Chapter I. On the Obligations of Judges

I say 1st. A judge is bound from a quasi-contract with society and with private persons rightly to fulfill his office, namely to vindicate justice according to the laws and to decree due penalties against delinquents; and unless he furnishes this, he will be guilty of violated justice, both legal and also commutative. - But because he cannot discharge that office rightly unless he has the gifts of sufficient intelligence and rectitude, he sins mortally if, being destitute of these, he seeks or even accepts the office of judge; but if he is ignorant of his own want, indeed he will not sin formally, but he ought not to be absolved unless renunciation of the office has been made, or unless he has a firm purpose of renouncing it. The reason is that otherwise he would daily freely expose himself to the danger of damaging his neighbor. - Cf. St. Alphonsus, n. 195.

I say 2nd. If the case is certain, the judge is bound to render sentence according to the laws and the order determined by the laws; for he is not constituted to change or reform laws, but to commit them to execution, with always excluded the special case in which the end of the law is to be attended to rather than the shell of the words. But if the case is doubtful, it must be distinguished thus:

1st. In criminal matters, favor must be shown to the accused, unless the crime is established, according to the 11th rule of law in the Sixth, which reads thus: Since the rights of the parties are obscure, favor is to be shown rather to the accused than to the plaintiff.

2nd. In civil matters, and in the case in which the doubt regards ownership and possession together, judgment must be made according to the more probable reasons if they are present, because proposition 2 was condemned by Innocent XI, which thus sounds: "I probably judge that a judge can judge according to an opinion even less probable." - But if the reasons are equally probable on each side, the thing seems to have to be divided. - Cf. Baller., note (e), p. 2.

3rd. Likewise in civil matters, but in the case in which the doubt regards only ownership, one must stand for the certain possessor if equal reasons contend on each side, according to rule 65 of law in the Sixth, which reads thus: In equal fault or case, the condition of the possessor is better. - But if the more probable reasons stand for the plaintiff, then according to some judgment would still have to be made for the possessor; but others say that the judge is free, and that the aforesaid rule of law cannot be invoked, for then the case is not equal. - Cf. St. Alphonsus, n. 210. - Sanchez, Decal., lib. 1, cap. 9, nn. 43 et seq. - Salmant., tract. 29, cap. 1, n. 41. - Baller., note (a), p. 3.

Question 1. Can a judge condemn an accused whom by private knowledge alone he knows to be guilty, or an innocent man who is juridically convicted as guilty?

Resp. To the 1st, negatively, absolutely, because the judge, since he is a public person, is bound to judge according to the things alleged and proved and according to the forms prescribed by law, unless perhaps by some necessity of a higher order he is compelled to pass them over. - But to the 2nd there is much controversy. St. Thomas indeed affirms, on account of the same reason, namely because the judge is a public person, and because neither the public good nor another good of a higher order otherwise demands recourse to private knowledge in this case. But St. Bonaventure denies, because to kill an innocent man is something intrinsically evil. Finally St. Alphonsus admits each opinion as probable, if there is question of civil cases or even criminal cases of lesser moment; but if the case occurs concerning greater criminal matters and especially capital ones, he thinks the opinion of St. Bonaventure more correct; because in the former case, he says, it can be said that private inconvenience ought to yield to the common good, since it is not so great, but not in the latter. But among us, where it pertains to jurors to decree concerning the existence of the crime, although the judge ought wholly to strive that the truth appear, nevertheless he sins in no way by condemning an innocent man, because he acts as if mechanically, only applying the penalty. - Cf. St. Thomas, 2-2, q. 64, art. 6, ad 3; and q. 67, art. 2. - St. Alphonsus, n. 208. Lugo, disp. 37, n. 41. - Kenrick, tract. 8, n. 113.

Question 2. Whether at least a juror can by his vote condemn an accused who indeed is juridically convicted of the crime, but whose innocence he certainly knows by private knowledge?

Resp. Negatively, and the reason is that this seems contrary to the mind of the law; for jurors ought to pronounce only about the fact, and according to the intimate conviction which they have concerning its existence, nor are they in any way bound to render a legal reason for the opinion which they bring forward. Cf. Kenrick, loc. cit.

Question 3. Can judges, as such, receive gifts?

Resp. Absolutely negatively, both because gifts blind the mind and impel more than is just toward favoring the giver, and because in canon law, lib. 1, tit. 3, cap. 11, in the Sixth, Boniface VIII expressly prohibited judges from accepting any gift, except perhaps food and drink offered by mere liberality. Yet if judges accept gifts spontaneously offered and without any pact concerning the sentence to be rendered, they indeed sin, but are not bound to restitution because they do not violate justice. I said without any pact, etc., because if gifts are accepted for rendering some just sentence, most certainly they must be restored, since whatever already was owed by office and therefore by justice cannot be matter of a contract. But if they are accepted with a pact of rendering an unjust sentence, again they certainly must be restored before this kind of sentence is rendered; but after the sentence has been given, there is controversy, and the opinion which holds that they can be retained is probable. Cf. St. Alphonsus, nn. 212 et seq. - Laymann, lib. 3, tract. 4, cap. 4, n. 9. - Baller., note (b), p. 5.

Question 4. Is it licit among us for a Catholic judge to render a sentence of divorce, when it is sought according to the civil laws?

