§ 1. On The Obligations And Sins Of The Judge

153. Principle 1. For lawfully exercising his office the judge must a) be endowed with sufficient knowledge, and b) pronounce sentence according to just laws.

a) For sufficient knowledge there is required not only theoretical knowledge of the laws, but also a perfect, or at least sufficient, investigation of the case to be handled. Hence the judge sins both if he does not sufficiently know juridical science, and also if he neglects a sufficient investigation of the case on which he must judge. If a judge lacking either of these forms of knowledge, while exercising his office, has brought damage, he has wounded commutative justice, and therefore is held to reparation of the damage. For he is then an unjust damager, who truly, formally, and efficaciously brought unjust damage.²¹⁷

b) That the judge is held to judge according to just laws is evident of itself; for his whole office is to apply just laws in a particular case. Hence he is most certainly held to reparation of damage if, knowingly judging against a just law, he has brought grave damage. There are, however, authors, such as Lugo,²¹⁸ Lessius²¹⁹ (whose opinion St. Alphonsus²²⁰ calls probable), who teach that the judge is not held to restitution if his false sentence was the cause that a fine to be paid was not assigned to the treasury. For they think that the judge then wounds not commutative justice but only legal justice, and that fines of this kind are imposed principally as penalties of the guilty person and only secondarily as emoluments of the treasury. Indeed this opinion can be sustained in practice if there is question of rare and small fines, because then the legislator is not so reasonably unwilling that the judge should treat the guilty with benignity. But if there is question of great fines, and those frequently occurring, e.g., of great defraudations of customs duties,²²¹ the opinion set forth does not seem probable, because then the judge wrongly absolving transgressors causes great damage to the treasury, and therefore the legislator is reasonably and gravely unwilling in damages of this kind. Moreover, the judge who judges badly truly wounds commutative justice, because he fails in the office undertaken from contract.

²¹⁷ Cf. Code of Canon Law c. 1625.

²¹⁸ De iust. et iure disp. 37, n. 97.

²¹⁹ De iust. l. 2, c. 13, n. 73.

²²⁰ Theol. mor. l. 4, n. 1906.

²²¹ Zolldefraudation.

154. You ask: Must, or at least can, the judge judge according to laws that are manifestly unjust? e.g., can the judge, according to the unjust law of several regions, punish a pastor who has blessed a Christian marriage before a civil marriage was entered?

This question, which is of the greatest moment especially in ecclesiastical and matrimonial causes, is solved with difficulty by a general response. Rather, in individual cases it is necessary to weigh whether such a sentence of the judge is an act intrinsically evil. The Angelic Doctor²²² teaches absolutely that judgment must not be made according to those positive laws which are opposed to the natural or divine law; therefore cases can occur in which the judge must rather resign his office than violate natural or divine law by a judicial sentence, e.g., a judge can never decree that a Catholic should deny the faith. But since in modern Codes the liberty of the judge is usually greatly limited, so that his office has been reduced almost to the inquiry of the fact and to the application of the law to the fact investigated, perhaps Catholic judges can sometimes be excused who are held to pronounce an unjust sentence, e.g., concerning divorce or concerning ecclesiastical persons and things. For on the one hand a Catholic judge cannot, without the gravest damage, refuse judgment in these cases; but on the other hand he himself commits no free injustice, but only applies an unjust law. Besides, as will appear from the things to be said below, a judge can condemn one whom by private knowledge he knows to be innocent, if juridically he is proved guilty. Therefore in that case the judge condemns an innocent person, because he is compelled to this by the testimony of false witnesses. Why could the judge not do something similar if he is compelled by an unjust legislator? The intrinsic reason of all these things is that the judge, thus most gravely compelled to apply an unjust law, seems only to furnish material cooperation in an evil thing. Now, when a grave cause exists, it is lawful materially to cooperate in evil, as was said above, I, n. 619. - Hence in practice a Catholic judge can be left in good faith if, e.g., he is most gravely compelled to pronounce judgment according to iniquitous laws; e.g., a judge who is held to liquidate the goods of religious according to iniquitous laws in force. The Sacred Penitentiary also seems to imply this, when on Aug. 5, 1907, it responded that "liquidators, insofar as in the name of the government they administer usurped goods and procure their sale, do not incur the censure."

Concerning the obligations of the judge in pronouncing civil divorce there will be treatment below, III, 902.

²²² S. theol. 2, 2, q. 60, a. 5 ad 1.

