Duties of Judges

The matter must be something of which the contracting party has the disposal, or of which he will have the disposal when the contract has to be executed, for he cannot transfer to another what he cannot dispose of. When an object is already due to another in justice, its transfer to him cannot form the matter of a new contract, and so if a judge sells justice to a litigant he is bound to restore the bribe, to which he has no title... One may, however, enter into a contract with a third person to do what is already owing in justice to someone else, provided that both obtain their full rights. A doctor, for example, may charge next-door neighbours the full fee for a visit to each, though he has only the trouble and expense of one journey. Similarly, what is already due, not in justice but out of charity or some other virtue, may form the matter of contract.

Vol. II, Bk. I, Pt. I, Chapter I. Duties of Judges

A JUDGE is defined to be a public person appointed by lawful authority to apply the laws to the settling of disputes between litigants and to the punishment of criminals.

He is said to be a public person because he is appointed by public authority, not chosen like an arbitrator by the litigants themselves, and, moreover, he is guided in his official capacity not by his private knowledge and ideas but by the evidence given in the case and by the laws which he administers. Case law, or judge-made law, in English jurisprudence, is no exception to this rule, for it is but the authentic interpretation and application of the common and statute law to concrete cases made in court by the judges of the superior courts.

A cause in which the private rights of the litigants are to be adjudicated upon is called a civil case or action; if the cause is one in which an offender is tried for the commission of a crime it is called a criminal case or action.

By his very position and the nature of his office a judge is bound to pass a just sentence according to law in the cases brought before him, and so he must possess the requisite qualifications for this and set about it in the right manner, He must have a competent knowledge of the law which is to be his guide and which he is called upon to apply, and he must use at least ordinary diligence to get at the merits of the case before him. He must not allow his judgement to be influenced by such improper motives as fear or favour; his sentence must be dictated by a sense of even-handed justice. He must observe the rules of judicial procedure applicable to the case, and he must have the requisite authority or jurisdiction for dealing with it.

If in any of these points the judge is culpably at fault, he sins against justice and is bound to make good the damage which he causes. Moreover, inasmuch as judges ordinarily take an oath of office, he will also sin against the sanctity of his oath. A judge who should allow himself to be bribed to give an unjust sentence would not only be bound in conscience to repair the injustice done, but he would be liable to severe punishment for his offence. Even if he were to take a bribe for delivering a just sentence, he is bound in conscience to restore what he received. For, as his office binds him in justice to give sentence according to the merits of the case, such a service is no ground for special reward or-payment, nor a just title for retaining a special reward or payment if he has received any.

The judge, as we have seen, must pass sentence according to the evidence before the court, not according to his own private knowledge or views. He may know privately that an accused man is guilty, but he must not condemn him unless his guilt has been proved by the evidence. But what if the judge knows for certain that an accused man is innocent, and yet, according to the evidence available, he has been proved guilty? In such a case as this the judge must, of course, use all the means in his power to bring out the innocence of the accused party, or remit the case to another court, But supposing that he has done all in his power to avoid condemning the innocent man, and nevertheless the jury have found him guilty, and by law it only remains for the judge to pass sentence according to the verdict. Is he allowed to do so?

This question was disputed among theologians. Some, with St Thomas, taught that he might condemn the innocent man, for the witnesses were then guilty of injustice, not the judge, who did his duty in passing sentence according to law. Others denied that this is lawful, for to condemn the innocent, especially if there is question of a death sentence, is intrinsically wrong. Others distinguished, and taught that it is indeed unlawful to condemn an innocent man to death even when, by judicial process, he has been proved to all appearances guilty, but that when there is question of a fine or imprisonment which may be suffered without sin, the judge may pass sentence according to the law, for this is for the public good. Practically, therefore, according to the principles of English jurisprudence the judge may lawfully pass sentence even of death in such a case, but he is bound afterward, by making representations to the proper authority, to do what he can to clear the innocent party.

When the evidence in a criminal trial is not conclusive, the defendant must not be condemned, for a man is presumed to be innocent until he has been proved conclusively to be guilty.

In a civil action, when the rights of the parties are not certain, but only probable, the judge is bound to adjudicate in favour of him who has the more probable right, taking into account possession and all the other circumstances in the case.

If there is equal probability on either side, the parties should come to a compromise, or, as some hold, the judge may decide in favour of either party.

The judge is bound to pass sentence according to law, for this is presumed to be just. It may, however, happen that particular laws are unjust, as when the seal of confession is not respected or divorce is permitted. May a Catholic judge pass sentence in accordance with such laws as these ¹ The judge may sometimes obtain permission to pass sentence according to a law which is unjust merely because it is against the laws and rights of the Church. In order to make the position of Catholic judges tenable the Church will sometimes cede her rights in such cases or grant jurisdiction to try a case which of itself belongs to the ecclesiastical courts.

Thus Cardinal Gasparri deduces from a decree of the Holy Office, December 19, 1860, that jurisdiction has been granted to judges in England to try cases where there is question of judicial separation of married people.

If the law commands what is contrary to the natural or divine law—as, for example, to give evidence as to what has been declared in confession—it is intrinsically wrong to obey such a law, and no Catholic judge may apply it.

If the unjust law only imposes a fine or imprisonment, some theologians maintain that even then it may not be applied by a Catholic judge. Others, however, hold that for grave reason—as, for example, if no Catholic could otherwise accept the office of judge—sentence may be passed according to such a law. The person unjustly condemned must patiently submit for the public good, especially as he would not escape even if Catholic judges refused to execute the law.

The unjust sentence of a judge imposes no obligation in conscience, and of course the aggrieved party may have recourse to all available remedies which the law allows for redress. If none is available the public good will usually require patient submission to the wrong. If there is a doubt about the justice of a sentence, presumption favours the judge, and obedience must be yielded, as in the case of a just sentence, which has the force of the law which it applies.

¹ Gasparri, De Matrim. 2, n. 1165.

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.

Vol. II, Bk. IX, Chapter VII. The Properties of Marriage

Vol. I, Bk. II, Tr. II, Diss. III, Pt. I, Section I. On Judges · Vol. I, Bk. II, Tr. II, Diss. III, Pt. I, Section II. On Jurors · Vol. I, Bk. II, Tr. II, Diss. III, Pt. II, Section I. Preliminary Notes · Vol. II, Bk. III, Tr. VIII, Diss. II, Appendix II. On the Separa…, Part II. On Semi-Full Divorce

Although questions concerning divorce and the separation of married people belong of right to the ecclesiastical court, in most modern States the civil authority claims and exercises jurisdiction in these matters. May Catholics take their marriage cases to the civil courts, and may Catholic judges and Catholic lawyers lend their aid in deciding them¹ No answer can be given to these questions which will apply to all countries and circumstances. In some countries Catholics can still have their rights safeguarded by recurring to the ecclesiastical courts, and there is no reason why they should carry their matrimonial suits to the civil tribunals, In England and in the United States the Church tacitly or explicitly permits Catholics to apply to the civil courts at least for a judicial separation. Before doing so they should put their case before the ecclesiastical authorities, and this is prescribed under liability to penalties by the Third Plenary Council of Baltimore.

With regard to divorce cases, Catholics in England and in the United States may have recourse to the civil courts in order to obtain a declaration of nullity when a marriage has already been declared invalid or annulled by the ecclesiastical authorities. They may not go to the civil courts in order to obtain dissolution of a valid marriage with the intention of marrying again. This is obvious from what has been said above. There is a difficulty as to whether a Catholic may petition for a divorce in the civil courts, not with the intention of considering the marriage dissolved and marrying again, but in order to obtain the civil advantages annexed to divorce, such as a change of marriage settlements or release from the obligation of supporting his wife’s child by another man. The question is disputed among theologians, but as the law in English-speaking countries does not express hostility to religion and does not affect to touch the conscience but only the external relations of the citizens, the better opinion is that Catholics for good cause may petition even for divorce in the civil courts, with the intention of using only the civil advantages that follow from it. A consequence of this is that Catholic lawyers and judges may for grave reasons undertake these cases in the civil courts. For greater safety and to show their submission to the Church they should ask the leave of the Bishop.

¹ N. 126; S.O., December 19, 1860.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 12 passages

Vol. I, Bk. II, Tr. II, Diss. III, Pt. I, Section I. On Judges

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Homicide · Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Judges · Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Defendants

(St. Thomas, II-II, qq. 60, 67; St. Alphonsus, Theologia Moralis, book IV, nn. 192-217; Homo Apostolicus, tract 13, nn. 63-67.)

n. 1130.

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.

n. 1131.

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).

n. 1132.

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.

n. 1133.

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.

n. 1134.

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).

n. 1135.

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.

n. 1136.

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).

¹ Deut. XVI, 19.

n. 1137.

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).

Vol. I, Bk. II, Tr. II, Diss. III, Pt. I, Section II. On Jurors

n. 1138.

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.

Vol. I, Bk. II, Tr. II, Diss. III, Pt. II, Section I. Preliminary Notes

n. 1153.

IV. The Privileges of Clerics. Privileges are those things which have been added to rights by positive law. They are: the privilege of the canon, the privilege of the forum, the privilege of exemption, and the privilege of competency.

The privilege of the canon is that by which a cleric is protected against every real or bodily injury by the penalties established against those who commit them. It is called the privilege of the canon because it was contained in the celebrated canon of Lateran Council II (1139).
The privilege of the forum is that by which a cleric is exempted from lay jurisdiction according to the norm of can. 120, soon to be cited. It is called the privilege of the forum, for forum (from fero or foris) according to the first imposition of the name signifies a public place to which goods for sale are brought; here, however, it chiefly signifies the place in which lawsuits and trials are carried on. Therefore, 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, or special permission has been obtained to summon them before a lay judge. 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. It is said:

a) In all causes; whether contentious or criminal, whether civil or ecclesiastical. Moreover, exemption from the jurisdiction of secular judges with respect to ecclesiastical causes is rather from native right than from privilege, even taken broadly; with respect to civil causes, exemption is from privilege. Nevertheless that privilege does not prevent clerics from generally being subject to civil laws; but if a cause is instituted, for example if there is question of punishing a transgression of civil law, the matter is to be referred to the ecclesiastical judge. Hence it is also said that clerics are subject to civil laws with respect to the directive part, but not with respect to the coercive part.

b) Must be summoned, i.e. cited as defendants, not as witnesses.

c) Unless something else has been legitimately provided for particular places. Thus, for example, in Austria, Bavaria, and Colombia, by concordats, the privilege of the forum has partly been derogated. Whether this privilege can also be derogated by way of custom, at least centenary custom, is disputed among canonists.

d) Or special permission has been obtained to summon them before a lay judge. Moreover, Cardinal Fathers, Legates of the Apostolic See, Bishops even titular, Abbots or Prelates nullius, supreme Superiors of religions of pontifical right, and major Officials of the Roman Curia, on account of affairs pertaining to their office, cannot be summoned before a lay judge without permission of the Apostolic See; others enjoying the privilege of the forum cannot be summoned without permission of the Ordinary of the place in which the cause is conducted. Yet the Ordinary should not deny this license without a just and grave cause, especially when the plaintiff is a layman, and most of all when he has fruitlessly given effort to settling the controversies between the parties (can. 120, § 2).

The privilege of exemption.¹ All clerics are immune from military service, from offices and public civil duties alien to the clerical state (can. 121). Duties and offices are understood: 1° those which are repugnant to the dignity of the clerical state, such as sordid duties; 2° those which can be composed with difficulty with the duties of the clerical state, such as offices for preserving public security, for keeping watches, for averting fires, and similar things.
The privilege of competency. It is the privilege by which a cleric burdened with debt and called into court by creditors cannot be deprived of those goods which are required for his honorable support; according to these words of can. 122: Clerics who are compelled to satisfy creditors are to have safe those things which, by the prudent judgment of the ecclesiastical judge, are necessary for their honorable support, while nevertheless their obligation of satisfying the creditors as soon as possible remains firm.

A cleric cannot renounce the privileges mentioned; but he loses them if he is reduced to the lay state,² or is punished with perpetual privation of the right of wearing ecclesiastical habit, according to the norm of can. 213, § 1 and can. 2304. But he recovers them if this penalty is remitted or he himself is again admitted among clerics (can. 123).

¹ Cf. Damen, Vrijdom der Geestelijken van krijgsdienst.

² Cf. scholion.

Vol. II, Bk. III, Tr. VIII, Diss. II, Appendix II. On the Separa…, Part II. On Semi-Full Divorce

n. 844.

Question 1. Whether it is ever licit to petition for civil divorce.¹

Response 1. If the marriage is invalid from any cause whatever and has been declared such by competent ecclesiastical authority, it is licit, by petitioning, to intend and obtain civil liberty.²

Response 2. If the marriage is valid, the things to be posited having been posited, it is likewise licit if the law in force does not intend the dissolution of the bond. If it intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it, because the petitioner can abstract from the intention of the legislator, and as a Catholic, for we are speaking of such a person, must be judged to abstract from it. This being posited, the petitioner, as we will immediately say, does not seek something which cannot be furnished by the judge without sin. I said "the things to be posited having been posited," that is, with the approval of the competent ecclesiastical authority first had, insofar as this is required according to what was said in n. 842. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage.

Question 2. Whether a judge can ever render a sentence of divorce if there is question of a valid marriage.

Response 1. If the law intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it. For the judge can abstract from the intention of the legislator and, as a Catholic, for we are speaking of such a person, he is judged to abstract from it. This being posited, his action is not evil in itself; nor does it involve approval, and therefore neither formal cooperation, of the action of the petitioners, who perhaps do not abstract from the intention of the legislator or who intend the dissolution of the bond. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage. Besides, a just cause for admitting material cooperation is already had from the fact that otherwise good men would have to abstain almost entirely from an office of such great importance.

The controversy does not seem able to be settled by authority. Some favorers of the more benign opinion appeal to the response given by the Holy Office to the Apostolic Nuncio of Belgium, September 14, 1866. But if you admit that by Belgian law the dissolution of the bond was originally regarded, the sense of the law already for a long time seems to have been so changed by usage that the law rather permits one to act as if the bond were dissolved than itself intends to dissolve the bond. Favorers of the stricter opinion chiefly allege responses of the Holy Office, June 25, 1885 and May 27, 1886; but the adversaries respond that these were probably given by reason of peculiar circumstances.³

Corollary I. Advocates of themselves speak licitly for divorce only insofar as the spouses licitly petition for it. If they petition illicitly, the advocate is not excused except on account of a most grave cause.

Corollary II. Where separation from bed and cohabitation suffices for the intended end, divorce of itself cannot be petitioned. Nevertheless it is licit on account of a very grave cause; for instance if, when divorce is petitioned, the whole offspring will be entrusted to the religious spouse, but if it is not petitioned, a part of the children certainly or probably will be entrusted to the irreligious spouse.

Corollary III. Pastors and confessors should for the most part endeavor to turn the faithful away from the plan of obtaining divorce, and to exhort the separated to restore common life, namely on account of the danger of incontinence which rather often is imminent to each party. There is added the fact that the education of the offspring easily suffers detriment; indeed the fear that the offspring, wholly or in part, may be adjudged to a pernicious spouse can be a reason on account of which one must abstain from divorce or from a lesser separation.

¹ Cf. Duynstee, Burgerlijk Recht en zielzorg, n. 76.

² Holy Office, September 9, 1824.

³ De Smet, op. cit., n. 399.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 26 passages

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Homicide

n. 1825.

Judges and Executioners in Canon Law

Judges and Executioners in Canon Law.—According to the law of the Church (Canon 984, nn. 6, 7), those who pass the death sentence as judges and the executioners and their immediate and voluntary helpers become irregular (i.e., incapable of lawfully receiving Orders or of exercising their powers). The reasons for this ancient discipline are chiefly two:

(a) clerics are the ministers of Christ, and therefore they should be like their High Priest, whose sacrifice they offer at the altar. Now Christ “when He was reviled, did not revile, when He suffered, He threatened not, but delivered Himself to him that judged Him unjustly” (I Peter, ii. 23). Hence, it is unbecoming that clerics should condemn to death or kill their fellow-men, even criminals;

(b) clerics are the ministers of the New Testament, and therefore they should conform themselves to its spirit of mildness. The divine law itself declares that a bishop should not have private quarrels or inflict blows (I Tim., iii. 3), but the church law goes further and declares that a cleric should not even act as public judge or executioner in capital cases. The Old Testament inflicted corporal punishments and death, and hence we read that its priests and levites put sinners to death with their own hands (Exod., xxxii. 28; Num., xxv. 7, 8; I Kings, xv. 33; III Kings, xviii. 40; I Mach., ii. 24), but the law of Christ contains no sentences of death or of bodily chastisement.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Judges

n. 1940.

The Office of Judge

The Office of Judge.—Judgment is the proper act of justice (1727) and therefore when exercised under due conditions it is not only lawful, but virtuous. The exercise of public judgment belongs to the judge, who is a person vested with authority to decide litigated questions in civil or criminal cases.

(a) Thus, in the strict sense, a judge is the official who has public authority to preside over tribunals of justice, in which major matters are tried and a formal procedure is followed, and whose function it is to direct the course of the proceedings and to settle questions of fact or of law that arise.

(b) In the wide sense, a judge is any person who has lawful authority to pass an obligatory sentence in criminal or civil matters. The name may be applied, then, to those who preside over a tribunal in which minor or urgent questions are considered and treated summarily (justices of the peace, police magistrates, etc.); to those who do not preside over a tribunal, but who are attorneys at law appointed as officers of a court to pass on some issue of a pending proceeding or suit (referees); to those who act as assistants of the presiding judge, by determining the truth of alleged facts in civil cases, or the innocence or guilt of an accused in criminal cases (trial jurymen); to those who are chosen, by the parties to the dispute or by a court, as substitutes for the ordinary courts provided by law, to hear and settle, without legal formalities, the matter in controversy (arbitrators).

n. 1941.

Classes of Courts

Classes of Courts.—There are various classes of courts and therefore various kinds of judges.

(a) Thus, according to their relative dignity and jurisdiction there are higher and lower courts, courts of the first, second and last instance.

(b) According to the cases they try, courts are either civil (in which redress of private injuries is sought) or criminal (in which the community prosecutes public wrongs).

(d) According to the form of procedure used and the remedies applied, courts in the United States are divided into courts of common law, courts of equity, probate, admiralty, and military courts.

n. 1942.

Jurisdiction

Jurisdiction.—Authority is necessary in a judge, for judgment is a binding decision that may be executed by force, and this supposes that he who pronounces the judgment is the superior of the person on whom the judgment is passed, Hence, he who acts as judge when he lacks jurisdiction acts invalidly (unless jurisdiction is supplied, as in common error for an ecclesiastical judge, in Canon 209), and offends against the rights of another judge and of the person on whom he passes sentence. Examples would be secular judges acting in ecclesiastical cases or ecclesiastical judges acting in temporal cases.

n. 1943.

The Qualifications of a Judge

The Qualifications of a Judge.—(a) Mentally, he must be endowed with knowledge of the law and with prudence, so as to be competent to pronounce correctly on the questions that are brought to him for decision; for, as being the authorized interpreter and custodian of the law, he is bound by quasi-contract with the community and with those who appear before him to be competent for these offices. If a judge realizes that he is incompetent in these ways, he must either resign his office, or make up for his deficiency by study or consultation with those who are more learned than himself. A juryman, being a layman to the law, is not expected to have the mental equipment of a lawyer; but it is his duty to give his attention to the statements, arguments and testimony and to the instructions of the judge.

(b) Morally, the judge must be a lover of justice, whether commutative, distributive or legal; for the proper office of the judge is to apply the law to particular cases and to declare officially the mutual rights and obligations of litigants who are before him. He must not be a respecter of persons, one who is moved for or against a man on account of rank, position or wealth, nor one who is swayed by fear or favor, by popular outcry or personal ambition. Not only legal but also commutative justice obliges him to perform his duties conscientiously; for in taking his office he enters into a quasi-contract with the community to execute his functions faithfully and well, and similarly by trying a case he engages that those before him will receive evenhanded justice. A juror should be a conscientious person who is openminded and free from prejudice for or against those on whom he has to vote.

n. 1944.

Conduct of a Judge

Conduct of a Judge.—A judge must be above suspicion, since respect for the courts is the very life of the State. But there is good reason to suspect a judge who judges in his own case, or in a case in which he will be naturally inclined to favor one side. Hence the duty of abstaining from certain things.

(a) Thus, he should avoid business, social and political activities that will give ground for belief that he uses his office for the promotion of private interests.

(b) He should not act in a case in which his own advantage or the advantage of his friends might appear to conflict with the duty of strict impartiality, as when he has personal litigation in the court, or when a near relative of his is party in a controversy, or when one of the contestants is his personal or political friend or enemy, etc. Canon 1613 of the Code forbids a church judge to act in the case of a person related by blood or marriage in the direct line or in the first and second degrees of the collateral line, or of a person for whom he is guardian or administrator, or in cases in which he had previously acted as advocate or proxy, or from which he stands to profit or lose.

(c) He should refrain from conduct that would tend to arouse doubts of his impartial attitude, such as incivility to counsel or witnesses, unexplained rulings that have the appearance of arbitrariness, private interviews or dealings with one of the parties before him in ways calculated to influence his action.

n. 1945.

Accepting Gifts from Litigants or Others

Accepting Gifts from Litigants or Others.—May a judge take money or other goods from those whose interests are submitted to him, such as litigants or lawyers in his court or their friends?

(a) If the goods are extorted by threats or pressure or unjust vexation, the judge is guilty of robbery, since he forcibly takes that to which he has no right.

(b) If the goods are given as payment for the judge’s services during the trial, the judge sins against commutative justice in receiving payment for services already due, since his salary comes from the community and obliges him to administer justice without charge to those who seek it. Neither is it lawful to take money as compensation for trying one case before another, or for hastening a case, or for giving unusual diligence to a complicated case, or for deciding for one side when the evidence is equal on both sides. But the law could permit a judge to collect his expenses from both parties if the trial necessitated a personal outlay of money (e.g., for travel or hire of assistants) and there was no public fund to defray these costs.

(c) If the goods are offered as bribes, in order that the judge may be influenced to act against justice, it is clear that grave injustice is done both to the community and to the party who is injured.

(d) If the goods are given as free gifts, with no condition attached, some think they may be lawfully accepted, if there is little probability that they will influence the judge (e.g., because they are small or given after the trial has ended). But others hold, and it seems more correctly, that both natural and positive law forbids this. Natural law forbids because of the danger (“Presents and gifts blind the eyes of judges, and make them dumb in the mouth, so that they cannot correct,” Ecclus., xx. 31), and because of the mistrust and scandal that will result. It is incorrect to suppose that small gifts and gifts offered after sentence would not have influence, for the contending parties would soon come to vie with one another in making gifts, while judges would begin to think about the gratuities that might be looked for at the conclusion of a trial. Canon Law forbids all ecclesiastical judges and all who assist in court to accept any gifts whatever that are offered in connection with the trial (Canon 1624), and the civil law provides severe penalties for bribes offered as gifts.

(e) If goods are given as a mere alms or from civility or hospitality (e.g., food and drink such as is usually offered to a guest or visitor), it does not seem unlawful in itself to accept them, but, since there is a danger of suspicion and scandal, even this should be avoided.

n. 1946.

Obligation of a Judge to Restore Goods Received in the Above-Mentioned Ways

Obligation of a Judge to Restore Goods Received in the Above-Mentioned Ways.—(a) If retention of the goods is contrary to the reasonable wishes of the person who gave them, restitution is necessary. Hence, the judge must give back money that was extorted and the payments made by private parties for the exercise of his official duties.

(b) If retention of the goods is contrary to law, restitution is also necessary. Hence, if a judge has taken a bribe, he must give it back, because the agreement is null, and he cannot lawfully keep his part of the compact by acting contrary to justice. The same is true when the law voids the contract whereby he received the goods, or when a court decree obliges him to return a free gift bestowed upon him.

(c) If retention of the goods is not contrary to the will of the giver nor to the law, restitution is not necessary. Hence, if a judge has received a pure gift and no corruption was intended or practised, he sinned in taking it, but the donation was valid and there is no obligation to return it. And even though he has taken a bribe, and in consideration of it has acted against justice, it seems there is no natural obligation to make restitution to the party who gave the bribe, since the latter has received a consideration for his payment, but the judge is held to indemnify the injured party.

n. 1947.

Duties of a Judge in the Course of a Trial

Duties of a Judge in the Course of a Trial.—(a) The purpose of the investigation is to discover the truth in the matter before the court, and consequently it is the duty of a judge to give a case the study and attention it deserves.

(b) The method of procedure is intended to secure a fair hearing for both parties and so to expedite business that the litigants will not be harmed by needless delays. The judge should therefore observe the necessary and customary forms of law, while avoiding waste of time and unnecessary interruptions. “It is not the custom of the Romans,” said Festus to the Jews who asked him to condemn Paul, “to condemn any man, before that he who is accused have his accusers present, and have liberty to make his answer, to clear himself of the things laid to his charge” (Acts, xxv. 15).

n. 1948.

Duties of a Judge at the Conclusion of a Trial

Duties of a Judge at the Conclusion of a Trial.—(a) The sentence must be just, that is, it must be based on the law and the evidence. Even though a judge does not personally approve of a law, thinking it unwise or unnecessary or over-severe, he should nevertheless enforce it; for he is appointed, not to change or reform, but to apply the law, yet so, however, that the spirit is not sacrificed.

(b) Sentence must not be relaxed as a rule, for otherwise the rights of the State or of the party winning the case will be harmed. But there are times when the public good or some other sufficient reason calls for relaxation, and in such cases judges have the power to refrain from passing sentence or to suspend or respite a sentence already announced. The defeated party should be allowed the opportunity which the law grants him for seeking a reversal of the judgment.

n. 1949.

Sentence Passed under a Law Manifestly Unjust

Sentence Passed under a Law Manifestly Unjust.—(a) If the law is manifestly opposed to divine or natural law and sentence under it would command the commission of an act intrinsically evil (e.g., cohabitation of those who are not really married, “mercy killing” of the physically or mentally incapacitated, eugenic sterilization of defectives or criminals), the judge should resign rather than give such a sentence.

(b) If the law is manifestly opposed to divine or natural law and sentence under it would inflict a grievous penalty (e.g., death or long imprisonment) on the transgressor of the law, sentence would be unlawful. But if only a light penalty would be inflicted (e.g., a small fine or short confinement), it seems that sentence might be tolerated; for the person condemned might be considered to yield his rights in such a case for the sake of the public good, which suffers from the loss of conscientious officials. The act of the judge in giving the sentence would be only material cooperation, which is lawful for grave reasons (see 1515 sqq.).

(c) If the law is manifestly opposed to ecclesiastical law, sentence may be given lawfully, if scandal is avoided and the Church yields her right in the case, as is sometimes done in favor of Catholic judges, lest they be deprived of their positions.

n. 1950.

May a Catholic Judge Grant a Decree of Divorce?—-Apart from scandal or a positive ecclesiastical prohibition:

(a) The judge may grant a divorce to a couple not married validly although they have had a marriage ceremony recognized by civil law. This would occur in the case of Catholics married before a civil magistrate or non-Catholic minister. Also, when the Church has pronounced a marriage invalid, civil divorce may be granted for the sake of civil effects.

(b) Divorce may be granted if the judge knows that one of the parties will invoke the Pauline privilege.

(c) If the judge is morally certain that neither party will attempt remarriage and that the divorce is being sought merely for the sake of civil effects, he may grant the divorce. In the case of Catholics the consent of Church authorities would be required for this procedure.

(d) If the marriage is valid and it is known that the parties will attempt a new marriage, some consider that a decree of divorce is intrinsically evil, since it but applies a law that attempts, contrary to divine right, to dissolve the marriage bond. Others (and this is the more common view today) distinguish and think that the decree of divorce does not concern the religious obligation of the petitioners, but is simply an official declaration that the state regards the civil effects of the marriage as no longer existing. Under certain circumstances, (e. g., loss of office for refusal to accept a divorce case, loss of prestige, antagonism, etc.), such a decree, in itself morally indifferent, may be permitted.

(e) If there is question of partial divorce (i.e., separation from bed and board) of Catholic spouses, a decree is lawful, the Church consenting, for a reason recognized by ecclesiastical authority, such as adultery.

n. 1951.

When Evidence Is Contrary to Personal Knowledge of Judge

When Evidence Is Contrary to Personal Knowledge of Judge.—(a) In a civil case, the judge should follow the public evidence rather than his private knowledge; for he acts as a public, not as a private, person. Moreover, the State has the power to transfer property from one to another, when the common good requires this, and the common good requires that civil decisions be based on public evidence rather than on private information. Some moralists deny this conclusion on the ground that it is intrinsically wrong to force a person to pay who does not owe, even though the evidence is against him.

(b) In a criminal case, the judge should follow the evidence rather than his own knowledge, if the evidence calls for acquittal of the accused; for it is better for the public welfare that a guilty man escape than that the judicial order be neglected and a rule admitted that might convict the innocent as well as the guilty.

(c) In a criminal case in which the evidence points to guilt while the judge’s private knowledge assures him of the innocence of the accused, the judge must not condemn, if there is any legal way to avoid it. But if the evidence stands and the judge has to pronounce sentence, it is not easy to determine the course that should be followed. According to St. Thomas, the judge should condemn, since he is a public official and must therefore be guided by the allegations and proofs offered during the trial, especially since public order and respect for law depend on the good reputation of the courts. If judges could disregard at will the evidence offered on account of private knowledge they claimed to have, the confidence of the public in the integrity of courts would be shaken, men would take the law into their own hands, and peace and order on which the happiness of the community depend would be at an end. Moreover, the judge is not guilty in sentencing in this case, since he does not intend evil and acts according to the principle of double effect (see 103 sqq.). According to a second opinion attributed to St. Bonaventure, the judge should acquit, since it is intrinsically wrong to condemn to death a person about whose innocence one is certain. According to a third opinion, which St. Alphonsus considers as probable, the judge should condemn in minor criminal cases in which only pecuniary penalties are imposed (for the State has the right to exercise eminent domain in order to safeguard an important public good like that of respect for the law and the courts); but he should acquit in major cases in which personal punishments are inflicted, for society has no right to deprive an innocent person of life or liberty.

n. 1952.

When the Judge Is the Unjust Cause of Damaging Evidence

When the Judge Is the Unjust Cause of Damaging Evidence.—In some cases the judge may be the unjust cause of the evidence that convicts an innocent man, as when the judge has committed a crime and thrown suspicion on the accused (Dan, xiii), or when the judge has moved others to testify falsely against a man he knows to be innocent.

(a) One opinion holds that the judge would be obliged to condemn, on account of the reasons just given for the opinion of St. Thomas, if the judge were unable to overcome the evidence. But those who hold this add that this is purely speculative, for in a concrete case there would be many ways by which the judge could extricate both himself and the accused from the difficulty.

(b) Another opinion says that in no case could the judge of the present hypothesis condemn. Those who favor this opinion declare that St. Thomas is to be understood only of the case in which the judge is not the cause of the unjust accusation; for one who has culpably placed a cause of damage is bound to remove that cause before it acts, if this is possible, and in the present instance it is possible for the judge, if all other things have failed, to free the innocent person by testifying for him, or even by acknowledging his own guilt.

n. 1953.

Practical Conclusions about the Three Controverted Opinions Given Above in 1951

Practical Conclusions about the Three Controverted Opinions Given Above in 1951.—(a) In a case tried according to Canon Law, it seems that the opinion of St. Thomas should be followed, since Canon 1869, n. 2, declares that the ecclesiastical judge must not give sentence unless he is certain about the matter of the sentence, and that his certainty must be derived from the acts and proofs of the trial.

(b) In a case tried according to civil law, it seems that the whole controversy is today very often of little practical importance; for court decisions are now frequently left to jurymen, and these men must either have no private certainty before they are admitted to their office (as is the case in the United States), or they have the obligation of using private knowledge in casting their vote and of communicating it to fellow-jurors during the deliberations (as is the case in some other countries). Hence, the moral question whether it is lawful to decide according to private knowledge against the public evidence largely disappears. But when a case of the kind now considered does occur, the position of the civil law also agrees, it seems, with that of St. Thomas: “Neither the judge nor the jury can consider a private fact of which they have a merely personal knowledge, however important may be its bearing on the issue, unless it has been brought to their attention by evidence properly produced in open court” (Robinson, Elementary Law, Sec. 334). But the lightest penalty allowed by the law should be imposed in such a case. If a judge were privately certain that a jury verdict was unjust, he could offer his own testimony or appeal to the pardoning power.

n. 1954.

The principle that a judge must be guided only by his public knowledge applies also to other officials who are required to follow the results of a public investigation, but not to those who are required to act according to their best knowledge, whether public or private.

(a) Thus, public knowledge must be the guide of those who are ministers of a court and on whom it falls to execute its decrees; for they are the instruments and subjects of the president of the court. If they have private information of a material and relevant kind, they should disclose it as witnesses.

(b) Private knowledge that is opposed to and more reliable than public knowledge must be the guide of those who are supposed to act according to the most trustworthy knowledge they have. Hence, a superior who has the power to make appointments to office should disregard the votes of his advisors, if he can prove that they are wrong in their opinions about a nominee for office. He may confirm or annul their choice according to his honest conscience.

n. 1955.

When Guilt Is Doubtful in Criminal Cases

When Guilt Is Doubtful in Criminal Cases.—In a criminal case or a case in which punishment is inflicted, if the guilt of the accused is doubtful, the sentence should be for acquittal; for no one should be condemned unless his guilt is morally certain (see 1728 sqq.).

(a) Thus, according to Canon Law, an ecclesiastical judge who is not certain that sentence for the plaintiff will be just, must declare that the latter has not established his case and must dismiss the defendant, though exception is made for cases that have the favor of law (such as marriage, liberty, testaments, Canon 1869, n. 4). Canon Law places the burden of proof on him who makes an assertion, and it rules that the defendant is to be acquitted if the plaintiff or accuser fails to prove, even though the person on trial says nothing (Canon 1748).

(b) According to the civil law the rules on evidence also favor the accused in cases of doubt. He must not be held guilty unless the State has proved affirmatively and beyond reasonable doubt every material allegation in the indictment. In capital cases the evidence of guilt must be equivalent in weight and conclusiveness to the direct testimony of two competent and reliable witnesses. A reasonable doubt in the mind of a juryman is one for which he can give himself an adequate and satisfactory reason (Robinson, Elementary Law, Sec. 608).

n. 1956.

Doubt in Civil Cases

Doubt in Civil Cases.—In civil cases, if it is uncertain after the investigation for whom the decision should be given, the following rules seem to be just:

(a) if the parties are unequal in claim, the decision should be for the one whose claim is more weighty; for the judge is appointed by society to investigate the truth of a controversy and to decide according to the merits of the case. Thus, decision should be for the party Whose arguments are of at least equal strength—but who has legitimate possession (for “possession is nine points in law”), or whose case enjoys the favor of the law (e.g., in Canon Law, the cases of widows, wards, minors), or for the party whose case is stronger and more probable. Innocent XI condemned the proposition that a judge may decide for the side whose arguments are less probable (Denzinger, n. 1152);

(b) if the parties are equal in their claims, some think that property in dispute should be equally divided between the contestants, others that the parties should be persuaded to compromise, or, if this is impossible, that the decision may be given for either one of them. But if positive law regulates the manner of proceeding in such a case, its provisions should be followed. Thus, in Canon Law, if a judge is in doubt as to which one of two competitors has possession, he may grant it to both of them indivisibly, or he may command them to deposit it with a sequester, pending the settlement of the dispute (Canon 1697).

n. 1957.

What should be decided when the defendant has possession with probable title and the plaintiff has more probable title?—(a) If the possession is not certain, or not certainly legitimate, decision should be for the plaintiff, for uncertain possession does not create any presumption of right and hence the more probable case prevails.

(b) If the possession is certainly legitimate, the common opinion is that decision should be for the defendant; for certain possession is not overcome by more probable, but only by certain arguments for the plaintiff. Some authors, however, believe that the judge should decide for the plaintiff, since possession prevails only when the arguments are of equal strength on both sides; or at least that he could decide for him, since it is probable that the plaintiff by presenting a more convincing case has sufficiently established his right to eject the defendant.

n. 1958.

The Standard by Which a Judge Should Weigh the Evidence

The Standard by Which a Judge Should Weigh the Evidence.—(a) When the proving force of an argument is settled by the law itself, the legal rule should be followed. Thus, in Canon Law certain kinds of proofs are expressly declared to be demonstrative (e.g., a public instrument not contested, Canon 1816), while other proofs are held to be insufficient or only of partial value (e.g., certain kinds of testimony, Canon 1756). Likewise in civil law public documents are prima facie evidence, oral interpretation of a written document which contradicts its language is not admitted, etc.

(b) When the proving force of an argument is left to the discretion of the judge, he must follow his conscience, that is, he must sincerely and impartially decide to the best of his ability the value of the argument, whether it is decisive, or likely, or Weak. Thus, in judging circumstantial evidence a juryman must use his own common sense and intelligence in determining whether the premises are doubtful or the inference illogical; in estimating testimony a judge must bear in mind the quality of the witnesses and the character of their testimony.

n. 1959.

The Moral Obligation of a Judicial Sentence that Is Certainly Just

The Moral Obligation of a Judicial Sentence that Is Certainly Just.—(a) It is binding in conscience; for it is merely the application of law to a particular case, and law obliges (see 377). (b) It obliges in virtue of legal justice when the case is only penal, and hence he who is fined by court is held as a duty of obedience to pay the fine; it obliges in virtue of commutative justice when the case is about a strict right, and hence if the court requires an heir to pay a legacy, the latter must make restitution for neglect of this duty (see 1728).

n. 1960.

The Moral Obligation of a Judicial Sentence that Is Certainly Unjust

The Moral Obligation of a Judicial Sentence that Is Certainly Unjust.—(a) If the sentence is unjust because it is the application of an unjust law, it produces no obligation in those cases in which the judge cannot lawfully apply the law (see 1949); for an unjust law does not oblige in conscience per se, but only per accidens (see 377, 461). (b) If the sentence is unjust because it is not based on the law or the evidence, or because the trial was not conducted fairly, it produces no obligation per se, but there may be an obligation per accidens, as when scandal or great public disturbance will otherwise result. Hence, one who through plain injustice is deprived of an inheritance has the right to occult compensation (see 1928), while the other party is bound to restitution of the inheritance (unless he is in good faith or has prescribed) and also to damages, if he went to law in bad faith.

n. 1961.

The Moral Obligation of a Judicial Sentence in Case of Doubt

The Moral Obligation of a Judicial Sentence in Case of Doubt.—(a) If the doubt is about fact or law, not about the right of the judge to give sentence (see 1955 sqq.), the sentence may be safely followed; for it is the office of the judge to settle doubtful matters, and to promote the common welfare by ending litigation. Thus, in doubtful criminal cases the judge sometimes acquits a guilty man, and in doubtful civil cases he sometimes awards property to one who has no right to it; but these sentences are not unjust, since they are based on rules which long experience has shown to be necessary for the public welfare. (b) If the doubt is about the justice of the sentence, there is an obligation of conscience to observe the judgment, since the presumption favors the judge. Were this not so, the authority of tribunals of justice would be at an end, for almost everyone who loses a case thinks that he has been treated unjustly. But one may enter an appeal, where this is allowed by law.

n. 1962.

When a Judge Is Bound to Restitution

When a Judge Is Bound to Restitution.—A judge is bound to restitution when he causes unjust damage to the community or to litigants (see 1762 sqq.), and hence he must either recall his unjust act, or repair to the best of his ability the harm done. But the conditions for unjust damage must be verified (see 1763).

(a) Thus, the judge’s act must be objectively unjust, that is, in violation of a strict right under commutative justice. This happens when he conducts the trial unjustly (e.g., when he neglects the essential procedure, tries without an accuser, and the like) or when he passes unjust sentence (e.g., condemns without proof of fact or crime, or in spite of evidence for innocence, votes for acquittal when there is no reasonable doubt of guilt, imposes penalties that are insufficient or excessively severe, or awards property to one who to his knowledge has no right to it).

(b) The judge’s act must be efficaciously unjust, that is, it must be the real cause of the loss sustained by the other person. Hence, there is no duty of restitution if loss does not result (e.g., if the party who is in the right wins in spite of unfairness on the part of the judge), or if loss cannot be traced to the judge’s action (e.g., when a judge is not entirely impartial in his charge to the jury, but his words do not influence them, as they would have given an unfair verdict anyway).

