obedience which is owed to a just law (from legal justice); wherefore a fine imposed by the sentence of a judge must be paid from obedience.
b. A sentence of a judge which defines a strict right, for example that an heir must pay a legacy, imposes an obligation of commutative justice with the burden of restitution.
c. In a doubtful cause, whether the doubt is of fact or of law, anyone can stand by the sentence of the judge with a safe conscience: for it belongs to the judge to resolve doubts.1
- A certainly unjust sentence cannot produce obligation in conscience. And this indeed holds in every case, whether the sentence is false only in itself or even juridically from the order of judgment not being observed, whether the judge pronounced sentence in good or bad faith.
Therefore he who by a certainly unjust sentence of a judge has been deprived of his property can, if no other means is available, recover his property by hidden compensation; and he who as a litigant in good faith obtained property by an unjust sentence, for example an inheritance, is bound, once the injustice of the sentence is known, to restore it to the legitimate heirs; but he is not bound to compensate expenses, because he acted in good faith.2
- If the sentence is doubtfully just, an appeal can indeed be interposed, but the sentence itself must be observed, not only in the external forum but also in conscience: for in doubt the sentence of the judge must be presumed just.
1 Marres, De justitia, 2nd ed. (Roermond: Romen, 1889), I, n. 18.
2 Lugo, disp. 37, n. 187.
725. On a judicial sentence in a doubtful cause. If a cause is doubtful, whether by doubt of fact or doubt of law, one must distinguish.
A doubt of fact is had if it is doubted whether the defendant committed the crime, contracted the debt, etc., because on each side there are only probable reasons; a doubt of law is had if it is doubted in what sense the law according to which judgment must be rendered is to be understood, because it is explained probably by doctors on either side.
a. In criminal causes and in causes in which a penalty is to be imposed, favor must be shown to the defendant, that is, the defendant must always be absolved, because he cannot be punished unless the crime is certainly established.
b. But in civil causes concerning a disputed matter one must again distinguish: if one is in certain possession of the disputed matter, the matter must be adjudged to him until the other party sufficiently proves his right. But if neither party is in certain possession of the disputed matter, and a. probability on each side is unequal, the matter must be adjudged to him whom the greater probability favors, from proposition 2 condemned by Innocent XI.1 If b. probability on each side is equal, the judge can advise an amicable composition, or even adjudge the matter to one whom he prefers.
a. It is the more common opinion, which St. Alphonsus holds (n. 210), that the matter must be adjudged to the possessor until the other party certainly proves his right, because the certain right of possession cannot be struck down except by another certain right. But others judge that the matter must be adjudged to the possessor so long as on each side there are equally probable reasons: for in an equal cause the right of the possessor is better; but if the plaintiff has greater probability, the matter can be adjudged to him, because he has the greater right for himself, which strikes down the presumption which the fact of possession furnishes to the other.
b. The reason why the judge must adjudge the matter to him whom the greater probability favors is this: because the judge has been constituted by supreme authority so that in the better way in which he can he may investigate and follow the truth, and therefore assign right to the parties according to the merit of the cause; but he would fail in this office if he favored that party which has a lesser appearance of truth and a greater danger of error.2 But if in this case the less probable right of the other is injured, supreme power by reason of the common good (that lawsuits may be ended) demands that the injured person yield from his right.
c. From natural law nothing prevents the judge from dividing the matter among the litigants according to the proportion of probability, whether on both sides it is of equal or unequal probability; but from positive law he must follow the positive laws of tribunals, which establish that the disputed matter must be adjudged to one or the other party.
d. If the causes of the litigants are equally probable, it is not lawful for the judge to accept money in order to favor one before the other;3 indeed this manner of acting is also unjust, because the judge doing these things furnishes nothing besides that which from justice he already must furnish.4
1 I probably think that a judge can judge according to an opinion even less probable. Proposition 2 condemned by Innocent XI.
2 Lugo, disp. 16, n. 99; Ballerini-Palmieri IV, n. 578; Lugo, disp. 37, n. 114 s.
3 This proposition (26) was condemned by Alexander VII: When litigants have equally probable opinions for themselves, the judge can accept money for rendering sentence in favor of one before the other.
4 Cf. Lehmkuhl, Casus consc., I, 496.
726. On a judicial sentence rendered according to an unjust law. 1. If a law is unjust because it is contrary to the laws of ecclesiastical immunity, from which the Church can dispense, the judge must seek from ecclesiastical authority the faculty of judging such a cause, unless it has already been granted. The faculty sought is easily granted, lest a good and upright judge be forced to leave office; but he must forestall public scandal which can arise from use of the faculty.
