Arbitrators, referees and jurymen

What has been said concerning the moral obligations of judges is applicable in due proportion to those who have similar functions, such as arbitrators, referees, and jurymen. An arbitrator differs from a judge in that he is chosen by the parties to the dispute to settle their claims. If the submission to arbitration and the decision of the arbitrator be in writing, the sentence is final, and will be upheld by English courts unless it is evidently corrupt or obtained by unlawful means.¹

Referees are officials or experts to whom the-court entrusts some special question for inquiry or decision, and sometimes the cause itself, if it be complicated and not suitable for trial in the ordinary way. They are bound to act according to the terms of their commission and the rules drawn up for their guidance, ‘The report or award of a referee, unless set aside by the court, has the force of a jury’s verdict.

A jury is a body of men selected and sworn to inquire into certain matters of fact, and to declare the truth upon evidence to be laid before them. They are therefore bound to form the best judgement in their power as to the facts of the case laid before them, and truthfully and fearlessly to give their verdict. If any one of them has any private knowledge of the facts of the case, he is not precluded from communicating it to the others, and he should do this if justice or charity require it.

¹ Cf. Can. 1930.

I. Jurors are called citizens constituted for giving judgment concerning the guilt of some accused person, especially concerning a more serious crime. When this judgment has been given by the jurors, ordinarily judges properly so called (that is, if the jurors have declared someone culpable) determine the penalty according to law. They are called jurors from the oath which they must swear concerning faithfully carrying out their office.

II. The institution of jurors, though not to be condemned in itself, is nevertheless less recommended; both because they are not bound to bring forward the reason for the judgment given by them, and because generally they are more easily moved than constituted judges by political passions, gifts, etc.

III. Many of the things which have been said concerning judges apply to jurors. I observe especially: Jurors are bound to give judgment according to inward persuasion. Thus the law establishes in regions in which jurors are used. Therefore they are bound to absolve the accused of whose crime and guilt they are not inwardly convinced, even if according to the things alleged and proved the accused appears guilty. It is disputed, note, whether they can declare guilty one whom by private judgment they hold as guilty, but who was not convicted in court. Some deny it, because the law which orders them to judge according to inward persuasion certainly understands this of inward persuasion drawn from the things brought forward and proved. Others affirm it, because such a law in its obvious sense understands inward conviction obtained in any way whatever.

¹ Cf. Groeken, Lijkverbranding.

What are arbiters? - Arbiters are said to be those who are spontaneously chosen or admitted by both opposed parties, after the manner of judges, for settling some lawsuit. The pact by which the faculty of settling the lawsuit is attributed to them is called a compromise. By this pact the adverse parties by mutual consent promise that they will execute whatever shall be established by the arbiters. But from the sentence of arbiters, according to C. I., it is lawful to appeal, otherwise than from common Law, S. Th. 2. 2. q. 69. a. 3 ad 2. But the compromise can be drawn up either by public act or by private writing, according to C. I.; otherwise it is null. Dig. l. 4, title 8; Decretals l. 1, title 43; C. I. civil procedure, preliminary title, c. 2; Lugo, Resp. Mor., l. 6, d. 21.

Women are prohibited from being chosen as arbiters, because it befits them to be mindful of their modesty, and therefore they ought not to mix themselves in manly offices. L. fin. Cod. de Recept. arb.; C. Proc. I. 10. They are excepted if by law, custom, or privilege they obtain some civil jurisdiction. C. 4, l. 1, title 43 of the Decretals.

Commitment to arbiters cannot be made by private persons in those causes which directly pertain to the right of a Superior, as criminal and penal causes, or to the public good, as, for example, a cause of invalidity of marriage, of religious profession, etc.

Arbiters according to the Italian Penal Code 207 are held as public officials as regards the effects of penal law.