(c) The judge’s act must be subjectively unjust, that is, the judge must be seriously responsible for the damage on account of his culpable ignorance, negligence, or malice. Even though he has made mistakes through excusable inadvertence or error, he becomes seriously responsible for damage, if, foreseeing it, he does not do what is in his power to avert it (see 1769).

n. 1963.

When a Judge Is Not Bound to Restitution. A judge is not bound to restitution, however, for violations of virtues other than commutative justice.

(a) Thus, charity is offended, but not justice, if the judge has personal hatred against a person before him, but does not permit this to influence his conduct or decisions.

(b) Legal, but not commutative, justice is offended, if the judge is negligent about exemplary damages, provided the common good does not suffer; for there does not seem to be any strict right to the fine before sentence has been given. This is disputed, however, by some moralists, who hold that the judge is under contract with the community in this matter, and hence that he offends commutative justice, if he is habitually and to notable amounts indulgent about fines.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Defendants

n. 1979.

Legal Right of a Judge to Question a Prisoner about His Guilt

Legal Right of a Judge to Question a Prisoner about His Guilt.—(a) According to older legislation a judge had this right, and could enforce it by torture, when the common good was involved and the guilt of the prisoner was likely on account of infamy or manifest indications of crime or half-proof of guilt. In itself, this practice was not opposed to natural law and had some good results; but it was open also to many abuses. Some moralists teach that a judge cannot impose a grave obligation of confessing guilt in capital or similar cases, if the accused has otherwise a hope of escape and no great evil is likely to befall the common interests by reason of an acquittal. They argue that human law cannot oblige so rigorously as a rule.

(b) According to modern civil legislation the right of exacting a confession is denied to a judge. Thus, according to American law no person may be compelled “in any criminal case to be a witness against himself” (Constitution, Article V). In American law the plea of not guilty is not a lie, even though the accused knows that he is guilty, for, as everyone understands, the plea means either that one is innocent or that one is using the privilege of not confessing. Neither is it considered a lie to say that an unprovable charge is a calumny, for an accusation that cannot be proved juridically is juridically a calumny.

(c) The general law of the Church rules for ecclesiastical processes that, when the judge questions the parties-litigant, they are obliged to answer and to confess the truth, unless the question is not legitimate (e.g., questions about irrelevant or privileged matters, or questions made in a captious or leading manner), or the answer would incriminate the parties themselves (Canon 1743). Neither is an ecclesiastical judge permitted to put an accused in a criminal case under oath to tell the truth (Canon 1744). An instruction of the Holy Office of 1866 required that the guilty party in a case of solicitation should confess, but the instruction was directive rather than preceptive. Particular law (e.g., the statutes of a Religious Institute) might perhaps prescribe confession by an accused, but most Constitutions of Religious Institutes bind only under penalty, and, as for the rest, an ecclesiastical superior could at most advise, but could not impose, confession by an accused.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 28 passages

Vol. III, On the Particular Obligati…, I. On Judges · Vol. III, On the Particular Obligati…, III. On Jurors · Vol. III, On the Particular Obligati…, III. On Beneficiaries in General

Vol. III, On the Particular Obligati…, I. On Judges

What is a judge? - A judge, as regards his nominal definition, is the same as one saying the law. As regards his real definition, a judge is a public person, constituted by legitimate authority, so that according to the laws he may vindicate justice, by rendering judgment or sentence between two litigating parties, by an authentic declaration and application of the laws. By declaration and application, not merely speculative, which pertains to jurists, but practical and obligatory, and by compelling that it also be observed. S. Th. 2. 2. q. 60. a. 1, 6; q. 67. a. 3. "We think that he says sentence who pronounces something with that mind, that according to it he wishes them to depart from the whole controversy." L. 19. de Receptis etc. Dig.

There are several divisions of judgments, among which especially the following division is to be attended to: into civil, criminal, and mixed. Civil is that in which the plaintiff seeks what is of interest to himself. Criminal is that in which there is question of punishing a crime. Mixed participates in both, when, for example, by the crime of homicide or theft public justice is injured and damage is inflicted on private persons. Into petitionary and possessory. Petitionary is the judgment in which there is question of the property or ownership of a thing, or quasi-ownership, or of a right in the thing or to the thing. Possessory is the judgment in which there is question only of the possession or quasi-possession of a thing. Hence a twofold action is also distinguished, petitionary and possessory. Into summary and full or solemn. In a summary judgment only those things are to be observed which belong to natural law: namely that there be present a judge, plaintiff, and defendant, and that citation of the parties, necessary proofs, and legitimate defenses not be lacking. Clem. Saepe contingit de Verbor. significatione. But in a full judgment all formalities prescribed by positive law must be observed. Marchant, Inst. Can., l. 2, t. 1, note 2; Barbosa, de Iudiciis, n. 7.

And thus the Apostolic Signatura proceeds in a criminal case, with procedural rules observed. "In other judgments it can proceed, the truth of the matter alone having been inspected, nevertheless always with the adverse or defendant party, or the party whose interest it is, cited, and with a suitable peremptory term fixed for the parties to present their rights." Constitution Sapienti consilio, canon 41, title 2.

What qualities are required in a judge? - In a judge there are required knowledge of law and prudence, by which he may know how to discharge his office rightly. The first reason is that anyone, generally speaking, is bound to know those things which pertain to his proper office, and without knowledge of which he cannot exercise it rightly. Besides, speaking in particular about a judge, it belongs to a judge to define and determine that which is just. But this cannot be done without knowledge of natural and positive law. The second reason is that it belongs to the judge to apply the dictum of the law to a particular business; and consequently, for his judgment to be right, it must be rendered "according to the right reason of prudence." S. Th. 2. 2. q. 60. a. 2 and 1 ad 1; Lugo, de Iust. et Iur., d. 31, s. 1.

You will resolve: Not ordinary nor mediocre knowledge of laws and prudence is required in a judge, so that he may be able to weigh intricate cases and to examine by his consideration all circumstances both of law and of fact. One seeking or accepting the office of judge, the same is true of a physician, surgeon, etc., for which he is unworthy, so that it is probable that notable damage to the neighbor will follow from it, sins mortally. A judge lacking necessary knowledge ought not to be absolved, unless resignation of the office has been made, or unless he has a firm purpose of resigning, or at least of acquiring it by diligent study, and meanwhile abstains from judging, or at least uses the counsels and work of one more learned; for otherwise he would expose his neighbor to the danger of damage. But he must resign altogether if there is no hope that by studying he will ever become fit. He must diligently examine cases and weigh well the reasons of the adverse parties. L. 195; l. 1, n. 170.

How ought a judge to exercise his office? - A judge is bound to fulfill his office duly with incorruptible integrity, with no acceptance of persons. The reason is that one accepting the office of judge is obliged to this by quasi-contract with society. Wherefore, acting otherwise, he will be guilty of violated justice, both legal and also commutative. Eccl. 7, 6; Deut. 1, 16, 17; C. Cum aeterni 1. de Sent. et re iud. in the Sixth; R. 12 de R. I. in the Sixth; S. Th. 2. 2. q. 63. a. 4.

What must a judge furnish, so that he may fulfill his office duly? - He must furnish two things. The first is to judge cases and to expedite them quickly, nevertheless with the delay prescribed by the laws observed. For a judge is bound by office to render to each one his own right. But he rather injures right if he either omits to judge a case, or illegitimately hastens or delays sentence without a just and proportionate cause. Hence he sins mortally against his office by omitting the judgment of a case, or by very notably anticipating or delaying it without a sufficient excusing cause; and moreover he is bound to compensate the damages to the injured party which followed from the unjust omission, anticipation, and delay of judgment, because he is their unjust cause. C. Iurgantium 2. de Sent. et re iudic.; Trent, sess. 24, c. 20 de R., sess. 25, c. 10 de R.; L. 196. The other is to render legitimate judgment. For a judge is the interpreter of justice and animated justice. But judgment is the definition or determination of the just, or of right. And in Deut. 16, 18 it is said: You shall appoint judges and magistrates in all your gates, that they may judge the people with just judgment. R. 26 de R. I. in the Sixth; L. 13 de Iudic. C.; L. ult. de Iure Fisci C.; L. 44 de Decurion. et de fil. eor. C.; L. 58 de Excusat. ff.; Nov. 83; S. Th. 2. 2. q. 60. a. 1, 2.

What is required for rendering a legitimate judgment? - Three things are required. The first is jurisdiction, without which, speaking in itself, there is mortal sin, and the sentence is null, unless there is a colored title and the error is common. But by canon law someone obtains an external forum by reason of domicile, thing, contract, or delict. C. Licet 20. de For. comp.; C. Cum quidam section 1 de Except. in the Sixth; C. Novit de Iudic.; C. 35 Quicumque cause 11, q. 1; C. 1 cause 3, q. 7; L. Barbatius Dig. de Offic. praetor.; S. Th. 2. 2. q. 60. a. 6; q. 67. a. 1; Lugo d. 37, s. 2, 3; Sanchez, de Matr., l. 3, d. 22.

The second is right process, for example, that the defendant be cited and heard, unless perhaps sometimes it is expedient, when the crimes are public, atrocious, and there is danger in delay, to punish immediately those apprehended in the very act of crime. Testimonies and documents offered in judgment must be followed. Likewise all other formalities of public judgments established by the laws are to be observed. For as the judge proceeds by public authority, so also he proceeds by public knowledge. L. 193; S. Th. 2. 2. q. 67. a. 3; Lugo d. 37, s. 6, 7; C. In causis 19. de Sent. et re iud.; CC. Si legitimus 1, Evidentia 9 de Accusationibus; Clem. 2 de Sent. et re iud.; title de Ord. iudic. C.

The third is that he proceed from an inclination and intention of justice, according to the laws and the right norm of prudence. For if he does not proceed from an inclination of justice and according to the laws and prudence, the judgment is unjust and depraved. C. Sententia 1 de Sent. et re iud.; L. 14 de Iudic. C.; S. Th. 2. 2. q. 60. a. 2; L. 194; Decretals l. 2; Trent, sess. 13, c. 17 ff. de R.; sess. 24, c. 20 de R.; sess. 25, c. 6, 10 de R.

Note: Cases to be treated are some ecclesiastical, concerning sacred things or things annexed to them; others civil, concerning profane things; others are mixed. The former are directly of the ecclesiastical forum, the latter of the secular forum, unless they are cases of clerics, and indirectly also of the ecclesiastical forum, and the latter are of mixed forum, when the rights are at once civil and ecclesiastical; and in these there is place for the Rota. To the Rota are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. As regards ecclesiastical cases, once a supplicatory petition for obtaining a matter, whether pertaining to grace or to justice, has been brought and received by some office of the Roman Curia, no one for any reason is permitted of his own accord to approach another office for the same end; but the consent of the office itself with which business has begun is necessary, or a decree of the Consistorial Congregation, by which permission is given for transferring the business. Matrimonial cases pertain to the Church; and except in the case of the Church's toleration, lay judges cannot take cognizance of them.

The process concerning the validity of marriage must be instituted according to the Constitution Dei miseratione of Benedict XIV, November 3, 1741, and the Instruction of the S. C. C., August 22, 1840, unless the impediment is clear, for example, the impediment of bond; for then the Bishop, with the intervention of the defender of the bond, will be able to declare the marriage null. The tribunal in matrimonial cases is constituted of the judge, the chancellor, and the defender of the bond. Besides the plaintiff and the defendant, there are present witnesses of the seventh hand, indicated by the husband and wife, and they are seven persons joined to them by blood or affinity, if they can be had; or otherwise seven neighbors of good reputation who can testify, seven on the part of the man and seven on the part of the woman. Nevertheless others are not excluded who know the matter and are worthy of trust.

A dispensation from a ratified but non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. In this cause the Bishop cannot, without a special faculty obtained from the S. C. of the Sacraments, institute the process in this cause. But in other causes the Bishop is the competent judge in first instance. Constitution Sapienti Consilio, A. A. S. v. 1, p. 7 ff.

Rota: To it are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. The Proper Law must be observed by the S. R. Rota, which is appended to the praised Constitution Sapienti consilio. In it are established the constitution of the Tribunal, its competence, and the mode of judging. Moreover, in judgments the Rules approved by the Supreme Pontiff Pius X on August 2, 1910, and promulgated on October 25 of the same year, are to be observed. Finally, those things also are to be observed which pertain to it in the Constitution Sapienti consilio and in the Order to be observed in the Roman Curia. "Each Auditor of the Sacred Rota, after nomination, before he undertakes the office of judge, before the whole College, with one of the notaries of the sacred tribunal standing by, who will draw up the act, will take an oath concerning the office to be fulfilled duly and faithfully." "The same oath will be taken by each of the assistants of the Auditors and the ministers of the tribunal before the Dean of the Sacred Rota, with one of the notaries likewise standing by." Canon 7, title 1, Proper Law, A. A. S. v. 1, p. 21. "In a criminal matter, in spiritual causes, and in others, when from the revelation of some act prejudice can come upon the parties, or secrecy has been imposed by the tribunal itself, the Auditors, assistants of the Auditors, and ministers of the tribunal are held to the secrecy of office." Canon 8, title 1, ibid. "Auditors who have violated secrecy, or who from culpable negligence or deceit have brought grave detriment to litigants, are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the Apostolic Signatura, confirmed by the Most Holy One, they can be punished. "The ministers of the tribunal and procurators who have done similar things likewise are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the rotal College, according to the measure of damage and fault, they can be punished." Canon 9, title 1, ibid. Moreover, according to the Rules to be observed in judgments of the S. R. Rota: If it concerns a criminal case, the Promoter of justice must assist the Instructor.... But in causes regarding the bond of marriage, or the validity of religious profession or of sacred ordination, the intervention of the Defender of the bond is required according to the norm of the Constitutions Dei miseratione and Si datam.... It will belong to the Instructor in criminal accusations to assign to the accused a defender, who is to assist him even in the period of instruction, if he does not have an advocate, nor can sufficiently attend to his own defense by himself. Title 4, c. 1, sections 108, 109. From the same Constitution Sapienti consilio, the Proper Law of the S. R. Rota and Apostolic Signatura, if, after a case has been introduced, the plaintiff wishes to renounce the instance, or the lawsuit, or the acts of the case, this will always be permitted to him. Canon 34, title 1.

Sacred Congregations: "In cases to be conducted before the Sacred Congregations by the path of administration and discipline, the joinder of issue having been removed, the hearing of witnesses excluded, and no writings of patrons received, the question will be held; nevertheless the parties whose interest it is will always be heard, and the documents produced by them will be examined." Order to be observed in the Roman Curia, Special Norms, chapter 3, article 2, number 7.

Once a question has been instituted in a disciplinary manner before one Sacred Congregation, it is no longer lawful to institute a strictly judicial action. Pius X, Constitution Sapienti consilio, Order to be observed, special norms, c. 3, a. 2, n. 10.

Council of Trent: Council of Trent, sess. 25, c. 6 de R., establishes that in exempt Chapters, at the beginning of any year, the Chapter is to choose two from the Chapter, by whose counsel and consent the Bishop, when he proceeds outside visitation, is bound to proceed both in forming the process and in the other acts against anyone from the capitulars. But one vote belongs to both adjuncts, and one of them can accede to the Bishop. Lugo, Resp. Mor., l. 5, d. 23.

How one must proceed in causes of those defecting from Religion you have in the Council of Trent, sess. 25, c. 19 de Reg.; in causes of clerics who are concubinarians, ibid., c. 14 de Ref.; in causes of exempt persons, ibid., sess. 7, c. 14 de R.; in criminal and civil causes, ibid., sess. 7, c. 14 de R., sess. 24, c. 5, 20. Cf. also various decrees issued concerning this matter, Ferraris, supplement, v. Processus in causis clericorum; E. M. "It is unlawful for clerics, even those having lay power, to condemn the guilty to the penalty of death, from C. Continentia 2 de Cler. percuss. Yet the Pope can dispense in this. And Bishops themselves, or similar persons, having temporal dominion of some place, can licitly commit their power to laymen for cases of blood." L. 1. 3, n. 378; l. 7, n. 566; S. Th. 2. 2. q. 64. a. 4. A lay judge cannot drag ecclesiastical persons before his own tribunal unless this is permitted by Canonical Dispositions, Concordats, approved custom, or at least toleration. For this would be against the privilege of forum.

A judge sins by fraudulently inducing the defendant, or contrary to the order of law, to betray himself, or by using some knowledge unjustly extorted.

How must right process be instituted? - In a civil case the process must be instituted at the petition of the plaintiff. Plaintiff is so called from action. Action is the right of pursuing in judgment what is owed to oneself. Hence he who proceeds in judgment by actions is called plaintiff.

But it is necessary that he be able to stand in judgment; that he have an action in judgment according to the laws; that he manifestly prove what he seeks. Proofs are made by examination of laws and facts, by sentences given in other similar cases, by presumptions, by sworn witnesses, by writings, by the sworn confession of the party. C. I. 1312 ff., 2142; C. G. 1315 ff., 2275; C. L. 2404 ff. But actions are repelled on the part of the defendant by exceptions, which he himself likewise is bound to prove. "Exception is so called as a certain exclusion, which is customarily interposed against the action of any matter in order to exclude that which has been brought into the intention or condemnation." L. 2 de Except. Wherefore one exception is of fact, another of law. By the former the fact is excluded, for example, the loan received. By the latter the law is excluded, for example, if a homicide, not criminal, was committed in order to defend oneself.

Other proofs having been omitted, either an interrogatory or an oath can be tendered to the defendant. If an interrogatory is tendered, the defendant must answer, and if he has not answered, it will be taken as confessed. C. I. civil procedure 216 ff. But an oath is twofold, decisory and supplementary. A decisory oath is a certain species of settlement for ending a lawsuit, and therefore it is tendered by one party to the other. Hence, if the defendant does not furnish the oath, he is condemned; likewise, if the plaintiff does not furnish the oath tendered to him, he is condemned. But if the defendant furnishes it, even if he is perjured, he is absolved. C. I. 1364 ff.; C. G. 1358 ff. Namely, he is absolved, even if perjured, in the external forum, but he is not freed from obligation in the forum of conscience; for the settlement was made by oath, not by perjury. The oath is tendered concerning one's own fact, and also concerning the fact of another, if there is a presumption that it is known by the one swearing, and if it is necessary for expediting the case to know that fact. A supplementary oath is one which is tendered by the judge to complete proofs, but not to the defendant himself in a criminal case. C. I. penal procedure 232. Cf. L. 11 de Act. rer. amot. ff. As regards the forum of conscience, the judge cannot tender it to one who probably will perjure himself, without injuring charity and justice. For it is in his power to tender it or not. C. I. 1314 ff.; C. G. 1366 ff. Cf. Rules of the S. R. Rota, title 4; L. fin. de Iureiur. ff.; C. L. 2520 ff.

In a criminal case from Roman Law, and also from more recent law as regards the very substance of the matter, the process can be instituted in three ways: 1. By way of accusation, when there is some accuser who promises that he will prove the crimes objected. 2. By way of denunciation, when the one reporting the crime does not wish to assume the burden of proving. 3. By way of inquisition, which the magistrate institutes.

In the accusatory process the whole case is conducted between the accuser and the accused. The accuser objects the crime; the accused responds, denies or confesses the fact, and if he confesses he is as condemned. Witnesses are all examined before both, and orally. For no one is to be condemned unheard and without witnesses. Formerly the defendant was tortured on the rack, so that full proof might be made from his confession. But by present laws no one can be compelled to bear testimony against himself. Then the sentence of innocence or guilt is pronounced, and punishment is imposed by law on the guilty person. If the accuser has failed in proof of the crime and from malice has brought someone into danger of grave penalty, formerly he suffered a similar or talion penalty. Today an action of calumny and defamation is granted against the accuser. S. Th. 2. 2. q. 68. a. 4; Deut. 24, 19 ff.; Decretal de Calumniator.

The way of denunciation falls back into inquisition. For when the matter has come to the knowledge of the magistrate through denunciation, either from one lodging complaint, or from an informer, or from ministers of public order, then he begins to inquire into the delict and the delinquent. He can inquire into the delict from the slightest indications, but into the delinquent only from grave ones. Once the inquisition has been completed, the delinquent is subjected first to summary examination, then to ordinary examination. Then the criminal process is instructed before him, and witnesses are examined in it. If from it the defendant is proved guilty, he is condemned; if he is proved innocent, he is absolved; if neither is established from the acts and proofs, he is dismissed.

Moreover, inquisition is threefold. The first is general, namely when it is asked in general whether the laws are observed, whether there are transgressors. The second is special, when inquisition is instituted concerning a certain crime and concerning a certain person as its author. The third is mixed, when either the person alone or the crime alone is special, for example, whether Titius is guilty, or who killed Caius. L. 197; S. Th. Quodl. 11, a. 13.

Therefore by whatever way the process is instituted, there is always some accuser, whether a private or public person, whether physical or moral. Accusation can be both formal and virtual. Hence the evidence of the fact, public infamy, or notoriety of the crime supplies the place of the plaintiff or accuser. In judgments three persons are required: judge, plaintiff, defendant. For judgment is an act of justice, which is not toward oneself, as are the other virtues by which man is ordered in himself, but is toward another, ordering man to another. S. Th. 2. 2. q. 67. a. 3.

By canon law a previous admonition of the defendant is often required, for example, in causes of clerics who are concubinarians, and where excommunication is to be inflicted. Trent, sess. 25, c. 3, 14 de R.

Decretals l. 2; L. Qui crimen C. de iis, qui accusare non possunt; L. ult. C. de Accusat. et inscript.; Sanchez, Cons., l. 6, c. 2, proem.; Lessius, l. 2, c. 29, n. 106; Lugo d. 27, n. 75; E. M.

The rack: It is a kind of torment, namely a wooden machine put together in the manner of a horse, cavalletto, upon which those concerning whom there was inquiry about some crime were stretched out and tortured, so that full proof might be made from their confession.

n. 9.

What concerning general inquisition? - A judge, without any special occasion having been given, from his office alone can institute a general inquisition, in which nevertheless his power does not extend to eliciting hidden delicts, concerning which there is no report, or which turn to the damage of no one. The reason for the former is that this is necessary for the republic, and no injury is done to anyone. And although the crimes of some persons may be uncovered, this occurs accidentally, beyond intention, and the common good prevails over that inconvenience. The reason for the latter is that otherwise the reputation of the neighbor would be injured directly and in itself; and this right, speaking in itself, neither the judge nor society itself has. Then the greatest inconveniences of scandals, quarrels, etc., would follow, and public peace would be disturbed. Wherefore, for the common good of society itself, always speaking in itself, it is more profitable that delicts remain hidden than that they be made public, so that scandal may be removed, lest others be stirred up by the example of others to perpetrating similar crimes. Nevertheless always except cases of imminent danger of common or private damage, in which the judge can and must inquire even concerning secret delicts. C. Perniciosa 1. de Off. iud. ord.; L. 198.

199; Lugo d. 38, s. 6; Lessius, de Iust. et Iur., l. 2, c. 29, dub. 13; S. Th. Quodl. 11, a. 13; 2. 2. q. 33. a. 7.

n. 10.

What concerning special inquisition? - "For a judge to make a special inquisition, there must, at least regularly, precede infamy, or something equivalent, which gives a just cause. The reason is both because otherwise he would defame without cause, and because a judge must proceed from public knowledge, which he does not have except through accusation, or the confession of the defendant, or evidence of the fact, or through infamy; for which two witnesses are not sufficient, who swear that they have seen the crime committed, because it is still hidden, but it is required that rumor be spread through the greater part of the community, that is, of the city, neighborhood, or monastery, and that it not have arisen from slanderers, although in this matter it is safe to follow the common practice of good men and republics." L. 801.

Regularly; for again there are excepted cases, namely if there is imminent danger of common damage, or of grave damage to another person, or if it concerns graver crimes, homicides, thefts, and other things disturbing the republic, and if there is some suspicion arising from indications not slight, lest delicts left unpunished provide occasion for wicked men to disturb the republic by their crimes and to injure the innocent. Wherefore the judge must then use great prudence, and have regard to persons, and until he sees whether the matter can be proved, he must take information in such a way that reputation is injured as little as possible. Hence, if he sees that it cannot be proved, he must desist. Lessius, l. 2, c. 29, dub. 15.

But lest meanwhile the defendant be able to corrupt witnesses or himself flee, the judge can command that he be enclosed in prison. But this cannot be done without grave delict and grave indications. Lev. 24, 12. Indeed by common Law it is provided that an innocent citizen not be enclosed in prison; and likewise to defendants the faculty is given, pledges having been furnished, of enjoying liberty until they have undergone judgment, unless they are accused of greater crimes with a great presumption of delict. S. Th. 2. 2. q. 14. a. 3; Quodl. 11, a. 13; Lugo, l. c.; CC. Accedens 23, Qualiter et quando 24, Cum oporteat 19, Inquisitioni 21 sections 1-2 de Accusationibus; Trent, sess. 25, c. 6 de R.; C. I. penal procedure, l. 1, title 1, c. 2, title 2, c. 1-4.

n. 11.

What concerning mixed inquisition? - Mixed inquisition also is licit; namely, when the crime is manifest and the author is unknown, it is lawful for the judge to ask in general who committed it; nevertheless not in particular, for example, whether Peter did it, unless some infamy and manifest indications have preceded. The former part is clear both from the practice of all even fearful judges and from the contrary inconveniences; for crimes and delicts would easily be multiplied. But the latter part is established from this, that this would be to defame the neighbor without legitimate cause. L. 189, 200.

Hence the same Holy Doctor, 201, says that "it must be noted that prelates cannot inquire against religious in doubt whether sufficient indications are present... for inquisition, because in doubt their reputation possesses, which would then be stained by inquisition. Understand, however, unless danger of common damage is imminent; for then the right of religion prevails"; or also if grave damage of a private person is imminent, whose certain right prevails. This, as is clear, is general and not proper only to religion. Lugo, l. c.

n. 12.

Note: If it concerns inquisition that is not judicial, unto penalty, but paternal, unto the amendment of the defendant, there is indeed a broader faculty in this matter, as is established from common practice itself. For Bishops and regular superiors in visitation, which ordinarily they make only paternally, are accustomed to investigate even in particular concerning clerics and religious: how they conduct themselves, how they themselves are content with others and others with them, whether they observe the laws, etc. But even this paternal inquisition, if it is not made about all according to custom, but about one or another in particular, cannot be made unless some special reason is present and due caution is observed, lest anyone thereby be defamed. Otherwise an investigation of this kind becomes vicious and reprehensible, because it degenerates into detraction, "and because it generates scandals and provides occasion for hatreds and dissensions. For men bear it with difficulty when their deeds are scrutinized by others, and by its very nature such an inquisition inflicts injury on the neighbor, whose honor it opposes, and the estimation which all desire to have as best concerning themselves." Diana t. 7, tr. 4, res. 25, n. 3.

n. 13.

Can a judge condemn a defendant whom by private knowledge alone he knows to be guilty, or an innocent person who is juridically proved guilty? - R. To the first: Negatively. For a judge judges as a public person, and therefore he must follow public knowledge and proceed according to the things alleged and proved, especially in favor of the defendant. Besides, the judge would then proceed without an accuser, which is against justice and against the order of public judgments. S. Th. 2. 2. q. 67. a. 2, a. 3; L. 207. But, speaking not of an inferior judge, but of the Prince himself, and of civil causes and the removal of offices, etc., Lugo observes, d. 37, s. 5, n. 54: "perhaps the Prince has greater power for this, that from private knowledge he can sometimes condemn a defendant not convicted; for since the republic has greater dominion over these things and can dispose of them in order to the public good, it can more easily happen that it is expedient for the public good to take goods or an office from someone because of the testimony of the Prince alone. But an inferior judge cannot do the same; "for he cannot dispense in the law of a superior, especially in a matter of such great moment." Lugo, l. c., n. 50.

R. To the second: "One whom the judge privately knows to be innocent, if he has juridically been proved guilty, the judge is bound by every means to free, if he can, for example, by impeding the accusation, drawing out the judgment, opening the prison, if he can do so without a greater evil, or remitting the case to a superior." L. 208; S. Th. 2. 2. q. 64. a. 6 ad 3; q. 67. a. 2 c.

But if the judge by acting thus can accomplish nothing toward freeing the innocent person, then there are three opinions, all probable. The first opinion, of the Angelic Doctor, teaches that the judge can always in any case whatsoever render sentence according to the things alleged and proved. The reason is that the judge does not judge as a private person, but as a public person. Therefore in judging he must follow not private knowledge, but public knowledge. "He must follow them (the proofs introduced) in judging." 2. 2. q. 67. a. 2 c. Moreover, the common good requires that the order of law be preserved intact in judgments. Finally, "if a judge knows that someone is innocent who is convicted by false witnesses... he does not sin by rendering sentence according to the things alleged, because he himself does not kill the innocent man, but those who assert him to be guilty." 2. 2. q. 64. a. 6 ad 3.

The second opinion, very probable to St. Alphonsus, denies that in any case whatsoever the judge can render sentence against him whom he certainly knows to be innocent. The reason is "because to condemn the innocent is intrinsically evil; just as it would be to compel a woman to live with him whom she privately knows not to be her husband." L. 208.

The third opinion, of Lessius and Lugo, distinguishes between criminal cases in which there is question of the penalty of life or mutilation, and civil cases or criminal cases in which there is question of a monetary penalty, or of simple detention, or of exile or deprivation of offices. In the former it denies that it is lawful for the judge to condemn the innocent. In the latter, however, it grants that this is lawful. The reason for the former part is that it is evil in itself to kill or command someone to be killed without authority. But the judge has no authority over the life of an innocent person, since society itself lacks such authority. The reason for the latter is "because the republic has authority of disposing concerning the fortunes of its citizens and transferring them from one to another, as it has been expedient for the public good; as is clear from the laws of usucaption. But here there seems to be a just cause, both lest the form of public judgments be perverted with scandal of the people, and because a reason does not offer itself for averting the inconvenience of this man. Therefore it can establish that the judge in such a case follow the public form of judgments, even if from this it happens that he must despoil of fortunes one whom privately he knows to be innocent or to have a good case." Lessius, l. 2, c. 29, dub. 10, n. 84; Lugo d. 37, s. 4, n. 42 ff.; C. Inquisitionis suae de Sent. exc.; Ithur. Cas. 34; L. 1. 6, n. 999, 1502; E. M.

Moreover, in modern Codes jurors judge concerning the crime, and the judge only renders the sentence of the law by which the penalty is sanctioned. If the judgment of the jurors does not rest upon the acts and proofs, Carriere, de Iust. et Iure, n. 2, n. 753, thinks that the judge can render sentence against the innocent man, "since he does not have to pronounce concerning the innocence or guilt of the accused, but only concerning the application of the penalty." But if the judgment of the jurors has evidently been rendered not from the acts and proofs, but rashly from malice or from ignorance, the judge cannot render sentence against an innocent man; for although he has been declared guilty, nevertheless he has not been proved guilty. C. Italian Penal Procedure, a. 509.

n. 14.

Does the sentence of a judge oblige in conscience; and to what is the judge bound who has rendered an unjust sentence? - R. To the first: Affirmatively, if it is certainly just. The reason is that a legitimate precept of a superior obliges in conscience. But the sentence of a judge is compared by law to the precept of a superior, commanding or prohibiting some matter in a certain particular case. "The sentence of a judge is as it were a certain particular law in some particular fact." S. Th. 2. 2. q. 67. a. 1 c. From this the Angelic Doctor deduces that "just as a general law must have coercive force... so also the sentence of a judge must have coercive force." Similarly, as a general law must have the force of obliging, so also the sentence of a judge must have the force of obliging.

R. Negatively, if it is certainly unjust. For just as one is not bound to obey him who does not have authority of commanding, so much more one is not bound to obey him who abuses authority by commanding unjust things. C. Inter ceteras 9 de Sent. et de re iud.; S. Th. 2. 2. q. 60. a. 6 c. ad 4. Wherefore someone can secretly compensate himself, unless the other has justly prescribed. It is said negatively, that is, not to oblige in conscience, "because in the external forum, where not so much the truth of the fact as juridical proof is regarded, the sentence pronounced is to be observed, in order to avoid scandals and inconveniences (if indeed they are present and cannot otherwise be avoided); nor, after the term has elapsed within which it was lawful to appeal, is an action granted to him, the law so establishing, both as a penalty for sluggishness and on account of the public good, that there be an end of lawsuits." L. 215.

R. Affirmatively, if it is doubtfully just. The reason is that presumption favors the superior or judge, and in practice there would be very grave inconveniences, and there would never be an end of lawsuits. Besides, obedience must be given to a superior legitimately commanding. But in the case of the aforesaid doubt and probability, the superior or judge still commands legitimately. Moreover, he certainly possesses the right of urging execution, of which he cannot be despoiled unless the opposite certainty of injustice is present.

But it is permitted to appeal from the sentence of an inferior judge to a superior judge, even if the sentence is only probably unjust; and once appeal has been interposed, the sentence rendered ceases meanwhile. The reason is that that inferior sentence of itself is neither absolute nor simply definitive, but only if it is accepted as such and no appeal is interposed. But after the sentence has passed into a matter adjudged, it is now absolute and definitive, and it must be stood by even in the forum of conscience, even in doubt whether it is just. C. Cum super 17 de Sent. et re iud.; C. L. 2502 ff.; Lugo d. 37, s. 15, n. 185 ff.; S. Th. 2. 2. q. 69. a. 3; Quodl. 4, q. 8, a. 14. Cf. n. 86.

The sentence of a judge is one thing when interlocutory, concerning an incidental question; another when definitive, concerning the principal controversial case. And one is a sentence of absolution of the defendant, another of condemnation of the defendant, another of dismissal because the crime has not been proved. But a condemnatory sentence is one thing simply condemnatory, another declaratory of crime and penalty.

The commands of the praetor, spoken between two parties, are called interdicts. In several cases interdicts were given by the Praetor, but especially the Praetor interposed his authority in ending lawsuits concerning possession or quasi-possession. Inst. 4 de Interdictis.

Generally speaking, appeal in suspensive effect is not given as regards merely disciplinary decrees, but only in devolutive effect. Benedict XIV, Constitution Ad militantis, March 30, 1742.

R. To the second: If the judge from inculpable error has rendered an unjust sentence, he is bound to revoke it, if he can do so without grave inconvenience. The reason for the assertion is that he is bound by office to impede the evil of the neighbor, "otherwise, if, while he can, he does not impede his error, that will now be imputed to him as conserving it, which before, because of inculpable inadvertence, was not imputed." Lugo d. 37, n. 3. Nevertheless he is not bound to sustain grave inconvenience, since justice was not formally injured, nor in the quasi-contract of accepting an office or munus is anyone judged to be obliged also that he correct inculpable errors with notable inconvenience to himself. R. 23 de R. I. in the Sixth. If by deceit, or by culpable great imperitia, he rendered an unjust sentence, he must revoke it, if he can, even with grave inconvenience to himself; and he is bound to repair all damages coming from it to the injured party. For he is the unjust, efficacious, culpable cause of such damage, and therefore he is bound to reparation. L. 195, 214; C. Tum ex litteris 5 de In integr. restit.; C. B. 839; C. L. 2401 ff.

14 bis. Note: There are various grades of judgments. Three grades are regularly constituted in judgments: first instance, appeal, and recourse to the supreme Curia.

From the Constitution Sapienti consilio, the Sacred Roman Rota judges in first, in second, and in last instance. Cf. canon 14. Moreover, "it also sees concerning recourses for restitution in entirety from any sentences whatever which have passed into a matter adjudged and cannot find a remedy before the judge of second instance, according to the title de Rest. in integr.; provided nevertheless that it does not concern a matter adjudged from a sentence of the Sacred Roman Rota: and in these it judges both concerning form and concerning the merit." Canon 14, section 4, title 1.

Besides the Sacred Roman Rota there is the Supreme Tribunal of the Apostolic Signatura, which takes cognizance and judges concerning suspicion against some Auditor, concerning violation of secrecy, concerning damage inflicted by Auditors from an act of theirs null or unjust in judging, concerning a complaint of nullity against a rotal sentence, concerning a petition for restitution in entirety against a rotal sentence which has passed into a matter adjudged. Canons 35, 37, title 2.

n. 15.

Is a judge, gravely negligent or unjust in executing a case and rendering sentence, bound to restore not only to the injured party, but also to the treasury, for example, if without cause he remitted a monetary fine which by law he ought to have imposed on the defendant? - Busembaum and others probably affirm. The reason is that he is the unjust cause of the damage which the treasury suffers. But others also probably deny this, if the defendant has not yet been condemned to the fine. "The reason is that before sentence no right to the penalty is acquired by the treasury; hence, if the judge unjustly absolves the defendant, he sins against legal justice, not commutative justice." L. 196, 238. That is, the judge from his office must coerce the guilty, but so that others not offend, not so that the treasury or private persons may become richer. Except if from the unjust remission of penalty damage would come to a private person or to the republic; for by force of his office he is bound to impede that. S. Th. 2. 2. q. 67. a. 4 ad 3; L. l. c. and n. 237; Lugo d. 37, s. 8, n. 97. Cf. 61.

n. 16.

Must a judge judge according to written laws? - R. Affirmatively. "Augustine says: In these temporal laws, although men judge concerning them when they institute them, nevertheless when they have been instituted and confirmed, it will not be lawful for judges to judge concerning them, but according to them.... Judgment is nothing other than a certain definition or determination of that which is just. But something becomes just in two ways. In one way from the very nature of the thing, which is called natural right; in another way from a certain agreement among men, which is called positive right.... But laws are written for the declaration of each right, yet in different ways. For the writing of law indeed contains natural right, but does not institute it; for it does not have force from law, but from nature. But the writing of law both contains and institutes positive right, giving to it the force of authority. And therefore it is necessary that judgment be made according to the writing of law; otherwise judgment would fall short either of the naturally just or of the positively just." S. Th. 2. 2. q. 60. a. 5; Inst. l. 3, t. 17; L. Rem non novam C. de Iudiciis; C. 1 de Sent. et de re iudic.

n. 17.

You will resolve: An inferior judge, speaking in itself, ordinarily cannot relax or diminish a penalty, even if the plaintiff or accuser consents, unless sometimes epikeia dictates that something else is necessary for the good of the republic, or unless the judge justly interprets the will of the superior, or unless another just cause is present, in which the end of the law rather than the bark of the words is to be attended to. The supreme judge himself cannot do this without a just cause, whence, acting otherwise gravely, he would sin, because he would render delinquents more bold, and thus would concur in sin. Nevertheless in all things the chief account is of justice and equity rather than of strict law. L. 8 de Iudic. C.; S. Th. 2. 2. q. 66. a. 6 ad 2; q. 67. a. 4; q. 60. a. 5 ad 2; 4 d. 46, q. 1, a. 2, q. 2; Lugo d. 37, s. 8.

Speaking in itself; for practically today penalties are determined by the laws themselves, and their limits, of maximum and minimum penalty, are defined, which judges cannot exceed. C. I. penal 1.

A judge can supply those things which have been omitted by the litigating parties and their advocates, and which are of law. But those things which are of fact he regularly ought not supply, for otherwise he would assume to himself the office of the contending parties. But he can supply even these if the fact is known from the public acts of the judgment, or if the fact is both manifestly and publicly known, if it concerns public good, miserable persons, the good of the soul, or a pious and religious cause. L. 1 Ut quae desunt adv. part. etc. C.

n. 18.

What must the judge do when the law is not clear, but obscure, and on both sides there are opposed probable opinions? In criminal matters the defendant is to be favored, both as regards the existence of the crime and as regards the infliction of penalties. The reason is that according to the rules of Law: In doubt no one is presumed evil unless it is proved; when the rights of the parties are obscure, the defendant is to be favored rather than the plaintiff; hates should be restricted and favors should be expanded; in obscure things the minimum is to be followed; in penalties the more benign interpretation is to be made; it is more satisfactory that the crime of the guilty be left unpunished than that an innocent man be condemned. R. 49 de Reg. Iur. in the Sixth; L. Absentem 5 de Poenis; L. 25 de Probat.; S. Th. 2. 2. q. 60. a. 4; Elbel, de Actib. human., 197 ff.; C. L. 2515.

In civil cases, probability of fact and probability of law must be distinguished. A doubt of fact, for example, is: whether the man was master of himself when he made the testament; whether Titius committed such a delict, falsified writings, etc. In such a doubt sentence must be rendered according to the Rules of natural and positive Law: In doubt a fact is not presumed, but must be demonstrated; in doubt the deed is presumed, or presumed to have been rightly done, which had to be done by law; in doubt one must stand for the validity of the act; in doubt one must stand for him for whom presumption stands; once evil, always presumed evil; ignorance of fact, not of law, excuses; in obscure things we inspect what is more likely, or what is usually accustomed to happen, etc., de Reg. Iur. in the Sixth.