155. Principle 2. A sentence of the judge which is a) certainly just obliges in conscience; but one which b) is certainly unjust does not of itself oblige in conscience; c) nevertheless, by accident, it can oblige in the external forum for avoiding scandal or public disturbance.

a) A just sentence of a judge includes the precept of the supreme legislator, and therefore in a penal cause it demands obedience, but in a civil cause it defines strict right between the parties.

b) A judge can judge unjustly either formally, i.e., with the essential form of judgment neglected, e.g., without an accuser, without sufficient proof of the fact or of the delict; or objectively, i.e., by bringing forth a false sentence, e.g., condemning the innocent, assigning a good to him to whom it does not belong; or formally and objectively at the same time. It matters little in what way finally the judge has judged unjustly. For every unjust sentence of a judge does not of itself oblige in conscience, because a judgment is, as it were, a particular law.²²³ But no unjust law obliges of itself in conscience. Therefore neither does an unjust sentence of a judge oblige. - Besides, above, I, n. 219, it was proved that a law founded on a false presumption of fact does not oblige in conscience. But an unjust sentence is founded on a false presumption of fact, namely, on the false presumption that the conditions required by law in the present case have been fulfilled. Therefore an unjust sentence does not oblige in conscience. From all these things it follows that one unjustly condemned can compensate himself occultly, if otherwise he cannot obtain his certain right.²²⁴ But I say "his certain right"; for if the right is only doubtful, or the judge's sentence is doubtfully unjust, then one must stand by the sentence of the judge, because the presumption stands for him.

c) The third part of the principle is evident of itself, since private good must yield to public good.

²²³ S. theol. 2, 2, q. 67, a. 1.

²²⁴ Cf. St. Alphonsus, Theol. mor. l. 4, n. 215.

156. Principle 3. In doubt, a) if there is question of a crime to be punished, the judge must favor the accused; but if b) there is question of civil matters, the judge is held to judge according to the greater probability.

a) In criminal causes the judge must absolve the accused unless his guilt is morally certain, according to that saying: "No one is presumed evil unless he is proved," and according to Rule of Law 49: "In penalties the more benign interpretation is to be made."²²⁵

b) But in civil causes the judge must keep before his eyes the principle: "In doubt the condition of the possessor is better." Hence he cannot deprive anyone of possessed goods or rights unless by certainly more probable reasons it is shown that the possession is illegitimate. But if neither litigating party is in possession of the disputed thing, then, if there is equal probability on each side, let the judge urge an amicable composition; and if this is rejected, the judge can assign the thing to whichever one he prefers. But if there is greater probability on one side, the thing must be assigned to that one, because the judge must render right to the parties according to the merit of the cause. The proposition (2) was condemned by Innocent XI: "I probably think that the judge can judge according to an opinion even less probable";²²⁶ and the proposition (26) was proscribed by Alexander VII: "When litigants have opinions equally probable in their favor, the judge can accept money for rendering sentence in favor of one rather than the other."²²⁷

²²⁵ Cf. Code of Canon Law c. 1869, § 4.

²²⁶ Denz. n. 1152.

²²⁷ Denz. n. 1126.

157. Principle 4. In no way is it lawful for the judge to accept gifts properly so called from litigants.

Thus all laws establish.²²⁸ But the reason is that gifts of this kind introduce a grave danger of corruption. Hence it is said: "Presents and gifts blind the eyes of judges."²²⁹ But it is said: gifts properly so called; for the judge can accept a just stipend, to be paid either by the republic or by the litigants, as is evident of itself. Likewise there are not prohibited certain little gifts in food and drink which are offered from mere liberality,²³⁰ unless even this is specially prohibited, as in fact the Council of Trent²³¹ prohibited it to examiners of those who undergo a competitive examination for obtaining a parish. Therefore when the judge accepts gifts properly so called, he sins gravely; indeed he is held to restore them if he accepted and exacted them for rendering a just sentence, because truly such a judge already by force of his office is held to render a just sentence. Therefore he cannot exact some other gift for that which he is already held to do from another source.²³² But if the judge exacted gifts for rendering an unjust sentence, certainly he is held to restore these gifts before the sentence has been given, both because he accepted money for committing sin and because he is held to rescind this shameful contract. But after he has rendered the unjust sentence, he is indeed held to make good all the damages which are brought upon the one unjustly condemned; nevertheless he can retain the gift accepted, just as a prostitute can retain the price which she accepted for fornication done.²³³

²²⁸ Cf. Code of Canon Law c. 1624, 1627.

²²⁹ Eccli. 20, 31.