The sentence of arbiters, in the common tongue, is called a lodo. "If someone has been made arbiter concerning his own matter, he cannot say sentence, because he would order himself to do something, or prohibit himself from seeking something; but no one can command himself or prohibit himself." L. 51 de Receptis arb. Dig.

What is the office of arbiters? - Arbiters, whoever they may be, once admitted by the different parties, properly enjoy the office of judges, and carry out all their functions, just as if they had been designated by public authority. The reason is that someone can subject himself to the judgment of another, although that other is not his superior. If this is done by two litigants, so that the lawsuit may be settled, an arbiter is had, who therefore, although not from public authority, nevertheless is constituted judge from a private pact. But private pacts, like public laws, oblige in conscience. C. H. 1820; S. Th. 2. 2. q. 67. a. 1 ad 2.

You will resolve: Since arbiters fulfill the offices of judges, they have almost the same rights and the same obligations. Wherefore they can instruct the case brought before them, defer the matter to another more opportune time, hear witnesses, and finally, after sentence has been rendered, settle the lawsuit absolutely. They ought not undertake a lawsuit for judging which they do not have sufficient learning; otherwise they sin against commutative justice and contract an obligation of restitution, if in fact by erring they inflict damage. Arbiters are bound to judge according to the laws of the region, because they are assumed after the manner of judges, unless the parties have granted them the faculty of composing the matter according to equity and the good. For then, according to natural equity, they must promote the advantage of each party. They must take the greatest care against acceptance of persons, namely lest, abstracted by hatred, aversion, or excessive affection, they render sentence against the rules of equity. C. B. 319.

Note: For the sentence of arbiters to have force in the external forum, it is necessary to fulfill the conditions placed in the Codes of various nations. C. I. civil 1742, 1764 ff.; civil procedure 8 ff.; C. G. civil 1989, 2044 ff.; civil procedure 1003; C. H. 1821; C. A. 1391.

What are jurors? - Jurors, so called because of the oath which they furnish concerning rightly exercising the office entrusted to them, are men selected from the foremost citizens to undertake some part proper to judges. They are employed only in criminal causes, and their office is to pronounce judgment concerning the existence of the fact and the culpability of the accused; but then the judges decree the penalty according to the law. C. I. penal procedure 493 ff.; C. G. criminal instruction 337 ff.

What are the obligations of jurors? - Jurors contract the same obligations as the judges themselves, while nevertheless staying within the limits of their office. The reason is that they exercise the office of judges in great part. Yet they ought not furnish all things to which judges are held, but only pronounce concerning the existence of the fact and the culpability of the accused. C. I. penal procedure 493 ff.; C. G. criminal instruction 337 ff.

Can a juror give a vote against the accused, juridically indeed convicted, but whose innocence he knows certainly by private knowledge? - R. Negatively. The reason is that he must pronounce only concerning the existence of the fact, according to his intimate conviction, nor in any way is he bound to give the legal reason for his own sentence. C. I. penal procedure 495, 498; C. G. criminal instruction 342. Even while juridical proof of the crime stands, if someone is certain from elsewhere of the innocence of the defendant, it is altogether impossible to have an intimate conviction of the delict committed. Nevertheless a juror cannot affirm a defendant to be guilty whom he knows as such only by private knowledge, but who has by no means been juridically proved. For the defendant, as long as he is not juridically proved to be such, has a right to be absolved; but the juror acts the person of judge, not of witness, and otherwise witnesses in the case would be used uselessly, and the whole form of judgment would be useless. The private intimate conviction of a juror for condemning, and not derived from juridical proofs, is against the whole tenor of the law; for a broad way would be opened to arbitrariness, and the form of judgment would be only for a certain exterior appearance. And this is openly established from C. I. penal procedure 437; C. G. criminal instruction 312.

Nor indeed is it valid to object what was just being said, that a juror must absolve a defendant proved guilty, but innocent by his own intimate conviction. For evidently the law condemning a defendant juridically proved guilty rests upon presumption of truth; but if, on the contrary, the contrary is evident and certain, that presumption must yield to evident truth, which the juror certainly knows.