A doubt of law is when it is doubted what the law commands in such a case, whether the law is extended or not extended to it, etc.; and on both sides there are probable opinions. In such a doubt of law, either no one possesses the thing, or someone is possessor of the thing.

In the first case, that no one possesses the thing, if it is doubtful to which of the parties the law favors more, or if, without doubt, the law equally favors the parties, there is a twofold opinion. The first opinion holds that the thing must be divided. The reason is that the judge is not the master of things, but the declarer of law in a particular case, and consequently the distributor of things not according to his pleasure, but according to the rights of the parties; and therefore, if the rights are equal, he must divide the thing equally between them. The other opinion holds that "the judge indeed does better by trying to reduce the parties to concord, yet absolutely he can choose one from among them (equally more probable opinions)... because the judge by the debt of his office is bound only to investigate the truth diligently, so that he may judge according to it; but in our case he judges most probably that this is the truth, and that this man has right: therefore he can judge for him with that equal probability." Lugo d. 37, s. 10, n. 115. And indeed, since each party then has, according to a probable opinion, an entire right to the thing, the judge will well be able to conform himself to one of these opinions, and he inflicts no injury on the other party. Nor is it valid to object that by judging the truth to be for one party the judge exposes himself to the danger of deviating from the truth and of depriving the other party of his right. For the judge cannot avoid this danger. For the danger is equal if he judges for the other party. But if he divides the thing, "then the danger will be more certain; for then it will be not only probable but most certain that the true owner is deprived of his thing as to the half part: therefore it is better to undergo that probable danger with a probable judgment concerning the justice of him for whom sentence is rendered, than most certainly to deprive the owner of his thing as to the half part." Lugo l. c. n. 118. This latter opinion is consonant with present laws and practice, and is confirmed by canon law and Roman law, so that in equal right the causes of marriage, dowries of widows, wards, and other pious causes always prevailed. L. 1. 4, n. 410.

But if, in the same case, that no one possesses the thing, a truly more probable opinion in a question of law favors one party, and a less probable opinion favors the other party, the common opinion holds that the judge must render sentence for that party for whom the more probable opinion stands. The reason is taken, first, from proposition 2 condemned by Innocent XI: "I probably judge that a judge can judge according to an opinion even less probable." But from this condemned proposition it follows only that the judge cannot render sentence for the less probable opinion, but by no means that he must render sentence for the more probable opinion and cannot divide the thing among the parties according to the proportion of probability. The reason is taken, secondly, from this, that the judge is constituted by the republic so that he may define the matter according to the merits of the case and according to the opinion which seems to him more conformable to law; for otherwise he would be an accepter of persons. But neither does this reason truly prove the assertion.

For if he must judge according to the merits of the case, he must divide the thing according to the proportion of greater or lesser probability. But that he is constituted by society so that he may render sentence for the more probable opinion, by ascribing the whole right to that party, is indeed asserted, but it is not established. Only this can be asserted, and is established in itself: namely, if the thing cannot be divided according to the proportion of greater or lesser probability, but the whole is ascribed to one party, because this is, for example, the practice of tribunals, then surely it is to be attributed to him who has the greater probability. But this practice of tribunals could be rendered honorable under a twofold head: 1. if it concerns a far greater probability, because then moral certitude is almost had, which often is difficult to distinguish from great probability; 2. if, while the judge ascribes the whole thing to one party, he frees the other from all expenses of the judgment and from reparations of damages, because then an equitable compensation is had. Therefore the better reason seems to be that which was just brought forward for the case of equal probability, namely because there is less danger of injustice, and the judge, as interpreter of justice, is bound to choose an opinion at least less dangerous, since a certain one cannot be had.

And this opinion again corresponds to present laws and practice.

In the other case, that someone possesses the thing, while equal probability of right stands on each side, the thing is to be adjudged to the legitimate possessor; for by reason of possession his right prevails absolutely. This is confirmed from R. 65 of Law in the Sixth: "In equal delict or cause, the condition of the possessor is the stronger." But if unequal probability is had, the first opinion holds that the judge is bound to adjudge the thing to him who has the greater probability for himself, although he is not the possessor. For first, possession in itself does not bestow a right of property, but only detention of the thing, until someone is legitimately despoiled; but the right of property is greater for the other party. Moreover, the dispute is about the property itself, not about the simple detention of the thing, which is extrinsic to it. Therefore, as in the case of greater probability, with no one possessing, greater probability prevails, so also it prevails in the case of possession. For that presumption of property which arises from possession is destroyed by greater probability of right. Besides, R. I. 65 in the Sixth evidently has force in an equal case, not in an unequal case. The other opinion holds that the judge cannot despoil the possessor. The reason is that legitimate possession, with human morals considered, speaking in itself, argues a morally certain right, even of property itself; for men are not accustomed to be negligent in guarding their own things. And upon this reason the law of prescription is founded, which is had by the very possession of the thing. Legitimate possession; for it would be otherwise if the possession itself were not certain, or not certainly legitimate. Moreover, legitimate possession, besides the very fact of possession, requires two things: title and good faith. Title is donation, inheritance, purchase, and similar things, through which ownership of some thing is customarily acquired. This title must be at least reasonably presumed. But good faith is the judgment by which, on account of such a title, someone prudently believes the thing to be his own. "And therefore judges commonly adjudge things to those having the more probable right, because in the external forum the good faith of the possessor can be proved only with difficulty." L. 210; l. 1, n. 47. Lugo d. 37, s. 10; Ithur. Cas. 34; Viva on proposition 2 condemned by Innocent XI; E. M.

Can a judge render sentence when the law itself is certainly unjust and inequitable? - If it concerns a civil law contrary only to ecclesiastical laws in which the Supreme Pontiff can dispense, as, for example, is the law of ecclesiastical immunity, the judge can and must, if judgment must be rendered, speaking in itself, seek the due faculty from the Holy See, or from the Bishop of the place, according to the various laws and various cases that occur. But he will easily obtain this faculty, since it is especially expedient for the good of society that there be honest judges in it. The reason for seeking the faculty is the usurpation of the rights of the Church which otherwise would be had, and the public scandal to be guarded against.

If it concerns a civil law contrary to divine and natural laws, then either the judge must command something directly against this right, or he must only apply some penalty. The first is evidently not lawful, and thus he ought rather to relinquish his office than to oblige by military force a concubine to remain at home with her lover. Thus also it is not lawful to render a sentence of divorce according to the law, namely, by which the bond of marriage is dissolved, power being granted to the spouses to enter new nuptials. For this is openly against natural, divine, and ecclesiastical right. For as it is inequitable to execute an inequitable matter, so it is inequitable to command its execution. S. Th. 2. 2. q. 60. a. 5.

The other seems to some also altogether illicit, because it is intrinsically evil to condemn an innocent person, namely when the law itself is evidently unjust, whose transgression is punished. But to others it seems that it can be excused. For to decree some temporal penalty is not always evil in itself; and there is present a most grave reason on the part of the judge, lest he be compelled to renounce his office, and on the part of consenting society, for which it is better that judges be good rather than bad, scandal always having been removed, either from approved custom and the practice of the fearful, or from due faculty previously sought. And thus he can decree a fine because of the omitted formality of civil marriage, which the Church tolerates in this sense, scandal always having been removed, as was said.

But although there is question only of decreeing a penalty, one must distinguish between penalty and penalty. For if it concerns the penalty of death, for example, mutilation, etc., since neither the person himself can yield his right, nor can society by its authority sanction such a penalty, it is altogether inequitable to impose it. "For positive right has place where, as regards natural right, it makes no difference whether it is done thus or otherwise." S. Th. l. c.

But if it concerns some monetary penalty, or another similar one, since anyone in this matter can yield his right, and society can consent, the judge surely can impose some slight penalty of this kind, lest he be compelled to renounce his office with grave damage to himself and to society itself. Consent is then reasonably presumed. Yet this also seems to be limited to the case in which it does not concern a law directly against nature, although it is rather harsh and not sufficiently just. For since the sentence of a judge is not any declaration whatever, but an authoritative one, authoritatively to confirm a law against nature, even by determining a monetary and slight penalty, is against nature. It is against nature to condemn to death a Christian who refuses to adore idols; it is against nature to condemn him to a penalty and fine, even of only five small coins, because he did not wish to genuflect before an idol. Certainly of such a judgment it cannot be said that it is a "definition or determination of the just or of right," nor can it be said of the judge that he is "interpreter of justice" or "animated justice." S. Th. 2. 2. q. 66. a. 1; a. 5 ad 1; q. 67. a. 3; E. M.

n. 20.

Can a judge licitly receive gifts? - It is wicked for a judge to receive gifts of grave moment, which indeed seem at least indirectly in some way to be exacted, or in which some danger of corruption is to be seen. But it does not seem that receiving only slight little gifts, offered altogether spontaneously, in which there is no danger of corruption, and which are not even indirectly exacted, can be reproved. The reason for the first part is that it is wicked to receive those gifts for a just sentence; for this must be rendered from office.

Likewise it is wicked to receive them for an unjust sentence, because this is not to be rendered. Besides, this is positively prohibited in Deut. 16, 18, 19, and in Canon Law, C. Statutum 11 de Rescriptis in the Sixth, section Insuper. It is also prohibited by Civil Law, by which every corruption of magistrates through gifts and promises is punished with grave penalties, both in those corrupted and in those corrupting. L. 18 Dig. de Offic. praesid.; C. I. penal 171-173. The reason for the second part is that, since they are offered from courtesy alone, they would be refused almost discourteously. This is confirmed by Canon and Roman Law, ll. cc.; for it is said that perhaps food or drink offered by mere liberality can be received, which can be consumed in a few days. Cf. also C. Cum ab omni 15 de Vit. et honest. cler.; C. I. 1458; Lugo d. 37, s. 11; S. Th. 2. 2. q. 71. a. 4 ad 3. Cf. n. 40.

n. 21.

If against the prohibition made a judge has received gifts, is he bound to restitution? - If the judge received gifts from litigants by donation, he is probably not bound to restitution before sentence. For "the aforesaid laws and others are understood either only for the external forum, or concerning restitution as a penalty of crime, for which a sentence is always required, even if not one inflicting the penalty, at least one declaratory of the crime." L. 216. But if he received by agreement for rendering a just sentence, that is, for furnishing that which by justice he owed, he is bound to restitution. The reason is that whatever is already owed by office, and therefore by justice, cannot be the matter of a contract. Much more, however, is he bound to restore those things which he extorted by force, threats, or unjust vexation. Likewise, if he received by agreement for rendering an unjust sentence, he certainly is bound to restitution before he renders such a sentence; but once the sentence has been rendered, he can retain it, since the sin has already been committed, and there is no sin in retaining the thing received; but since what had been promised and was not owed has been furnished, then the innominate contract is verified: I give so that you may do. And thus also "on account of fornication... a woman can retain for herself what has been given to her." S. Th. 2. 2. q. 62. a. 5 ad 2; Lugo l. c.; C. I. penal 171-174.

n. 22.

Can a judge at least receive money for expediting someone's case before another's? - "Laymann says that, considering natural law, he does not dare condemn this, because that new obligation which he undertakes is worthy of a price. But the Salmanticenses, n. 66, more truly contradict, because a judge from justice is bound quickly to expedite the cases of those who have equal right to expedition; unless he should undertake an extraordinary labor, to which by force of his office he would not be held." L. 196. Lugo also absolutely reproves this, d. 37, n. 136, for "whenever from justice he is held disjunctively to do something gratis, he cannot receive anything for the election of this part."

n. 23.

When litigants have for themselves equally probable opinions, can a judge receive money for rendering sentence in favor of one rather than the other, according to the opinion reported above? Cf. 18. - R. Negatively; for this proposition is proposition 26 condemned by Alexander VII. The reason is that "he would receive a price for a thing not worthy of a price; for from justice he owed to render sentence for one: but the determination to that part, although it makes the sentence more useful to me, nevertheless does not add labor, or anything on the part of the judge worthy of a price. Just as, if someone from justice owed to give a dowry to one of two virgins, he could not ask anything from her for choosing her. But the reason a priori is that it is repugnant to owe from justice to give an entire thing to one of two, and yet to be able to ask a price for it; for then it would not be given entire to one of the two, although from justice he is held to give it entire. Therefore he cannot, with justice preserved, subtract anything; otherwise he could receive as price half of the thing to be given, which would be manifestly against justice." Lugo d. 37, n. 119.

Vol. III, On the Particular Obligati…, III. On Jurors

n. 28.

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.

n. 29.

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.

n. 30.

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.

n. 31.

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.

Vol. III, On the Particular Obligati…, III. On Beneficiaries in General

n. 202.

Must examiners judge not only concerning the knowledge of the competitors, but also concerning the other moral endowments? - Reply: Affirmatively. "When the examination has been completed," says Trent, "let as many as have been judged by these to be suitable in age, morals, doctrine, prudence, and other things opportune for governing the vacant church be announced." S. C. C., August 2, 1607, expressly declared that examiners "gravely fail in their duty if they are judges of doctrine only, and do not inquire who before the others, by probity of morals, labors, obedience previously shown to the church, and the other endowments necessary for abundantly undertaking the parochial office, are suitable and commendable." Indeed it adds that there is no collation which has been made upon the judgment of examiners limited to doctrine alone. And Benedict XIV, Encyclical Cum illud, December 14, 1742, openly reproved the contrary abuse growing up somewhere, de Syn. l. 4, c. 8. A. S. S. v. 2, p. 81, 90; v. 11, p. 13, 127; E. M.

Synodal Examiners: At present their office is not only to examine for obtaining parishes, but also to give consent for the economic removal of pastors. They must take an oath concerning faithfully fulfilling the duty and preserving secrecy. But on occasion of the examination for parishes they can receive nothing, neither before nor after; otherwise they cannot be absolved from the vice of simony, which both they themselves and the others giving incur. In choosing examiners and pastor-consultors, from the Decree Maxima cura concerning administrative removal from office and curate benefice, can. 4, the law to be observed everywhere in the future is this: 1. If a Synod is held, in it, according to received norms, as many are to be chosen as the Ordinary by his prudent judgment shall have judged necessary. 2. When examiners and pastor-consultors have died in the interval between one synod and another, or have ceased from the duty by another reason, the Ordinary substitutes other pro-synodal ones with the consent of the Cathedral Chapter, and, this being lacking, with the consent of the Diocesan Consultors. 3. This rule is also to be observed in choosing examiners and pastor-consultors whenever a synod is not held. 4. Examiners and consultors, whether elected in synod or outside synod, fall from office after five years from their nomination, or even sooner when a new synod arrives. Nevertheless, with those things observed which must be observed by law, they can be elected again. 5. They cannot be removed by the Ordinary during the five years except from a grave cause and with the consent of the Cathedral Chapter or of the diocesan consultors.

Synodal judges: They are also to be chosen by the Bishop in Synod. If, after a year has elapsed, a new Synod is not celebrated, with the counsel of the Chapter, new pro-synodal judges are to be constituted. Cf. Benedict XIV de Syn. l. 4, c. 5, 10. To these from the Council of Trent s. 15, c. 10, ecclesiastical and spiritual causes are to be committed.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 24 passages

92. On the Provincial Prefect, on Judges, on the Mayor

To Ferdinandus, a most pious man, prefect of a province, there was committed the execution of the Decree that religious families be expelled from that same province over which he presides. But if he refused to execute it, he himself would have to resign from office, and another prefect, altogether wicked, would be substituted in his place, who certainly will immediately, and more harshly, execute that Decree.

Q. Can Ferdinandus execute the aforesaid Decree, by commanding that even by military force, where there is need, religious be expelled from their own houses?

R. Negatively. For 1. it does not seem that, in circumstances of this sort, the Church yields its right, of the free existence of religious Orders and of ecclesiastical immunity. 2. It indeed does not appear how a most pious man can command the execution of so iniquitous and unjust a Decree without public scandal. 3. If that reason, which is the principal one, of resigning the office, were valid for a prefect on whom the burden of execution of the Decree falls, then it would also have to be said that the supreme minister of the Government himself, issuing such a Decree, would be excused, if otherwise he would have to yield his office. For if that mandate of execution is iniquitous, unjust, and scandalous, much more is the Decree itself iniquitous, unjust, and scandalous. Moreover there is no one who will ever excuse the supreme minister of the Government by that reason, that otherwise he would have to yield his office. Otherwise, now by similar Decrees he could with impunity attack any other right of the Church, which directly yields to public damage of Religion: for any minister who refused to sign Decrees of this sort would certainly be forced to resign his office. But that another is not lacking who would perform this evil and worse cannot render lawful that which is intrinsically illicit, by reason of scandal, by reason of hatred against Religion, by reason of injury against the legitimate liberty of the Church, the Church indeed being reasonably unwilling and contradicting.

Festus, a pastor, on account of a grave and urgent cause of death, joined in marriage Caius and Sempronia, concubinaries, although they had not previously contracted civil marriage before the civil magistrate. Festus is accused, as guilty of a violated law, before a judge, an excellent man and fervent Catholic. Hence the judge, very doubtful, approaches his confessor, asking from him whether he ought to resign his office, or whether he can render a condemnatory sentence against the pastor.

Q. What as to the Case?

R. The judge must first take care in every way to absolve the pastor in the case, and declare him innocent. For the pastor acted legitimately per se. Indeed he acted legitimately even with that law of precedence of civil marriage standing. For a law is subject to legitimate epikeia, and in the Case legitimate epikeia appears. If in no way can the judge render a sentence for the pastor, nor can he himself decline the judgment, he does not then seem to be held to yield his office. For although there is question of a law altogether harsh and unjust, nevertheless the matter is not intrinsically evil, and, where it cannot be done otherwise, it is tolerated; and so neither is it intrinsically evil to commit it to execution. Nor likewise is it intrinsically evil to condemn the pastor to some monetary fine, e.g., in the Case, precisely on account of the law not observed, prescinding from the aforesaid epikeia which civil law and the practice of the forum do not admit. For then one altogether innocent is not condemned, at least according to the appearance and form of the judgment, but one guilty of a violated law, namely according to the presumption of the external forum and according to the things brought forward and proved. But the pastor, on account of a greater harm both of the judge and of the community, if another wicked judge would have to be substituted, is reasonably judged to yield his own right as to the aforesaid fine to be paid. Wherefore in the Case the grave harm of the judge, who otherwise would have to resign office, and at the same time the grave harm of the community, which would certainly be present if a wicked judge were substituted, seems to prevail. But the judge must take care in the Case to decree as small a fine as possible, and in the preliminary considerations of the sentence to remove any insinuation injurious against the pastor, so that both every scandal may be removed, and the sentence itself may sufficiently be understood to yield only to the rigor of the law, which does not admit legitimate epikeia from elsewhere. — I. M. 19.

Augustinus and Dominicus, confessors, without any scruple absolve all judges who render a sentence of divorce, according to the more recent laws, in matrimonial causes. For they say that here there is no question of a thing intrinsically illicit, but only positively prohibited by the Church; and positive laws do not obligate with great inconvenience. Besides, the judge does nothing else except merely declare the law, which is an act indifferent of itself. Wherefore the cooperation of the judge toward the sin of the parties is merely material, which is lawful for a grave cause. Besides, the judge can well admonish the parties either privately, or even in the Considerations of the sentence, concerning the real indissolubility of marriage. Whence the aforesaid sentence will be nothing except a certain mere permission and denial of civil action; and in truth it regards nothing except the civil effects of marriage; and it in no way touches the sacrament of marriage itself, but only the civil contract of marriage.

Q. What as to the Case?

R. Augustinus and Dominicus are deceived. For there is question of a thing intrinsically illicit, by natural and divine right, and not only by ecclesiastical right. For divorce from the bond of matrimony, according to the more recent laws, is opposed to natural and divine right. Besides, the judge rendering sentence does not merely declare the law, but declares authoritatively and practically, so that from that sen- tence civil rights and civil obligations flow, which, speaking per se, have force also in the forum of conscience, namely when that sentence is legitimate and just. Therefore the cooperation of the judge toward the aforesaid divorce in the Case is not merely material, but formal; nor remote, but proximate, since it itself is what gives the parties the faculty of divorce. But that the judge admonishes the parties privately, or even in the Considerations of the following sentence, does not change the intrinsic nature of that sentence, but rather shows its illicitness more. A sentence of this sort is not a mere permission and denial of civil action, since that sentence makes a civil right or civil power, namely according to that iniquitous law of divorce, of contracting other marriages, so that he who is bound by this second marriage must be held by the judge himself, not as an adulterer, but as one legitimately bound by civil marriage. Lastly, it is altogether most false that that sentence regards only the civil effects of marriage, since otherwise the law of divorce would have been altogether useless; for those effects were already governed by the law of civil marriage. Therefore, as that law of divorce regards divorce itself from the bond, so consequently does the sentence of divorce delivered by the judge by force of that law. It is one thing indeed that that sentence regards only civil effects, which is false; another, that the civil effects, where that law now prevails, depend on that sentence, so that unless the sentence of divorce is first obtained, there cannot be had separation of bodies and goods. Lastly, it is plain that, since the aforesaid law and sentence touches divorce from the bond itself, in reality they do not touch only the civil contract of marriage, but most truly the sacrament of marriage itself.

And indeed, if what is asserted were true, namely that that sentence of divorce regards only the civil effects of marriage, then either the Holy Office or the Sacred Penitentiary, from whom it has been sought very often, would have permitted at least spouses to invoke that sentence of civil divorce, in the case of avoiding very grave damage; and, on the contrary, the response has always been: It is not lawful. Cf. Ferraris, Supplementum, v. Divortium, Commentary on the Sentence of Divorce to be rendered by a lay judge as to the bond of matrimony.

Armandus and Armanda, spouses, since they could not obtain a sentence of divorce in Italy because of the absence of such a law in Italy, go to France; there they first obtain naturalization, or civil status, and then in court they obtain a sentence of divorce. Having returned to Italy, they ask in court that the judge in Italy confirm the sentence rendered in France. — Can the aforesaid judge in Italy confirm that French sentence?

R. In the negative. In no way can the judge in Italy furnish this, either by natural law or by positive civil law. Concerning natural law, cf. here n. 3.

As regards civil law, it is easily proved, because from C. I. 56, 148, one bound by marriage cannot contract another marriage, and marriage ceases only by the death of the spouse. But one independent State cannot impose upon another State, likewise independent, its own law permitting an act prohibited in that State, when that act regards natural and public honesty, good morals, and public order, as the indissolubility of marriage is. Hence it is that whether Armandus and Armanda are Italians, or are also French, that sentence of divorce pronounced by a French judge cannot be held ratified by an Italian judge. It is added in the Case that there is open fraud against the law, and no one’s own fraud ought to patronize him.

The ship William Brown, directed from the port of Liverpool to Philadelphia, suffered shipwreck in the month of June in the year 1841. Many sailors and many travelers were saved in a small boat. But since the sea was stormy, in order to lighten the boat, which otherwise they feared would sink, the sailors cast the travelers into the sea. The matter then having been brought before a judge, the accused were acquitted in court, since otherwise all would certainly have perished.

It is asked: What must be judged concerning the sentence of the judge in the Case?

R. It was certainly in no way lawful for the sailors to cast the travelers into the sea. For this in fact was nothing else than to kill innocent men by private authority. But the fact that all otherwise would have perished does not make their homicide honorable, since the death of all would then have happened only by a natural misfortune, which certainly they could not prevent by the death of some. Therefore the sentence of the judge, wholly absolving the sailors as not guilty of homicide, was not legitimate. In the Case the judge ought indeed to have condemned the sailors as true homicides, but to a punishment milder than the ordinary one, on account of the grave circumstance of the shipwreck of all, which in the case certainly attenuated the offense. It would certainly have been wholly another thing if, in that danger, lest all should perish, some should have cast themselves into the sea, lest the boat be sunk by the multitude. For this “is not directly to kill oneself, but to expose oneself to danger, so as to be overcome by the weight of the body pressed down by the waves.” Thus Lessius writes about one who permits to another the plank occupied by himself, de Iust. et Iur. l. 2, c. 9, d. 6, n. 31: “In a shipwreck,” he says, “you can permit to another a plank not yet occupied by you, indeed even one occupied, and commit yourself to the waves, even if there is no hope of escaping, as Victoria and Peter Navarrus teach; for this is not directly to kill oneself, but to expose oneself to danger, so as to be overcome by the weight of the body pressed down by the waves. Here note that he who first occupied the thing in such an event is not held to admit another, but can hinder him, unless it is sufficient for both; if they occupied it at the same time, it must be decided by lot, unless one wishes voluntarily to yield to the other.” Kenrick, Theol. Mor., Mechlin, 1890, tr. 3, c. 9, nn. 111, 134.

Gerulfas, a mayor, assists at the civil marriage of two betrothed persons who both are bound by a previous marriage, but have already been separated from their own spouses by sentence of divorce according to the law in force. Gerulfas contends that he himself can licitly do this, because his assistance is merely a certain civil ceremony.

It is asked: What as to the Case?

R. Gerulfas acts wholly illicitly. For his presence is not a merely civil ceremony; but it is a certain solemnity of law, furnishing civil authority, in the particular Case set forth, to legal adultery, or to adultery contracted according to the norm of civil laws. This is further established from the Responses of the S. C. and of the S. Penitentiary. Cf. Enchir. Mor. 19. And, since the mayor, in the aforesaid Case, not only posits an intrinsically illicit act, but also one unjust against the prior legitimate wife and legitimate children, he is held to compensation for damages if the adulterer refuses to compensate them. For by that unjust act the mayor effectively influences those damages.

Nor indeed does it avail to object that civil marriage in the Case is not intrinsically illicit; whence it could at least be permitted in some very grave and very rare case. For civil marriage, since it is not true marriage, of itself does not hinder a man from fulfilling the obligations of the prior legitimate marriage. This is not true; for in order that in fact a man, for example, may return after a civil marriage to his legitimate wife, the consent of the other party is necessary. Therefore that civil marriage is an act of itself and by its nature legally sanctioning adultery against ecclesiastical and legitimate marriage. — Of a mayor of this sort it cannot be said, as is prescribed by the S. Penitentiary on 20 March 1855, that he does nothing against the sanctity of marriage and the necessity of contracting it before the Church. Of a mayor of this sort it cannot be said, as is held from the same S. Penitentiary, that he removes scandal, since on the contrary he confirms it by his own act.

Torquatus, a mayor, a fervent Catholic, assists at the civil marriage of Tullius and Tullia, whom he knows neither to have contracted canonical marriage previously, nor to wish to contract it afterwards. Torquatus cannot deny his assistance; for otherwise he will be liable both to a grave fine and to deposition from office.

It is asked: What as to the Case?

R. Torquatus, in the Case, can assist at the aforesaid marriage. For to the aforesaid case the S. Penitentiary, 20 March 1855, responded: “That it can be tolerated, provided that civil officials in drawing up acts of this sort intend to exercise a merely civil ceremony, and do nothing or advise nothing against the sanctity of marriage and the necessity of contracting it before the Church; rather, that they exhort them to contract it before the Church itself; having before their eyes the most holy laws of our Religion, and the letters of Benedict XIV, Redditae sunt nobis, concerning which, for removing scandal, they should admonish the contracting parties. But as regards cases in which it appears that the faithful, approaching the civil ceremony, are ill-disposed, and will not celebrate before the Church the marriage which regularly ought to have been premised, but will remain in concubinage under the pretext of a civil contract, the officials themselves are to be directed according to the rules handed down by approved authors, and especially by St. Alphonsus, l. 2, tr. 3, c. 2, dub. 5, art. 3, concerning cooperation.” Moreover in the aforesaid letters Benedict XIV teaches that, when Catholics present themselves to the civil magistrate, they exercise a merely civil act, and that marriage must be celebrated before a Catholic minister and two witnesses; otherwise they will never be legitimate spouses, nor ever legitimate offspring.

Vol. II, Treatise on Particular Sta…, Part First. On the State o…, Chapter I. On the Obligations of Judges · Vol. II, Treatise on Particular Sta…, Part First. On the State o…, Ch. I, Appendix I. On Jurors · Vol. II, Treatise on Particular Sta…, Part First. On the State o…, Ch. I, Appendix II. On Arbiters

Now St. Alphonsus teaches this concerning cooperation in the place cited: “It must be said that that cooperation is formal which concurs with the evil will of another and cannot be without sin; but that is material which concurs only with the evil action of another, apart from the intention of the cooperator. And this is licit when the action of itself is good and indifferent, and when there is present a just cause proportionate to the gravity of the sin of the other and to the proximity of the concurrence which is furnished for the execution of the sin.” Cf. I. M. v. 1, 440. Moreover Torquatus the mayor does not cooperate formally in the case with the depraved will of Tullius and Tullia, either by intention, as is supposed, or by action; for the act of the mayor is, in the Case, a merely civil ceremony, furnishing of itself force to a marriage contracted or to be contracted, as to civil effects. For by civil law those things can be ordered and administered which marriages of themselves bring in the civil order, the marriage itself being left untouched, which among Christians is governed by the laws of the Church. But that Tullius and Tullia have neither previously contracted marriage, nor wish afterwards to contract marriage, is only from their depraved will. The cooperation of the mayor is merely material, by an act, as appears, not only indifferent, but of itself honorable and licit, which the aforesaid betrothed persons abuse only from their own malice. Nor indeed is a just and proportionate cause lacking, such as certainly is both the grave fine to which the mayor would otherwise be subjected, and his deposition from office, which would redound to the grave private harm of the mayor himself and to the common harm of society itself; because otherwise honorable and religious public officials would, to the public harm, be replaced by depraved and unjust officials.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 36 passages

Vol. II, Treatise on Particular Sta…, Part First. On the State o…, Chapter I. On the Obligations of Judges

- A judge is a public person, constituted by legitimate authority ¹, in order that according to the laws he may vindicate justice, and decree the due punishments against delinquents.

¹ By this the judge is distinguished from an arbiter, who assumes the office of judging not by public authority, but by the spontaneous choice of the contending parties.

Principles. - I. A judge is bound, from a quasi-contract with society, to fulfill his office rightly; and unless he does this, he will be guilty of violated justice, both legal justice and also commutative justice.

II. In order that a judge may be able to discharge his office rightly, he must have 1º intelligence equal to the office, so that he may be able to look into intricate causes; 2º sufficient knowledge and sagacity, so that he may take account of all the circumstances both of law and of fact ²; 3º incorruptible integrity, so that he yield neither to love nor to hatred.

² Whoever seeks or undertakes the office of judge, knowing himself to be so unequal to it that he foresees that probably grave damage to his neighbor will follow, sins mortally. But whether knowingly or unknowingly he has done this through his insufficiency, he ought not be absolved unless he resigns the office, or unless he has a firm purpose of resigning, or at least, if there is hope that he will become fit by study, of supplying meanwhile for his insufficiency by using the counsels and work of another endowed both with ability and with knowledge. St. Alphonsus, Bk. 4, n. 195.

III. A judge is bound to pass sentence according to the laws and the order determined by the laws; for he is not constituted to change or reform the laws, but to put them into execution ³. Except a special case, in which the mind of the law is rather to be followed by the judge than the bark of the words; but then account must also be taken of the age, and of the condition and fortune of him upon whom he must impose punishment ⁴.

³ These things hold for an inferior judge, who ordinarily cannot relax or lessen a penalty, even if the plaintiff consents, unless at times epikeia should dictate that it be done otherwise for the good of the republic, or unless the matter concerned only the private injury of the plaintiff. Yet the supreme judge can do this for a just cause; and if this is lacking, he would sin gravely, because he would embolden delinquents and would concur in sin. St. Alphonsus, Bk. 4, n. 205.

⁴ Account of these circumstances is taken in the laws themselves. Wherefore, not even in these circumstances is the matter fully left to the discretion of the judge.

IV. In a doubtful cause let him hold these rules:

1º In criminal matters the accused is to be favored ⁵, unless the crime is established. - Rule of canon law 11 in 6º.

⁵ Understand this both of the existence of guilt and of the merits of punishments.

2º In doubt about ownership and possession at the same time, judgment must be made according to the more probable reasons, as is clear from natural law and from the 2nd proposition condemned by Innocent XI, which sounds thus: “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 must be divided ⁶.

⁶ ** Gury ought not to have passed over in silence another opinion, which several have embraced (see Lugo, On Justice, disp. 37, nn. 114, 115), and they, as the Salmanticenses say (tr. 29, ch. 1, n. 41), very grave Doctors, and which Lugo (l.c.) expresses thus: “When each opinion is equally probable, the judge indeed will do better by seeking to bring the parties back to agreement; nevertheless absolutely he can choose one of them.” And Sanchez (Dec., bk. 4, ch. 9, n. 45): “It is truer that it is open to the judge to choose the opinion which he shall have preferred, and to judge according to it; indeed, scandal ceasing, now according to one, now according to another.” I said that this opinion ought not to have been passed over in silence, since the opposite opinion, which alone Gury proposes, even the Salmanticenses themselves (l.c. n. 42) merely hold as the more probable for themselves.

This also must not be omitted, that for that opinion of the Salmanticenses and Gury, St. Alphonsus also alleged Villalobos, Prado, Sayrus, etc., since he found them cited by the Salmanticenses. But these authors, and others whom St. Alphonsus tacitly indicates, the Salmanticenses were adducing not where the question is about equal probability on the part of the law, but where there is equal probability on the part of the fact. For where there is discourse about equal probability of law, even the Salmanticenses (ibid. n. 41) acknowledge that the aforesaid authors think with Lugo and Sanchez against Gury.

Besides, whichever opinion at last you prefer in this question, the authors rightly warn (p. 926) that an exception must be made, as St. Alphonsus has it (Bk. 4, n. 410), if there is question of causes of matrimony, dowry, widow, ward, and other pious causes; for then one must judge for these, when the rights are equal, even if they are plaintiffs, from the final chapter De sentent. et re iudicata. Yet one must confess that hence a difficulty arises against the opinion of Gury, which otherwise St. Alphonsus (l.c.) says must be held entirely, namely that generally the thing must be divided among the parties. For this opinion St. Alphonsus after Roncaglia and Reiffenstuel brings this reason, because the judge is not the owner of things, but a distributor, and, as Reiffenstuel says, a minister of justice according to the rights of the parties; and therefore if the rights are equal, he must divide the thing equally between them. But when Canon Law, alleged by St. Alphonsus, commands that, if there is question of widows and wards, judgment in the case must be made for these, does it command that the rights of justice be violated? And if it is not lawful to affirm this, and otherwise the right of the other party must by no means be said to perish of itself because the right of the ward or widow is equal, how, while the laws of justice are preserved, will the judge not decree that the thing be divided, but be able to adjudge the whole thing to the other party? Therefore it is not without reason that very grave theologians, say the Salmanticenses, and very many and those not of slight name, as Roncaglia calls them (tr. 15, q. 2, ch. 1, q. 9), gave little or nothing to the argument which both Roncaglia and Reiffenstuel, and after them St. Alphonsus, thought most firm.

4º^† In doubt about ownership alone, one must stand for the certain possessor. This is established from the rule of law: In equal fault or cause ⁷, the condition of the possessor is better. - St. Lig., n. 210.

⁷ In order that the cause may be called equal, the reasons of each party must be equally probable. But if the reasons of the plaintiff are more probable, that rule of law, as St. Alphonsus admits, has no place; nor does the opinion, though more common, of those who oblige the judge to pass sentence for the possessor exceed the limits of probability. See St. Alphonsus, Bk. 4, n. 210, q. II.

Questions. - QUESTION 1º. Can a judge condemn an accused person whom by private knowledge only he knows to be guilty, or an innocent person who juridically is proved guilty?

Resp. to the 1st: By no means, according to all. The reason is that a judge is bound to judge according to the things alleged, and according to the forms prescribed by law. For there is no danger in sometimes releasing a hidden guilty man, whereas there would be great danger in violating the established forms of trial ⁸.

⁸ Understand this of an inferior judge, who cannot dispense from the law, especially in a matter of such great moment. For although power to kill someone from private knowledge is denied to a prince when there is question of a crime, nevertheless this is lawful for him if there is question of preventing an evil which threatens the republic through some person. Thus the common opinion apud Lugo, On Justice, disp. 57, n. 50. Moreover, speaking about civil causes and about the removal of offices, etc., perhaps a greater power is in the prince for this, that from private knowledge he can sometimes condemn an accused person not convicted. Thus Lugo (l.c. n. 54), in whose work you may see the reasons for this doctrine.

Resp. to the 2nd: It is much disputed. St. Thomas, 2.2, q. 64, art. 6, affirms. St. Bonaventure denies. St. Ligorius, n. 208, admits each opinion as probable, if there is question of civil causes, or even of criminal causes of lesser moment; but if a case occurs concerning greater criminal causes, and especially capital ones, he thinks the opinion of St. Bonaventure the more right. The reason is that in the former case it can be said, at least probably, that a private inconvenience must yield to the common good, since it is not so great. But it is otherwise in the latter case; and therefore then to condemn the innocent seems intrinsically evil ⁹.

⁹ There are three principal opinions, says Lugo (disp. 57, n. 42), on this point. The first denies that it is ever lawful for a judge to pronounce sentence against him whom he certainly knows to be innocent. The second, extremely contrary, affirms that a judge can always pronounce sentence in any cause according to the things alleged and proved. St. Thomas holds this, and without doubt theologians and jurists commonly incline to this side. The third, a middle opinion, distinguishes concerning criminal causes in which there is question of the penalty of life or mutilation, and in these it denies that it is lawful for a judge to condemn the innocent; but in civil causes, or where there is question of a pecuniary penalty or exile, or deprivation of offices, it concedes that it is lawful. They give this reason for this last part (n. 44), that although the republic does not have dominion over the life and members of subjects, nevertheless it does have it over these other goods, so that, a just cause arising on account of the common good, it can dispose of them, and take away goods, deprive men of offices, expel citizens from the city, etc. Therefore it is credible that it gave this power to the judge for this end, that judgment be made according to the laws and proofs, lest the judicial order be contemned, the observance of which conduces supremely to the peace and quiet of the republic. These things indeed more clearly define and explain the doctrine of the Author, and give its more inward reason.

But the judgment of Cardinal de Lugo concerning the aforesaid opinions is this (ibid. n. 45): “Among these opinions the second is very probable because of the authority of St. Thomas and the common opinion; yet the third perhaps has more efficacious reasons: for although not all its arguments prove the point, some nevertheless have great force.”

Each one can see for himself the reasons for each of these opinions in the same de Lugo; here it is better to subjoin, from the same author (ibid. n. 41), those things which are outside controversy: “It is certain in the first place,” he says, “that that judge is bound to try all means and to use every diligence to liberate that accused man. First, by devising causes sufficient to repel the accusation. Second, by examining the witnesses with the greatest dexterity, after the example of Daniel, by questioning the circumstances of place, time, etc., until he finds them disagreeing. Third, he will be able, if it can be done without scandal, to dissemble in the custody of the prison, so that the innocent man can flee. Fourth, to remit the cause to a superior judge, and before him to testify to the innocence of the accused, which he himself knows. Fifth, if the judge is the supreme prince, he can more easily absolve the accused by absolute power, according to which a prince can sometimes remit a due penalty.” The sum of these things is taken from St. Thomas, 2.2, q. 64, art. 6, ad 3, and q. 67, art. 2. And from these Lugo rightly concludes that it can happen very rarely that a judge cannot liberate him whom he certainly knows to be innocent.

- QUESTION 2º. Can a judge accept gifts for passing sentence?

Resp. No. For this is prohibited by every law: 1º by natural law, at least in some way ¹⁰, because gifts blind the mind and impel it to favor the giver more than is just; and hence arises the vice of acceptance of persons; 2º by canon law; for in 6º (bk. 1, tit. 3, ch. 2), Boniface VIII established that judges should accept neither any gift, nor anything else, unless perhaps food and drink offered from mere liberality; 3º positive law, both Roman and French, is consonant. Thus in art. 177 of the Penal Code every corruption of magistrates by gifts and promises is punished with grave penalties, both in the corrupted and in those corrupting ¹¹.

¹⁰ It is said, “in some way”; for the matter concerns only temptation, or the danger of prevarication, which the law of nature commands to be removed. Hence St. Alphonsus (Bk. 4, n. 216) only says that sin is sometimes committed.