- If the law is unjust because it is contrary to divine or natural laws, it is not lawful to render sentence according to that law, because the matter is intrinsically evil; wherefore the judge would have to leave office rather than conduct a cause of this kind.
a. A sentence rendered according to an unjust law either commands a dishonorable thing, as if it pronounces that those who are joined only civilly must cohabit, or imposes a penalty on the innocent. Now a sentence of this kind must be called intrinsically evil, even if there is question only of imposing a penalty; wherefore it is not lawful for the judge, in order to avoid his own grave damage, to impose even a light penalty on an innocent person, unless from the at least presumed consent of him who must undergo the penalty. For this reason it can be called lawful that a judge who cannot abstain from sentence without his own grave damage impose a fine on a priest who assists those about to marry in church before civil marriage.1
b. There are some who try to demonstrate that a sentence rendered according to an unjust law is lawful, because a judge rendering sentence only declares what the wicked law establishes; but to declare this is not evil. Nevertheless the force of a judicial sentence is altogether different: for it itself produces a new obligation or new right not existing before, so that a judicial sentence is customarily called a particular law.2
1 Genicot II, n. 5.
2 St. Thomas, II-II, q. 67, a. 1.
727. Obligation of a judge who rendered an unjust sentence.
a. If he did this with grave fault (whether from iniquity or from lack of skill), he is bound to revoke the sentence if he can, even with great inconvenience, and if he cannot, he must repair the damages.
b. If he did this inculpably (from error or forgetfulness), he is bound to revoke the sentence if he can without great inconvenience, because he is bound to impede the evil which from his action is going to come upon another; if he cannot, he is bound to nothing. But if from gravely culpable negligence he does not revoke an unjust sentence which he can conveniently revoke, the whole damage must be imputed to him and he is bound to repair it.
c. If he imposed a penalty greater than just, he injured commutative justice and is bound to restitution. A penalty is also judged greater than just if, although it is contained within the limits of the law, nevertheless, considering the circumstances of the cause and the practice of tribunals, it manifestly exceeds measure.1
d. If a judge has unduly freed someone from a pecuniary fine to be paid from the law as punishment of an offense, he is not bound to restitution toward him to whom the fine had to be paid: for he to whom from law the fine is to be paid does not have a strict right to the fine before the sentence of the judge, whether he is the fisc or some private person.2
1 Genicot II, n. 5.
2 St. Alphonsus, l. 4, n. 196.
728. On jurors. Sworn judges are called by this name from the oath which they emit, that they will perform their office duly. They are not employed except in criminal causes. Their office is, from their intimate persuasion, to judge concerning the existence of the crime and concerning the guilt or innocence of the accused; the judge properly so called then decrees the penalty according to law. But the culpability which they must affirm or deny is understood as formal culpability (Zurechnungsfahigkeit), namely a crime committed with moral fault. They are never held to render a reason for the sentence which they pronounce; wherefore the danger of abuse is clear unless the jurors are men of most upright conscience.
- He who is assumed to the office of sworn judge can follow it with a safe conscience, provided he has the will never to affirm guilt unless it is certainly established concerning it.
Since jurors are ordinarily citizens not instructed in juridical knowledge, who nevertheless sometimes must render judgment in a difficult and intricate cause, it can be asked whether it is lawful for them to perform this office. But if they strive to have a mind empty of disordered affections and diligently attend in judicial actions, it can scarcely happen that they judge an innocent person guilty. But because it is not lawful for jurors to affirm guilt unless it is certainly established concerning it, it can more easily happen that they absolve a delinquent; but this is to be imputed not to the jurors, but rather to the mode of judging through jurors instituted by civil authority.
Since a juror from law must affirm only that of which he is intimately persuaded, it is not lawful for him to affirm guilt unless it is certainly established concerning it, even if by this reason sometimes a delinquent is absolved.
They must acquire for themselves from the judicial acts the intimate persuasion according to which they pronounce their sentence, yet they are not prohibited from also using private information.
The reason for the first is that it belongs to the nature of a judicial sentence that it rest on the things alleged and proved in judgment; the reason for the second is that the law itself furnishes them this faculty by commanding them to render sentence according to intimate persuasion: for intimate persuasion cannot arise so long as private knowledge stands opposed.
- Therefore if by private knowledge they certainly know that the accused is innocent, they must free him, because they cannot have persuasion that he is culpable; and if by private knowledge alone they know that he is guilty, they must likewise free him, because from the judicial acts, from which one cannot abstract, the defendant is not proved.
Berardi (III, n. 108) contradicts this last opinion, which Lehmkuhl (I, n. 807) and Ballerini-Palmieri (IV, n. 593) defend, because criminal law does not permit nor can it permit that a juror draw intimate persuasion from private knowledge alone; Berardi thinks that the law of the criminal code must be understood so that a juror can declare guilty him concerning whose guilt he has intimate persuasion, even if he drew this only from his own private knowledge.