Section — Wouters, Manual of Moral Theology
Section I. On Judges
(St. Thomas, II-II, qq. 60, 67; St. Alphonsus, Theologia Moralis, book IV, nn. 192-217; Homo Apostolicus, tract 13, nn. 63-67.)
A judge is a public person constituted for this end, that he may pronounce right according to law. He differs from an arbiter, who is a private person to whom litigants commit a dispute to be settled, either according to the rules of law, or according to what is equitable and good, as it is said.
I. A judge, in order to carry out his office licitly, must be furnished with due knowledge, i.e. at least moderate knowledge, and even greater knowledge if he is sole judge. Besides, knowledge of the question being treated is required more than knowledge in general. If he lacks due knowledge, he is bound, even by commutative justice, either to resign the office or to acquire the due knowledge for himself; by commutative justice, I say, because otherwise he exposes himself to grave danger of wounding that virtue by his sentences (St. Alphonsus IV, 192, 195).
II. A judge, in order to act validly, must be furnished with jurisdiction both over the matter and over the persons whom the trial concerns.
With respect to the matter, note these things from the Code of Canon Law: The Church by her proper and exclusive right takes cognizance: 1° of causes which concern spiritual things and things annexed to spiritual things; 2° of the violation of ecclesiastical laws, and of all things in which there is a character of sin, as regards the definition of guilt and the infliction of ecclesiastical penalties (can. 1553, § 1, 1° and 2°) ... In causes in which both the Church and the civil power are equally competent, and which are called causes of the mixed forum, there is place for prevention (can. cited, § 2).
With respect to persons, according to can. 120, clerics in all causes, whether contentious or criminal, must be summoned before an ecclesiastical judge, unless something else has been legitimately provided for particular places. If nevertheless they are summoned by one who had no prior permission, they can, by reason of necessity and to avoid greater evils, appear, but with notice having been given to the Superior from whom permission was not obtained; these individual points are explained more fully in n. 1153.
III. A judge is bound to treat causes diligently, and, insofar as it can morally be done, to dispatch them promptly; nor can he ever refrain from judgment because of the silence or insufficiency of the law, but he must either draw out the mind of the legislator from the law, by arguing by analogy or from the contrary, or pronounce according to prevailing custom or according to natural equity. In a penal matter indeed there is no difficulty, since there the rule is applied: no penalty without law; and therefore, in silence or obscurity of law, the accused is to be absolved.
IV. A judge is bound to judge according to the things alleged and legally proved; and therefore he must rely only on proofs recognized by law, not on private knowledge. For "to judge belongs to the judge insofar as he exercises public power; and therefore in judging he ought to be informed not according to that which he knows as a private person, but according to that which becomes known to him as a public person" (St. Thomas, II-II, q. 67, a. 2). Hence, for example, "one whom the judge by private knowledge knows to be guilty, if he has been juridically proved innocent, cannot be condemned" (St. Alphonsus IV, 207).
V. A judge is bound to give sentence according to the laws, except in a case in which it is established that the law is iniquitous. The reason is that a judge has been constituted for this, that he may execute or apply the laws. With respect to right laws St. Thomas observes: "Even laws which have been rightly established fail in some cases; and if they were observed in those cases, they would be contrary to natural right; and therefore in such matters judgment is not to be made according to the letter of the law, but recourse is to be had to the equity which the legislator intends" (II-II, q. 60, a. 5, ad 2). But recourse to equity today is impossible, at least with respect to the substance of the sentence; in other words, it is not admitted that the judge gives a sentence not according to the law itself. But he can preserve equity in the penalty to be inflicted, and in this respect he enjoys a greater liberty than formerly, insofar as conditional condemnations are sometimes admitted, i.e. in the case of relapse within a determined space of time.
Corollary I. If someone has juridically proved that he has a right, while the judge holds as certain that this is false, the judge seems able to adjudge the right to him. For "the state has power over the goods of its citizens when the public good requires it, as in this case, lest the form of public trials be overturned with scandal to the people" (St. Alphonsus IV, 208). The same, for the same reason, holds if there is question of lesser penalties, for example of imposing a fine, or even of a penalty of imprisonment or chastisement (St. Alphonsus, loc. cit.).