¹¹ If a judge sins by receiving gifts, by that very fact whoever offers them also sins; for he cooperates in another’s sin. Except, however, the unlearned, whom ignorance very often excuses. Likewise except, if gifts are given to redeem an unjust vexation, when otherwise an unjust sentence seems prudently to be feared; nevertheless these must be restored, and also can be recovered in court after the sentence. St. Alphonsus (Bk. 4, n. 212) with the common opinion. Except also, besides other cases apud Lugo, disp. 37, n. 132, with Laymann (Bk. 3, tr. 4, ch. 4, n. 9), if the judge has been engaged without sufficient stipend, or if he increases his labor to expedite someone’s cause more swiftly, without damage to others. Laymann adds that he does not dare condemn an accepted gift, considered by natural law, if a judge expedites the cause of one before others, when it is within his discretion whom he should prefer to whom; yet he subjoins that the matter is not free from danger; and Lugo (l.c. n. 136) reproves it absolutely, because whenever he is bound from justice to do something gratuitously from among alternatives, he cannot accept anything for the choice of this part.

But as to those things which depend only on positive law, Lugo adds another observation (l.c. n. 132), namely that in some places fees are accepted from litigants beyond the public stipend; and the acceptance of these fees in certain places has been established by custom. “In general,” he continues, “observe that all those things which in this kind are held by legitimately prescribed custom are presumed lawful, provided they are not against natural law; but where that custom does not exist, one must stand by the particular law of each kingdom or province; for individual ones are accustomed to have their own laws on this point, more or less strict, which will oblige as long as they are not abrogated by a contrary custom.”

QUESTION 3º. Is a judge bound to restitution if he has accepted gifts from litigants?

Resp. Probably no, before sentence; because even if he acts illicitly by accepting gifts, nevertheless he does not sin against justice. Thus more commonly: Lugo, Lessius, St. Antoninus, Azor, against others, who also probably affirm. St. Ligorius, n. 216, says that each opinion is sufficiently probable ¹².

¹² St. Alphonsus in this place reports the doctrine of the Salmanticenses from tr. XIII, ch. 1, nn. 170-173, where the discussion is not about this special question, but generally: whether from an illicit donation, and one reprobated by the laws, there arises in the receiver an obligation of restitution. And indeed, while the Salmanticenses mingle together both things which are given for sins perpetrated, and things which merely foster the avarice of the receivers, and things which are acquired simoniacally or in a game of chance forbidden by the laws (to which pertain the two places of St. Thomas alleged by them, one of which St. Alphonsus brings here after them), they introduce such confusion that it is not permitted to extract anything in reality from them.

Therefore it is better to retain the opinion which St. Alphonsus (l.c.) reports thus from Busembaum: “Even if a judge, by accepting liberal gifts from the parties, sometimes sins either because of scandal or because of danger of perverting justice, nevertheless he acquires ownership of the things accepted.” Concerning this St. Alphonsus subjoins: “This is common and certain.” Busembaum adds: “Even if a positive law prohibits the acceptance of gifts, nevertheless he who accepts is not bound to restitution before the sentence of a judge, unless the law expresses that the acceptance is not only illicit, but also invalid.” See Bonacina, On the Eighth Precept, q. 2, punct. 8, whose allegation regards the obligation of restoring to the poor if someone has received something for obtaining favor or justice in the Roman Curia; Laymann, Bk. 3, tr. 4, ch. 4, nn. 9 and 10. And Cardinal de Lugo is authority that this opinion is handed down by many and very grave doctors (disp. 37, n. 134), who subjoins that it is proved from the common practice of all judges, even those fearing God, who never restore those gifts when they were given liberally, nor are they obliged to this by confessors. Indeed this practice of confessors also warns us not to use easily and without the greatest discretion the counsel which the Author subjoins, lest we cast unnecessary snares upon penitents.

Nevertheless judges should at least be urged to restore gifts received, or to expend them on pious works. Sometimes this could be enjoined as a penance to draw the judge away from relapse ¹³.

¹³ ** From what has been said it is plain that here the matter is merely of giving counsel; for neither can the confessor command that which it is probable penitents are not bound to perform, nor will prudence easily agree that it be enjoined as a sacramental penance.

QUESTION 4º. Is a judge bound to restore what he has accepted by agreement for passing some sentence?

Resp. 1º Yes, if he accepted it for passing a just sentence, that is, for performing that which he already owed from justice. The reason is that whatever is already owed from office, and therefore from justice, cannot be the matter of a contract. A fortiori he is bound to restore those things which he extorted by force, threats, or unjust vexation.

Resp. 2º If he accepted it for passing an unjust sentence, he is certainly bound to restitution before he passes that sort of sentence; but after the sentence has been passed, it is disputed, according to what has been said about a contract in a base matter, vol. 1, n. 760 ¹⁴.

¹⁴ If the question is made merely according to the principles of natural law, from what was said in the note to n. 760, vol. I, it must be beyond controversy that a price of this sort can be retained in conscience; for no probability, unless fictitious, can be attributed to the opposite opinion. But if positive law is considered, the question seems to be solved from what was said in the preceding note.

- QUESTION 5º. Is a judge bound to repair damage which he did not prevent, or whose reparation he does not procure, when he can?

Resp. Yes, because he is an unjust and efficacious cooperator. Recall what was said about negative cooperators, vol. 1, n. 690 and following, and elsewhere throughout ¹⁵.

¹⁵ Concerning this question have these things more distinctly from St. Alphonsus:

1º If a judge has passed an unjust sentence by fraud, he has made the lawsuit his own, that is, he has transferred to himself the damage of the injured party, to whom he is bound to restore (Bk. 4, n. 214). Understand this with the order among those liable to restitution preserved; for before the others he is bound to restore who has in his possession the thing owed to another.

2º If a judge judges badly through great incompetence, he is bound to indemnify the injured party and to pay the expenses of the lawsuit, and this whenever notable damage occurs to the parties, whether in the substance of the lawsuit or in superfluous expenses, because of his culpable ignorance. This is common (ibid. n. 195).

3º If otherwise worthy of his office, even if by seeking it he obtained it while others more worthy were neglected, he erred through forgetfulness from human frailty, he is not obliged in conscience to restitution from his own goods, since he did not inflict a formal injury, nor did he receive any advantage from such a sentence, or rather, according to others, since he did not commit theological fault; nevertheless he ought to revoke the sentence if he can without grave inconvenience (ibid. n. 214). And more clearly: “If a 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 prevent the error, for example by secretly warning the injured party to provide for himself by appeal or otherwise; because this pertains to the due execution of his office” (ibid. n. 195).

4º A judge sins mortally against his office by delaying very notably the dispatch of causes without just cause. Likewise he is bound to restore to the injured party the damages and expenses which have followed from the unjust delay, because he is their unjust cause (ibid. n. 196).

These things St. Alphonsus says; concerning which, nevertheless, note that the legitimate order must always be preserved among those who are liable to restitution. For before the others the first debtor of all is he who has the thing, or who from another’s thing has been made richer. Hence if the judge restores, the holder of the other’s thing will be bound to restore to the judge himself, who otherwise could also use occult compensation.

QUESTION 6º. Does a sentence of a judge that is doubtfully just, or certainly unjust, oblige?

Resp. to the 1st: Entirely yes. For presumption favors the superior or judge. See On Conscience, n. 75, etc.

Resp. to the 2nd: Of itself, no, as is plain ¹⁶. Except, however, unless there is present a reason of scandal or of disturbance of public order; because a private good must always yield to the public good. But he who obtains the cause through an unjust sentence cannot receive the thing adjudged to him, or he must restore it, and besides he is bound to repair all damages and expenses to the opposing party ¹⁷. Yet if he was in good faith, when this ceases he must only return the other’s thing, according to what was said about the possessor in good faith, n. 635 ¹⁸.

¹⁶ More clearly St. Alphonsus (Bk. 4, n. 215): “An unjust sentence, either from the nature of the thing or from omission of an order of law simply necessary, whether it is passed through things falsely alleged and proved, or from the iniquity of the judge, has no force in the forum of conscience; and the injured party’s right remains to him, even if he does not appeal, and it will be lawful, if he can do it without scandal, to recover his goods. I said, in the forum of conscience: because in the external forum, where not so much the truth of the fact as juridical proof is considered, a proved sentence is to be observed to avoid scandals and inconveniences; nor, after the term has elapsed within which it was permitted to appeal, is an action granted to him, the law so establishing both as a penalty of sloth and for the public good, so that there may be an end of lawsuits.”

¹⁷ For this reason the injured person can, unless the other has prescribed justly, recover his own goods by occult compensation, because he recovers his own right. St. Alphonsus, Bk. 4, n. 215.

¹⁸ He who in good faith petitioned a thing from the judge, and in good faith accepts it, and possessed the thing in good faith for the time necessary for prescription, is not bound to restore, because he has legitimately prescribed. St. Alphonsus, Bk. 4, n. 215.

Vol. II, Treatise on Particular Sta…, Part First. On the State o…, Ch. I, Appendix I. On Jurors

- Jurors, so called because of the oath which they take about rightly exercising the office entrusted to them, are men selected from the chief citizens to discharge some part proper to judges. They are employed only in criminal causes, and their office is to pronounce concerning the existence of the fact and the culpability of the accused; but afterward the judges decree the penalty according to the law. The institution of jurors, taken from the English, was created in favor of the accused, so that the fact might be examined by grave men designated by lot, with no malicious affection toward the accused, as being for the most part wholly unknown to them, and therefore so that that fact might be known more certainly.

¹ On the title above. ** The question whether this institution of jurors contributes to the common good is not part of our undertaking. Indeed, it has against it the judgment and practice of all previous centuries. Moreover, since right judgment depends finally on the expertise and integrity of those judging, will it be permitted to hope for this from those jurors rather than from ordinary judges? Recall the things that happened in England concerning those who, some years ago, plotted against the life of the Emperor of the French. You have the inconveniences and absurdities of this English institution excellently set forth by Saint-Paul.

Jurors are taken from notable citizens determined by law. The body of jurors (le Jury) consists of twelve citizens for each case to be judged.

Jurors who by lot are designated for the session of the Court called d’Assises contract the same obligations as the judges themselves, whose office in great part they exercise; and therefore concerning jurors, as concerning the judges themselves, one must speak generally.

- QUESTION. Whether a JUROR can give a vote against the accused, who indeed has been juridically convicted of the crime, but whose innocence he certainly knows by private knowledge?

Resp. No. The reason is that this seems contrary to the mind of the law. For jurors must pronounce only concerning the fact, and according to the intimate conviction which they have about its existence, nor in any way are they bound to render a legal reason for their sentence. Indeed from the law itself they are not bound to found their sentence either on such and such a number of witnesses, or on these or those reasons brought forward from the various sides, etc. Therefore they must give their vote only according to that which they feel in the forum of conscience. And so, with regard to the office which is imposed on jurors, it is easily plain that those controversies which are debated about judges, n. 2, by no means have place concerning them.

Vol. II, Treatise on Particular Sta…, Part First. On the State o…, Ch. I, Appendix II. On Arbiters

- 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.

- 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.

Bucceroni, Moral Enchiridion (4th ed., 1905)

Gennaro Bucceroni, S.J. — 16 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion (4th ed., 1905), On Particular States

On a Sentence of Divorce to Be Pronounced by a Lay Judge and by a Mayor

“Not without great sorrow of soul—or rather, horror—did the Fathers of this Provincial Synod learn that certain legislators of this region had very recently proposed the establishment of a Court of Divorce, whose office would be to pronounce divorce from the bond on the ground of adultery. For besides the fact that such a law—which God avert—would be a subversion of the institution of almighty and most wise God and a usurpation of the rights of the Church of Christ, no one is ignorant, or can be ignorant, of how many and how great are the evils which flow from such a divorce and render it most hostile to civil society. For under the hope of a future divorce, marriages are contracted imprudently; quarrels—and, what the soul shudders to say, adulteries themselves—are provoked; the bond of charity between families gives way to irreconcilable hatred; fortunes are placed in jeopardy; the whole of society is scandalized. Finally, what shall become of the children whose parents have obtained a divorce? But We, whom God has placed as watchmen over this part of His Church, wish our diocesans always to remember that no one can, with a safe conscience: 1. cast a vote for such a law; 2. act in such a Court of Divorce in the part of the plaintiff, or of the judge, or of the notary or chancellor, or cooperate formally or in any other manner whatever; nevertheless, We do not intend to condemn those who, under compulsion, shall give testimony concerning the fact itself of adultery.” Fourth Provincial Council of Quebec, 1868; Collectio Lacensis, vol. 3, col. 718.

“The enacted law of the Swiss Confederation on civil status and marriage has decreed that all and each matrimonial case, ecclesiastical jurisdiction having henceforth been suppressed, is to be treated in lay tribunals according to the norm established for civil cases, and that sentences in them are to be pronounced according to the prescriptions of the common law and of the most recently enacted law. By the latter, even marriages of Catholics can, on certain very slight grounds, be perpetually severed and dissolved as to the bond, so that litigating spouses of this kind, after a sentence of divorce has been pronounced by secular judges, can pass to the contracting of other marriages if they wish. It is therefore asked:

“Fifth doubt. Can Catholic judges and advocates in lay tribunals of this kind, with a safe conscience, undertake and defend matrimonial cases, or take cognizance of and judge them?

“Sixth doubt. Can the same Catholic judges and advocates, with a safe conscience and according to the recent Swiss law, propose that the marriage bond be dissolved, or declare it dissolved, and also declare that spouses of this kind can pass to the contracting of another marriage, as the civil law in this case expressly commands and urges the judges to judge and declare?

“In discussing this question, it must not be forgotten that the secular tribunals whose office it is to judge civil cases are the same tribunals upon which, by the new law, it is incumbent to take cognizance of and judge matrimonial cases. Therefore, if Catholic judges should be forbidden to take part in tribunals of this kind we shall experience, to the great detriment of citizens, that those tribunals are deprived of the judges who, filled with the fear of God, judge piously and justly.

“Response. To the fifth and sixth. As regards judges, recourse is to be made in particular cases. As regards advocates, let the responses already given to the Bishop of Southwark be given, namely: Thursday, in the fourth place, 22 May 1860, to the doubt: Can a Catholic advocate defend the case of the respondent against a plaintiff seeking dissolution of the bond? The response was: Provided that the bishop is satisfied concerning the uprightness of the advocate, and provided that the advocate does nothing which departs from the principles of natural and ecclesiastical law, it can be tolerated.—And to another doubt: Is it lawful to act in the part of advocate and plaintiff when the end of the suit is simple separation without any sentence carrying with it the nullity of the marriage itself? The response was: Provision was made in the preceding; and Friday, 19 December of the same year: Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as to bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics act in that forum in the part of plaintiff and advocate, and provided that just grounds of separation exist in the judgment of the bishop; and if he has any further doubt, let the petitioner have recourse, setting forth all the circumstances and the dispositions of the law.” Holy Office, 3 April 1877.

“After the laws of divorce were recently restored among the French in the year 1884, several doubts were proposed to this Sacred Roman and Universal Inquisition by certain bishops of France: namely, whether it was lawful for lay judges to administer justice in cases concerning the separation of spouses, whether as to the bond or merely as to habitation; whether it was lawful for advocates and procurators to conduct cases of this kind before lay judges; whether it was lawful for those to whom it belongs by law to appoint defenders appointed by the court, as they call them; and finally, whether it was lawful for mayors (maires, as they are commonly called) to pronounce divorce.

“The Most Eminent Fathers, General Inquisitors together with me, the matter having been maturely considered, judged in the meeting of Thursday, in the fourth place, on 25 June 1885, that the following was to be decreed:

“In view of the most grave circumstances of affairs, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial cases in France without being bound to resign their office, provided that they openly profess the Catholic doctrine concerning marriage and concerning matrimonial cases as belonging to ecclesiastical judges alone; and provided that, both concerning the validity and nullity of marriage and concerning the separation of bodies, which cases they are compelled to judge, they are so disposed in mind that they never pronounce a sentence contrary to divine or ecclesiastical law, nor defend a sentence to be pronounced, nor provoke or incite such a sentence; and that in doubtful or more difficult cases each approach his Ordinary, direct himself according to his judgment, and, insofar as there is need, have recourse through him to the Apostolic Penitentiary.

“The Most Holy Father ratified this decree, and therefore it is made known by these letters—which otherwise are not to be published—to all archbishops and bishops in France as their norm.”

“The following doubts were proposed to the Sacred Roman and Universal Inquisition by certain bishops of France. In the letter of the Sacred Roman and Universal Inquisition of 25 June 1885 to all the Ordinaries in the French dominions concerning the law of civil divorce, it was decreed as follows: ‘In view of the most grave circumstances of affairs, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial cases in France without being bound to resign their office.’ It added conditions, of which the second is this: ‘Provided that, both concerning the validity and nullity of marriage and concerning the separation of bodies, which cases they are compelled to judge, they are so disposed in mind that they never pronounce a sentence contrary to divine or ecclesiastical law, nor defend a sentence to be pronounced, nor provoke or incite such a sentence.’ It is asked: 1. Is the interpretation spread throughout France and also given to print correct, according to which a judge satisfies the aforesaid condition if, although some marriage is valid before the Church, he truly and steadfastly abstracts from that marriage and, applying the civil law, pronounces that there is ground for divorce, provided that in his mind he intends to rupture only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard these alone? In other terms, can a sentence so pronounced be said not to be contrary to divine or ecclesiastical law? 2. After a judge has pronounced that there is ground for divorce, can the mayor (le maire in French), himself also intending only the civil effects of the contract, as is explained above, pronounce the divorce, although the marriage is valid before the Church? 3. Once the divorce has been pronounced, can the same mayor civilly join with another a spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living?—Response. To the first, second, and third doubts: Negative.” Holy Office, 27 May 1886.

“14 September 1886. Prince.... Following my request, His Eminence (the Cardinal Secretary of State) has just informed me, by order of His Holiness, that the Congregation of the Holy Office has declared that the decree of 27 May does not concern Belgium and that, consequently, nothing is changed in this country as regards the matter of divorce. † Dominic, Archbishop of Thessalonica, Apostolic Nuncio.” To the Minister of Foreign Affairs at Brussels.

“A certain French judge, formerly a student of theology, approaches his confessor and, after declaring various mortal sins, adds: ‘Concerning the sentences pronounced by me in the matter of civil divorce, there is nothing for me to say, Father. For I am accustomed to declare civil divorce whenever most grave reasons are present, whether on my part or on the part of those who have brought the case before me.’—‘You have acted wrongly,’ the priest replies, ‘and you have not read the decision by which the General Congregation of the Sacred Roman and Universal Inquisition recently (27 May 1886) forbade judges to act in this manner.’—‘Indeed, I know it perfectly well, Father, and nevertheless I do not judge that I have sinned, for the following reasons: 1. You also know, Father, the response given in the name of the Supreme Pontiff to the Government of Belgium by the Apostolic Nuncio. Now, an act tolerated in Belgium can also be tolerated in France when the same circumstances recur, unless a positive prohibition by the Supreme Pontiff is certainly adduced; and this is by no means constituted by the simple approval of a decree of the Holy Office. 2. Theologians do not agree concerning the force of a decision of this kind. 3. Finally—and this is the principal hinge of the matter—in the proposition most justly condemned on various grounds (27 May 1886), not even one word is read concerning the most grave reasons which can arise either on the part of the judge or on the part of the petitioners. Therefore, since it is lawful to use truly probable opinions, and since, as I trust, I have duly disposed myself and declared my mortal sins to you, I humbly ask you, Father, to be willing to impart absolution to me, to which, according to the doctrine of all, I have a right.’ The confessor labors to induce the penitent to abandon such an opinion, but in vain. On the other hand, moved by the reasons which the judge has brought forward, he does not dare to impose his own opinion upon him, and dismisses the absolved penitent in peace.—It is asked: Did the confessor act rightly?—Response. Confessors are bound, concerning the question proposed, to direct judges according to the recent declarations issued by the Holy See.” Sacred Penitentiary, 4 April 1887.

“N.... of Luçon, whose marriage was valid before the Church petitioned for divorce according to the abominable law now in force in France, and the civil judges have already pronounced that there is ground for divorce. The spouse N...., as article 264 of the aforesaid law provides, will soon present himself with the other spouse before the mayor so that the latter may pronounce the divorce. But if the mayor refuses to pronounce it, without doubt he will be deprived of his magistracy; and this will be very dangerous to the Catholic cause, of which that mayor has always shown himself a strenuous defender.—It is asked whether, on account of the most grave circumstances of affairs, times, and places, that mayor can pronounce the civil divorce, provided that: 1. he openly professes the Catholic doctrine concerning marriage and concerning matrimonial cases as belonging to ecclesiastical judges alone; 2. in the sentence itself, and speaking as a magistrate, he publicly declares that he wishes to rupture only the civil effects and only the civil contract, while otherwise the marriage bond remains entirely firm before God and conscience.—The Venerable Sacred Penitentiary responds to the foregoing for the Father in Christ, the Bishop of Luçon: in this particular case, if, after examining all its circumstances, he judges in the Lord that it is expedient, he can tolerate that the aforesaid mayor proceed to the act concerning which the petition was made, with the declarations proposed by him; in such a way, nevertheless, that in place of the words, ‘he wishes to rupture only the civil contract,’ he put, ‘he can regard only the civil contract.’” 24 September 1887.

“Although the oracle of the Holy See has repeatedly declared what is to be thought of the act of a civil judge pronouncing a sentence of divorce between spouses joined by a legitimate marriage contracted before the Church, theologians in France—and even bishops—are not of one mind in interpreting the decrees of the Sacred Congregations. Still greater confusion of minds has arisen since the public periodicals published the response of the Sacred Penitentiary given on 24 September 1887 to the Ordinary Bishop of Luçon, namely, that in the case, the due declarations of course having been made beforehand, it can be tolerated that the mayor pronounce the divorce. In the periodical Le canoniste contemporain, a certain writer interpreted this response as though it were equivalent to a decree permitting a mayor generally, in a similar case and after the due declarations had been made beforehand, to pronounce the divorce. And furthermore, since the same response was made public, the opinion has prevailed more and more that the act of a judge pronouncing a sentence of divorce and that of a mayor pronouncing it, provided that the prescribed declarations are made beforehand, is not contrary to divine law and therefore is not intrinsically evil. Therefore the petitioner—inasmuch as until now he held and taught as alone true the contrary opinion from the decrees issued on this matter by the Sacred Roman and Universal Inquisition—suppliantly requests, so that he may provide for his own conscience in fulfilling his episcopal office, a response concerning the following two doubts: 1. Is it lawful to infer from the aforesaid rescript of the Sacred Penitentiary to the Ordinary Bishop of Luçon that, universally, mayors in France who would otherwise be compelled to resign their office can, after the due declarations have been made beforehand, with a safe conscience pronounce divorce between spouses bound in the sight of the Church? 2. Can the same be said of a civil judge pronouncing a sentence of divorce between similar spouses and under the same declarations?—Response. To the first: In issuing the rescript in question, the Sacred Penitentiary had this alone in mind: to provide for the particular case according to its circumstances and necessities. To the second: Negative.” Sacred Penitentiary, 4 June 1890.

“Most Reverend Monsignor, I have reported to the Most Eminent Major Penitentiary the case of the mayor of that Diocese who, by virtue of his office, would have to assist at the civil marriage of a certain person who is already bound in the sight of the Church; and by command of the said Most Eminent One I must inform you that the named mayor cannot in any way lend himself to an act so contrary to the sanctity of marriage. Therefore, whatever the circumstances of the case may be, he must absolutely abstain from such assistance, even though it should consequently follow that he must resign. From the Sacred Penitentiary, 28 November 1883. Luigi Martini, Substitute of the Sacred Penitentiary.” To the Bishop of Ferentino in Italy.—Cf. no. 933.

Bucceroni, Moral Enchiridion

Gennaro Bucceroni, S.J. — 14 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion, On Particular States

N. 1. - On the Sentence of Divorce to Be Pronounced by a Lay Judge

"Not without great sorrow of mind, or rather horror, have the Fathers of this Provincial Synod learned that certain legislators of this region have very recently proposed that a Court of divorce be established, whose office would be to pronounce divorce from the bond on account of adultery. For besides the fact that such a law, which may God avert, would be a subversion of the institution of almighty and most wise God and a usurpation of the rights of the Church of Christ, no one is ignorant or can be ignorant how many and how great evils flow from such divorce, which render it most hostile to civil society. For under the hope of future divorce marriages are contracted imprudently, quarrels are provoked, and, what the soul shudders to say, adulteries themselves; the bond of charity between families yields place to irreconcilable hatred; fortunes are placed in danger; the whole of society is scandalized. Finally, what will become of the children whose parents have obtained divorce? But We, whom God has placed as watchmen in this part of His Church, wish our diocesan faithful always to remember that no one can, with conscience safe: 1. cast a vote for such a law; 2. in such a Court of divorce, act the parts of plaintiff, or of judge, or of notary or chancellor, or concur formally or in any other way; nevertheless We do not intend to condemn those who, compelled, would bear testimony concerning the very fact of adultery." Fourth Provincial Council of Quebec, year 1868, Collectio Lacensis, Vol. 3, col. 748.

"The law of the Swiss Confederation issued concerning civil status and civil marriage sanctioned that all and singular matrimonial causes, ecclesiastical jurisdiction being suppressed from now and henceforth, are to be treated in the tribunals of laymen according to the norm which is established in civil causes, and that sentences are to be pronounced in them according to the prescriptions of common law and of the most recently issued law, by which marriages even of Catholics can, under certain very slight reasons, be perpetually broken and dissolved as regards the bond; so that spouses of this kind litigating, after a sentence of divorce of secular judges has been issued, can pass, if they wish, to contracting other marriages. Therefore it is asked:

Fifth doubt: Whether Catholic judges and advocates in lay tribunals of this kind can with safe conscience undertake and defend matrimonial causes, or know and judge them?

Sixth doubt: Whether the same Catholic judges and advocates, according to the recent law of Switzerland, can with safe conscience propose the bond of marriage as to be dissolved or declare it as dissolved, and also declare that spouses of this kind can pass to contracting another marriage, as the civil law in this case expressly orders and urges the judges to judge and declare?

In discussing this question it must not be forgotten that the secular tribunals, whose office it is to judge civil causes, are the same ones to which by the new law it belongs to know and judge matrimonial causes. Therefore, if it has been forbidden to Catholic judges to take part in tribunals of this kind, we shall experience, to the great harm of citizens, that these tribunals are deprived of those judges who, filled with the fear of God, judge piously and justly.

Resp. To the fifth and sixth. As regards judges, let recourse be had in particular cases. As regards advocates, let the responses already given to the Bishop of Southwark be given, namely: Feria III, place IV, 22 May 1860, to the doubt: Whether a Catholic advocate can defend the causes of the defendant party against the plaintiff seeking dissolution of the bond? The response was: Provided that the Bishop is certain of the uprightness of the advocate, and provided that the advocate does nothing which turns aside from the principles of natural and ecclesiastical law, it can be tolerated. And to another doubt: Whether it is lawful to act the parts of advocate and plaintiff when the end of the suit is a simple separation without any sentence drawing with itself the nullity of marriage? The response was: Provided for in the preceding. And Feria IV, 19 December of the same year: Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics in that forum act the parts of plaintiff and advocate; and provided that there are just causes of separation in the judgment of the Bishop. And if he has any doubt besides, let him have recourse, setting forth all circumstances and dispositions of the law." S. I. C. 3 April 1877, to the Bishop of St. Gall. Archiv fur Katholisches Kirchenrecht, etc., edited by Dr. Friedrich H. Vering, Mainz, 1878, p. 294 ff.

"After the divorce laws had recently been restored among the French in the year 1884, several doubts were proposed by some Bishops of France to this Holy Roman and Universal Inquisition: namely, whether it was right for lay judges in causes concerning separation of spouses, whether concerning the bond or only concerning habitation, to pronounce law; whether for advocates and procurators to handle causes of this kind before lay judges; whether for those to whom it belongs by law to appoint official defenders, as they call them; finally, whether for syndics (commonly maires) to pronounce divorce.

The Most Eminent Fathers, General Inquisitors together with me, the matter having been maturely weighed, on Feria V, place IV, on the day 25 June 1885, judged that this must be decreed:

Attending to the most grave circumstances of things, times, and places, it can be tolerated that those who hold magistracy and advocates handle matrimonial causes in France, without being bound to leave office, provided that they openly profess Catholic doctrine concerning marriage and concerning matrimonial causes as pertaining to ecclesiastical judges alone; and provided that they are so disposed in mind, both concerning the validity and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend for one to be pronounced, nor provoke or excite to it, that is repugnant to divine or ecclesiastical law; and in doubtful or more difficult cases let each approach his own Ordinary, direct himself by his judgment, and insofar as there is need, have recourse through him to the Apostolic Penitentiary.

The Most Holy Father ratified this decree; and therefore it is made known to all Archbishops and Bishops in France for their norm by these letters, which otherwise are not to be published."

n. ¶11.

"By certain Bishops of France the following doubts were proposed to the Holy Roman and Universal Inquisition: In the Letter of the Holy Roman and Universal Inquisition of 25 June 1885 to all Ordinaries in the French Dominion concerning the law of civil divorce, it is thus decreed: Attending to the most grave circumstances of things, times, and places, it can be tolerated that those who hold magistracy and advocates handle matrimonial causes in France, without being bound to leave office. It added conditions, of which the second is this: Provided that they are so disposed in mind, both concerning the validity and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend for one to be pronounced, nor provoke or excite to it, that is repugnant to divine or ecclesiastical law. It is asked: 1. Whether the interpretation spread through France and even given to print is right, according to which there satisfies the aforesaid condition a judge who, although some marriage is valid before the Church, abstracts from that marriage with a true and constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that he intends in mind to break only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard only those things? In other terms, whether a sentence thus issued can be said not to be repugnant to divine or ecclesiastical law? 2. After the judge has pronounced that there is place for divorce, can the Syndic (in French, le maire), himself also intending only the effects and the civil contract, as is set forth above, pronounce the divorce, although the marriage is valid before the Church? 3. Once divorce has been pronounced, can the same Syndic civilly join with another the spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living? - Resp. To the 1st, 2nd, and 3rd doubt, in the negative." S. I. C. 27 May 1886.

n. ¶12.

"A woman, separated from her husband by force of a sentence as regards bed, would wish to undertake a certain public office for sustaining life. But the government does not allow this unless she asks for divorce. She would wish to ask, but, in her intention, always with the bond saved. The Parish Priest, who is also her confessor, asks whether she can be admitted to the sacraments, and for light or counsel concerning the rest, as below. Resp. To the penitent woman, in the case, nothing else is to be advised except that she abstain under grave obligation from seeking divorce." S. Poenit. 5 Jan. 1887, to a Parish Priest of France.

n. ¶13.

"Most Reverend Monsignor. I have reported to the Most Eminent Major Penitentiary the case of the Syndic of that Diocese, who by force of his office would have to assist at the civil marriage of a certain person who is already bound in the face of the Church, and by command of the praised Eminent one I must signify to you that the named Syndic cannot in any way lend himself to an act so contrary to the sanctity of marriage. Therefore, whatever the circumstances of the case may be, he must absolutely abstain from such assistance, even if it should follow afterwards that he must resign. From the Sacred Penitentiary, 28 Nov. 1883. Luigi Martini, Substitute of the Sacred Penitentiary." To an Italian Bishop.

n. ¶14.

"14 September 1876. Prince, ... Following my request, His Eminence (the Cardinal Secretary of State) has just informed me, according to the orders of His Holiness, that the Congregation of the Holy Office has declared that the decree of 27 May does not concern Belgium, and that, consequently, nothing is modified in that country in what touches the matter of divorce. + Dominic, Archbishop of Thessalonica, Apostolic Nuncio." To the Minister of Foreign Affairs at Brussels. Cf. Nouvelle Revue Theolog. Vol. 18, p. 73.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 28 passages

Vol. II, Bk. II, Tractate V: On Justice, Chapter VII: On Offices

n. 506.

I. General Matters

Notion and Division of Offices. 1. By a general and rather confused notion, any office designates certain parts to be carried out for the utility of others. These parts can be undertaken accidentally or permanently: office is more properly understood concerning parts stably undertaken; they can be of private character, which are undertaken and abandoned by those willing, as if someone offers himself for curing diseases, and be entrusted by public authority; i. e. there are private and public offices.

On public offices. In order that a perfect society may attain its end, the Church and the various states have many things to be done, both for their own immediate good and for the good of the citizens of whom they consist. To perform these things well society at once inviolably (or by right) can and ought. But a moral person, of itself altogether powerless, is compelled to do all things through legitimately deputed physical persons. Thus it happens that the immense province by which the Church and states are administered is divided into many partial procurations or ministries, to which rights and duties are attached. These are public offices. Therefore a public office expresses a certain sum of rights and duties committed to a physical person for exercising some part of public action; and it can be defined briefly: public procuration or administration.

The conferral of these offices, or the deputation of a physical person to exercise an office, can be made in various ways, concerning which there is not to be treated in this place. We know that, in the Church, the first deputation was made authoritatively by Christ, and then, from the power communicated through Christ to Peter and the Apostles, the erection and conferral of offices was ordered; while, in the state, the first possession of supreme jurisdiction has a much less definite origin. For our purpose it will be enough to have noted this: that public offices are for the most part undertaken voluntarily, and only when affairs are desperate are they committed to be carried out by the unwilling. Yet the faculty of enjoining the very undertaking of an office cannot be denied to the supreme public power; and by canon 128 itself there is sanctioned the obligation by which clerics are held to undertake and faithfully carry out the office which, in the necessity of the Church, the bishop has imposed on them.

n. 507.

II. Obligation. The general office of managing an office well follows the very undertaking of the office. When there is question of a private office, this obligation of justice is easily explained by an express or tacit contract. But from the very nature of the matter, he who undertakes a public office to be managed is held by justice toward society. For society has a strict right that it be well administered. To this right there corresponds an obligation of justice which has its seat in the deputed official: for no other seat can be thought up. When an office is undertaken voluntarily, there is added the character of a contract with the Superior who conferred the office.

Moreover, however, there is commonly affirmed an obligation of commutative justice also toward individual citizens to whom the proper action of the office is destined. Thus citizens can demand from justice that magistrates be willing to judge their causes. What proximate source shall we assign to that debt of justice?

Since no agreement has intervened between magistrates and individual citizens, the proximate source is the law itself, which imposed that office to be exercised from justice toward individuals.

n. 508.

III. Certain Sins to Be Avoided in the Undertaking, Exercise, and Resignation of Office.

He who does not know himself to be capable cannot, without injustice, undertake an office, whether private or public. He is a harmful deceiver who, without sufficient expertise, offers himself for exercising an art. Therefore parents sin who, with all consideration of capacity neglected, destine for a public office a son whom they have found less fit for private affairs; those sin who, though unskilled, have sought popular votes. Yet here account must be taken of the greater faculty which the people possesses of electing deputies acceptable to itself. He who has known how to catch the popular breeze, provided that afterwards, in exercising the office, he can and wishes to conduct himself according to the counsels of prudent men, can even do something useful for society, if by his election he has impeded the election of a worse person. All things at last fall back here: that nothing harmful to the republic be done, and that its utility be sufficiently provided for.

You should also observe that the notion of capacity is relative, so that here he must be judged most skilled who elsewhere would have to be rejected as unfit.

But what remains to be done by him who, not being suitable, has been affected with an honor? If he can, he ought to render himself capable, and meanwhile, with the help of advisers, perform his offices well; otherwise he ought to lay down the office.

An office once undertaken cannot be neglected without injustice, but it must be fulfilled with that diligence which the common or private good requires and which was expressly or tacitly promised. In vain you will allege private inconveniences. For not only, if there is question of a public office, must public utility be placed before private utility, but also by a tacit promise in the undertaking of the office the one managing the office is held to suffer all inconveniences, to enter into all dangers which are of themselves connected with the office.

These things hold also concerning the lowest administrators. Contrary to what is often thought, greater diligence is owed to public persons, such as the Church and the state, than to private persons.

To those who have long and well conducted themselves or have become incapable by sickness, pensions are customarily offered from the public treasury or from a constituted pension fund. Justice forbids that, by feigning sickness or incapacity for the matter, someone should obtain for himself a pension of this kind.

But today the minds of many must be healed from that harmful error by which public utility is made almost of no value, so that even public officials, especially civil ones, do not know how to serve the community itself, and, without scruple, squander public monies, while they carry moderate solicitude concerning true public utility.

n. 509.

II. On the Judge

I. Notions. 1. On the order of judgments. a) In canon law, although by force of c. 1573 every Bishop ought to constitute an official with ordinary power of judging, nevertheless the same person of the Bishop is legislator, judge, and administrator; while today, in temporal society, a perfect distinction flourishes between legislative, administrative, and judicial power. b) Both in the canonical and civil forum, there are distinguished civil causes, in which a lawsuit arisen between parties is extinguished by a definition of right, while no penalty is established, and criminal causes, in which coercion of delicts for the common good is principally intended through fitting penalties; principally, I say, because, both in the canonical and civil forum, in a criminal cause it is lawful accessorily to move a private complaint, for example to obtain repair of damages.

c) In the canonical forum, the tribunal of first instance for causes of seculars and non-exempt religious, and also for controversies between seculars and regulars or between regulars of different religions, is the Bishop, from whom appeal is made to the tribunal of the Metropolitan. But if the Metropolitan himself was judge of first instance, the tribunal of a suffragan Bishop, once chosen with the approval of the Holy See, is the court of appeal for him. The third grade of jurisdiction, which, with the Supreme Pontiff permitting, can also be the first, is the Roman Rota. But since there are twelve auditors of the Rota, who judge by a turn of three auditors, appeal from a sentence of the Rota is devolved to another turn of the Rota. Over all tribunals in some way presides the Supreme Tribunal of the Apostolic Signatura, consisting of some Cardinals, which judges concerning a complaint of nullity against a rotal sentence, concerning conflict of competence between inferior tribunals, etc. (cf. c. 1603, 1604). When the nullity of a sentence has been declared, or restitution has been conceded, or recourse admitted, it remits the cause to the Sacred Rota, unless the Most Holy otherwise provides (c. 1604).

In the civil forum there is distinguished, for lesser controversies and delicts, the conciliating judge (pretore, juge de paix); then, for civil causes, the ordinary tribunal, which among us is called of first instance, which at the same time is the tribunal of appeal from the sentences of the conciliating judge. Often special tribunals exist, such as the tribunal of commerce for controversies among merchants, of upright men (prud'hommes) for controversies between masters of works and workmen, of guardianships, which in some regions supplies the family council. From the tribunal appeal is given to the Court of Appeal. By a like reason a double grade is had in causes of delicts. But here, for graver delicts, and also, not rarely, for delicts of the political order and of the press, there is customarily an assize court in which citizens, designated by lot among the foremost, with oath omitted (whence they are called jurors), answer affirmatively or negatively to questions posed by the magistrates who are present at the same time, and thus judge the accused guilty or innocent. Having heard these responses, the magistrates who compose the assize court establish the penalty according to law, if the accused has been judged guilty, and pronounce the sentence. If, however, some part of the votes dissents from the other, the magistrates themselves ought to declare what they think concerning the accused, and join their vote with either part.

Above the tribunals and Courts of Appeal or of assizes there exists a Court (one or multiple) of Cassation, which judges concerning defects of form and concerning a violated law of judgments; but it is not accustomed to examine the intrinsic merit of the cause, but remits it to a different court to be judged.

In Roman law the magistrate (praetor) spoke the law and wrote the formula according to which the judge, after examination of the fact, had to give sentence, whence procedure was distinguished in iure and in iudicio. If you except what we just said concerning the Supreme Tribunal of the Signatura and concerning the Court of Cassation, in both canonical and civil forum the same judge pronounces concerning fact and concerning law.

In the canonical forum, besides the judge or judges (if the tribunal is collegial), auditors can be designated, who, abstaining from sentence, cite and hear witnesses, and instruct judicial acts; an actuary ought to be present to draw up the acts or at least to subscribe them. There is also a promoter of justice, to whom now the criminal action or accusation is reserved (c. 1934), and who also, in contentious causes, where the public good requires it, carries a part; and the defender of the bond, for protecting the bond of sacred ordination or marriage.

In the civil forum there are distinguished judges properly so called, who, sitting, bring sentence, and officials (the royal or republican procurator or his substitute, or the advocate general or procurator general) who, standing, in certain civil causes express what they think, or in criminal causes carry the parts of accuser.

But, while in the canonical forum the beginning of action and inquiry also pertains to the judge, in the civil forum the judge cannot legitimately bring sentence unless asked, either by the parties in a civil matter, or by the public procurator in a criminal matter.