²³⁰ c. 2, T 3 in VI.

²³¹ Sess. 24, c. 18 de reform.

²³² Cf. St. Alphonsus, Theol. mor. l. 4, n. 216.

²³³ Cf. below, on a shameful contract, n. 253, and St. Alphonsus, l.c. l. 3, n. 712.

158. Scholion. On the obligation of the judge to judge according to the allegations of witnesses. Authors dispute most sharply whether the judge is always held to render sentence according to the allegations and proofs of witnesses, even if from private knowledge he knows that the matter is otherwise. Three opinions are enumerated. The first asserts that in that case the judge is held to disregard the allegations and proofs of witnesses and to judge according to his own private knowledge, which he certainly knows to be true. For it seems to be intrinsically evil to condemn an innocent man or to compel someone to pay who owes nothing. For this opinion Lessius,²³⁴ Bonacina,²³⁵ etc., are cited, and St. Alphonsus²³⁶ calls it very probable. - The second teaches that in civil causes and in lesser criminal causes the judge is held to judge according to the allegations and proofs of witnesses, notwithstanding any private knowledge whatever; but in greater criminal causes judgment must be rendered according to the truth, with the witnesses proving the contrary disregarded. Thus Lugo,²³⁷ Sylvius,²³⁸ Schindler,²³⁹ and others. The reason of this opinion is that it is of the greatest interest to the common good that the right judicial order be observed, and therefore the prince of the republic is presumed to have conferred all his power upon the judge for obtaining this end. But the prince can dispose of the goods of private persons on account of the common good; likewise he can impose lighter penal works on individual citizens on account of the common good; yet he can never punish an innocent man with the penalty of death. Therefore the judge also can act thus when he is compelled to this by the allegations of witnesses. - The third opinion teaches that the judge is indeed held with all his strength to judge according to the truth certainly known, and therefore ought to leave nothing unattempted so that he may render the allegations and proofs of witnesses conformable to the truth; but if nevertheless he has tried thus in vain, judgment must be made according to the proofs of the witnesses, although objectively the sentence is false. Thus St. Thomas,²⁴⁰ St. Raymond, St. Antoninus, Cajetan, Dominic Soto, Banez, Valentia, Sanchez, the Salmanticenses, Billuart, and others. The Angelic Doctor²⁴¹ writes to the point: "The judge, if he knows that someone is innocent who is convicted by false witnesses, must examine the witnesses more diligently, so that he may find an occasion of freeing the innocent man, as Daniel did. But if he cannot do this, he must leave him to a superior to be judged. But if he cannot even do this, he does not sin by rendering sentence according to the allegations, because he himself does not kill the innocent man, but those who assert him to be guilty do." - This whole controversy now is of less practical moment, since in greater criminal causes guilt is for the most part decided not by the judge but by "jurors." Now these jurors are held to render sentence according to their inward conviction, nor are they compelled to offer the motives of their sentence. Hence jurors must always judge according to objective truth and not according to the false proofs of witnesses. - If judgment must be rendered not concerning the penalty of death but concerning other lesser causes, theologians very commonly teach that the judge, as a public person, must judge according to those things which he publicly knows from the testimonies of witnesses, but not according to those things which he knows by private knowledge. Hence the same theologians also deduce, on the contrary side, that the judge acts unjustly and is held to reparation of damage who condemns him whom by private knowledge he certainly knows to be guilty, but whom the witnesses prove to be innocent.²⁴²

²³⁴ De iust. et iure l. 2, c. 29, dub. 10.

²³⁵ De octav. praec. disp. 10, q. 2, punct. 2, n. 2.

²³⁶ L.c. n. 208.

²³⁷ De iust. et iure disp. 57, sect. 4, n. 43.

²³⁸ In 2, 2, q. 67, a. 2, concl. 1.

²³⁹ Lehrbuch der Moraltheol. III, 803.

²⁴⁰ S. theol. 2, 2, q. 67, a. 2.

²⁴¹ S. theol. 2, 2, q. 64, a. 6 ad 3.

²⁴² Cf. Billuart, De iure et iust. diss. 12, a. 2 and 3. The Code of Canon Law c. 1896 also seems to favor the opinion of St. Thomas, establishing: "For the pronouncement of any sentence there is required in the mind of the judge moral certitude concerning the matter to be defined by the sentence. The judge must draw this certitude from the acts and proofs. But the judge must estimate the proofs from his conscience, unless the law expressly establishes something concerning the efficacy of some proof."