Resp. 1st. The question posited generally is much controverted. Those who say that it is not licit argue thus: This law of full divorce is intrinsically evil, because it is repugnant to divine and natural law. But the judge by his sentence of divorce applies an intrinsically evil law; and therefore his sentence is intrinsically evil; his action is the efficient and principal cause of a thing intrinsically evil; he attempts to dissolve an indissoluble bond against divine law, practically and with authority obliging the parties, he applies the law in singular cases. Besides, there is more than one response of the Sacred Congregations favoring the stricter opinion.

But others not improbably affirm that the thing can be licit where, in the course of time, that sentence of the judge is held as an authoritative declaration of immunity from civil penalties, not regarding the conscience of the subjects and their religious obligations. In these places, on account of a grave cause, for example, lest Catholics be compelled never to undertake this office, it is licit for a Catholic judge to render the sentence, because it is not an evil action. The responses of the Sacred Congregations do not contain a General Decree; indeed one or another seems rather to suggest that such a sentence can sometimes be given. Now then, in our region such a law easily admits this interpretation; indeed here and there it has been said by a judge that by his sentence the religious bonds are in no way touched, but a legal formality is placed. Wherefore among us such an action of a judge seems wholly licit when grave causes are present. - Cf. Wernz, Jus Decretalium, v. 4, n. 750, and Bucceroni, v. 2, n. 983. - Lehmkuhl, n. 921, note, 11th ed. - Kenrick, tr. 8, n. 114. - The Pastor, v. 4, pp. 368 et seq. - Nouv. Rev. Théol., v. 18, pp. 376 and 461; v. 19, p. 73; v. 20, p. 6.

2nd. A fortiori civil judges can licitly render a sentence of separation from bed and board when the reason for it, for example adultery, is known to ecclesiastical authority; indeed also a civil sentence of full divorce when the invalidity of the prior contract has already been declared by the Church on account of some diriment impediment, or when the bond of a ratified marriage has been dissolved by the Pontiff, or the Pauline privilege has rightly been employed. In all these cases the spouses themselves also can rightly betake themselves to the civil court so that they may obtain liberty and protection from the officials of the state; indeed in some circumstances this would be wholly necessary for them, lest they be compelled to live with those who are not their spouses. Cf. Wernz, v. 4, n. 750, notes 110 and 111. - Bouvier, Law Dictionary, under the word Divorce.

Question 5. What is to be said concerning laymen, judges, and others of this sort, before whom according to the civil laws marriages can be entered?

Resp. The question is very involved. Therefore we say, first, that ordinarily there does not fall upon these officials the obligation of investigating whether the betrothed are held by ecclesiastical impediments, but only whether civil capacity is present; secondly, that very many of these marriages are valid, for example those contracted between two heretics or two infidels; but to assist at an illicit celebration is not of itself illicit, since it is licit also for a priest sometimes to assist at the marriages of the unworthy; thirdly, that cases arise where such marriages are wholly invalid, for example, of two Catholics, of a Catholic with a heretic or with an infidel, indeed also of those separated by divorce; concerning these we judge that it must be said that officials ought to refuse their office, or leave it to another, for charity urges that we avoid the evil of our neighbor when this can conveniently be done. But we cannot say that such assistance of lay officials is evil of itself; the responses of the Sacred Congregation do not prove this, for they were given for France shortly after civil divorce was introduced, and for Italy. The cooperation which is had in the case seems able to be permitted. Charity does not oblige with grave prejudice to the one cooperating; and certainly grave reasons can be present for the official for permitting assistance, the debt of office, the danger of losing it. Indeed a most grave damage in certain places can arise, not only to the official, but to the city itself, because otherwise any Catholic whatever would be turned away from these public offices. To a question similar to this the S. Inq. responded, 22 March 1892: "In the case of which there is question, the circumstances having been inspected, that it can be tolerated that the official assist at the merely civil ceremony of those who have obtained divorce from a civil tribunal, provided that he openly and plainly profess Catholic doctrine concerning marriage, and therefore by his assistance neither wishes nor is able to attribute the value of marriage to this contract, and that he assists or has assisted only compelled by law." Besides, among us any scandal easily ceases to exist. Cf. Gennari, Consultazioni, v. 1, p. 200; v. 2, p. 802. - Wernz, v. 4, n. 208. - Gasparri, "De Matrimonio," n. 1231.

Question 6. How are judges, Senators, or others of this sort obligated from whom an oath is exacted of preserving those secrets which are treated in the tribunal?

Resp. These oaths oblige in conscience; nevertheless they do not oblige under grave sin in every matter, but according to the nature of the matter of which there is question. Hence if it is gravely important that this matter be kept secret, they sin gravely by revealing it; otherwise, in a light matter, lightly. - Cf. Lugo, disp. 37, n. 193.

Question 7. Are laws obliging a judge to restore any gifts whatever accepted to be understood concerning restitution before condemnation?

Resp. There is controversy, and the negative opinion is probable; for such a law obliging before sentence would be most harsh, and not accommodated to the frailty of men, and would serve for nothing except to ensnare consciences.

Question 8. Is a judge bound to restore those things which he accepts for redeeming vexation?

Resp. Affirmatively, because the acceptance is unjust and the owners are unwilling; as is said concerning a price for a just sentence.

Nor does it seem that a judge can accept anything for dispatching this business before another, or for this judgment before that, where each is equally probable. For as often as he himself is bound by justice to do some one thing from a disjunctive obligation, he can accept nothing. - Ibid. Lugo.