In the canonical forum, parties can act by themselves or choose for themselves a procurator (avoué) by whom they are represented, and an advocate by whom they are defended. This latter, moreover, is given from office in criminal causes. In the civil forum, when the cause is not criminal, sometimes the parties cannot appear by themselves but must choose some procurator.

In the canonical forum, the defense must be made in writings; "nevertheless a moderate disputation before the judge sitting for the tribunal is admitted for illustrating something, if, either party or both parties requesting it, the judge judges it useful and admits it." Cf. c. 1863 and 1866, § 2. On the contrary, in the civil forum, the defense is made orally and causes are of themselves conducted publicly.

In both forums, canonical and civil, there are declaratory sentences and decisory or decretory sentences. A declaratory sentence authentically promulgates either the nullity of a juridical act or (this in the canonical forum alone) a contracted penalty; a decisory or decretory sentence, as a particular law, contains the proximate title by which the right of the parties is constituted or the penalty is to be sustained by the accused. And, while the cause is deliberated, the judge issues several mandates and orders as a true Superior.

n. 510.

II. The requisites for a legitimate judgment are these three: jurisdiction, right process, and right intention. It is necessary that the cause be duly introduced and ended. In the present-day civil forum, the judge must always observe the solemnities required by law, nor is he accustomed to have the faculty of bringing an arbitrary penalty, but only within certain limits, according to the variety of cases, can he increase or diminish the penalty. He enjoys an unequal power of composing controversies in various laws.

Defect of right intention is opposed to charity but not to justice.

A secular judge does not have jurisdiction over ecclesiastical persons or causes; for settling these he can validly be delegated by the Supreme Pontiff alone.

Wherefore he who uses lay jurisdiction against ecclesiastical persons or in ecclesiastical causes violates justice toward ecclesiastical society and toward the person whom he compels without right; he sins besides against religion, from whose motive the privilege of forum was introduced. This is of itself grave. Yet derogation from this privilege is made through Concordats and also through custom, at least centenary; which custom the Secretariat of State, in the year 1911, recognized for Belgium, Germany, and Holland (cf. Per. VI, 190).

By this recognition, which seems to savor of some toleration rather than a formal abdication of right, sacrilege and injury toward ecclesiastical society seem to be removed. But has penal jurisdiction over ecclesiastical persons also therefore been conceded; has a lay magistrate been made truly competent in a criminal matter? We doubt it. Wherefore, at least where a graver cause is being conducted and an express concordat or indult is lacking, we judge it should be advised that the formal faculty, concerning which c. 120, § 2, if it can be done, be sought where the privileged forum has merely become obsolete. And also by persons who draw priests and prelates before a lay judge, the natural law must be attended to, which commands that we show due observance to Superiors and avoid scandal.

n. 511.

Penalties of One Violating the Privileged Forum. From c. 120, Cardinals, Legates of the Apostolic See, higher Officials of the Roman Curia on account of business pertaining to their office, or one's proper Ordinary cannot be brought before a lay judge without permission of the Apostolic See; and he who has dared to draw a person of this kind without such permission to a lay judge contracts by the fact itself an excommunication reserved to the Apostolic See in a special manner (c. 2341); the rest who enjoy privilege of forum cannot be brought before a court without permission of the Ordinary of the place in which the cause is conducted; which license, however, the Ordinary, especially if the plaintiff is a layman, is not to deny without a just and grave cause, especially when he has in vain given labor to composing the controversy between the parties (c. 120, § 2); and he who has dared to draw another Bishop, even merely titular, or an Abbot or Prelate nullius, or someone from the supreme Superiors of religions of pontifical right, before a lay judge, contracts by the fact itself an excommunication latae sententiae simply reserved to the Apostolic See; finally, if he has dared without license to bring before a layman another person enjoying the privilege, a cleric indeed incurs by the fact itself suspension from office reserved to the Ordinary; but a layman is to be punished by his own Ordinary with suitable penalties according to the gravity of the fault (c. 2341). But, because daring is required, no one contracts the penalty who, compelled by office, draws a privileged person to a lay judge; and, by the very text of the canon, judges are excluded from this delict, since they draw no one to their tribunal. Cf. Epitome, III, n. 540.

n. 512.

III. Obligations of the Public Procurator. Besides competent knowledge: 1. he ought to guard the reputation of citizens. Wherefore, unless indications have preceded which suffice according to laws and received customs, he cannot inquire specially concerning some person whether he has committed some crime. Nor in canon law can he be cited as accused unless he is one against whom half-proof has existed; 2. since he is a promoter of justice and not of condemnation, he ought to speak sentence according to the merit of the cause, nor, by a prejudged reason, urge condemnation beyond what the proofs permit; 3. he ought to strive that causes, especially criminal ones, be judged quickly, and that citizens perhaps innocent not be detained too long in preventive prison. (Concerning that infamy to be avoided, cf. Ball.-Palm., Op. theol. IV, 559.)

n. 513.

IV. Obligations of the Instructing Judge. 1. He himself ought to be diligent in examining causes; and because public knowledge must be acquired, and by that reason which is expedient for the common good, the judge can employ only those means of investigation which are approved by usage, and do not furnish occasion for many abuses, or which are not repugnant to the judge's own dignity. A confession extorted by unjust means the judge cannot use for condemning the accused. And the same seems to have to be said if he has known the fault by unjust interrogations whose injustice the accused did not know. (Cf. Palm., Opusc. Theol. IV, 556, who thinks this more probable.) But if, by unjust interrogations, the fault of another has been detected, since the action was not unjust to the other, that fault can be publicly vindicated, i. e. judicially punished.

Among means plainly foreign to the character of present-day criminal process, the use of hypnotism seems to have to be placed. For it approaches a certain kind of torture, since it extorts the confession of a delict by insuperable force; and this not without harm to a perhaps innocent subject and diminution of his liberty for the future. Wherefore, unless perhaps a special necessity of averting a public evil should require it, we judge it unlawful to employ means of this kind. But it is clear that a confession made in that sleep can never be held as a certain argument, but indications thus given must be proved by ordinary means.

n. 514.

V. Obligations of the Judge of the Cause. 1. In examining and dispatching causes he ought to employ the usual diligence of a prudent judge. "For from office he is held to render to each his own: which he does not do if he defers sentence without a just cause." (Busembaum, De iudice.) He is held to refund to the injured party damages and expenses proceeding from gravely culpable negligence.

In criminal causes this holds: "the delict not being proved, the accused is absolved." And because the judge puts on a public person, the delict ought to be established for him from public knowledge. Public knowledge, however, is that which is gathered according to the acts in the trial. - If by private knowledge he has known an innocent man who nevertheless is publicly convicted, he ought to free the accused in every way, if he can, for example by offering himself as a witness and withdrawing from the cause as judge. If he can do nothing, some, with St. Thomas, think that here also merely public knowledge must be attended to. Others simply deny this, since it is the right of the innocent person not to be condemned. More rightly, with Lugo, Iust. d. 37, n. 41 ff., you will distinguish greater criminal causes and lesser causes in which there is question only of monetary penalties. For over these goods the public power has eminent dominion by force of which, on account of a proportionate public cause, it can take them away from citizens. But it is of public interest that the order of judgments be preserved, since violation of it easily becomes scandalous. Then therefore the opinion of St. Thomas seems to have place, but not when the penalty of death or the like would have to be pronounced.
In a civil cause, doubts of fact are solved for the accused. For this is perpetual: the proof lies upon him who affirms, not upon him who denies. This reason is already enough for preferring the possessor, insofar as he merely repels the action of the other.

But what concerning a doubt of law?

With the rules of the older authors omitted, the civil judge should answer according to the opinion which, after study has been made, is more approved by him, unless he prefers to follow the opinion received in the tribunal of appeal, lest his own be reformed. For he can defer much to its authority.

This is the mind of our laws and the common reason by which the office of judge is understood. For a judge is not merely a private doctor, but by his authentic definition removes the doubt in a particular case. But since, in giving his solution, he ought to be solicitous concerning truth alone, he surely will have sinned if he has adjudged the matter to him whom the lesser probability favors. Lugo, Iust. d. 37, n. 117, excepts if the common good, for example of avoiding scandal, because by accident the choice of the more probable opinion would bring great public detriments, demands that sentence be brought for the less probable opinion; or if the cause is one which, from positive law, is to be favored in doubt.

Nor does justice stand in the way that, according as he can, he concede something to the lesser probability. In a morally equal doubt, others say that the thing is to be divided, if the judge can do this. (For example, in the U.S.A. this would be forbidden; he would rather have to leave the thing in its own state.) Nor do they condemn those who adjudge the thing to either party. But he should always be mindful of rule 11 of Law in 6°: "the accused is to be favored rather than the plaintiff." Concerning the cooperation of a judge with an unjust law, we treated above, n. 140.

n. 515.

Can a judge suggest to the other party what it could allege for itself?.

St. Alphonsus (L. 1, n. 210) reproves this, because he cannot act as an advocate. Reuter, Neo-confessarius, III, 465, judges that of itself it is lawful, and after him Lehmkuhl, I, 960, 5.

Indeed he says it must be done from charity, "if there is question of grave public damage, or danger of a soul, or the harming of a pious cause." But let the judge beware lest he seem to be carried away by zeal for parties, which would be scandalous. Nor do we think this lawful where there is question of means of law which cannot be supplied from office, but are valid only if they are appealed to by the litigant: thus prescription.

Moreover, juridical arguments the judge can and ought to allege in giving sentence.

n. 516.

What is lawful for a judge concerning gifts?.

With the law of nature considered, he can accept little gifts spontaneously offered, but not, before sentence, those which create danger of perverting judgment. Yet of those things which he has accepted he acquires dominion. - He ought to restore those things by which he obligated himself to doing that to which he is held from justice, for example to bringing a just sentence. But those things which compensate an honest and undue performance, for example extraordinary diligence, he by no means ought to return. Finally, before the iniquity has been committed, but not afterwards, he ought to return the price of iniquity. Cf. the things said concerning an illicit cause n. 412.

What therefore if, when the option is permitted to him, he has accepted a price so that he might examine some cause first? Laymann, L. 3, s. 5, tr. 4, c. 1, n. 9, does not dare to condemn this, while on the contrary Lugo, Iust. d. 37, n. 136, with St. Alphonsus approving, L. 1, n. 196, and Lehmkuhl, I, 969, think that it is not lawful to accept anything for the choice of some party whenever from justice you are held to do either gratis, nor is any labor added: for you perform nothing onerous which would be compensated by a price.

But every acceptance of gifts detracts not a little from the reputation of magistrates and from the honor of justice. Wherefore laws are entirely to be approved which gravely punish judges who have accepted such things. Every acceptance of gifts is prohibited by canon 1624 and 1911, § 2, both to judges and to the inquisitor; in causes of Beatification, moreover, they ought to emit an oath concerning gifts not to be accepted. Modest edible things, which before the Code, when offered liberally, were tolerated, do not seem to be contained in that prohibition.

n. 517.

VI. Effect of an Unjust Sentence. In a doubtful case the presumption favors the sentence. But where it is certainly unjust, it does not oblige conscience, although sometimes, in the external forum, it ought to be observed for avoiding scandals. The very party which has triumphed, when the error is known, ought to yield to the other and according to general rules restore what has been accepted. If the judge is to be blamed, he ought to repair damages. But unless there is question of laws which impose a compensatory fine of taxes, he will have to restore nothing on account of a fine not sought, because the end of penalties is not that the treasury be enriched.

n. 518.

III. On Jurors

I. Concerning Necessary Knowledge,. it is asked whether a juror lawfully performs an office which, without sufficient expertise, he often will have to exercise.

Resp. The question of fact alone is to be solved by jurors. The danger of error indeed is not to be denied, but it is not greatly to be feared lest an innocent citizen appear convicted, since the cleverness and arts of advocates bring it about that often the truly guilty man is absolved. But the legislator himself may ascribe to himself the detriment of the common good which is received from the absolution of the guilty. Therefore a juror seems immune from fault who firmly determines to condemn him alone whom he judges manifest of a true crime. There is added that, with this disposition of mind, he will act better than, according to the things which generally happen, he who would be substituted for him, so that he can judge himself at least relatively capable, which is enough.

n. 519.

II. On the Use of Private Knowledge. 1. Not even a juror can condemn him whom he has known to be innocent. For the arguments brought will never give him the intimate persuasion which, according to law, is necessary that he pronounce the accused guilty.

Nor, as it seems to us, can he condemn him whom he has known to be guilty by private knowledge alone. For the very order of justice requires that, for condemning a citizen, public knowledge be had.

Nor does positive law which some allege, for example concerning the law of Belgium, seem to us to have this sense. Yet there are those, as Ill. Waffelaert, Ius II, p. 433, who think that the use of private knowledge can be permitted by law. We will be able to concede this if it is specially of interest to the republic that the crime be punished. Cf. Genicot, II, 9.

What if the accused was a cleric, we have seen above, n. 142.

III. It happens today that jurors are scandalously lacking in their office, when, on account of reasons wholly extrinsic to the cause, such as political passion, or appetite for vengeance, or antisocial errors, they deny that manifest crimes have been committed.

n. 520.

IV. On Arbiters

Notion and Office. 1. Arbiters are persons, of themselves private, whom, by an agreement which is called compromise, the parties have voluntarily chosen to settle a lawsuit.

Of themselves they ought to bring sentence according to law, unless from the compromise they have had the faculty of compensating the matter according to equitable and good.

The parties ought to stand by the agreement. Moreover, with certain conditions observed, the sentence of arbiters obtains the force of a thing judged.

For certain questions of fact to be solved, the judges themselves are accustomed to designate arbiters (skilled persons, experts). They should then take care that they diligently fulfill their office, and not allow themselves to be drawn, to the detriment either of the treasury or of the private party, into deceitful conclusions.

n. 521.

V. On Advocates or Patrons of Causes

I. Parts of the Office. This general rule can be handed down: for an advocate those things and only those things are lawful which are lawful for him whom he patronizes. For he undertakes to defend his cause.

He is forbidden under grave sin to undertake a cause which he knows to be unjust. But among civil causes which are probable and doubtful on both sides, he can defend either one, even the less probable, provided the client is warned concerning the lesser probability, and provided there is some hope of victory. For each party has the right of bringing forward his reasons in court; nor is that always truer which is more probable. But if there is no hope of victory, the matter would end in a useless vexation of the other party. Make exception, however, if there is a just and proportionately grave reason for prosecuting the suit: for example, if only from prejudices or from the dishonesty of the judges the cause has become desperate. In a criminal cause, he can defend even a guilty accused man, so that he may escape death or another penalty. For the accused is not bound to admit a penalty unless juridically convicted; therefore he can, by himself or through another, overthrow the proofs until he is convicted. But to impede public vindications by right and wrong means, and by abusing the ignorance or passions of jurors, can be opposed even gravely to various virtues; and it socially offends due piety and charity toward the fatherland.

Even in a just cause he cannot employ illicit means, such as false witnesses, spurious documents. Yet if the cause is manifestly just, this will not be opposed to commutative justice.

If in the progress of the cause he recognizes its iniquity, he ought at once to warn the client and persuade him to desist. For since he has been hired for a fee, justice itself obliges him to this warning insofar as this care was tacitly promised: this will have to be gathered from customs and from the honesty of the client. Nor can he persuade a composition by which something is remitted from right, because composition has no place except when the matter is doubtful. Yet he does injury to no one if he induces him to a transaction without damage, deception, force, and fear, or to redeem by composition the unjust obstinate vexation of the other party. Even of an unjust cause which he deserts he ought to keep the secrets. Make exception if revelation were the only means of averting a gravest damage from an innocent person. But even then, on account of the prohibition of positive law or the greatest inconveniences, for the most part he will not be held to make that revelation. Cf. the things to be said concerning secrecy in the treatise on truth.
An advocate in an unjust cause ought to repair to the contrary party all damages following from the unjust action; and indeed as principal cause, if he has concealed the injustice from his own party; of himself as secondary cause, if the injustice of the cause was clear to the client. Then toward his own client he of himself is held to nothing. The client, from a just cause, for example by friendly composition, can desert the lawsuit; in which case it is enough that he furnish the equitable price of the labor done. But if without a just cause he renounces the suit, and the fee was fixed from the beginning, not a few, with St. Alphonsus himself, L. 4, n. 225, permit that he exact this whole fee. Why, however, unlike another hired laborer, he could exact more than emergent damage and ceasing gain, we confess this escapes us.

n. 522.

II. On the Patronage of the Poor. The law of charity obliges an advocate to give patronage gratis to a poor man in grave necessity, yet without notable inconvenience to himself; in extreme necessity, he would have to patronize the poor man even with grave inconvenience to himself. Generally, however, today, since those who are to defend the cause gratis, pro Deo, as they say, are designated from office, that obligation is lightened for him. But a cause of the poor committed to him cannot be neglected, with justice preserved. For it is part of the office undertaken, and by social authority it is imposed as some office. Yet even in favor of the poor no one ought or can undertake a cause against the obligation of his conscience. It happens, however, that from lamentable ignorance Catholic advocates undertake causes, for example of civil divorce, with an equal mind, as if they could defend all almost indiscriminately. Hence refusal of causes of this kind becomes inconvenient for younger advocates, who must be employed in the office of gratuitous consultations. It is necessary that upright men, instructed, be able themselves to enjoy liberty of conscience. What is to be said concerning the cooperation of advocates we saw in the work On Chastity, 132, 287. This is the summary. Grave causes on account of which it is lawful to seek perfect civil divorce are to be approved by ecclesiastical authority; those causes, however, which the client is permitted to conduct, those same causes, and no others, advocates can undertake.

Today not rarely syndicates have hired advocates who must assist members with counsels. Although they have not contracted with individuals, the agreement seems to have been made in such a way that toward individuals they ought from justice to employ the promised diligence. Under this aspect they have an office, and find a place in this chapter.

n. 523.

VI. On Other Ministers of Justice

Several other officials have a part in administering justice. Others, the more important, are the reporter or relator, who from office summarily exhibits to the judges the true state of the question, as, for example, in criminal matters, the instructing judge; the secretary or actuary, who notes the acts in writing. Others, inferior, are apparitors (uscieri, huissiers), public guards (gendarmi). To this their various obligations return: that, being sufficiently skilled, they execute the office with due diligence; that they preserve fidelity toward clients and therefore not open their secrets; that they consult their utility; that they not cooperate in illicit acts, according to the things said in the chapter on cooperation; that they not demand a stipend beyond the just price which is fixed by law or approved custom.

n. 524.

It is asked whether apparitors can ask a whole salary for individual summonses (exploits) or acts, when they carry several on the same occasion. The matter is to be judged from received usage and the practice of those who fear God. From the law of nature this can be permitted, since the price is not a mere compensation for the inconvenience of the journey. But positive law, received by usage, can stand in the way.

n. 525.

Can they execute an unjust sentence?.

Unless that injustice is manifest, the ministers do not sin by executing it. For the common good itself demands that they not discuss the sentence of a Superior (2, 2, q. 61, art. 6, ad 3).

If it was manifestly unjust, of themselves they cannot execute it. Wherefore they cannot inflict that evil with which even to cooperate materially is always illicit: such as killing, mutilation. For evils to be inflicted in goods, the rules concerning cooperation are to be applied. D'Annibale, II, 592, judges this to be lawful "because the damage of the republic and the damage of those themselves who otherwise would be removed from office prevails." There is not one opinion of the doctors. Cf. the things said, n. 141.

n. 526.

VII. On Notaries

I. Notion. Under the name of notary comes an official who writes authentic acts for the parties and attributes to them a certain date.

II. Obligations. He ought to be skilled and assiduous in dealing both with civil and with fiscal laws, because by prudent counsel he can avoid for the parties not only causes of nullity and litigation, but also not moderate expenses. Wherefore he ought to warn the parties concerning suitable clauses which are to be inserted into acts, and concerning the mode by which superfluous expenses may be prevented. In dispatching affairs he ought to be diligent, and not by his delay increase expenses; and in affairs to be conducted he ought to look out for the utility of the parties by whom he is consulted.

Since he is not instituted to defend the interests of the treasury, of himself in the instruments which he writes he can admit those things which are lawful for the client in defrauding taxes. But let him beware lest he rashly offer himself into danger of having to undergo a grave penalty.

n. 527.

VIII. On the Accuser

I. Notion. Formerly an accuser was a private person who, on account of the good of public vindication, accused another before the judge of a crime, after undertaking the burden of proving the crime. If proof was lacking, the accuser himself had to pay the penalty. Almost everywhere, in civil law, and now also in canon law, judicial accusation having been suppressed, private persons sometimes must perform only the office of denouncing. The general rules concerning denunciation were handed down in n. 117. Here certain things seem to have to be added concerning the obligation alone of judicial denunciation. The obligation can flow from a threefold source: from the law of nature, from an undertaken office, and from the precept or law of the Superior.

a) From the law of nature judicial denunciation is to be made when it is the sole and probably apt means of impeding public damage or great damage of a neighbor. Cf. Lugo, Iust. d. 38, n. 14. This will be the case of a pending crime, or one which is prudently judged will be repeated. The greater the damage feared, the more certain and imminent it is, the greater the hope of impeding it, the graver becomes the obligation, which is of charity, and, when public damage is at issue, is urged more gravely by legal justice.

From this obligation one's own grave and proportionate inconvenience excuses, also equal damage of the denounced person, if it is done to avert the damage of a neighbor, unless piety besides drives you to consult more for a neighbor who is closely joined with you.

b) From an undertaken office, these ought to denounce harmful persons: fiscal promoters, public and also private guards, insofar as this pertains to the office to be fulfilled.

For all who have been set over persons or things to be guarded ought, both by their own vigilance and by judicial denunciation, to protect persons and things, even with danger and inconvenience promised in undertaking the office, from injuries according to the reasonable will of the masters. Wherefore sometimes, from the highest rigor, without the oath being injured, guards can turn aside. This holds also concerning those who have been set over the exaction of tolls. Cf. Lehmk., I, 987. They are held from commutative justice, so that they ought to repair damages flowing from neglected office; nevertheless they probably are not held to repay fines lost.

c) From the precept or law of a Superior. From the new Code, an express obligation of denouncing is not imposed except of denouncing clerics or religious who have given their name to the Masonic sect and similar associations (c. 2336, § 2) and soliciting confessors (c. 904 and 2368, § 2). The principle of the obligation is expressed in c. 1935, § 2.

From this obligation there excuses: a) perfect amendment of the delinquent, if satisfaction has been made to the injured party and no danger threatens others (but cf. the things said concerning denouncing a soliciting confessor); b) a secret committed from office, unless from the persevering malice of someone grave damage of an innocent person arises, or religion or the fatherland is gravely interested that it be revealed (cf. Lugo, Iust. d. 38, n. 37); c) if from this grave danger of honor, life, or your goods threatens. Wherefore you are not held to denounce yourself, nor, of itself, the associates of the crime when thus you would equivalently denounce yourself.

N.B. Concerning the witness and the accused, cf. the Treatise on Truth.

n. 528.

IX. On Physicians and Surgeons

I. Offices. 1. From contract, physicians and surgeons ought to help the sick man in the best way they can.

Wherefore they ought to administer the safer remedy which is at hand. Yet with the health of the sick man desperate, they can try a remedy of ambiguous outcome, which perhaps will be useful, perhaps will hasten death, provided the sick man has consented to it explicitly or implicitly, and has been made more certain of the matter, so that he can provide for himself, unless he has already provided for his conscience and his affairs. But if no hope of prudence of this kind is present, that warning does not seem to have to be imposed. If the sick man himself is lacking, those nearest to him seem able to answer for him, as interpreters of his will.

When, besides the good effect, certain harm will follow, and no other remedy is at hand, the cause is to be estimated from the proportion between the hoped-for good and the evil which is feared. But never, as has already been said, for the sake of exploration can dangerous remedies or "operations" be tried on the sick man, even consenting. Cf. Lehmkuhl, I, 1183, V.

Concerning the use of morphine and hypnotism, it was treated, I, 478, and above, 325.

They cannot cooperate in direct abortion. To give an obstinate woman a harmless potion is not illicit, provided, however, that the physician not simulate an evil action; but he ought to beware of scandal and also of the penalties of the law, if an abortion, following by chance, is attributed to him as author.

They ought to fulfill the offices of spiritual and temporal charity, frequent occasion of which is offered to physicians. Therefore they will take care that they themselves can in a case of necessity validly confer baptism, especially on fetuses; they will make a dying man aware of his state in time, so that he can provide for his salvation and also for temporal affairs. It is better that they perform this themselves, nor for the most part do they have grave inconveniences to fear for themselves from it. But if others can and will make the warning, it is enough that these be made more certain. They can be excused from grave obligation if either they know that all things have already been ordered, or they hold it certain that it will profit nothing because of the perverse disposition of men. Yet this will rarely happen.
They cannot institute more visits in number than the true utility of the sick man demands; or than the solace suggests which is expected from the reasonable will of the sick man or of his family. Say the same concerning remedies to be administered.
They cannot exceed the usual rate in fixing a price, yet with account taken also of his skill and reputation. From the poor they cannot exact except the lesser price which it is customary to concede to them: for that alone the poor have tacitly promised.

n. 529.

II. They sin against justice itself when they violate these offices. Nor can those physicians be excused from grave sin who, after making an agreement with a surgeon, persuade clients to operations which are not necessary, for which they themselves obtain from the surgeon a reward for the counsel. Say the same if they prescribe superfluous medicines to be taken.

n. 530.

III. A physician hired by a community: a) from justice is forbidden to desert the sick in time of plague; b) from justice ought diligently to care for those for whom he is hired. For a stipulation in favor of a third party is valid from the law of nature, and the third party, when he calls the hired physician, ratifies the stipulation. Physicians not hired, if they decline grave danger of life, can with difficulty be accused of grave violation of charity, unless probably, while plague raged, they would have saved many who now die.

n. 531.

X. On Pharmacists

It will be enough to say one thing: that they furnish good and accurately prepared remedies; and that they beware lest they offer for sale things which are destitute of every useful or honest use. Cf. n. 145.

n. 532.

XI. On Brokers

Notion. Day by day more persons occur who are ready, after a fee has been obtained, either to do something for others or to assist others in some undertaking: to such an extent that catalogues of persons from whom alms for good works can be hoped are saleable for a price. If someone is considering a long journey, a society offers itself for procuring every convenience of the journey; if someone wishes either to sell or to buy some house, there is one who seeks out for him a buyer or a seller; if someone has a litigious cause, there is one who wishes to render the way of success more level for him; there is one who investigates unknown heirs concerning unclaimed inheritances so that he may warn them; nor are those lacking who are eager to have a part in concluding and dissolving marriages.^¹

Let us call all these by the name of brokers.

From justice itself these ought: 1. to commend nothing which is not worthy of commendation; 2. to employ the promised diligence and not to desert an undertaken cause for a better one, in such a way, for example, that they cannot promise their labor at the same time to two parties whose utilities are contrary; 3. to abstain from every fraud; 4. to be content with an honest price.

Indeed the delicate cases of conscience to which the arts of brokers give place can scarcely be numbered.

¹ The German Code, art. 656, removes every obligation from the brokerage-price promised for a negotiation of this kind concerning marriage. Yet it denies repetition of the price paid.

n. 533.

Summary

General Matters. The same or a similar obligation and commutation of rights which a contract between private persons works, the undertaking of an office begets, except that a contract is always a voluntary juridic act, while an office can also be imposed on one unwilling, on account of the common good.

An office cannot be assumed by one incapable without injustice; nor can one, with justice preserved, offer himself for the exercise of an art without sufficient skill, unless lack of a suitable person or another public cause excuses the intervention or assumption of the office.

An office undertaken is then to be fulfilled from justice with the diligence promised expressly or tacitly. Nor does an inconvenience connected of itself with the office excuse from that diligence.

Only on account of true and just causes can someone, after abdicating an office, ask for a pension from the public treasury or from the pension fund.

II. On the Judge. The judge, or magistrate, not only declares the right, but speaks the right, i.e. constitutes the proximate title, as it were by a particular law, either of the right of the parties or of the penalty to be sustained by the accused.

In beginning and prosecuting a process, he ought to observe the order prescribed beforehand by law. Between the civil and canonical forum there is this difference: that a civil judge can judge only causes brought to him either by private persons or by the fiscal promoter, while an ecclesiastical judge often himself commands or executes the inquiry and instruction of a cause. Therefore he himself ought to attend to that rule of natural equity, that, without sufficient indications, he not begin an inquiry against someone in particular, nor without half-full proof order anyone to appear as accused.

For the reputation of the accused person is not accustomed to remain intact. I except a cause of prevailing public necessity.

A lay judge also ought to beware lest he usurp causes of the ecclesiastical forum, with the manner observed in which the privilege of the ecclesiastical forum is urged by the Church in his region.

Moreover, in a criminal cause he cannot condemn anyone unless from the acts it is established to him with moral certitude that he is guilty. If by private knowledge he has known as innocent someone who has been publicly convicted, it is the opinion of grave doctors, and of St. Thomas himself, that he indeed can condemn without injustice; nevertheless today in practice he can and ought to save the innocent man.

In a civil cause, he can and of himself ought to settle doubts of law according to his own founded opinion concerning the law; yet it is lawful for him also to assent to the jurisprudence of the superior court, as to a greater authority.

Doubts of fact for the most part will be solved by the rule which imposes the burden of proving on the plaintiff. But he does not violate justice who, in equal probability, while observing the laws, adjudges the whole to one party; yet he can also have the probable account of the right of the other party which the laws permit, for example in dividing the expenses of the suit.

He is not unjust who accepts gifts liberally offered, but observance of the law forbidding this is altogether to be commended. Those things, however, which he has exacted or stipulated for pronouncing a just sentence are to be restored; but not for an unjust sentence which he in fact brought: here, not there, some title seems to exist.

In general it pertains to the probity of a judge that he have no consideration of persons or causes, excepting those causes to which, from the law itself, favor is to be given in doubt.

III. On Jurors. Jurors can and ought always, by their negative answer, render free from penalty one whom they know to be innocent; nor can they pronounce as guilty anyone except one who has been convicted according to the acts.

But let them beware lest they be scandalously lacking in their office if, on account of reasons wholly extrinsic to the merit of the cause, such as political passion or appetite for vengeance, they deny that manifest crimes have been committed.

IV. On Arbiters. Freely chosen by the parties who have determined to settle a lawsuit by compromise, they ought to bring sentence according to law, unless they are permitted to compose the business from equity and good.

Those designated by a judge should willingly and without zeal for parties perform their office.

V. On Advocates or Patrons of Causes. A patron of causes, in a criminal cause, does not violate commutative justice if he strives to snatch even the truly harmful person from penalty; but those who, by right and wrong means, and by abusing the ignorance or passions of jurors, impede public vindications, can sin even gravely against various virtues, and socially offend due piety and charity toward the fatherland.

In civil process they cannot either undertake or prosecute a certainly unjust cause; they are permitted, with justice toward the other party preserved, to furnish doubtful causes with suitable arguments, provided they warn their own client concerning the uncertain success.

N.B. What is lawful for a witness and for an accused person will be said below, where truth is treated.

VI. On Other Ministers of Justice. Whether higher or lower, they ought to fulfill the office diligently and faithfully, sparing the reputation of persons and tenacious of secrecy.

A manifestly unjust sentence cannot be completed by execution, unless perhaps there is question of goods which someone can renounce.

VII. On Notaries. A notary ought to be skilled and diligent, so that he not only may compose valid acts according to the norm of law and write them faithfully according to the will of the parties, but also know how to compose them in that manner which spares considerable expenses for the parties. He ought usefully to manage the affair of his clients, for example in ordering an auction.

Since he is not an exactor of taxes, he violates justice no more than the parties themselves if he cooperates in defrauding certain taxes.

VIII. On Physicians and Pharmacists. Besides diligent care of the sick, physicians and pharmacists ought to abstain from those contracts by which, through non-necessary medicines or operations, they impose useless expenses on clients.

IX. On Guards of Persons or Things. He who, privately or publicly, has been set over guarding persons or things ought, both by his own vigilance and by judicial denunciation, to protect persons and things from injuries, even with the danger and inconvenience tacitly promised in undertaking the office, according to the reasonable will of the masters. Wherefore sometimes, from the highest rigor, without the oath being injured, guards can turn aside. This holds also concerning those who have been set over the exaction of tolls. Cf. Lehmk., I, 987.

X. On Brokers. Brokers, or mandataries today of manifold name, who, under some title, undertake to care for the affairs of other physical or moral persons, or in some way assist them, from justice itself owe: 1. to those who hired them, fidelity and diligence; 2. to all, the negative offices of justice, by which they are forbidden to commend things which are not to be commended, or to deceive someone by fraud.

Coppens, Medical Practice

Charles Coppens, S.J. — 32 passages

Coppens, Medical Practice, Lecture VIII. The Legal Aspects of Insanity

In our last lecture, gentlemen, we considered the nature and causes of delusional insanity. We saw that its essence lies in mistaking imaginations for realities with a firmness of conviction which no argument to the contrary can shake. The reasoning of the insane man may be logically faultless, we said, but he reasons from false premises supplied to him by the phantasms of a diseased imagination. The cause of the disease I showed to lie in an abnormal action of the brain, which is the storehouse of the phantasms or brain-pictures. And this abnormal action may itself proceed either from a local lesion of the brain, or from a sympathetic affection due to indisposition in other parts of the human body. I finished by examining the responsibility of an insane man for his actions, and arrived at this practical conclusion, that a victim of delusional insanity should not be held responsible for any acts which he insanely thinks right, but should be held responsible for all his other human acts.

I. This teaching of psychological and ethical science is to-day the received rule of action followed by the courts of justice in England and the United States. Sound philosophy and positive law are in perfect agreement on this subject. But it was not so a hundred years ago. It is wonderful to us now how strange and erroneous were the views of insanity formerly entertained by English jurists. For instance, when, in 1723, Arnold was tried for shooting at Lord Onslow, the instruction given to the court was that, for one to be exempt from punishment in such a case, “it must be a man that is totally deprived of his understanding and does not know what he is doing, no more than an infant, than a brute or a wild beast.” On such a theory, very few lunatics indeed would be acquitted; few ever are so totally demented.

The first jurist that pointed out the true test of insanity was Lord Erskine, who, in 1800, when Hudfield was tried for shooting at the king, delivered a celebrated speech, in which he maintained that the real test of insanity was in delusion: if delusion existed the man was insane; else, he was not insane. The deluded man, he said, might reason with admirable logic from his false principles; he was nevertheless demented if he mistook his imaginations for realities, and did so irresistibly and persistently.

Erskine’s test has been, from that time on, followed in the courts of England. But you will notice, on careful consideration, gentlemen, that while the principle is correct so far as it goes, it does not go far enough to cover all cases of disputed responsibility. It will apply, indeed, to all cases of total insanity, that is, when the delusion existing in a lunatic’s mind affects a variety of subjects; then his premises are never reliable, and therefore he cannot be held accountable for any of his acts.

But what if his insanity is partial only, if he is a monomaniac, deranged on one point and sound in mind on all other matters? This was not clearly understood till about the middle of the present century. In order to secure uniform views and action on this important matter, the British Parliament, in 1843, proposed various questions to the judges, with a request that they would agree upon and report answers. This investigation, and in fact the whole history of English legislation on insanity, is briefly and yet clearly explained in an article of Rev. Walter Hill, S.J., which appeared in the “American Catholic Quarterly Review” for January, 1880. The first question was: What was the law respecting the crime of one who is partially deluded but not insane in other respects, when he commits what he knows to be a crime in order to redress some wrong or obtain some public benefit? The answer was that such a one, even though insane, is to be punished for the crime which he knew he was committing.

To another of those questions the judges answered, that a person partially insane was to be treated as if the facts were just what he imagined them to be, as if his delusions were realities. His conduct was to be judged by his own premises. This was accepted as law by England, and is the law now both there and here, and, I suppose, throughout the civilized world. Now, these are exactly the conclusions about an insane man’s responsibility which we had arrived at before, reasoning from psychological and ethical first principles.

It is therefore for the consequences of an insane delusion only that a man is not responsible before the inward court of conscience and the outward courts of justice.

But the case is altogether different when the error is not the result of insane delusion. When a man, sane or partially insane, has reasoned himself into a false opinion or conviction, not the result of his insanity, that the crime he is going to commit is justifiable, such conviction being his own free act does not exempt him from punishment. This was the precise point on which turned the celebrated case of Guiteau, the murderer of President Garfield. His trial before the Supreme Court, District of Columbia, December, 1882, was one of the most interesting that have ever occurred in this country or elsewhere in connection with the plea of insanity. In his very able and exhaustive instructions to the jury on that occasion, Judge Cox states the rule that is to guide the jury in these words: “It has been argued with great force on the part of the defendant that there are a great many things in his conduct which could never be expected of a sane man, and which are only explainable on the theory of insanity. The very extravagance of his expectations in connection with this deed—that he would be protected by the men he was to benefit, would be applauded by the whole country when his motives were made known—has been dwelt upon as the strongest evidence of unsoundness. Whether this and other strange things in his career are really indicative of partial insanity, or can be accounted for by ignorance of men, exaggerated egotism, or perverted moral sense, might be a question of difficulty. And difficulties of this kind you might find very perplexing if you were compelled to determine the question of insanity generally, without any rule for your guidance.

“But the only safe rule for you is to direct your reflections to the one question which is the test of criminal responsibility, and which has been so often repeated to you, viz., whether, whatever may have been the prisoner’s singularities and eccentricities, he possessed the mental capacity, at the time the act was committed, to know that it was wrong, or was deprived of that capacity by mental disease.”

Vol. I, TREATISE ON PARTICULAR STA…, PART FIRST: ON THE STATE O…, CHAPTER I: ON THE OBLIGATIONS OF JUDGES · Vol. I, TREATISE ON PARTICULAR STA…, PART FIRST: ON THE STATE O…, APPENDIX I: ON JURORS · Vol. I, TREATISE ON PARTICULAR STA…, PART FIRST: ON THE STATE O…, APPENDIX II: ON ARBITERS (Arbitrators)

What furnished the clearest proof, gentlemen, that Guiteau’s opinion concerning the expediency of killing the President resulted not from an insane delusion but from his own reasoning is contained in a paper which he had himself drawn up to justify the murder.

n. ¶11.

It is an address to the American people, published on June 16, in which he says: “I conceived the idea of removing the President four weeks ago; not a soul knew my purpose. I conceived the idea myself and kept it to myself. I read the newspapers carefully, for and against the Administration, and gradually the conviction dawned on me that the President’s removal was a political necessity, because he proved a traitor to the men that made him, and thereby imperilled the life of the Republic.” Again he says: “Ingratitude is the basest of crimes. That the President under the manipulation of the Secretary of State has been guilty of the basest ingratitude to the Stalwarts, admits of no denial. The express purpose of the President has been to crush Senator Grant and Senator Conkling, and thereby open the way for his renomination in 1884. In the President’s madness he has wrecked the once grand old Republican Party, and for this he dies.—This is not murder. It is a political necessity. It will make my friend, Arthur, President, and save the Republic,” etc.

n. ¶12.

When instructing the jury, Judge Cox told them clearly that, if they found, from all the testimony presented, that the culprit had been led to commit the murder by an insane delusion, they were to acquit him; but that reasoning one’s self into an opinion or conviction was not acting upon an insane delusion. “When men reason,” he said, “the law requires them to reason correctly, as far as their practical duties are concerned. When they have the capacity to distinguish between right and wrong, they are bound to do it. Opinions, properly so called, that is, beliefs resulting from reasoning, reflection, or examination of evidence, afford no protection against the penal consequences of crime.” On this precise point of the question then the verdict was to depend.

n. ¶13.

But to understand this matter thoroughly there remains one more important point to notice in the instructions of Judge Cox. It relates to the question on whom rests the burden of proof regarding the existence of insanity in the culprit. Is the prosecution bound to prove that insanity did not influence the crime? Or is the defence to prove that it did? And, in case neither party can prove its point to a certainty, so that the jury remains in doubt as to the existence or the influence of insanity in the crime, is the doubt to weigh in favor of the culprit or against him? The judge, after a careful exposition of the conflicting views on this subject by different courts, and after weighing their respective claims, favors the opinion which holds that “the sanity of the accused is just as much a part of the case of the prosecution as the homicide itself, and just as much an element in the crime of murder, the only difference being that, as the law presumes every one to be sane, it is not necessary for the government to produce affirmative proof of the sanity; but that, if the jury have a reasonable doubt of the sanity, they are just as much bound to acquit as if they entertain a reasonable doubt of the commission of the homicide by the accused.”

n. ¶14.