But it is more disputed whether a judge can condemn to mutilation or death someone who has been juridically convicted of a crime, but whom the judge knows by private knowledge to be innocent. According to St. Thomas and others, the judge is bound to condemnation, because, as a public person, he must be led by public knowledge alone. Nor does he sin in giving sentence according to the things alleged, because "he himself does not kill an innocent man, but those who assert him to be guilty" (II-II, q. 64, a. 6, ad 3). They add, however, that the judge must attempt everything in order to free the innocent man. But others teach the contrary, because in their opinion to public right there does not belong the right of depriving someone of a primary right, i.e. of life and integrity, although there does belong, as was said, the right of depriving him of a secondary right, namely by force of high dominion. St. Alphonsus, loc. cit., holds each opinion to be sufficiently founded, so that the judge can, but is not bound to, condemn the accused. For the rest, in many kingdoms there is no difficulty, because according to the laws a judge cannot condemn someone unless he is inwardly convinced of his guilt. Therefore both legal proof and inward conviction are required.1
Corollary II. If the cause is doubtful, the judge should proceed thus:
In a criminal cause, one must stand for the accused, whether the crime is doubtful or the law imposing the penalty seems obscure.
In a civil cause, a distinction must be made between doubt of fact and doubt of law.
a) In doubt of fact, i.e. if the fact on which the plaintiff's right rests - for example, a right of possession, ownership, etc.2 - is doubtful, his cause falls; for it belongs to the plaintiff to prove the said fact, and to do so by legal proofs.
b) In doubt of law, i.e. if it is doubted whether the fact on which the plaintiff relies juridically founds a right of possession, ownership, etc., the judge cannot follow the opinion less probable to himself; since this was proscribed by Innocent XI, proposition 2: "I think it probable that a judge can judge according to an opinion even less probable."3 If the judge is strictly in doubt, he can either induce the parties to a settlement, or, if they refuse and the dispute is about possession, compel them to contend about ownership, or, if the litigation is about ownership, he can choose the party he prefers.
Corollary III. A judge, at least considering present-day morals, cannot use the means of hypnotism for investigating the truth - the means of hypnotism, I say, which inflicts force on the accused; nor can a confession so extorted be held as certainly true, although sometimes it can provide elements for further proving the matter.
1 Thus, for example, the Dutch Code of Criminal Procedure, arts. 216, 391, 395.
2 A twofold cause is distinguished, possessory and petitory. The former is when the plaintiff asks for possession of a thing; the latter, when he asks for ownership of the thing or another right.
3 Denzinger-Bannwart, n. 1152.
VI. A judge, in giving sentence, should be free from acceptance of persons; nor must he ever be bent by gifts. Indeed the acceptance of gifts must be altogether reprobated according to these words: "You shall not accept a person, nor gifts; because gifts blind the eyes of the wise, and change the words of the just."1
Corollary. One who has accepted gifts: 1° if indeed from a liberal donation, is not bound to restitution before the sentence of a judge; 2° if by way of a price for giving sentence, is bound to restitution if he accepted it for giving a just sentence, for to this he is already obliged by strict justice; if he accepted it for giving an unjust sentence, he is bound to abstain from a sentence of this kind and to restore the gift. After an unjust sentence has been given, he can retain the gift accepted, as was said concerning a contract in a shameful matter (St. Alphonsus IV, 216, 196).
VII. A judge who has failed in his office, whether by omitting the acquisition of due knowledge, or by treating causes negligently, or by delaying their treatment without a just cause, or by giving an unjust sentence, is bound to restore the damages following from his manner of acting, if he foresaw them at least confusedly and was gravely culpable. The reason is that by strict justice he is bound to perform his office rightly (St. Alphonsus IV, 195, 196, 214). But if the judge "has erred from human fragility, he is not obliged in conscience to restitution from his own goods ... since he did not commit theological fault" (St. Alphonsus IV, 214); if nevertheless afterwards "the judge recognizes an error committed by himself (even without grave fault) to the prejudice of a litigant, he is bound, if he can without infamy, to impede the error, for example by secretly warning the injured party to look after himself by appeal or otherwise" (St. Alphonsus IV, 195).
Whether he is bound to restore to the treasury a monetary fine which he has unlawfully not imposed on someone, see p. 657.
Finally I note with St. Alphonsus: "A judge is bound under grave sin to grant the accused sufficient time for confession ...; he is also bound to grant time for receiving Communion (unless grave harm is feared), since the accused is then at the article of death, in which the precept of Communion obliges by divine law ... But if the accused refuses to confess, after exhortation he can licitly be killed by the executioner, because then his damnation is attributed to his own fault" (III, 379).