Is it lawful for jurors to render sentence in a judgment in which the tribunal does not have authority over the defendant, if namely, for example, it concerns an ecclesiastical person? - If his intervention would be altogether useless, for example, when the greater part or almost the totality of the jurors is prepared to condemn the defendant, he can abstain from intervening in such a judgment. The reason is that, on one side, no one is bound to do a useless thing; and on the other side, absence is a certain protest against the abuse of justice. In the same hypothesis he must besides abstain. The reason is that his presence would be useless, and his absence necessary, lest he cooperate in the usurpation of justice, and so that he may protest against that abuse of justice. If the juror can bring forward no cause why he should abstain from judgment, and if he is punished by civil law, he can indeed, even in the same hypothesis, intervene in the judgment, seeking the due faculty, or if this cannot be done, favoring the defendant insofar as is in him. The reason is that, since he comes compelled by necessity and has previously sought the faculty, or, in impossibility, attempts to favor the defendant as much as he can, all scandal is removed, and a sufficient protest is had against the abuse of justice. Moreover, in these circumstances of affairs, he can reasonably presume the consent of ecclesiastical authority.

If his intervention would be altogether useful for absolving an innocent person, for example, because the greater part of the jurors is known to favor justice, it seems that the natural law of charity obliges him to intervene in the judgment, so that he may assist a neighbor gravely needing help. But for impeding scandal or wonder, it suffices to seek the due faculty, or, if this cannot be done, to declare his intention, if it is not established from elsewhere, that he comes not as judge, but as patron and advocate of an innocent person. The same resolution seems also to be given in the same case, if there were an express law or censure against those who undertake the office of juror. The reason is that, since laws and censures generally are unto edification, and in particular laws and censures of this kind are for protecting ecclesiastical persons and the dignity of their state, they do not seem in such a case to wish to impede the safety of those same persons from being protected. Wherefore they then cease contrariwise.

7. • They are called arbiters who are freely chosen or admitted by each opposing party, after the manner of judges, for deciding some lawsuit.

The agreement by which the faculty of composing the lawsuit is given to them is called a compromise (in French, compromis). By this agreement the opposing parties promise by mutual consent that they will execute whatever shall be established by the arbiters. But a compromise can be made either by a private writing, or by an authentic writing made by a notary, or even from common consent expressed orally before the arbiters themselves. Under penalty of nullity, both the matter to be judged and also the names of the arbiters must be reported in it.

Arbiters, whoever they are, once admitted by the different parties, properly enjoy the office of judges and perform all their functions, no otherwise than if they had been designated by public authority. Therefore they can instruct the cause brought before them, defer the matter to another more suitable time, hear witnesses, and finally, by a sentence passed, decide the lawsuit absolutely. Nevertheless, from French civil law, in order that such a sentence may have force in the external forum, it must be recognized by the President of the tribunal of first instance of the province in which it was given.

8. • Since arbiters fulfill the duties of judges, they undergo approximately the same obligations and the same burdens as judges. Hence:

1º They ought not undertake a lawsuit for the judging of which they do not have sufficient learning; otherwise they sin against commutative justice and contract the obligation of restitution ¹.

¹ ** Understand these things thus: they always sin because of the danger to which they commit themselves of erring in a matter of justice, unless perhaps they employ the aid of experts; but they are bound to restitution if in reality they have inflicted damage by erring.

2º Arbiters are bound to judge according to the laws of the region, unless the parties have granted to them the faculty of composing the matter according to equity and good. For then they ought, from what is good and equitable, to promote the advantage of each party.

3º They must take the greatest care against acceptance of persons, namely lest, drawn aside by hatred, aversion, or excessive affection, they pass sentence against the rules of equity. As to the rest, the same things must be said about arbiters as about the judges themselves.

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.