But the jury, enlightened by the lucid instructions of the court, were convinced that Guiteau had not been led to commit the murder by an insane delusion, but by his own reasoning and his own free will, and that, therefore, he was to bear the consequences of his own deliberate choice. Their verdict was “guilty,” and the political crank was hanged.

n. ¶15.

II. We have now done with the study of mental or delusional insanity; it remains for us to speak of moral insanity. Of late years, the legal and medical professions have been much divided upon the question whether there exists a disease which may properly be called moral, emotional, or affective insanity, and which can justly be pleaded as an excuse from legal responsibility.

n. ¶16.

Dr. Pritchard, and later on, Dr. Maudsley, with very many followers, have maintained the existence of such a disease, and have claimed that, even when it is not accompanied by any delusion, it ought, nevertheless, to free a man from all punishment for crimes committed under its influence. Moral insanity consists, they say, in a perversion of the will, which by this disease is deprived of its liberty, so that the morally insane man does what he knows to be wrong, but cannot help doing it. And they claim that therefore he cannot be blamed nor punished for the crime he thus commits, although he commits it knowingly and willingly.

n. ¶17.

But I absolutely deny that such a state of insanity is possible. It is against those clear principles of psychology and ethics which are not only speculatively evident, but practically necessary to maintain the fabric of human society. I do not deny that there exists an emotional insanity of another kind, which I will explain further on, but not an insanity of the will, as they understand it, which would excuse a man from the consequences of his wilful acts. Upon this subject Dr. Chipley justly remarks: “If one is born with all the emotional endowments of our nature, but destitute of understanding, his irresponsibility is unquestionable. The same is true when the faculties of the understanding are perverted, impaired, or destroyed by disease.

n. ¶18.

“In every aspect in which man’s accountability is viewed, we arrive at the same point that its sole basis is the existence and soundness of the intellectual powers. Those wonderful endowments which so eminently distinguish man from other animals, which enable him to discriminate between good and evil, right and wrong, and to choose the one and avoid the other; or in the language of Judge Robertson, he is accountable because he has the light of reason ‘to guide him in the pathway of duty, and a free and rational presiding will to enable him to keep that way in defiance of all passion and temptation.’

n. ¶19.

“If then accountability is a structure erected solely on the intellectual power, must it not remain unshaken so long as its foundation is sound and unbroken? Is it not illogical to set out with the fundamental proposition, that man is made responsible for his acts only because he is gifted with an understanding and then arrive at the conclusion that he may become irresponsible without the impairment or disease of any of its powers?” (Wharton and Stillé, “Mental Unsoundness,” p. 170.)

n. ¶20.

Gentlemen, let me give you a specimen of the false reasoning used in support of their theory by those who believe in the insanity of the will. “It would be as rational,” says one of their leading writers in this country, “to punish a schoolboy whose antics and grimaces, the result of chorea [St. Vitus’ dance], are a source of laughter and distraction to his schoolmates, as to inflict punishment upon the insane criminal who, knowing the difference between right and wrong, has it not in his power to execute that which his judgment dictates. One is under the dominant influence of insanity of the muscles, the other is under the influence of insanity of the will. To punish one would be as cruel as to punish the other.” This is indeed a very illogical argument. The reason why we do not blame the boy is because his will is not in it; he moves against his will. The reason why we blame the other is because his will is in it; he does what he wills to do.

n. ¶21.

The will being a spiritual power can no more be diseased than can the intellect. But as the imagination, an organic power, can be disorganized by an affection of the brain, and by delusion deceive the intellect, thus producing mental insanity, similarly I fully admit that a man’s passions, which are also organic powers, common to us and to brute animals, can become disordered by bodily disease; and the passions, when excited, will strive to drag along the consent of the will, as we all experience. A man whose passions are abnormally influenced by bodily disease, so that he is constantly inclined to act very unreasonably, may well be called morally insane. Such a state of insanity is not a rare occurrence, and there is no objection to denominate it emotional, affective, or moral insanity.

n. ¶22.

But in such a disease the will remains free; if a man does what he knows to be wrong and criminal, he then sees reasons for not doing it; and in this lies the root of his liberty. For seeing himself drawn in one direction by one motive and in another by another motive, he is not determined in his choice but by the act of his free will. A merely organic faculty must be determined by the stronger attraction, as is the case with brutes; but a spiritual faculty, as our will is, acts freely in choosing between two opposing motives of action. This is the philosophical or psychological explanation: and I am well pleased to find that here again, as in the matter of mental insanity, the courts of England and the leading courts of the United States follow the sound teachings of philosophy.

n. ¶23.

The nearest advance I know of, that has been made towards the recognition of this moral insanity as a total bar to responsibility, was made in 1864 by the court of appeals in Kentucky, and again in 1869 under the same presiding Judge Robertson. But Chief Justice Williams rebukes this strange ruling in most emphatic language. He says: “In all the vague, uncertain, intangible, and undefined theories of the most impractical metaphysician in psychology or moral insanity, no court of last resort in England or America, so far as has been brought to our knowledge, ever before announced such a startling, irresponsible, and dangerous proposition of law, as that laid down in the inferior court. For, if this be law, then no longer is there any responsibility for homicide, unless it be perpetrated in calm, cool, considerate condition of mind.

n. ¶24.

“What is this proposition if compressed into a single sentence? that, if his intellect was unimpaired and he knew it was forbidden both by human and moral laws; yet if at the instant of the act his will was subordinated by any uncontrollable passion or emotion causing him to do the act, it was moral insanity, and they ought to find for the plaintiff?... If so, then the more violent the passion and desperate the deed, the more secure from punishment will be the perpetrator of homicide or other crimes.... The doctrine of moral insanity, ever dangerous as it is to the citizen’s life, and pregnant as it is with evils to society, has but little or no application to this case. Too uncertain and intangible for the practical consideration of juries, and unsafe in the hands of even the most learned and astute jurist, it should never be resorted to for exemption from responsibility save on the most irrefragable evidence, developing unquestionable testimony of that morbid or diseased condition of the affections or passions, so as to control and overpower or subordinate the will before the act complained of” (ib., p. 172).

n. ¶25.

You will notice, gentlemen, that Chief Justice Williams does not deny the existence of every kind of moral insanity. As I explained before, not the will but the passions may really be diseased or insane, and they may prompt the lunatic to commit very unreasonable and even criminal acts. When the impulse of a passion is violent, so that a man is carried along by it before he has had time to reflect on the criminal nature of his act, or at least before he could do so calmly and deliberately, the courts readily recognize such passion as a partial excuse: murder thus committed in a moment of strong provocation becomes manslaughter, not murder in the proper sense of the word. It is not justifiable; but yet it is far less criminal and less severely punished than when committed in cold blood, or, as the law terms it, with malice prepense or aforethought. This practice of our courts is right and highly reasonable, because on such occasions the will of the culprit is partly overpowered, or deprived of freedom.

n. ¶26.

It is a matter of much discussion among jurists whether a passion can ever be so violent as to overpower the will absolutely, so as to deprive it of all freedom at the moment. If it can, then the culprit should be totally acquitted for doing what he could not help doing. In several States of the Union, such an invincible impulse has been recognized by the courts of justice, and men have been acquitted for acting on what was supposed to be an invincible impulse to commit crime; the courts considered this as an extreme form of moral insanity.

n. ¶27.

I have shown above that on sound principles of philosophy the will can never be compelled to do wrong; at most it could be said that, in the cases just referred to, the will was not in the act. Now this, I suppose, is the case in hydrophobia or rabies, in which terrible disease the biting of the sufferer appears to be spasmodic, not voluntary. It is very doubtful whether such excuse can be substantiated in what is called moral insanity.

n. ¶28.

The courts of England and the leading authorities in the United States have never departed from this correct rule, that a man is accountable, to some extent at least, for whatever he does willingly and without the influence of delusion.

n. ¶29.

Moral insanity thus understood, as a derangement of the passions lessening a man’s full mastery of himself, but not destroying it altogether, assumes various forms. There are kleptomania, or an abnormal impulse to steal; pyromania, an impulse to set things on fire; dipsomania, or an abnormal fondness for intoxicants; nymphomania, or the tyranny of lustful passions; homicidal mania, or a craving to commit murder; etc. In all these the nature of the disease is the same, it would appear. The imagination seizes the pleasure vividly, yet, it is claimed, without delusion: and the passion, owing to organic disorder, is abnormally excitable. The organic derangement is supposed to be in the brain. For the human brain, a masterpiece of the Creator’s wisdom, is now generally believed to consist of various portions which are the organs of the passions, of motive power and the phantasms, erroneously called ideation. Hence it is easy to understand how it may happen that one portion is diseased while the other parts are in a normal condition. And on the other hand it thus appears very probable also that a brain partially diseased is liable to be soon affected in the other parts as well. Hence we may suspect that moral insanity is likely to bring on delusional insanity, and vice versa. In fact, I find that a medical expert of note, who had for many years taught that moral insanity was quite a distinct disease and separate from mental insanity, has in his old age changed his mind to some extent on this subject. “Of late years,” says Dr. Bauduy, of St. Louis, in his learned work on “Diseases of the Nervous System,” “I have believed, notwithstanding the doctrine of Pritchard, that a careful study of moral insanity will enable us to detect some evidence, although, it must be confessed, often very feeble, of mental weakening. Even the classic cases of Pritchard,” he adds, “who first defined the so-called moral insanity, when carefully examined, will confirm this statement” (p. 227). Usually, as the same Dr. Bauduy explains, those who are morally insane are at least on the high road to mental insanity (p. 228). Moral insanity is known to exist when there is a sudden change of character which can have no other source than bodily disease; as when a most honest man becomes of a sudden an habitual thief, a decent man openly profane, a miser becomes extravagantly liberal, an affectionate father a very tyrant to his children, without any traceable causes for such transformation. The disease is made more manifest if such a sudden change is preceded by certain physical conditions, such as epilepsy, hereditary taint, suicidal attempts, “the insane temperament,” as it is called, and other influences which are to be taken into consideration.

n. ¶30.

If ever you be summoned, gentlemen, to testify or pronounce on a person’s insane condition, let me give you one piece of advice which may spare you much unpleasantness: be unusually cautious of what you say. If you appear as an expert or a witness, and you make a mistake unfavorable to the patient, he will be your enemy for life; even he may at times recover damages for libel. If he is really crazy, he may be all the more dangerous. Do your duty, of course, as an honest man must always do; but do it very prudently.

n. ¶31.

Dr. Bauduy is very emphatic on the assertion that moral insanity is not moral depravity. He is perfectly right; yet we must not forget that moral depravity is often screened before the courts by the plea of insanity. When a man of bad antecedents commits a crime, and is known to have been sane just before and after the deed, he ought not to be excused on the plea that he may have been insane at the moment when he committed the act; there is no reason for such a plea. And with the victims of kleptomania, dipsomania, and other moral manias, it is well known that a sound whipping will often stop the nuisance. The rod for the juvenile offender, and the whipping-post for adults, would cure many a moral leper and be a strong protection for society at large, especially if applied before bad habits freely indulged have demoralized the person beyond the usual limits. All of us have our passions; they are an essential part of our nature and even an indispensable part. But they should be controlled by reason and will, whereas they are often indulged with guilty weakness. They are much strengthened by indulgence, especially in those predisposed to certain vices by hereditary transmission. No doubt some children have worse passions to contend against than others. It is still worse if, at the same time, their surroundings are unfavorable to virtue; and this is a constant source of increase to the criminal classes.

n. ¶32.

Wise statesmen will study the ways in which temptations to vice may be diminished; but it is mistaken mercy and dangerous to the community to spare the guilty when once they have committed criminal acts. If ever the principle were admitted in our courts of justice that the possible existence of mental insanity ought to protect a culprit from punishment, crime would soon increase tenfold both in the sane and in the insane. Both classes must be kept impressed with the conviction that the law rules supreme and will not tolerate the destruction of public safety. Your profession, gentlemen, in this matter as in many others, by its sound views on Jurisprudence and Ethics, is one of the strongest bulwarks of the common good.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 6 passages

Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. IV, I. On Injuries By Words In…, § 1. On The Obligations And Sins Of The Judge

n. 153.

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.

n. 154.

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.

n. 155.

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.

n. 156.

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.

n. 157.

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.

n. 158.

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."

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 8 passages

Vol. I, TREATISE ON PARTICULAR STA…, PART FIRST: ON THE STATE O…, CHAPTER I: ON THE OBLIGATIONS OF JUDGES

n. ¶1052.

- A judge is a public person, constituted by legitimate authority, so that according to the laws he may vindicate justice and decree due punishments upon delinquents.

It is said: a public person, constituted by legitimate authority, so that he may be distinguished from an arbiter, who undertakes the office of judging not by public authority, but by the spontaneous election of the contending parties.

Principles. - I. A judge is held from a quasi-contract with society and private persons to fulfill his office rightly: if he does not provide this, he will be guilty of violated justice both legal and also commutative.

II. That a judge may rightly perform his office, he must have 1° more than common intelligence, so that he can look into intricate causes; 2° sufficient knowledge, so that he may have account of all the circumstances both of law and of fact, so that whoever seeks or undertakes the office of judge, knowing himself to be so unequal to it that he probably foresees grave damage to his neighbor will follow, sins mortally. But whether he has done this conscious or unconscious of his poverty, he ought not to be absolved unless renunciation of the office has been made, or unless he has the firm purpose of renouncing;¹ 3° incorruptible integrity, so that he yield neither to love nor to hatred.

III. A judge is held to pronounce sentence according to the laws and the order determined by the laws; for he is not constituted to change or reform the laws, but to put them into execution. Except the special case in which the mind of the law must be followed by the judge rather than the bark of the words; then indeed account must be had both of the age, and of the condition and fortune of him on whom he must impose the punishment.

IV. In a doubtful cause let him hold these rules:

1° In criminal matters favor must be shown to the accused, unless the crime is clear, i.e. both concerning the existence of guilt and concerning the merits of the punishments. - Reg. Jur. Can. 11. in 6°.

2° In doubt concerning ownership and possession at the same time one must judge according to the more probable reasons, as is clear from natural law and proposition 2 condemned by Innocent XI. See p. XV. But if the reasons are equally probable from each side, the thing must be divided. Cf. n. 60. II. 3°.

3° In doubt concerning ownership alone, one must stand for the possessor certainly of good faith. This is clear from Reg. Jur. 65. in 6°: "In equal fault or cause, the condition of the possessor is better." Cf. n. 60. II. 3°. Except pious causes and certain others in St. Alphonsus,¹ in whose favor one must judge, although they are actors. Yet our laws do not favor them.

n. ¶1053.

Questions. - Query 1° Whether a judge can condemn an accused person whom he knows to be guilty only by private knowledge, or an innocent person who juridically is convicted as guilty?

Resp. to the 1st Negatively altogether according to all. The reason is that a judge is held to judge according to the things alleged, and according to the forms prescribed by law. For there is no danger in sometimes dismissing a hidden guilty person, while there would be great danger in violating the established forms of judgment.

Resp. to the 2nd It is greatly controverted. St. Thomas affirms.² - St. Bonaventure denies. - St. Alphonsus³ admits the affirmative opinion as undoubted if it is a question of civil causes, or even pecuniary punishments: but if a case concerning greater criminal matters, and especially capital ones, occurs, he thinks the opinion of St. Bonaventure very probable. The reason is that in the former case the Republic for the common good, which exists from judgment rendered according to public knowledge, rightly transfers the dominion of goods. But otherwise in the latter case; and therefore then to condemn an innocent person seems intrinsically evil.

Besides, this question in our law and in causes which we call criminal offers itself under an altogether different aspect; for among us jurors alone pronounce concerning the innocence or guilt of the accused; but the judge only declares what punishment according to the laws is to be applied to him who has been pronounced guilty by the jurors. But in declaring this he performs his office only mechanically, so to speak; nor does he, but the jurors, seem to be the efficacious cause of the punishment to be pronounced. Yet he is held to do what is in him, so that he whom he knows to be innocent not undergo the punishment, which for the most part he can prevent either by intercession with the Governor, or, if the sentence of the jurors does not rest on the acts and proofs, but has been pronounced from a malignant spirit or rashly from ignorance, by indicating that they have exceeded the limits of their office, and labor under error of fact or of law, and thus obtain a new judgment for the innocent person, by which the error may be removed.

Query 2° Whether 1) a Catholic Judge can pronounce a sentence of divorce as to the bond according to the laws of this region; whether 2) it is licit for a Catholic, in any event of things, to demand a sentence of this kind, and what 3) concerning an advocate seeking it in the name of a client?

Resp. to the 1st "Since a Catholic could scarcely perform the office of judge, if he did not wish to decree divorce, the offense" (on account of which it is sought according to the laws) "having been proved in judgment; and the civil effects are chiefly regarded, I think the judge is not to be condemned who furnishes his service." Thus Kenrick.¹ But certainly, as is clear of itself, he can pronounce a sentence of divorce in the case in which a Catholic licitly demands it.

Resp. to the 2nd The bond of matrimony subsists before God, or not. In the former case again one must distinguish; for civil divorce is sought either with the intention of entering new nuptials, or without this intention. If the former, it is not licit, as is clear of itself. If the latter, and a most grave reason presses, e.g. lest the husband be compelled to pay the foreign debt of the wife and so that every right to inheritance be taken away from her,² let divorce from cohabitation be sought where the law grants it. But if the law, as in most States, grants only divorce from the bond, or where the option of either is given, this alone is chosen as the sole efficacious barrier against foreign troubles, it seems this can be sought in certain most grave circumstances; for he who is not going to use the civil liberty which he asks to be restored to himself is not judged to approve the exercise of civil power upon the bond.

But if the bond of matrimony subsists from civil law alone, and not before God, because, for example, one or the other lacked Baptism, it will be licit for a Catholic to seek the protection of the civil law. This is gathered from the response of the S. C. Inq. to the questions of the Bishop of New Orleans, Sept. 9, 1824, concerning marriages which were invalid on account of the impediment of clandestinity. Namely the S. Congregation advises that every effort be applied to induce them to contract with each other in a Catholic manner; "but to suggest to one asking to enter a new marriage with another that he should first consult both for himself and for the Parish Priest, acting namely so that both civil liberty may be restored to himself, and nothing evil may come thence to the Parish Priest, this would not be to approve the custom of civil repudiation, provided the one asking is rightly instructed that this is done not for this reason, that the bond of matrimony may be dissolved, because he is now detained by no bond, but only that he may free himself and the Parish Priest from legal penalties and civil vexations. ... But Missionaries ought not to involve themselves in these things to be transacted with the Government. He who asks to marry, let him conduct his own business."¹

Resp. to the 3rd. 1° It is certain that it is licit for an advocate to do what I said is licit for the client in Resp. to the 2nd. - 2° It also seems certain that an advocate is not held to inquire from the client either concerning the intention with which he seeks divorce, namely whether with the intention of entering other nuptials or not, or concerning the true cause on account of which he seeks it, so that he may know namely whether it is sufficiently grave, or concerning the value of the marriage before God; for he is judged to undertake only the civil cause of the client and this to be defended only by a civil title. - But whether 3° it is licit for him to undertake this civil cause in the case in which from the sayings of his own client or from public and certain fame, he knows that divorce is sought in a marriage valid before God and with the intention of passing to other nuptials, or from a cause not sufficiently grave, I would rather leave to the judgment of the wiser. It is indeed true that the client will easily find another advocate who will act his part; but the advocate is not able to be excused by the same reason of necessity as a judge, since he can refuse his service with impunity.

n. ¶1054.

- Query 3° Whether a judge can accept gifts for pronouncing sentence?

Resp. Negatively. For this is prohibited by every law; and 1° By natural law, in the case in which either scandal or danger of perversion, or of favoring the donor more than is fair, is present.² But if the judge sins by receiving gifts, by this very fact whoever offers them also sins; for he cooperates with the sin of another. Except the rude, whom ignorance generally excuses. Likewise except if gifts are given to redeem unjust vexation, when an unjust sentence otherwise prudently seems to be feared: but these must be restored, and can also be sought back in judgment after the sentence.³ 2° By Canon Law; for Boniface VIII¹ established that judges accept neither any gift nor anything else, except perhaps food and drink offered by mere liberality.

Query 4° Whether a judge is held to restitution if he has accepted gifts from litigants?

Resp. Negatively, probably before the sentence; because although he acts illicitly by accepting gifts, nevertheless he does not sin against justice. - Thus more commonly, - against others, who also probably affirm. - St. Alphonsus² says that each opinion is sufficiently probable.

Yet judges at least must be impelled to restore gifts accepted, or to expend them on pious works. Sometimes this could be enjoined as penance to turn the judge away from relapse.

Query 5° Whether a judge is held to restore what he has accepted by pact for pronouncing some sentence?

Resp. 1° Affirmatively, if he accepted it for pronouncing a just sentence, i.e. for furnishing that which from justice he owed. The reason is that whatever is already owed from office, and therefore from justice, cannot be matter of a contract. A fortiori he is held to restore those things which he has extorted by force, threats, or unjust vexation.

Resp. 2° If he accepted it for pronouncing an unjust sentence, he certainly is held to restitution before he pronounces a sentence of this kind; but after sentence has been rendered it is controverted, according to the things said concerning a contract in a shameful matter, n. 834.

n. ¶1055.

- Query 6° Whether a judge is held to repair damage which he did not impede, or whose reparation he does not procure, when he can?

Resp. Affirmatively, because he is an unjust and efficacious cooperator. Recall the things said concerning negative cooperators, n. 773 and following.

Query 7° Whether a sentence of a judge doubtfully just, or certainly unjust, obliges?

Resp. to the 1st Affirmatively altogether. For presumption favors the Superior or judge. (n. 65. 3°.)

Resp. to the 2nd Negatively of itself, as is clear. Yet except unless there is present a reason of scandal or of disturbance of public order; because private good must always yield to public good. But he who obtains a cause through an unjust sentence cannot receive the thing adjudged to himself, or must restore it, and moreover he is held to repair all damages and expenses to the adverse party. Yet if he was in good faith, when this vanishes he must only return the thing of another according to the things said concerning a possessor of good faith, n. 722.

Vol. I, TREATISE ON PARTICULAR STA…, PART FIRST: ON THE STATE O…, APPENDIX I: ON JURORS

n. ¶1056.

- Jurors, so called on account of the oath which they furnish concerning the office committed to them to be rightly exercised, are men selected from the citizens to perform some part proper to judges. Their function is to pronounce concerning the existence of the fact and the culpability of the accused; but then the judge pronounces the punishment according to the law.

Jurors contract the same obligations as the judges themselves, whose office in great part they exercise, and therefore concerning Jurors the same generally must be said as concerning the judges themselves.

n. ¶1057.

- Query. Whether a Juror can give a vote against the accused, indeed juridically convicted of the crime, but whose innocence he certainly knows by private knowledge?

Resp. Negatively, because this seems contrary to the mind of the law, by force of which, almost everywhere, they must pronounce only concerning the fact, and according to the intimate conviction which they have concerning its existence, nor are they in any way held to render the legal reason of their sentence. Indeed from the law itself they are not held to found their sentence either from such a number of witnesses, or from these or those reasons brought into the middle by the various parties, etc. Therefore they must give their vote only according to that which they think in the forum of conscience. And so, with attention to the office which is imposed on Jurors, it is easily clear that those controversies which are conducted concerning judges, n. 1053, have no place at all concerning them.

Vol. I, TREATISE ON PARTICULAR STA…, PART FIRST: ON THE STATE O…, APPENDIX II: ON ARBITERS (Arbitrators)

n. ¶1058.

- They are called arbiters who, by each opposed party, are spontaneously chosen or admitted, after the manner of judges, to settle some lawsuit.

The pact by which the faculty of composing the lawsuit is attributed to them is called compromise (in English submission). By this pact the adverse parties by mutual consent promise that they will execute whatever is established by the arbiters. But what is established is called in our tongue "award."

Arbiters, whoever they are, once admitted by the diverse parties, properly enjoy the office of judges and perform all their functions, no differently than if they had been designated by public authority. Therefore they can instruct the cause brought to them, defer the matter to another more opportune time, hear witnesses, and finally, with sentence rendered, settle the lawsuit absolutely. Sometimes they designate a third, who in their name may settle the matter, and this one is called "the umpire."

n. ¶1059.

- Since arbiters fulfill the offices of judges, they undergo approximately the same obligations and the same burdens as judges. Hence:

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

2° Arbiters are held to judge according to the laws, unless the parties have imparted to them the faculty of composing the matter from the fair and good. For then from the good and fair they must promote the convenience of each party.

3° They must most greatly beware of acceptance of persons, namely lest, drawn aside by hatred, aversion, or excessive affection, they pronounce sentence against the rules of equity. As to the rest, the same things must be said concerning arbiters as concerning the judges themselves.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 48 passages

Vol. II, Pt. IV, Tr. III, Chapter II: On The Offices Of Those Who Are Engaged In The Forum

n. ¶2293.

- Preliminary Notes. I. Forensic judgment is usually defined: The sentence of a judge concerning a right disputed between plaintiff and defendant, after due discussion has been carried out.

In this definition there are included: 1. The cause, or the disputed right, as the object of the judgment; 2. Three distinct and necessary persons: the plaintiff, the defendant, who litigate concerning the right, and the judge who pronounces; 3. The legitimate discussion and definition of the cause, as the form of the judgment.

n. ¶2294.

- II. Judgments are OF HUMAN LAW formally and as to solemnities, as is clear from their history; but originally they are OF NATURAL LAW; for, the condition of fallen nature being posited, it is necessary that crimes and lawsuits occur; but since it is repugnant to right reason that anyone be judge in his own cause: thence it is altogether required that judges and judgments be constituted by public authority, by which doubts of right are duly settled. - Yet natural law does not absolutely require that all crimes be restrained, and that all lawsuits be settled by judgments properly so called. For sometimes it is expedient, "when crimes are atrocious, to punish at once those caught in the very act of crime, or in excepted crimes to change the common manner of proceeding." Indeed military discipline has this as proper to itself, that it is right for leaders, every form of forensic judgment having been passed over, to punish the offenses of soldiers. And Bishops similarly can, in certain cases, proceed extra-judicially, e.g. from informed conscience¹⁰ (cf. n. 731).

n. ¶2295.

- III. But in no judgment, even a summary one, can those things be omitted which are called the substantial things of judgments: for these are of natural law, against which custom cannot prevail. - Hence, in every judgment properly so called there are found: 1. the petition of the plaintiff and citation of the defendant; 2. proof of the cause, and its defense; 3. decision of the cause, and pronouncement of the sentence. And these THREE pertain to the nature or substance of the judgment; but the other things pertain to solemnity.¹¹

Note. Among the legitimate forms of judgments, canon law excels, which first wove together the judicial web in the second book of the Decretals, from which thereafter every civil procedure was derived, as all Doctors testify with one voice.¹²

These things having been premised, there must be treated: 1. concerning the persons who constitute the judgment, namely concerning the judge, the plaintiff, and the defendant; 2. concerning the persons who intervene in the judgment, for helping either the litigants or the judge, i.e. concerning witnesses, advocates, etc. - (Recall what was said n. 1292, 7, and n. 1321.)

Vol. II, Pt. IV, Tr. III, Ch. II, Article I: On The Persons Constituting The Judgment

Three persons, the plaintiff, the defendant, and the judge, as we have said, are found in every judgment. Nevertheless it is not always required that the plaintiff, or accuser, be a distinct person; for the judge can, once a rumor has been heard concerning a perpetrated offense, call those who are said to have offended to his tribunal, inquire into the truth, and, this having been certainly ascertained, pronounce sentence: "not as though the same person were accuser and judge," says Innocent III,¹³ "but as if, report denouncing, or outcry bringing it forward, (the judge) executes the debt of his office."¹⁴

Vol. II, Pt. IV, Tr. III, Ch. II, Art. I, § 1. Concerning The Judge

n. ¶2296.

DEFINITION. - A JUDGE, so called because he declares the law, is a public person, constituted by legitimate authority, that according to the laws he may vindicate justice, and decree punishments against delinquents. - If he is constituted by the litigants themselves, he is called an ARBITER, to whom thereafter, by new law and with the required conditions observed, jurisdiction over the litigants belongs. We have said by new law; for Roman law imparts no jurisdiction to him.

Among moderns, in criminal matters certain judges of fact alone are constituted, who are called JURORS, from the oath which they make of issuing a vote according to conscience. It belongs to them to pronounce according to the allegations concerning the existence of the fact and the culpability of the accused; afterward, the judges of law decree the penalty according to the law. These are bound by the same obligations as the judges themselves.¹

n. ¶2297.

- Principles. I. In a JUDGE, that he may perform his office rightly and legitimately, THREE things are required, namely jurisdiction, knowledge, and integrity. - 1. JURISDICTION, or competence, failing which the sentence is null, unless there is a colored title and common error; whence, a civil judge sins, and indeed gravely, if he brings ecclesiastical causes before his tribunal, unless by Concordats or the tolerance of the Holy See, or also by special license, this is conceded to him. - 2. Suitable KNOWLEDGE of those things which pertain to his office. Wherefore, if from culpable ignorance he has injured the parties, whether in the substance of the suit, or in superfluous expenses, he is held to restitution; nor can he be absolved, unless he either resigns the office, or tries to acquire sufficient knowledge, with the damage or danger of his neighbor meanwhile removed. - 3. Incorruptible INTEGRITY, so that he constantly preserves justice, and yields neither to love nor to hatred.²

Wherefore two things here come to be NOTED: - 1) "If the judge recognizes an error committed by himself (although without grave fault) to the prejudice of a litigant, he is held, if he can do it without infamy, to impede the error, e.g. by secretly warning the injured party, that he may take counsel for himself by appeal or otherwise; because this pertains to the due execution of the office."³ - 2) "If the judge, in executing the cause and pronouncing sentence, is negligent or unjust, he is held not only to the injured party, but sometimes also to the fisc: e.g. if he remitted without cause a monetary fine which by custom, or common law, he ought to have imposed upon the defendant." Thus St. Thomas, Sylvester, and others. - Yet, "Lugo, etc., probably hold that the judge is held to nothing if the defendant has not yet been condemned to the fine; because, before sentence, no right to the penalty is acquired for the fisc; hence, if the judge unjustly absolves the defendant, he sins against legal justice, not commutative justice."⁴

NB. Concerning RESTITUTION to be made by judges, recall what was said n. 983 and 988.

n. ¶2298.

- II. The judge ought to institute judgment ACCORDING TO THE RULES OF LAW, both natural and positive, whether in the manner of proceeding, or in passing and executing sentence. - For he is not constituted to make laws, but to commit them to execution. But the RULES of natural law, to which he ought to conform himself, are the following:

Rule 1. - As to the MANNER OF PROCEEDING, he ought to take care lest, without a just cause, he inflict damage or infamy upon the litigants. - Hence: 1) He cannot institute a special inquisition concerning a certain crime and its author, unless infamy, half-proof, or something similar has preceded; because he would render the man against whom he proceeded by inquisition suspected and infamous. The sole case must be excepted in which there is question of graver crimes, which turn to the common damage of the republic.⁵ - 2) He cannot, without necessity or a grave motive, defer the dispatch of causes; otherwise he is held to compensate the injured party for the damages which have followed from unjust delay.⁶

n. ¶2299.

- Rule 2. - The judge ought, regularly speaking, in PASSING SENTENCE, to pronounce according to the things alleged and proved, and from knowledge juridically acquired. Thus commonly; and the reason is, because the judge bears a public and legal person. - Hence, he sins and is held to restitution, if he condemns him whom by private knowledge indeed he knows to be guilty, but whom the process declares innocent (see however n. 2302). - Likewise, if he condemns anyone unheard, or without witnesses, or from knowledge unjustly extorted, e.g. by force, fear, or fraud, by interrogations made without competent indications, etc.; because the acquisition of knowledge of this kind participates in the injustice of the means, which are against the necessary order of judgment, and consequently is unjust.⁷ The judge also sins, "if he opens to one party what that party could allege for himself; because this would be to perform the office of advocate, which is not lawful for the judge."⁸

n. ¶2300.

- Rule 3. - The judge ought, in criminal causes, TO FAVOR THE DEFENDANT, until his crime is certainly proved. For thus sounds the 11th rule of law in the Sext: "When the rights of the parties are obscure, the defendant is to be favored rather than the plaintiff." And Roman Law plainly agrees with this rule, prescribing that, for pronouncing a sentence of blood, proofs be brought which are clearer than light.⁹ - Hence: 1) The defendant is always to be absolved (both by jurors and by the judge), if probable reasons are brought for his defense, especially when there is question of capital punishment.¹⁰ - 2) Likewise he is to be absolved, although he has said nothing for his defense, if nothing is proved against him.

n. ¶2301.

- Rule 4. - The judge ought, in civil matters, to favor the CERTAIN POSSESSOR, until convincing reasons are given against him. But if there is DOUBT concerning the possession itself, or if neither litigant possesses in good faith, he ought to adjudicate the thing to the one bringing notably more probable reasons; and in equality of reasons, to divide the thing, unless there is question of a privileged cause. Thus commonly, with St. Alphonsus.¹¹

It is said 1. he ought to favor the possessor. And this indeed is indubitable, whenever the reasons are equal, as is clear from the 65th rule of Law in the Sext: "In equal offense or cause, the condition of the possessor is the stronger"; and from rule 128 ff. of Roman Law: "In an equal cause, the possessor can be held stronger." Moreover, St. Alphonsus affirms that the same rule must be admitted, according to the most common opinion, even if more probable, or solely probable, reasons militate against the possessor in good faith; because the title of legitimate possession bestows a certain right, which is not destroyed except by another certain and proved right, that is, by convincing reasons (cf. n. 45 and 946). Nor does it stand in the way that the judge is held to judge according to the more probable reasons; for, in favoring the possessor, he judges not only according to the more probable opinion, but according to the most probable opinion founded upon another rule of law cited above: "When the rights of the parties are obscure (as they are, when certainty is not present on the part of the plaintiff), the defendant is to be favored rather than the plaintiff."¹²

It is said 2. if there is doubt concerning the possession itself, i.e. if there is doubt as much concerning possession as concerning ownership: e.g. if the suit is concerning a thing possessed by no one, or if the possessor is of doubtful good faith, or at least if it is not established that he is in good faith (as commonly happens in the external forum): then the one bringing stronger reasons is certainly to be favored, as is had from the 2nd proposition condemned by Innocent XI: "I probably think that a judge can judge according to an opinion even less probable." For deservedly was that proposition proscribed, because the judge is held to render to each one his own right, and that party certainly has the greater right who brings more probable reasons (cf. n. 84, 4; 945, 3).¹³

It is said 3. in equality of reasons, whether of fact, or even of law, as the Salmanticenses more rightly teach with Roncaglia, he ought to DIVIDE equally between the litigants the thing certainly possessed by no one; for the judge ought, from his office, to render to each one his own right according to the merits of the cause; therefore, since an equal right belongs to each from parity of cause, it is clear that the thing is to be divided equally, nor can the judge ever judge at will; because to judge is to declare the law, to declare, not to constitute. - Hence deservedly was this 26th proposition condemned by Alexander VII: "When litigants have opinions equally probable for themselves, the judge can receive money for passing sentence in favor of one before the other" (cf. n. 945, 3).¹⁴

"Exception is made [in ROMAN and CANON law], if there is question of causes of matrimony, dowry, widow, ward, and of other pious causes; for then judgment must be made for them, when the rights are equal, even if they are plaintiffs (from cap. Ex litteris 3 de Probationibus, and from cap. final de sent. et re judicata). - But otherwise, if the opposite party rather has the right (from law Si pars ff. de inoff. testam.)." - Recall what was said n. 1027-1028.

n. ¶2302.

- Questions. - QUAER. 1. Whether a judge can condemn an innocent man who is juridically proved guilty?

Resp. 1. It is certain that the judge is held to do as much as is in him, that he whom by private knowledge he knows to be innocent may not undergo punishment. This will often be possible, e.g. by impeding the accusation, prolonging the judgment, suggesting means of defense, remitting the cause to the Superior, or even by opening the prison, if he can execute this without a greater evil.¹⁵ It is also certain that jurors or judges of fact can never cast a vote against an accused man whom by private knowledge they certainly know to be innocent; for by pronouncing thus, they would sin against their own office and oath.¹⁶

Resp. 2. It is very much controverted, in the case in which the judge is compelled to pass a sentence of punishment. - Some with St. Thomas¹⁷ say that the innocent man can then be condemned according to the things alleged and proved. Others with Bonacina,¹⁸ Lessius, etc., deny this; because to condemn an innocent man seems intrinsically evil: just as it would be evil to compel a woman to live with him whom the judge privately knows not to be her husband. - St. Alphonsus distinguishes and says: "1) In monetary penalties, and in civil causes, the judge, without doubt, ought to judge according to that which has been proved....; while the republic, for the common utility, which is had while judgment is passed according to public knowledge, can certainly transfer ownerships of goods."¹⁹ 2) But in corporal penalties, in which there is question of death or mutilation, the holy Doctor holds the opposite as very probable; and the reason can be assigned, because the republic neither could nor willed to confer on the judge the power of killing or mutilating an innocent man, since this is intrinsically evil (cf. n. 738).

QUAER. 2. Whether it is lawful for a judge to receive GIFTS from litigants?

Resp. Neg., even if they are offered freely; for it is said in Deut. 16:19: "You shall not accept a person, nor gifts: because gifts blind the eyes of the wise, and change the words of the just." - Foods and drinks spontaneously offered are excepted; both because, in law, under the name of gifts there do not come xenia, that is, small gifts; and because it cannot be supposed that the judge, on account of a small gift, will pass an unjust sentence. At least in this, as Lugo says, custom ought not to be reproved, where it is found legitimately prescribed.²⁰

QUAER. 3. Whether and when a judge is held TO RESTORE gifts received?

Resp. 1. It is certain that he is held to restitution: - 1) If he has received gifts from a pact, for passing a just sentence, or for furnishing that which he owed from justice (cf. n. 1036, q. 2); - 2) If by force, threats, or unjust vexation he extorted them; - 3) If the law makes an acceptance of this kind invalid, and a declaratory sentence of the crime has already been passed; - 4) If he has received them for passing an unjust sentence, and the crime (namely of barratry) has not yet been completed (cf. n. 1036, q. 1).

Resp. 2. It is probable that he is not held to restitution, although he has acted illicitly: - 1) if the gifts were offered spontaneously, and he protested that he would nevertheless judge according to justice; 2) if he has already completed the pact concerning an unjust sentence to be passed, and has not been condemned to restitution (cf. 1036, q. 1).¹

QUAER. 4. Whether he sins who GIVES GIFTS to a judge, or to his ministers?

Resp. Dist. 1. If he gives without a just cause, he indeed sins, by cooperating with unjust reception. Yet simple persons are often excused because of ignorance. - 2. If he gives with a just cause, namely for redeeming unjust vexation, he does not sin; "provided that there is probable danger that otherwise manifest injustice would be inflicted upon him; for then this is not corruption, but caution that his right be rendered to him.... Nor do prohibiting laws stand in the way of this; for laws intend to avoid lest those giving gifts corrupt judges by gifts, but not that they obtain a just sentence (otherwise not to be obtained)."²

QUAER. 5. Whether an unjust or doubtfully just sentence of the judge OBLIGES?

Resp. 1. "If the sentence is unjust, or null on account of defect of jurisdiction, or of substantial form, or if it proceeds from false principles and from ignorance of the facts which is opposed to the order of law simply necessary, whether it is passed through things falsely alleged and proved, or from the iniquity of the judge, it has no force in the forum of conscience; and his right remains to the injured party, even if he does not appeal, and it will be lawful for him, if he can do it without scandal, to recover the goods.... We have said in the forum of conscience: because in the external forum, where not so much the truth of the fact as juridical proof is regarded, the sentence passed must be observed, for avoiding scandals and inconveniences; nor, once the term has elapsed (within which it was lawful to appeal), is action granted to him, the law so establishing, both as a punishment for sluggishness and on account of the public good, that there may be an end of lawsuits."³ (cf. n. 191 and 1272).

Resp. 2. A doubtfully just sentence certainly obliges, in each forum, unless appeal is made. For presumption favors the judge (cf. n. 52).

QUAER. 6. To what is a judge HELD, who has passed an unjust sentence?

Resp. 1. "If he did this by deceit, or great unskillfulness, he made the suit his own, that is, he transferred to himself the damage of the injured party, to whom he is held to make restitution.

If otherwise worthy of his office, he erred through forgetfulness, from human frailty, he is not obliged in conscience to restitution from his own goods, since he did not inflict formal injury, nor received any advantage from such a sentence;... nevertheless he ought to revoke the sentence, if he can do so without grave inconvenience"⁴ (cf. n. 983, and 988).

NB. But if the law itself applied or to be applied by the judge has been unjust, recall what was said n. 2292. - If there is question specifically of Divorce, see n. 2126, 3.

Vol. II, Pt. IV, Tr. III, Ch. II, Art. I, § 2. Concerning The Plaintiff And Denouncer

n. ¶2303.

- A PLAINTIFF or Petitioner, in civil causes, is he who proposes an action for obtaining reparation of his own damage, and who first summons to judgment, either by himself, or by a procurator. See n. 2316. - A Plaintiff in criminal matters is called an Accuser, and is he who brings a crime before the judge, and asks from him vindication for the common good in writing, with the burden of proving the crime charged.⁵

Note 1. From ROMAN LAW, accusers, if they are convicted of calumny, incur the penalty of retaliation, or ought to undergo the very penalty which they were seeking for the accused. - This penalty, however, from general custom, is no longer inflicted.

From MODERN law, private persons are not permitted to institute an accusation; for this function belongs solely to the magistracy constituted for this, i.e. to the general procurator of the State: who therefore, together with others destined for this office, is called the Public Ministry; for it belongs to them to assume and protect the parts of the Community and of good morals against defendants. - In lower tribunals, e.g. before the judge of the region, in a cause, as they say, correctional, the same office is committed to ministers of public security, or even to the first elected municipal Officials. But the general procurator, in fulfilling the parts of his office, is assisted by another official, who is called the Judge of instruction. To this man it generally belongs to collect arguments and indications of offenses before the suspects are cited, to make investigation of guilty persons, and to take care for their arrest, to inform the cause, and to order the suit in that manner which the laws prescribe or permit. - Let recourse be had to the Code of the respective nation.

n. ¶2304.

- The place of accusation is supplied by denouncement, concerning which a more special discussion must be given.

I. Notion Of Denouncement.

Denouncement in general is defined: the manifestation of someone's crime made to a Superior, with the burden of proving it not assumed. By these last words it is stated in what manner denouncement differs from accusation.

Denouncement is threefold: evangelical, canonical, and judicial. 1. Evangelical or paternal denouncement is the delation of a crime to a Superior as to a father, to the end that the defendant may come to his senses⁶ (See what was said n. 494). - 2. Canonical denouncement (which in certain cases is prescribed by the canons) is the delation of a crime to an ecclesiastical Superior, to the end that the crime may be impeded, or that an unworthy man may be removed from office.⁷ - 3. Judicial denouncement is the delation of a crime to a judge, whether lay or ecclesiastical, to the end that the defendant may be punished, or that damage may be repaired for the injured party. It is held in place of accusation, and lays the way for the judge to inquire.

II. Obligation Of Denouncing.

n. ¶2305.

- The obligation of juridically denouncing arises from a threefold source, namely: from justice, from charity, and from a positive precept.

Principles. I. From LEGAL and COMMUTATIVE justice, those are held to denounce who are deputed to this by office, and are remunerated by the Prince or by masters by an agreed stipend. Of this kind are Fiscals, and other public officials, keepers of fields, of taxes, and of similar things, all of whom, since by office and by quasi-contract they are held to denounce crimes, are also held to repair damages to the Community, or to masters, which have followed from culpable omission of accusation or denouncement. - Recall what was said n. 988.

Gury notes that keepers of woods, fields, etc. sin if they denounce merely accidental damage, and that they are not held to denouncement if the delinquents spontaneously offer themselves to compensate the damage secretly.... But sometimes, he says, they can act more mildly with those causing damage, if the damages, e.g., are of lesser moment, and have not been repeated more often; if it can prudently be presumed that the master does not wish the delinquent to be brought forward; if the delinquent is very poor and not accustomed to offend, etc.; but let keepers carefully beware lest in these things they indulge more than is equitable.⁸

n. ¶2306.

- II. FROM CHARITY, for consulting the good of the Community or of the innocent, private persons are held to denounce certain OFFENSES or CRIMES, namely: 1. a crime turning to the damage of the Faith, or of the Community, as heresy, rebellion, falsification of monies, robbery on the public road, and the like: which each one ought to avert under grave obligation, even with grave inconvenience, because there is question of the common good (cf. n. 442). - 2. A crime from which grave damage threatens an innocent person, whenever no grave inconvenience is prudently to be feared for the denouncer. The reason is, because on the one side the innocent is to be preferred to the voluntarily harmful, but on the other, each one is held from charity to protect the innocent, when he can furnish this without grave inconvenience to himself⁹ (cf. n. 483, Reg. I.).

n. ¶2307.

- III. FROM THE PRECEPT OF A SUPERIOR, or from a MONITION or PUBLIC EDICT, all persons, for the most part, are held to denounce offenses. - But a precept of this kind does not urge, unless the delinquent is defamed, or at least suspected by grave indication, or when the crime turns to the damage of the Community, or of a third party; yet with this difference, that in the case of damage only inflicted or to be inflicted upon some third party, fraternal correction ought to be premised, nor is there obligation of denouncing with one's own damage; but when the offense turns to common damage, there is an obligation of denouncing, even with one's own damage, although the offense were occult; nor is previous correction to be premised, except in the rare case in which by secret warning the evil can be impeded at once (cf. n. 494 sq.).

We have said all persons for the most part; for: 1. by force of a Monition no one is held to denounce himself; for no one can be bound to brand himself with infamy; 2. he is not held to denounce those joined to himself within the fourth degree, except in the case of formal heresy, or of conspiracy against the Prince. "The reason is, because to denounce one joined to oneself is the same as to undergo grave damage or inconvenience: which reasonably excuses, when danger of common damage is absent."¹⁰

n. ¶2308.

- IT IS ASKED. When is it ILLICIT to denounce a crime?

Resp. You are not held, nor ought you (even supposing the precept of the Superior) to denounce: 1. If the crime is not public, nor harmful to society, and fruit is hoped from private warning; for then fraternal correction ought to be premised (cf. n. 494). - 2. If the delinquent has been amended, without danger of relapsing, and satisfaction has been made to the injured party, nor does danger threaten others; because the infamy of the neighbor would follow without cause. (See however what was said n. 1798 concerning solicitors.) - 3. If you know the crime under a committed secret, as consultant, advocate, etc.; unless however he who committed the secret to you were unjustly vexing an innocent person or the Community, and were unwilling to desist from vexing (cf. n. 1187).

Note. From ECCLESIASTICAL LAW these must be denounced: - 1. Heretics and those suspected of heresy (cf. n. 442); - 2. Confessors who solicit (cf. n. 1354; 1794 sqq.); - 3. Confessors who demand that the name of an accomplice be revealed to themselves (n. 1701); - 4. Masons and others enrolled in secret sects (n. 1331); - 5. The unworthy to be promoted to sacred Orders (cf. n. 1916); - 6. Betrothed persons entangled in a diriment impediment and about to enter matrimony already published (cf. n. 2065).¹¹

Vol. II, Pt. IV, Tr. III, Ch. II, Art. I, § 3. Concerning The Defendant

n. ¶2309.

- A DEFENDANT (called from the thing or from guilt) is he who is called into law and against whom action is taken in judgment. - In a civil judgment he is also called the defender, and in criminal matters the accused. - But for discerning what is lawful for the defendant, and what is not lawful, whether in confession of the crime, or in defense of his cause, or finally in declining the penalty inflicted upon him, the following things are valid:

Principles. I. The defendant is held TO CONFESS THE TRUTH and TO REVEAL the associates of the crime TO THE JUDGE ALONE, when he legitimately and juridically interrogates. - Thus commonly with St. Alphonsus.¹²

We say 1. when legitimately and juridically interrogating; otherwise, according to St. Thomas,¹³ the accused is not held to respond; "but he can elude the judge, either by ambiguous words, or even by denying with some restriction, and in a good sense, so that a lie be absent." The reason is, because the judge does not have authority, except when he interrogates legitimately and juridically (cf. n. 1182). But now: - 1) he does not interrogate legitimately unless he has jurisdiction over the matter or over the person; - 2) he does not interrogate juridically, unless half-full proof has preceded, or unless infamy exists, or another manifest indication of the crime. - Indeed, in a criminal cause, if the defendant reasonably doubts whether he is interrogated legitimately, he is not held to respond. "The reason is, because he himself possesses life and reputation; whence, in doubt, he has the right of preserving it, until the legitimate interrogation is established."¹⁴ Yet someone could be held from charity, namely on account of the utility of the neighbor, to respond.

We say 2. he is held to confess the truth; for the judge legitimately interrogating has the right of demanding the truth from the defendant: therefore it is repugnant that there should be at the same time in the defendant a right of denying it. - Hence, Benedict XIV in the Constitution Paterna charitas issued in the year 1749 teaches that absolution is generally to be denied to defendants who keep back the truth; because it pertains to the common good that guilty persons be known and punished; especially if the penalty which is feared is ecclesiastical, because this is medicinal. - But whether the defendant is held to confess his offense with fear of death, or of another most grave penalty? It is sharply DISPUTED. Suarez, Lugo, and others deny; because the law would then be too hard, and as if impossible for human weakness, unless it is necessary for averting common damage, e.g. by revelation of the associates of rebellion. St. Alphonsus indeed does not reprove this opinion; but he considers the opposite opinion more probable, at least because of the authority of St. Thomas, Sanchez, Lessius, the Salmanticenses, etc., and because the judge has the right of knowing the truth whenever he interrogates legitimately. In practice, if the defendant does not believe himself obligated, and no fruit can prudently be hoped from admonition, he is to be left in his good faith.¹⁵

We say 3. he is held to reveal associates; namely, if there would be against them indications, or testimonies, or infamy. Otherwise, he is not held nor can he reveal them, because in occult matters they retain the right to their own reputation. But if the offense is of the excepted ones, as heresy, conspiracy, etc., he is held, even when not interrogated, to reveal them, as is clear from what was said concerning denouncement (n. 2306).¹⁶

It is helpful TO NOTE: - 1) After sentence has been passed, the defendant is not held to confess the crime which before he unjustly denied; because once the judgment is finished, the precept of the judge no longer urges. Except if the defendant by his denial has inflicted damage on the judge, which he ought to repair. - 2) Before sentence it is not necessary that he be interrogated again; because the precept of the judge perseveres, which he is still held to obey.¹⁷

n. ¶2310.

- II. It is never lawful for a defendant or accused man, even if innocent, FOR HIS OWN DEFENSE, to impose a false crime upon another. This is clear from the 44th proposition condemned by Innocent XI (cf. n. 1196). - Yet he can licitly, for his own defense, set against the accuser or witnesses a true but occult crime, provided that this is absolutely necessary, and that otherwise he himself would suffer grave damage, although through the revelation greater damage may come to the accuser or witness; for no one is held, with his own grave damage, to preserve the reputation of his neighbor (cf. n. 1198). - Likewise, if the defendant had indeed committed the crime, but so occultly that it cannot be proved, he can licitly set calumny against the accuser; because by law he is presumed to calumniate who accuses a defendant of a completely occult crime.¹⁸

n. ¶2311.

- III. It is not lawful for the defendant, even if unjustly condemned, TO REPEL FORCE BY FORCE, e.g. by killing, wounding, etc.; as is clear from the 18th proposition condemned by Alexander VII. - Nor can he licitly corrupt the keeper of the prison with money, since this is intrinsically evil (cf. n. 518). - But one unjustly condemned can positively resist, so that he may snatch himself from the hands of the attendants, provided that from this there does not arise public scandal and grave disturbance. He can similarly, by breaking doors, lawfully flee, even if the keeper of the prison is going to suffer damage from this; for he uses his own right, and consequently the damage which he does not directly intend is not imputed to him.¹⁹

But for him not yet condemned, or already justly condemned to death, or to the galleys, it is not lawful to resist. He can indeed flee from prison, where he is detained in custody; but he is by no means held to this. - But if prison (not very hard) has already been assigned to him as punishment, he can no longer flee; because the sentence justly passed against him obliges in conscience. Thus commonly.¹

On these things LET IT BE NOTED: - 1. When it is lawful for the defendant to flee, others also (ministers of justice, however, excepted) can supply those things which help or hasten flight, e.g. files, ropes, or other instruments, provided that no damage will come to the republic from this, for example, if the defendant were the head of robbers. - But it is lawful for no one to break into prisons in order to free the condemned: for this is conceded to the defendant from the right of preserving life; but for others it is ruled by the common good, namely lest all security of the prison perish (cf. n. 519).

Let the confessor prudently ADMONISH the defendant that he can neither benefit him nor harm him; for, this admonition being omitted, the defendant, led by hope or fear, will try to prove himself innocent. And although his innocence becomes known from confession, nevertheless let the confessor not commit himself to intercede for him before the judge; both because his testimony would not make faith, and because the seal of confession would be broken indirectly, in relation to those for whom the same intercession would not be made, and also because of many other inconveniences² (cf. n. 2300, and n. 1546, qu. 2, concerning Communion).

n. ¶2312.

- Questions. QUAER. 1. What is lawful for the defendant in a CIVIL cause?

Resp. The defendant, or defender, has the civil action brought against him by the petitioner, either as certainly just, or as certainly unjust, or as doubtful. - In the first case, he ought without delay to satisfy the petitioner, nor can he begin a lawsuit without being held concerning all damages that will come about. In the second case, he can defend his cause by all means and arts not illicit, as a defendant in criminal matters (n. 2310). - In the third case, he can, as long as the doubt persists, licitly contend; unless charity toward himself and the neighbor, and the counsel of the prudent, advise a transaction, namely lest expenses be multiplied beyond measure (cf. n. 944-947 and n. 1160).

QUAER. 2. Whether it is lawful to interpose an APPEAL?

Resp. 1. Neg., in a civil cause certainly unjust, or certainly less probable; because if a new judge judged for the defendant according to the less probable opinion, he would certainly act unjustly (from n. 2301, rule 4). - "But what if it is doubtful whether the superior judge will justly pass sentence for the defendant? In such a case, it is probable that the defendant can appeal, even in a civil cause; because, since the minds of men are diverse, perhaps the opinion which appeared less probable to the lower judge will appear more probable to the superior; and the defendant, since he already has a probable right for himself, can licitly try this, not without a just cause. And this seems to be the practice of all who appeal." Thus St. Alphonsus.³

Resp. 2. If there is question of a criminal and capital cause, the defendant can appeal, even if he has a less probable right, as is clear from what was said n. 2300. He will also be able to do this, although the first sentence has been just according to the things alleged, in the case in which he has found new reasons for himself, so that the opposite can still be proved.⁴

Vol. II, Pt. IV, Tr. III, Ch. II, Article II: On Persons Auxiliary In Judgment

There must be treated: 1. concerning auxiliaries of the litigants, 2. concerning auxiliaries of the judges.

Vol. II, Pt. IV, Tr. III, Ch. II, Art. II, § 1. Concerning Auxiliaries Of The Litigants

To help litigants there intervene witnesses, advocates, procurators.

I. Concerning Witnesses.

n. ¶2313.

- WITNESSES in general are suitable persons who are employed for establishing faith in some matter.

Preliminary Notes. For testifying in judgment, some are never assumed, some only in certain causes; nor is the same number of witnesses always required in all causes. - We have said 1. Some never; for several are excluded by the laws. Thus, in canon law,⁵ the insane, the immature, the blind, those corrupted by money, infamous persons, criminals, perjurers, the excommunicated, vile persons, parents, spouses against each other, servants, women, an associate in crime, etc. are excluded: all of whom, however, have their own proper exception.⁶ - 2. Some only in certain causes; for, from canon law, lay persons are regularly not admitted against clerics in a criminal cause; and from civil law, in some regions, witnesses are regularly not admitted concerning an agreement concerning a thing exceeding the value of 300 francs, but authentic writings are required. - 3. The same number of witnesses is not always required; for sometimes one witness suffices: for example, if there is question of lighter penalties to be inflicted, e.g. in theft from woods; or of an expert in his art, e.g. if a physician testifies that someone's death is natural. Regularly, one witness also suffices in favorable causes: e.g. if it is asked whether someone was baptized, whether a church was consecrated, etc.⁷ - Sometimes more than two or three are required, as happens for a solemn testament in several kingdoms; and from canon law, if there is question of a criminal process against a Bishop.⁸ - Yet:

Regularly, TWO suitable WITNESSES are required and suffice for full proof in every judgment, both civil and criminal; provided that they have perceived by external sense what they testify, depose with oath, and agree among themselves, not only in the substance of the fact, but also in the principal circumstances of person, place, time.⁹ Hence that saying of Matt. 18:16: In the mouth of two or three let every word stand, and the axiom of Law: One witness, no witness. The reason is, because for proving human actions moral and probable certitude suffices.

n. ¶2314.

- Principles. I. Anyone is held TO TESTIFY: 1. from charity, namely when this is necessary for averting a great evil of the neighbor or of the Republic; - 2. from precept, when the judge legitimately interrogates; for a just precept obliges in conscience (n. 2307).

Moreover, the judge legitimately interrogates (as was said above), when either half-full proof of the crime, infamy, evident indications, are present, or also when the accuser offers himself to prove the offense by several witnesses. If these things are at hand, and become known to the witness through the judge, the judge interrogates legitimately, and the witness is held to reveal the truth.¹⁰

But he is NOT HELD to reveal it: 1. If he knows the matter from sacramental secret, or under natural or committed secret; provided that from observance of the natural or committed secret, there does not threaten the republic or an innocent person great damage, which cannot be averted by another way; - 2. if he cannot testify without grave damage to himself or his own, provided that public damage, or another's private damage, does not prevail; - 3. if he has heard the matter from men worthy of no faith; for then he can hold himself as if he knew nothing; or by an unjust manner, for example by force or fraud, e.g. by opening letters; 4. if he knows that the defendant did not sin in conscience, e.g. because of ignorance; because the mind of the judge is to inquire concerning an offense.¹¹

n. ¶2315.

- II. A witness legitimately interrogated, and not excused from the obligation of testifying, is held TO SPEAK THE TRUTH integrally, and nothing besides the truth, by responding to the questions simply, according to his conscience. Thus all.

Hence: 1. The witness sins, and is held to restitution: 1) if he receives a price for speaking the truth, since by every law he is held to speak it freely; - 2) if knowingly he affirms what he is ignorant of, or opens things to be hidden, or testifies falsely; and he is obliged to reparation whenever, by acting thus, he has been the effective cause of damage. Whence, he is held to retract himself, even with damage equal to life or goods, provided that the retraction is foreseen to be profitable. - Mark the words knowingly, effective; for if grave fault is lacking, he is indeed held, insofar as lies in him, to impede the damage, but not to repair what he did in ignorance. Likewise, if by his false testimony he effected nothing, he is held to nothing¹² (cf. 948 and 949).

He also sins, but without the burden of restitution: 1) if, in a case in which he is held to testify, he hides himself, lest he be cited by the judge; because he injures charity; 2) if he flees after citation; 3) if, legitimately interrogated, he hides the truth: because he injures obedience, indeed also religion, if he has furnished an oath. - In these things, however, since he is only a negative cause, he does not sin against justice: unless he entered into a special pact, with a party, concerning manifesting the truth.¹³

II. Concerning The Advocate And Procurator.

n. ¶2316.

- An ADVOCATE (patron, pleader) is he who is called to assist a litigant in pleading, or defending, a cause.

A PROCURATOR (caretaker for another) is he who by legitimate mandate conducts and administers the affairs of another (cf. n. 1091). - A judicial procurator can be: 1. on the part of the State or republic, and is called fiscal or royal (cf. n. 2303); 2. on the part of the advocate, namely he who is the helper of the advocate in the defense of the suit, or the second advocate; 3. on the part of the litigant, whose place he bears in judicial acts.¹⁴

n. ¶2317.

- Principles. I. Not all indiscriminately can exercise the office of judicial ADVOCATE or PROCURATOR. - For some are excluded by civil law: such as women, minors, infamous persons, judges in the same cause, etc.; others by canon law, namely: the excommunicated, monks, clerics constituted in Sacred orders, beneficiaries, unless there is question of certain causes which we have designated above, n. 2226. - By natural law itself those lacking necessary knowledge are prohibited, who consequently are held concerning damages that followed from ignorance.¹⁵

n. ¶2318.

- II. An advocate or procurator cannot assume ALL CAUSES; but only those which, after diligent examination, he has judged to be JUST and LAWFUL. This is clear through itself. But now, in an unjust cause, the advocate is held to repair the damages both of the opposing party and of his own client, if he has concealed from the latter the injustice of his own cause. But if the client also is in bad faith, he himself is held, in the first place, to make restitution to the opposing party, as one commanding; but in the second place, the advocate, as executor.

Hence: 1. An advocate questioned by a client is held to examine the cause with diligence proportioned to the gravity of the matter, to preserve fidelity to the same, and finally to declare the quality and state of the cause, lest there be proceeding to vain expenses.¹⁶

If he has assumed the cause in good faith, at least as probable, and notices its injustice in the course of the process, he is held to abandon it, and to advise the client to desist. Nor in this case can he advise a composition with damage to the other party; because there is no place for composition, except when the matter is doubtful.

n. ¶2319.

- Questions. QUAER. 1. Whether an advocate or procurator can defend a LESS PROBABLE cause?

Resp. 1. In a civil cause, according to the more probable and more common opinion, if the doubt is of law, the advocate (or procurator) can assume and defend the slightly less probable parts, whether of the plaintiff or of the defendant, yet with the litigant warned concerning the quality of his right. "The reason is, both because an opinion less probable in the course of time can become more probable; and because many times the opinion which appears less probable to the advocate seems more probable to the judge." But if the doubt is of fact, he cannot, whether in lesser or even equal probability, defend the cause; because in such a cause the defendant, or possessor, is altogether to be favored; and therefore if a suit were brought against him, he would be vexed unjustly, and the plaintiff would be compelled to useless expenses.¹⁷

In a criminal cause the defendant, even truly culpable, can always be defended, provided that it is done without fraud and lying; because he is not held to the penalty unless convicted. But the accuser or denouncer cannot, in a doubtful criminal cause, be helped by the fiscal procurator or by another, because these would sin, just as the accuser himself, by cooperating with his illicit denouncement.¹⁸

QUAER. 2. To what is an advocate held by reason of HONORARIUM or STIPEND?

Resp. 1. He can receive nothing beyond the just price, namely that taxed, where it exists, or determined by the judgment of the prudent, account being taken of the business, of his own skill, of the labor which he expends, and of approved custom. - Yet if the client, without just cause, abandoned the lawsuit begun, he could contend for the whole salary.¹⁹

Resp. 2. As to the poor: 1) He is held, even with grave inconvenience to himself, to assist gratuitously those who are in extreme necessity, and have no other recourse; 2) likewise, but short of his own grave inconvenience, those who are in grave necessity; 3) finally, to those who are in common necessity, it suffices if he bestows some of his work.²⁰

n. ¶2320.

- From these things you resolve: - I. An advocate SINS: 1. If he defends or prosecutes a cause certainly unjust as to ownership, although it were just as to possession; for just as the defendant then cannot retain the thing, so neither can the advocate protect him. 2. If he prosecutes a just cause by unjust means, by bringing forward, e.g., false writings, or abrogated laws. 3. If, after the lawsuit has been begun, he makes an agreement concerning stipend; for concerning this an agreement must be made either before or after; because if he were to agree during the course of the suit, the client could easily be compelled to acquiesce in every stipend, however immoderate; and he sins much more gravely by agreeing concerning a proportional part of the suit, e.g. concerning a third part, if the cause is won; for such a pact casts him into proximate danger of employing every device, that by right and wrong the suit may be obtained. Nevertheless, if the price were certainly just, and deceit were absent, he would not be held to restore what he had received. - 4. If he undertakes more causes than he can conveniently handle, the client not having been warned. - 5. If he patronizes each party; because it is repugnant that he defend each party equally, at least in the same cause. - 6. If he opens the secrets of his client to the opposing party. There are indeed some who except the case in which another, because the secret is observed, would unjustly suffer grave damage; but others with St. Thomas do not admit this limitation, except in the very rare case in which the defendant would be punished capitally, and the accuser proceeded unjustly. - 7. If he uses deceits or delays not making for the matter; finally if by negligence or grave imprudence of his own he loses the cause¹ (cf. n. 974).

n. ¶2321.

- II. The fiscal procurator (or his substitute) SINS AGAINST justice: 1. If from negligence, from precipitation, or prejudice, from hatred or acceptance of persons, etc. he drags an innocent person into detention, into judgment, into an unjust sentence to be undergone. 2. If he sustains an accusation after in the course of the cause he has recognized the innocence of the accused, or has gravely doubted concerning it. 3. If he defers the exercise of his office with injury to citizens. But what he has acquired for himself by arts of this kind, he is held to restore.²

n. ¶2322.

- III. The procurator of the parties SINS against justice: "1. If he procures an unjust suit; 2. if he undertakes more causes than he can dispatch; - 3. if he receives more pay than is just; - 4. if he persuades the defendant or party to deny the truth unjustly; - 5. if by his carelessness, negligence, or other fault, he is the cause that the suit is lost; - 6. if in the name of the party he swears, without particular information from him, with danger of perjury; - 7. if culpably he is not present at the tribunal, from fear of future inconvenience, etc.; - 8. if he brings the parties to an inequitable agreement; - 9. if he defers the cause, or perverts the judge, asks for impertinent terms or superfluous delays; - 10. if he induces false witnesses."³

IT IS ASKED. What of him who substitutes or adulterates WRITINGS, for supplying lost acts, or for prosecuting a certain right?

Resp. 1. He sins, at least venially by reason of lying, because, however the matter stands, the note of hand which is exhibited is diverse from that which makes faith in judgment. It can also happen that he sins against prudence, namely if he exposes himself to the danger of incurring most grave penalties.

Resp. 2. He does not sin against justice, since he prosecutes a certain right; and consequently he is not held to restitution. Except, if he conducts the cause of another, as an advocate, and from the discovery of the fraud damage comes to his client or to the opposing party.⁴

NB. What is lawful for an ADVOCATE and PROCURATOR in a cause of Divorce, see n. 2126, 2.

Vol. II, Pt. IV, Tr. III, Ch. II, Art. II, § 2. Concerning Auxiliaries Of Judges

n. ¶2323.

- Auxiliaries of judges help them in settling causes in a threefold manner: 1. by counseling: in which office auditors or referendaries, and assessors or counselors, function; 2. by writing the acts of the judgment: which notaries do, who are also called scribes, chancellors, actuaries, tabellions, protocolists; 3. by executing what the judge commands: in which business attendants and judicial messengers are occupied, who are also called apparitors, runners, beadles.

Principle. Auxiliaries of judges "are held to exercise their office JUSTLY AND FAITHFULLY, whether from the debt of the office only, or also from oath. - Likewise, they are held TO KNOW those things which pertain to their office, and to employ due DILIGENCE, furnishing all necessary things, asking for just terms, appealing, when it has been necessary."⁵

This general principle having been premised, it remains that the following things be noted separately.

I. Concerning Referendaries And Counselors.

n. ¶2324.

- I. Referrers or Ponents are those to whom the examination of the suit or recognition of the cause is committed, that they may refer it to the judges to be defined. Generally such an office is committed to one from the judges themselves, who by this reason is called the commissioner of the cause, or judge-relator.

The Referrer SINS and is held to reparation of the damage that comes about: 1. If by defect of study, or by carelessness, he reports badly, or omits things which pertain to the substance of the suit; - 2. if he favors either party; - 3. if he divulges the sentence before the time.

Note. But from the fact that knowledge of the cause belongs to the Referrer, it by no means follows that the other judges can neglect knowledge of the cause; for if they were to neglect it, the judgment would depend, in great part, upon the report of the Referrer alone, which not rarely totters. - Therefore each judge is held to weigh the cause considerately, and then, from his own knowledge, to cast his vote.

II. Counselors are held to the same things as the judge himself, insofar as they cooperate proximately with him in passing sentence. - Recall what was said concerning the Judge, n. 2296 sqq.; and concerning Counselors, n. 980, 983, 984, and 988.

…and 8 more passages — all of them are listed on the topic page.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 9 passages

Ch. I, Question IV: Concerning Public Officials

n. ¶4321.

II. Judges are to be questioned, if they seem of laxer conscience:

n. ¶4322.

Whether they have not shown acceptance of persons.

n. ¶4323.

Whether they have expedited cases.

n. ¶4324.

Whether before sentence they have premised or omitted suitable study.

n. ¶4325.

Whether they have not pronounced sentence from passion: hatred, aversion, affection toward one party.

n. ¶4326.

Whether they have not decreed penalties graver than is just, by not attending to attenuating circumstances, if any were present.

n. ¶4327.

Whether for rendering sentence, whether just or unjust, they have exacted or accepted money or gifts.²

² Several other things can be seen in Summa Theologiae Moralis, II, nn. 632-634.

n. ¶4328.

Let it be noted: a) Judges, if they lack competent knowledge, are bound to leave the office, or to learn juridical knowledge and meanwhile, as far as they can, to abstain from exercising the function, or at least to take counsel from a doctor if they cannot abstain altogether.

n. ¶4329.

b) Jurors, who among certain nations are constituted to judge concerning the guilt of crimes according to the persuasion of their own conscience, sin if they pronounce against the accused either from private knowledge alone, when the crime has not been judicially proven, or from judicial proof while by private knowledge they know that he is innocent.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 34 passages

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, Fourth Part: On Distributi…, Question Four: On Public J…, Article I: On Judges

S. Th. II-II, q. 67.

636. The office and qualities of a judge. A judge is a public person, constituted by legitimate authority for authentically declaring and defining right. It is not enough that laws be established and promulgated; it is also required that they be sedulously and faithfully observed. But for the observance of laws, judicial power is necessary, which settles disputes arising among private persons concerning their rights, and punishes those perpetrating crimes or offenses. In the former case, the cause is called civil or commercial; in the latter, criminal or correctional.

In a judge three gifts or qualities are required: jurisdiction, competent knowledge, and perfect integrity.

A. Jurisdiction (rechtsgezag of bevoegdheid), or the power of passing sentence and imposing it as a superior upon a subject. Jurisdiction is necessary for the validity of the sentence; St. Thomas shows this in this way, a. 1:

"The sentence of a judge is as it were a certain particular law in some particular fact. And therefore, just as a general law must have coercive force, ... so also the sentence of a judge must have coercive force, by which each party is constrained to observe the sentence of the judge; otherwise judgment would not be efficacious. But in human affairs, only he who holds public power licitly has coercive power, and those who hold it are reckoned superiors with respect to those over whom they receive power as over subjects, whether they have ordinary power or power by commission. And therefore it is manifest that no one can judge someone unless he is in some way subject to him, either by commission or by ordinary power."

Jurisdiction, however, is necessary both as regards subjects and as regards the cause: for just as not all subjects, so also not all causes are subject to every judge or tribunal, but the forum must be competent.¹

¹ He must sedulously study the laws in force in his region and jurisprudence.

B. Competent knowledge is necessary for a judge, that he may pass equitable judgment; otherwise he would expose himself to the danger of inflicting damage upon those who present themselves before the tribunal. Therefore:

Thus, for Belgium, one can consult the Cod. proc. civ. and the Cod. instr. crim., with the law of June 18, 1869, concerning judicial organization, together with the royal decree of February 22, 1892, and November 14, 1935. Besides ordinary civil, commercial, and criminal tribunals, there are special ones, such as the council of war for soldiers, the council of arbiters (C. Prov. civ., art. 1003 sq.), and the council of prudent men (law of March 23, 1876; July 21, 1879; May 15, 1910; and July 9, 1926).

The higher and more difficult the office entrusted to him is, the greater the knowledge in which he must excel, so that for cases ordinarily to be judged by him his knowledge may suffice, and for extraordinary cases he may be able to complete it by consulting books or those more expert.

He who accepts the office without sufficient knowledge sins effectively against legal justice, and affectively against commutative justice, which he foresees that he will injure.

A judge must use at least common diligence in knowing the particular cause concerning which he must pass judgment, and in hearing the arguments which are brought forward for and against by advocates; otherwise he could easily be deceived about the facts. He is held to this both from legal justice and from commutative justice.

Hence a) a judge who is deprived of competent knowledge cannot be absolved unless a) he resigns the office, or b) learns juridical knowledge and meanwhile abstains from exercising the office, if it can be done, or c) at least takes the counsel of one more learned, if he absolutely cannot abstain;

b) He who culpably inflicted damage upon some party, whether through lack of skill or through known negligence, is held to repair the damage which the injured party suffered, and of which he is truly, efficaciously, and formally an unjust cause;

c) He who inculpably, from inadvertence, caused damage must, if it can be done without grave inconvenience, warn the injured party so that this party may provide for himself by way of "appeal" or in another way.

C. Perfect integrity and incorruptibility ought to be as it were the distinctive mark of a judge, by which, namely, he is so disposed that he yields neither to love nor hatred, neither to entreaties nor threats, neither to benefits nor inconveniences, but follows only the norm of justice and the dictate of conscience.

Hence by every law it is prohibited:

a) That the judge favor one party during the course of the process, for example, by indicating means of defense to an advocate;

b) Likewise, that for considering the matter or passing sentence he receive money or gifts, by which, namely, he would be enticed to pronounce sentence in favor of the giver: for he receives a stipend for faithfully fulfilling his office, and therefore he has no right to obtain anything else. And indeed, if he receives gifts by pact for passing a just sentence, or if he exacts them, he is held to restore them because he cannot receive the price twice for the same thing; but if for an unjust sentence, the principles concerning a base contract come to be applied, and therefore before the sentence is passed he is held to return what he received; but after an iniquitous sentence has been passed, he will be able to retain them, unless he is judicially compelled to restore, but he will be held to repair all damages inflicted upon the other party.²

² Cod. poen., arts. 246 and 247.

c) Indeed, that he receive gifts from litigants as gifts offered from mere liberality, lest thus his integrity come into suspicion. Yet this is not per se unjust, but is positively prohibited; hence he is not held to restore them unless after a judicial sentence condemning him to this;

d) Finally, neither is it fitting to accept money freely offered to him, that he may expedite one cause before another, or expedite it more diligently: by force of his office he is held to expedite all causes quickly and equally.

In the aforesaid cases, the judge is held to restore to the other injured party for the damages inflicted; but if after the fact no damage was really inflicted unjustly upon anyone, then on this account there will not be present a strict obligation of restoring.

637. The duties of a judge. The judge must proceed according to the laws as regards the order and form of the judgment, and pass sentence according to the knowledge which he has as judge. For he is not the founder of the law, but its interpreter; nor does he act as a private person according to the private knowledge which he has, but as a public person, according to the public knowledge which he possesses as judge.

"To judge," says St. Thomas, q. 67, a. 2, "belongs to the judge according as he holds public power; and therefore in judging he must be informed not according to that which he himself knows as a private person, but according to that which becomes known to him as a public person. But this becomes known to him in common and in particular: in common indeed through public laws, whether divine or human, against which he must admit no proofs; but in some particular affair through instruments and witnesses and other legitimate documents of this kind, which he must follow in judging rather than that which he himself knows as a private person."

Therefore the judge must: 1. Judge according to what has been alleged and proved in the judgment;

He cannot abstain from passing judgment; hence, where explicit laws are lacking, he must judge according to similar laws, or according to natural equity (C. C., art. 4; C. I. C., can. 1625, § 1);

He can pronounce only for one case, but not by way of a general disposition after the manner of a rule for similar cases (C. C., art. 5).

Hence a) a judge who by private knowledge knows someone to be guilty, who juridically has not been convicted, must absolve him.

b) On the contrary, one who by certain private knowledge knows someone to be innocent, who nevertheless has juridically been proved guilty, must examine the witnesses more diligently that he may find an occasion of freeing the innocent man, or even leave him to be judged by a superior. But if he cannot do even this, he must judge according to what has been alleged and proved in the judgment, and consequently condemn him, as St. Thomas shows, loc. cit. and q. 64, a. 6, ad 3. Yet to this principle some append a restriction: unless it concerns the penalty of death or of a more prolonged prison; but this restriction is not logically founded.³

³ Cf. art. 118 of the Belgian law of June 18, 1869, and Cod. instr. crim., arts. 352, 363.

Today, however, that dispute is scarcely practical, since among civilized nations, quite generally in the greater criminal causes, it is now not the judges themselves but jurors who pass sentence concerning the fact of the crime, and indeed according to their intimate persuasion and conscience. Once this has been done, nothing more remains for the judges except to declare the penalty, which is to be imposed not so much according to the proofs brought forward, but rather according to the law for the crime; hence, in that case, a judge certain of the innocence of the accused could do nothing except inflict the minimum penalty which the law permits,⁴ or perhaps omit a certain legal form so that place can be given for cassation of the sentence and for a new examination of the cause.

⁴ In Belgium, moreover, art. 118 of the law of June 18, 1869, and art. 352 of the Cod. instr. crim. can be considered, and sometimes also arts. 363 and 364.

c) In the case in which the arguments brought forward on each side leave the matter doubtful, in criminal and penal causes favor is to be given to the accused, who consequently is to be absolved. Namely, no one is to be punished unless the crime is morally certain: for crimes are not presumed but must be proved, and it is better for the public good that a guilty man be absolved undeservedly than that an innocent man be punished unjustly.

But in civil causes, if one party is in legitimate possession of the thing, it is to be left to him, for in doubt the condition of the possessor is better, unless the contrary is much more probable (C. C., art. 1315); but if neither party possesses, the thing must be adjudicated according to the merits of the cause and consequently to him whom the greater probability favors,⁵ first according to the rules of interpretation of law and the rules prescribed in law, then according to the proper opinion which the judge will try to form for himself.

⁵ Hence proposition 2 was condemned by Innocent XI: "I probably think that a judge can judge according to an opinion even less probable."

If the reasons from each side are equal, a friendly settlement is to be advised, or even imposed, unless the law prescribes that sentence be passed, as in French and Belgian law: for then the judge is held to form an opinion for himself.

d) If the civil law is manifestly unjust, and indeed by reason of competence alone, as if it is opposed to ecclesiastical law, the judge can seek from ecclesiastical superiors the faculty of judging the cause, which generally is easily conceded to him on account of the great damage to which he is exposed; but if it is unjust by reason of the thing commanded, as if it imposes something contrary to natural or divine law, the judge cannot pass an unjust sentence, but must abstain from judging the matter or resign the office: for the application of a law which commands an unjust thing is intrinsically evil.

Some, however, admit an exception if there is question of a light penalty unjustly imposed: then indeed, they say, the innocent person is deservedly judged to consent to this penalty on account of the public good, lest, namely, the judge be compelled to resign an honorable office. But others say: this is the application of an iniquitous law, and therefore evil, which also easily causes scandal, because the law is thereby strengthened in practice.⁶

⁶ The controversy is well set forth in Billuart, diss. 12, a. 2 and 3.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 9 passages

Vol. I, Tr. X, Pt. I, Chapter I. On the Obligations of Judges

n. 558.

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.

n. 559.

Questions

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.

n. 559, Q. 2.

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.

n. 559, Q. 3.

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.

n. 559, Q. 4.

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.

n. 559, Q. 5.

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.

n. 559, Q. 6.

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.

n. 559, Q. 7.

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.

n. 559, Q. 8.

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.

Concina, Compendium

Daniele Concina, O.P. — 37 passages

Diss. V, Chapter IX — On the obligations of those who serve the courts

At the close of this book on justice and right it pleases me to touch upon certain things which regard men of the courts. In the Christian Theology I passed over this matter untouched, because there was not then time for adorning this province. At present I shall briefly illustrate the chief points. To the matter.

SECTION I — On the judge

I. QUESTION I. What are the duties of a judge, that he may judge rightly? ANSWER. First of all, knowledge is necessary to a judge of those things concerning which he must pass judgment. Terrible are the oracles by which the Holy Ghost, Wisdom 6, inveighs against sluggish and ignorant judges. Wisdom is better than strength. … Hear therefore, ye kings, and understand … you that are judges of the ends of the earth … for a most severe judgment shall be for them that bear rule. … To you therefore, O kings, are these my words, that you may learn wisdom, and not fall away. God addresses not only inferior judges, but kings themselves. Upon these he threatens a most terrible judgment if they have not learned the knowledge by which they may govern and detect the errors of inferior judges. They are held in a fatal blindness if they believe themselves free from learning the wisdom necessary to government; if they flatter themselves that it is enough to choose good judges and ministers, to whom they commit the whole burden. These are helpers and auxiliary forces. But for the rest, kings and princes themselves will have to render God an account, and indeed a most severe one, both of the judges and of the people. It is a most enormous error by which they believe they have fulfilled their part as often as they have chosen the best ministers. This is one thing which they ought to furnish; but the chief thing is assiduous vigilance and study, by which they ought to assist the people committed to them and to transact the affairs of their princedom. He who wills the splendour of dignity and its revenues must needs will the most grave burdens which follow upon dignity.

II. To all judges, besides knowledge, there is necessary for the forming of a right judgment fortitude and constancy, by which they may make little of the powerful and fear no person. God says, Ecclesiasticus 7: Seek not to be made a judge, unless thou have strength enough to extirpate iniquities: lest thou fear the person of the powerful, and lay a stumblingblock for thy integrity.

III. Hence they gravely sin who, destitute of knowledge, fortitude, and the other necessary endowments, undertake the office of judge: these cannot be absolved unless they abdicate the magistracy. For they are engaged with the greatest peril of eternal salvation: for if a judge, reckoning that he judges rightly, from mere unskilfulness bring forth a false sentence, he is stained with a grave sin of ignorance, as failing in those things which by his office he is bound to know, and is bound to the restitution of all the losses which come to the litigants.

IV. Besides the endowments recounted, a judge must be furnished with authority of judging, either ordinary, or delegated, or from the consent of the parties. He ought also to have moral certainty of the cause which he decides. This moral certainty ought to be formed to the norm of the laws, and according to what is alleged and proved. For he cannot condemn him whom by private knowledge he knows to be guilty, if he be not juridically proved guilty. Since he judges not as a private person, but as a public person.

V. QUESTION II. How ought a judge to bear himself when the rights are doubtful? ANSWER. Note the proposition which Innocent XI condemned, no. 2: He probably judges that a judge can judge according to the less probable opinion. A judge is therefore bound to judge according to the truly more probable opinion in questions whether of right or of fact, every respect of persons being excluded, as God commands, Deuteronomy 1: Judge that which is just, whether he be one of your own country or a stranger. There shall be no difference of persons: you shall hear the little as well as the great: neither shall you respect any man's person, because it is the judgment of God. Nor ought a judge to attend to what the vulgar or the multitude say, but he himself ought to search the laws, and according to them to pass sentence, as God commands, Exodus 23: Neither shalt thou yield in judgment to the opinion of the most part, to stray from the truth. If on both sides equally probable reasons press, then the thing, such as it stands, is to be divided between the parties, if it be possessed by no one. In criminal causes nevertheless, when the rights are equal, the judge ought to favour the accused.

n. VI.

VI. Judges ought to despatch causes or suits quickly. If they be negligent in this, they sin against justice, and are bound to compensate the injured party. If they know advocates who craftily protract suits, let them busy themselves to expel them at once from the court.

n. VII.

VII. Authors keenly dispute whether a judge ought to punish with death one whom he certainly knows to be innocent, when according to what is alleged and proved he evidently appears guilty. All affirm that the judge is bound to enter upon all ways and to use all arts, both by deferring judgment and by remitting the cause to a superior, and by acting rightly with him that he may free the innocent man. What if all these be useless? If I must bring forth what I think, I judge that it can scarcely happen that a judge cannot bring it about that the innocent man should appear such. For if this man is innocent, the witnesses are false. But falsehood can with the greatest difficulty pass hidden through a third examination, if the judge be awake. A judge indeed is bound as a public person to judge according to what is alleged and proved; but in a most rare case care must be taken that the innocent do not perish. And because I judge that the case can scarcely happen in practice — namely that the accused be innocent, that this innocence be evidently known to the judge alone, and that no way is at hand of catching the false witnesses in their speech — therefore I abstain from a longer discussion.

n. VIII.

VIII. A judge sins who condemns an accused man upon a confession unjustly extorted. Since a confession unjustly extorted affords no right, nor can a judge use it, since it is not lawful to use an unjust means. But a judge unjustly extorts a confession if he attempt it without congruous indications, or preceding infamy, or half-full proof; if by guile or by promise of impunity he allure the accused; if against the order of law he torture him.

n. IX.

IX. QUESTION III. Can a judge accept gifts from the parties? ANSWER. A judge cannot accept gifts for a sentence to be brought forth, whether just or unjust. Hence Alexander VII proscribed the following thesis: When litigants have on their side opinions equally probable, the judge may accept money for handing down sentence in favour of the one rather than the other. Severely does God disapprove and detest so great a depravity in several places of holy Scripture. Deuteronomy 16 says: Thou shalt not accept person nor gifts: for gifts blind the eyes of the wise, and change the words of the just. Thou shalt justly pursue that which is just. Here both great and small gifts are excluded. That light little gifts are accepted for the avoiding of the mark of discourtesy is an inept excuse. The peoples venerate judges when they see them reject such things, and receive them not as discourteous, but as strong men and upright administrators of justice.

n. X.

X. QUESTION IV. How ought inquisition to be made by a judge? ANSWER. Inquisition is threefold. General, which inquires in general whether the laws are observed. Another peculiar, by which inquiry is made concerning a certain crime and a determinate person. The third mixed, by which inquiry is made in general concerning the person and singularly concerning the crime, or the contrary. General inquisition ought to be made by a judge with no occasion given. If the crime be public and the guilty man hidden, the judge ought to inquire in general. He cannot inquire against a determinate person unless there have gone before either infamy, or half-full proof, or grave indications. These same things are required for torturing an accused man. Torture was instituted for constituting by the accused's own confession a full proof, when most grave indications urge but do not suffice for pronouncing sentence. Once tortured, if he has confessed nothing, he cannot be tortured again for the same crime. If an accused man who confessed under torture retract the crime before the judge, he can be tortured again; if, having confessed a third time, he a third time retract before the judge, he is to be absolved, unless the indications be most vehement. But tribunals have their own prescribed rules as regards this.

n. XI.

XI. QUESTION V. Does a judge's just sentence oblige in conscience? ANSWER. All affirm it, because a lawful superior's precept is to be obeyed out of conscience. On the contrary, an evidently unjust sentence does not bind. Wherefore he who by force of an unjust sentence receives another's goods is bound to restore the same, when he recognizes the injustice of the sentence. If he receives the same in good faith, and before the time of lawful prescription detects the sentence to be unjust, he becomes a possessor of bad faith and liable to restitution. An unjust sentence nevertheless is to be observed by the injured litigant, for the avoiding of scandal and disturbance; nor is it lawful to act by force against the judge and his ministers; but for the public good a private evil is to be tolerated, and only, the order of law being observed, can an appeal be made or a review of the sentence be implored.

n. XII.

XII. A judge is bound to impose the penalties prescribed by law. Not rarely do judges at their discretion either remit or temper these penalties. When this can be done without detriment to the public good, I praise the kindness. But often judges, that they may be merciful toward the guilty, become savage and inhuman toward the innocent. Penalties of this kind are imposed not only for the punishment of offenders, but also for the terror of others. When wicked men see criminals unpunished, they snatch a handle for vexing the innocent. Therefore kindness toward the guilty opens a way to the oppression of the innocent.

SECTION II — On the accuser and the denouncer

I. QUESTION I. Is anyone bound to accuse or to denounce? ANSWER. This distinction between an accuser and a denouncer St. Thomas constitutes, II-II, q. 68, art. 1: that a denouncer intends a brother's amendment, an accuser the punishment of a crime. Those who by office are deputed to this duty, and who receive a stipend from the commonwealth, are bound in justice to accuse offenders inflicting public losses, such as are fiscal officers, watchmen, keepers of fields and woods, and so forth. If a crime turn to public loss, whether temporal or spiritual, even private persons are bound either to accuse or to denounce. Crimes which tend to public loss are the betrayal of one's country, the adulteration of coins, poisonings, heresy, and so forth. Wherefore Alexander VII proscribed the following thesis: Although it be evidently established that Peter is a heretic, one is not bound to denounce him, if one cannot prove it. A denouncer is not bound to prove, but only an accuser. For those who cannot prove a crime are not bound to accuse.

II. QUESTION II. If an offence be hidden and can be proved, ought an accusation to be made? ANSWER. If hope of amendment be given, fraternal correction is to be preferred: because a neighbour's reputation stands, and amendment is obtained, when, as I have said, the offender's amendment is prudently hoped for. If nevertheless the crimes are against the public good, whether temporal or spiritual, amendment can with difficulty be presumed. And therefore, speaking of these crimes, St. Thomas teaches, in Book 4, distinction 18, question 2, article 3, reply 4, that such offenders can be accused without a secret admonition first sent. An accuser ought to abstain from accusation as often as he perceives the crime to be doubtful, or that he cannot prove it.

SECTION III — On the accused

I. QUESTION I. Is an accused man bound to confess the truth? ANSWER. An accused man is bound under grave fault to confess the truth to a judge juridically questioning him, as St. Thomas teaches, II-II, q. 69, art. 1, to whom theologians commonly subscribe. Since a judge in this case has a right of questioning and of exacting the truth for the public good of society. Therefore there is a debt in the accused of manifesting the truth. For the first cannot stand without the other. Besides, the accused cannot deny the truth without a lie, which is always unlawful. But to lie in judgment is a mortal sin, since it is in a grave matter, against justice, says St. Thomas, II-II, q. 69, art. 1, reply 3. He who lies in judgment, excusing himself, acts against the love of God and against the love of his neighbour: both on the part of the judgment, to which he denies its debt, and on the part of the accuser, who is punished if he fail in the proof. Moreover an oath is exacted from the accused concerning the truth to be manifested. Therefore he is a perjurer if he hide the truth. And thus the graver theologians commonly teach.

II. Authors dispute whether an accused man is bound to confess the truth after a capital sentence has been passed. Navarrus, Córdoba, Cabassutius, and others affirm it: because, says Navarrus, this is required for establishing the judge's reputation. You will reply that it is already well enough known that offenders are wont to deny the crimes committed by them. But it appears to me difficult that a Christian accused man is disposed for holily undergoing death who perseveres in the denial of the truth. Assuredly it is a lie: but as he publicly denied the truth, so publicly, as it seems to me, he ought to manifest it. All confess nevertheless that the accused is bound to confess the truth for the taking away of scandal, or of a neighbour's loss, or of the detriment of the public good which would threaten from the concealment of the truth.

III. An accused man is bound also to confess the truth when he is questioned by a judge concerning accomplices, because a superior lawfully commanding is to be obeyed. An accused man not juridically questioned is not bound to answer, yet he can never tell a lie. Mental reservations are inept for hindering a lie.

IV. An accused man who lays a false crime upon himself, for which he is to be punished with death, that he may decline torments, sins mortally: because he directly and positively flows into his own death, and is a defamer of himself. Wherefore he cannot be absolved unless he reveal the calumny laid upon himself, since he is not lord of his own life. It is lawful for the accused to appeal to a superior judge, when he is persuaded of the injustice of the sentence, either because the order was not observed, or because the sentence is severer than is equitable. But the appeal is iniquitous when he knows the sentence to be just.

V. QUESTION II. Is it lawful for an accused man to flee, that he may avoid the penalty? ANSWER. An accused man condemned to death can go to the place of execution and submit his neck and fit his hands, when he cannot take to flight. And yet it is not lawful to inflict death upon himself, to take poison, to cast himself from a ladder, to pierce himself with a sword, or to hang himself with a noose: because these things must be done by the executioner.

n. VI.

VI. It is lawful for a guilty accused man to flee, that he may decline death, both before and after the judge's sentence, unless by a peculiar promise or oath he has bound himself to remain, as St. Thomas teaches, II-II, q. 69, art. 4, reply 2. If nevertheless the judge should command that he not flee, since the precept is absolutely just, the accused would have to obey. But since the observance of such a precept is difficult, since the preservation of life is innate from nature, therefore judges commonly abstain from such a precept: nor, as it seems to me, are they to be persuaded to impose it, on account of the difficulty of observance: since moreover flight can be hindered by a severer custody added.

n. VII.

VII. Hence authors commonly infer that it is lawful for an accused man, for the sake of avoiding death, to break his prison and the walls, that he may open a way of flight for himself. For if flight is lawful for him, it will also be lawful to carry out those things which are necessary for flight. But they dispute whether it be lawful for others to hold out to the accused instruments by which he may break the prison. Many deny it — Toletus, Navarrus, and others. But Cajetan, Salón, and others affirm it. Since, they say, if flight is lawful for him, why is it not lawful to afford the instruments by which the lawful end may be obtained? This matter is not of so great moment as to deserve severer discussion. All affirm that this is not lawful for keepers and ministers. Similarly all authors deny that it is lawful for others to help the accused by breaking the doors or walls of the prison. Because although this were lawful for the accused on account of the innate right of preserving life, it is not therefore permitted to others, who are not in the case of consulting their own life. If this were lawful, nothing would be firm and safe, and the supreme power would lack the means for preserving the public good.

n. VIII.

VIII. To an accused man against whom a sentence of death has been passed it is not lawful to defend himself and to resist the judge, or the ministers and executors of the death. Similarly an innocent man condemned by a just sentence according to what is alleged and proved, but destitute of truth, is bound to bear with Christian patience the penalty inflicted, when by a lawful way and without public scandal he cannot avoid it; and he is bound to pay a pecuniary fine imposed by a lawful judge. Many contend that it is lawful to flee from the galleys, unless one's word has been given of remaining there, since the accused is condemned to be detained there, not to remain of his own accord. And indeed it seems difficult enough to determine that an accused man is bound in conscience to remain of his own accord in so exceedingly troublesome a prison.

SECTION IV — On witnesses

I. For the confirming of some fact and the constituting of a full proof in judgment, two witnesses are required, as St. Matthew, chapter 18, testifies: That in the mouth of two or three witnesses every word may stand. This same St. Thomas teaches, II-II, q. 70, art. 2. In facts of lighter moment one witness suffices, as the testimony of a public keeper is enough for punishing thieves of wood in the forests or of fruits in the vineyards. One witness suffices for hindering a marriage. In testaments, as has been said, two witnesses absolutely do not suffice. It is required that the witnesses be of full age without any exception. By law some are excluded: first, women in criminal cases are excluded, in civil cases admitted; second, slaves; third, minors under twenty years are rejected in criminal cases, in civil cases the under-age; fourth, enemies; fifth, blood-relations and members of the household; sixth, the infamous; seventh, perjurers; eighth, accomplices in the crime; ninth, crimes of difficult proof excepted; tenth, the raving and the foolish.

II. QUESTION I. When are men bound to bear witness? ANSWER. St. Thomas turns over this question, II-II, q. 70, art. 1. When a grave evil, whether temporal or spiritual, whether public or private, threatens an innocent man, everyone is bound to bear witness, even if he be not required by a judge. For the charity of Christ urges us to free the innocent from unjust loss and from monstrous oppressions, as the Psalmist says: Rescue the poor; and deliver the needy out of the hand of the sinner. But in other matters no one is bound, unless required by a judge.

III. A witness is bound to bear witness to a judge lawfully questioning him. That a judge may lawfully question in respect of a witness, it is enough that an accusation, or a denunciation, or a complaint interposed have gone before. But these do not suffice that a judge may juridically question an accused man; but in respect of him it is necessary that there go before either infamy, or grave indications, or half-full proof, as has been said. More therefore is required that a man be bound to bear witness against himself than against a stranger.

IV. QUESTION II. Who are free from the obligation of bearing witness? ANSWER. Confessors, who know facts by force of sacramental confession. Likewise all those who know facts under a natural secret, or for the sake of giving counsel or aid, such as are advocates, physicians, midwives, surgeons, theologians, and so forth. Nor does the judge's intention regard this, that those things which are known by these ways be revealed. Because the observance of secrets is necessary to civil society and to the common good. All nevertheless except with St. Thomas testimony necessary for hindering a grave loss of the community. For then the secret is concerning an unlawful matter — the sacramental seal excepted, which in no case can be revealed. Those who saw an offence, and afterwards swore that they would not reveal it, ought to obey the precept of the superior, although it be not a question of a neighbour's loss to be averted, because that oath is against the right of the superior. As soon as a man knows a thing, there arises a right in the superior of questioning, and consequently that oath is concerning an unlawful matter in respect of the superior, although the sworn secret is to be kept in respect of others. Witnesses are immune from bearing witness when from the same a grave loss threatens themselves or their blood-relations, unless you are bound by the precept of charity to hinder either the public good or a neighbour's loss. For human laws absolutely, and certain cases excepted, do not oblige with a very grave detriment. A father, son, husband, wife, brothers, sisters, blood-relations, and connections of the offender, up to the second and according to many up to the fourth degree, are not bound to bear witness, that domestic concord may be preserved. There are always excepted the cases of heresy, of treason, of the betrayal of one's country, and so forth. In some places servants also are exempted from bearing testimony against their master.

V. QUESTION III. When does a witness gravely sin, and is bound to restitution? ANSWER. He sins: first, if he affirm as true what he did not certainly know; second, if he hide the truth known to him from one lawfully questioning; third, if he bear false witness, because, as is said in Proverbs 21, a lying witness shall perish; fourth, those who write false instruments, or tear up true ones; fifth, those who adulterate some bond or writing. All these, besides the grave sin, are bound to compensate all the losses which thence follow. Sixth, he who in good faith uttered false testimony is bound to retract it. Let this at last be the general rule. Judges are the keepers and defenders of society and of the public good. All subjects are bound to obey their own superiors when they lawfully command. Nor can private persons judge when they lawfully command, but they ought to obey them. Wherefore, when they are cited even in general, they cannot hide themselves or take to flight, but ought to stand before the tribunal.

SECTION V — On the obligations of advocates and other ministers of the court

I. QUESTION I. What are the obligations of advocates? ANSWER. First of all it is necessary that advocates have the knowledge and skill by which they may be able to exercise their profession. A precise rule of that knowledge cannot be designated. Advocates must be awake, of keen talent, and endowed with force of eloquence. Those who are slow of talent and barren of tongue expose themselves to a most grave danger, no otherwise than those who, by nature weak, fearful, and timorous, undertake a war.

II. The client's cause being heard, the advocate ought to manifest its equity or its injustice, no regard being had to his own gain. Would that those who undertake the profession of advocate had whereon to live without the profession, lest, compelled by money, they should accept any causes whatsoever that they may procure food and sustenance. Often not a few recognize the injustice of a cause, but if they lay it open and dismiss their clients, they have not whereon to live. Hence, bound by want, they easily paint for themselves as probable a cause which is openly unjust.

III. An advocate ought to apply study and diligence according to the quality of the cause, that he may obtain the victory of the cause before the judge; and this he is bound to carry out by his office, since he is hired at a stipend.

IV. Advocates must be sincere and ingenuous: strangers to frauds, to revilings, to protractions, to false proofs, to injuries against the adverse party. They ought not to accept save a just stipend fixed either by law or by just custom. It is forbidden to an advocate to bargain with his client concerning some part of the thing in controversy if he win. For hence he would snatch a handle of obtaining victory by fair means or foul, every respect for justice being taken away.

Tr. I, Disputation XXVIII: On the Judge · Tr. I, Disputation XXVIII: On the…, Question V: Whether goodness is necessary in a judge · Tr. I, Disputation XXVIII: On the…, Question VI: On the external purity of the hands of the judge · Tr. I, Disputation XXVIII: On the…, Question VII: Whether excommunicated judges sin in judging, and judge invalidly · Tr. I, Disputation XXVIII: On the…, Question VIII: On the order to be observed by a judge · Tr. I, Disputation XXVIII: On the…, Q. VIII, Doubt III: On the mode of proceeding by inquisition

V. QUESTION II. Is it lawful for an advocate to defend a less probable cause? ANSWER. Some affirm it. In few words I shall settle the matter. An advocate sins: first, if he defend a cause known to be unjust; second, if he defend a less probable cause. If the civil cause be equally probable, he can treat it before the judge; but he ought sincerely to warn his client of the danger of losing the suit. For when the rights appear equal, then each party has a right of proposing its own reasons. This nevertheless is true when the client is the possessor. For if the adversary be the possessor, an advocate cannot defend his client against the possessor. Since when the rights are equal, and consequently the cause doubtful, the condition of the possessor is the better. That an advocate may lawfully defend his client against a possessor, he must judge his own cause to be certainly and evidently the more probable, and such as will appear to the judge. But while it appears doubtful, he cannot judge it the more probable, and indeed evidently. Advocates must beware lest greed and cupidity of gaining clothe an opinion which is to be defended with a degree of greater probability which it does not have.

n. VI.

VI. Hence advocates sin, and are held to restitution: first, if, unskilled and not sufficiently fit, they exercise such a profession; second, when they defend a cause known to be unjust; third, if they undertake causes indiscriminately to be defended, and without considering severely and maturely their justice; fourth, if in the progress of the suit, the injustice being known, they do not warn the client to desist from the suit; fifth, if they reveal the client's secret to the adverse party; sixth, if through their unskilfulness, negligence, or malice the client lose the cause, or make superfluous expenses; seventh, if they defer the despatch of the cause beyond what is just; eighth, if they do not clearly and plainly manifest to the client the danger of losing the suit, and much worse if they allure him by vain promises to bring the suit; ninth, if in defending the suit they use falsehood, fraud, false witnesses, or apocryphal or adulterated writings; tenth, if they undertake more causes than they can rightly despatch, and give to each the due study; eleventh, if they extend their writings beyond what is just, that they may receive a greater price; twelfth, if they lay false crimes upon the adverse party, or reveal true but hidden ones, or vex them with unjust cavils. Lastly they sin against charity if they do not defend gratis the causes of the poor labouring under grave or extreme necessity.

n. VII.

VII. The other procurators, scribes, notaries, and secretaries are all bound in justice to exercise their office diligently, since they receive a stipend. These also sin, according to the diversity of their office, if they persuade an unjust suit; if they multiply writings without necessity; if they violate the secrets of the parties; if they present false writings, or adulterate true ones.

n. VIII.

VIII. I shall add a few things which regard physicians, apothecaries, and surgeons. Physicians and surgeons sin: first, if without opportune knowledge they exercise the art of healing; second, if they be negligent in curing diseases; third, if they undertake more sick persons to be cured than they are able opportunely to attend to; fourth, if they neglect to apply the safer, or at least the more probable, remedies; fifth, if they protract the care of a sick man, that they may multiply their fees; sixth, if they omit to cure the diseases of the poor; seventh, if they pass over warning those who lie gravely ill to receive the sacraments, since St. Pius V ordained that physicians should not visit a sick man after the third day unless it be established to them of his sacramental confession; eighth, if they publish the shameful and hidden diseases of the sick.

n. IX.

IX. What has been said of the professions recounted is to be applied to other craftsmen, proportion being preserved. For all apothecaries and the other craftsmen sin if, destitute of the necessary knowledge of their art, they exercise such an art; if they use frauds or guiles. For every art has its own peculiar frauds. Wherefore it will be the part of a skilled confessor severely to examine his penitents upon the right administration of their own art.

Bontempi, Palladium Theologicum V

Gaudentius Bontempi of Brescia, O.F.M. Cap. — 87 passages

Tr. I, Disputation XXVIII: On the Judge

This Disputation is entangled with various difficulties; for the ingenuity of men, resourceful in their own defense, has devised various ways by which justice, if it does not favor them, may at least not harm them. The chief interpreter and minister of this is the Judge; of whose judgments the justice and injustice the Angelic Doctor treats, in quaestione 67 and the following. There are also other persons intervening in judgments, as the Accuser, the Defendant, the Witness, and the Advocate, each of whom requires a separate disputation; briefly, however, I shall dispatch myself with these, since not long ago our Father Elizeus ab Oriano wrote most eruditively an entire treatise on this matter ex professo, to whom I refer students of criminal causes and forensic practice as most worthily to be read.

Tr. I, Disputation XXVIII: On the…, Question V: Whether goodness is necessary in a judge

SOME of the SECTARIORS have dared to say that a Praelatum in mortal sin loses jurisdiction: which error I have often refuted, and it is condemned in the Council of Constance sess. 8. art. 15. et sess. 15. art. 3., and it is plain from Matth. 23: Reddite ergo quae sunt Caesaris, Caesari, even to the impious.

SOME say, however, that a Iudicem judging in mortal sin sins mortally; So Alens. 3. part. quaest. 40. memb. 3.

ON the other hand, as to Ecclesiastics, D. Thom. 4. dist. 19. quaest. 2. art. 2. quaest. 2., Paludanus ibi quaest. 3. art. 3., Sylvester V. correctio, quaest. 16. Hence that saying of Ioan. 8: Qui sine peccato est vestrum, primus in eam lapidem mittat, where the S. Doctor says: The law was written on stone on account of the hard of heart: now the Lord wrote on the ground, because he was seeking fruit. Let the law therefore be fulfilled, but should the adulteress be stoned by those who are to punish her? This is the voice of justice; let the sinner be punished, but not by sinners; and he alleges D. Augustinum tract. 33: Ad signandum ergo, quod legis praevaricatores non sunt digni ad iudicandum alios, ideo se sic inclinavit, et scripsit, as truly Anselmus says; Quantum est de ordine iustitiae non sunt digni punire, vel accusare, those who are in sin, especially when the sin is notorious, because then those judging and accusing give scandal.

WHEN, however, the sin is hidden, then the one judging or accusing sins, because he knows himself to be in sin and yet does not purge himself. And therefore such judges act perilously, thus judging when they know themselves to be in sin.

The OPPOSITE opinion, however, is that no Iudicem sins by judging in mortal sin. So D. Thom. 2. 2. quaest. 33. art. 5. et quaest. 60. art. 2., Caietanus, Salonius, Aragonius, and Bannes ibi, Sotus lib. 3. de Iust. quaest 4. part. 1., Petrus Nauar. lib. 2. de restit. cap. 4. part. 4. dub. 4. num. 455., Martin Nauar. in Rubric. de Iud. num. 42. Sayrus vero Lib. 12. cap. 13. makes certain distinctions. They speak, however, of external Judgment.

The same hold Valentia quaest. 4. puncto 2.; Tannerus vero disp. 4. quaest. 4. num. 16. distinguishes, alleging others, among whom also Alensem loco cit., as recorded by Sylvestrum, V. Iud. §. 12. So also Bassaeus V. Iudex, num. 12., Lugo de Iust. disp. 37. sect. 2., Sylvius 2. 2. quaest. 60. art. 2. et alii.

I ASSERT first, with D. Bonavent., that a Iudicem in mortal and scandalous sin, in handing down a sentence, even a just one, sins mortally. So D. Bonau., D. Thom. art. cit., Caietanus, and all the others cited, among whom some say it is per accidens by reason of justice, which is interpreted as contempt.

The RATIO of D. Bonavent., used by the others, is that from it arises the scandal of others, and justice passes into contempt; but this happens especially when a Iudex is besmirched with the same crimes that he punishes in others.

n. 9.

I ASSERT second, that a Iudex in hidden mortal sin sins in some way. So judge among the Doctors, even of the second opinion, Caietanus, Sotus, Valentia, Martinus Nauarrus, and Sayrus, saying that he sins venially, because he does not exercise the act of justice from the inclination of justice. It is proved by the S. Doctor from 6. Sap., with those words of Rom. 2: In quo alium iudicas, te ipsum condemnas.

n. 10.

S. Bonavent. ADDS something further on account of the danger, because an impious man is easily corrupted into judging unjustly, especially by affections, gifts, etc.

Tr. I, Disputation XXVIII: On the…, Question VI: On the external purity of the hands of the judge

EXTERNAL purity, necessary for a Iudici, consists especially in the hands, arg. cap. statuum, §. Insuper de rescript. in 6.; and it is twofold: The first is to refrain from injuries, contumelies, etc. The second, from gifts.

AGAINST the first he sins by beating, Lex Nec magistratibus, ff. de iniuriis, and he is bound to compensation for the injury inflicted.

AGAINST the second he sins by extortions, Titul. de concussione. Concussion, however, as is gathered ex cap. Iubemus, et seq., is when someone threatens another unless he give or do this or that; or when he puts his sentence up for sale, which otherwise he would not give, or the contrary. Therefore he who by extorsion of money, through the fear of extortion, receives something, steals, and is bound to restitution; or if on account of money received he omits to proceed further, he incurs the crime of concussion Leg. 1. et 2. de concuss., and beyond the precept Levit. 6., where nothing extorted is commanded to be taken. This the S. Doctor pursues in speculo animae, cap. 2. ante medium.

The chiefest cleanliness of hands is from gifts, concerning which the S. Doctor, in the place just cited, says: §. quartus fructus rapinae est munerum acceptio.

I suppose, however, that Iudices and other Ministers of justice have just stipends from the Laws. Therefore if they receive anything further for exercising their office, they sin against justice, and are bound to restitution before the sentence of a judge, to be made to the party giving; after the sentence, however, to Superiors, or it is to be made to him to whom the sentence decrees. So S. Bonavent. loco citato, Molina tom. 1. de Iust. disp. 83., Covar. ad reg peccatum, part. 2. §. 3., Navar. summa lat. cap. 17. numero 23., Adrianus quodl. 10. art. 1. et in 4. quaest. 19., Gabriel in 4. dist. 15. quaest. 6. concl. 9., Lessius Lib. 2. cap. 14. dub. 9. num. 63., Caietanus 2. 2. quaest. 32. art. 7. This sin pertains to concussion and calumny, from D. Augustino, as related in cap. militare, dist. 23. quaest. 1., by whom Ioannes Baptista Lucae 3. admonished the soldiers ut abstinerent: Neminem concutiatis; contenti estote stipendiis vestris, as S. Bonavent. explains in comment.

Both Laws condemn these acceptances of gifts.

The Canonical law indeed, cap. statuimus, §. si quid, et §. insuper de rescript. lib. 6., where Iudices delegati are commanded to restore those things which beyond what is due to them and granted them by law they have received from the parties; and there it is said that the mere remission of him to whom this restitution is due does not suffice for the Iudex to be absolved from restitution. Panormitanus notes in cap. cum ab omni de rescript., and Molina disput. 84., Fagundez Lib. 8. cap. 16. numero 2., that this applies a fortiori to ordinary judges.

Of the common law also it is plain in Leg. Plebiscito, ff. de offic. Praesid. et Leg. solet, §. ult. ff. de off. Proconsulis; et Authentica: Ut Iudices sine quoquo suffragio fiant, §. Scriptura est exemplar, where, however, Xenia are not forbidden but granted, that is, little edible gifts, which are consumed within the space of two or three days; these the S. Doctor first calls Munera granted by law.

n. 9.

Navar. admonishes, however, opusc. de datis, et promiss. num. 47., Molina disp. 83., Fagundez num. 12., that if anyone asks of a judge some diligence beyond that to which he is bound, for instance that he make a journey; or requests a Tabellionem to write more diligently on parchment, etc., he may give something moderate.

n. 10.

It is proved by reason, because the Public gives them just stipends, as I suppose, on account of which he has obligated himself to those offices, and by the just law other things are forbidden him.

n. 11.

Many say, however, that a Iudex can receive something for handing down a sentence for one party, when, since there is probability on both sides, it is in his discretion to pass sentence for either. But I laugh at this; for it is not in the power of the judge, when the reasons on both sides remain equal, to give to one by taking away from the other, but this will be a flaccid acceptance of persons, as I taught in prima secundae, Tract. 2. disp. 17. de conscientia probabili, ad prop. 26. et hic disput. 25. quaest. 4.

n. 12.

They raise the question also: Whether a Iudex or tabellio can, under the title of mere liberality and friendship, receive gifts from litigants, or from him for whom he passed sentence; and whether they are bound to restitution.

n. 13.

Some suppose, however, considering the mere law of nature, that these gifts are not illicit, since anyone may give what is his own to whom he pleases. So Molina disp. 88., Lessius Lib. 2. cap. 14. num. 72., Fagundez cap. 27. num. 3.

n. 14.

Nor does it stand in the way (they say) that of Exodus 23: Non accipies munera; quia excaecant prudentes, et subvertunt verba iustorum. Because here it is only held that they can rightly be forbidden.

n. 15.

But D. Bonavent. locis allegatis refers these to rapine, and the S. Doctor gives the reason; for gifts naturally corrupt justice, which ought to be done from the motive of honesty, as a judgment constituted by God, for which reason it is called the judgment of God, 2. Paral. 19.

n. 16.

Then also, since a Iudex is bound, as Fagundez concedes, to do these things from honest stipends, he infers violence, and they are almost never given from friendship; and even if they were given under that title, they would still perilously tend to corrupting justice.

n. 17.

That these things are prohibited by the law of nature, the S. Doctor proves from Deuter. 16: Non accipies personam, nec munera; quia munera excaecant oculos sapientum, et mutant verba iustorum. Iuste quod iustum est persequeris: Behold, to justice belongs not receiving gifts; Wherefore by its nature he is bound to restitution. Very many hold this, even though they concede that gifts are forbidden only by positive law. Fagundez relates them Lib. 8. cap. 27. num. 7., Ioan. Medina de restit. quaest. 20., Bartholomaeus Medina de modo administrandi sacram. Poenit. fol. 226., Sotus lib. 4. quaest. 7. art. 1. de Iustitia, Gabriel 4. dist. 15. quaest. 6. concl. 4., Sylvester V. Iudex 1. num. 23. quaest. 8.; Lessius lib. 2. cap. 14. dub. 9. num. 72. inclines to it, Baldaeus V. Iud. 12., with Ghisler. de iud. cap. 6., Boverius in direct. cap. 3.

n. 18.

The ratio of this is, because the laws render judges incapable of taking dominion over these things. Wherefore it matters little whether we hold this corruption of Iudicum to be forbidden by the law of nature or by positive law, concerning which see more Juxta Decretum Alexandri VII. tomo 4. disp. 17. quaest. 10. ad proposit. 26.

Tr. I, Disputation XXVIII: On the…, Question VII: Whether excommunicated judges sin in judging, and judge invalidly

Any Iudex whatsoever, excommunicated after the Extravagant of Martin V. and the Council of Constance, from which it was extracted, if he be a hidden excommunicate, judges validly and licitly.

Before these, however, some held that such a one sinned and acted invalidly. So the Glossa in §. verum tamen, in cap. infamis, 3. quaest. 7., Sylvester verbo excommunicatio 1. num. 6.

The opposite, however, they assert even before the Council of Constance: Suarez de censuris, disp. 14. sect. 1. num. 8., Sotus 4. dist. 22. quaest. 2. art. 1., Navar. summa, cap. 27. num. 21., Covar. in cap. Alma mater, part. 1. §. 11. num. 4., Richardus dist. 18. art. 7. quaest. 1., Paludanus quaest. 2. art. 3. et quaest. 4., Fagundez in octavum praeceptum Decal. lib. 8. cap. 28. num. 3.

But if he be a public excommunicate, formerly before the Council of Constance and the Extravagant of Martin V. Ad evitanda, all judges sinned by judging, were bound to restitution, and their acts were null. Today, however, after the Council of Constance and the Extravag., it is probable that a Iudex does not sin by force of the censure, and his acts are valid, unless he be to be avoided, namely, denounced by name, or a public striker of a cleric; so teach Lessius lib. 2. cap. 29. dub. 7., who adds another condition, unless he thrust himself spontaneously into judgment; Filliucius tomo 2. tract. 40. in octavum praeceptum Decal. cap. 6. num. 167., Navar. cap. 27. num. 7., Henriquez de excomm. cap. 7., Sotus in 4. dist. 22. quaest. 2. art. 1., Suarez de censuris, disp. 14. sect. 1. num. 13., Fagundez Lib. 8. cap. 28. num. 5., Bassaeus V. Iudex, num. 4.

THAT such an excommunicate to be avoided sins by judging, and that his acts are irritus, is proved, because he lacks jurisdiction, in accord with cap. ad probandum de sent. et re iudicat. cap. Audivimus, et cap. Miramur dist. 24. quaest. 1. et cap. Nos sanctorum, dist. 15. quaest. 6. And that this also holds of a secular judge they assert: Lessius lib. 2. cap. 19. num. 61., Tanner. disp. 4. quaest. 4. num. 20. iuxta cap. Exceptionem, de exceptionibus, et citato cap. Nos sanctorum.

They EXCEPT, however, if the judge migrates to another place, or is not held to be to be avoided in the place of his jurisdiction; Then his acts are said to be valid, although he sins by thrusting himself into judgment.

Tr. I, Disputation XXVIII: On the…, Question VIII: On the order to be observed by a judge

The S. Doctor places the fruits of INJUSTICE in speculo animae, cap. 2., toward the end: Iniustam sententiam, quae multos fructus reddit, qui sunt Iustitiae perversio, seu delatio ordinis, iuris mutatio, falsum testimonium, iniusta advocatio, litteratum abusio, quae omnia habent rationem mortalis, secundum quod cedunt in proximi nocumentum. These are the words of S. Bonaventura, from which you have that a Iudex is gravely bound to observe the order of the Law.

FIVE things, however, are required from a Iudice for the form of judgment necessary. The first is the substance of the sentence. The second, the mode of proceeding. The third, the safeguard of the judgment. The fourth is the quality and quantity of the penalty. The fifth, finally, is the execution.

As TO the first, he is bound to keep the laws, or, if these be obscure, to follow the opinions of the Doctors, in the ways indicated by me at the beginning of the disputation, quaest. 2. et prima secundae, tract. 2. disp. 17.

As TO the mode and order of proceeding, it is threefold. The first is by Denunciation, and it is when officials denounce. The second by Inquisition, when a Iudex proceeds to the inquisition of crimes, as is had in cap. Qualiter, et quando, dist. 2. de accusatore; et cap. licet Heli, de Simonia, where the authores commonly teach after D. Thom. 2. 2. quaest. 67. art. 3. that a Iudex cannot inquire without an Accusator, or without someone who functions in the right of an accuser. The third is by Accusation.

Tr. I, Disputation XXVIII: On the…, Q. VIII, Doubt III: On the mode of proceeding by inquisition

INQUISITION is the third mode of proceeding, distinct from accusation and denunciation, while the two former are often exercised separately; often also they are, as it were, the handmaids of the latter, since they follow it in order better to inquire into the crime: That this mode of proceeding is lawful no one skilled in canon law doubts, since various texts there plainly intimate it, as C. qualiter et quando 2. de accusat. C. inquisit. eodem, as P. Elizzus has it, tract. 2. de modo proced. quaest. 1. num. 3., where he also gathers the authors. The reason is public security, upon which the Judge has undertaken the burden of providing, which he cannot discharge unless he also inquire into offenses; and when an end is enjoined upon anyone, the means of attaining that end are commanded to him.

…and 47 more passages — all of them are listed on the topic page.

Slater, Cases I

Thomas Slater, S.J. — 13 passages (filed under the subtopics)

Slater, Cases I, Laws, Case 9. A Passive Resister

Titius, a Catholic layman, in order to show how far the efforts of those who passively resist the payment of the tax for schools extend, and because he thinks that unjust burdens are imposed upon Catholics by the school law, refused to pay the school tax as being against conscience. Paul, however, a Catholic magistrate, compelled Titius, when brought before him, to pay the tax under penalty of undergoing imprisonment. Philip, another Catholic, being scandalized by this, thought that either the one or the other must necessarily have done wrong. Hence it is asked:

What kind of obligation do English civil laws impose upon subjects?

Can or must unjust laws be obeyed?

Is it lawful for a Catholic judge to pronounce sentence according to an unjust law?

What is to be said concerning the case?

Solution

See this question answered, p. 90; also see Manual of Moral Theology, p. 127.

May one and ought one to obey unjust laws?

We may not obey a law which commands us to do something contrary to the law of God, for “we ought to obey God rather than men.” If the law is unjust because it lays an unjust burden on a particular person or class, it will not be morally wrong, as a rule, to submit to it, for we may, without sin, forego our strict right. Whether we ought to submit to it or not, will depend upon circumstances. If resistance would produce greater harm than good, as is often the case, there will be a duty of submission to prevent greater evil. If the contrary is true, we are not bound to submit.

May a Catholic judge pass sentence according to an unjust law?

Here we must distinguish. If the law prescribes the doing of something that is against the law of God, as idolatry, for example, a judge may not give sentence according to such a law. To command any one to commit idolatry is, and must be, always wrong. Sometimes civil laws are unjust because they are against the rights of the Church. In such cases, if the Church can forego her right, she sometimes does so. Thus, although the civil laws about judicial separation of Catholic married couples are a usurpation of ecclesiastical jurisdiction, yet the Church permits such cases to be tried in the civil courts in England with due precautions.¹

1 Holy Office, Jan. 23, 1886.

n. ¶11.

If the law is unjust because it is against the rights of the subject, we must distinguish again. Some rights, as that to life, are inalienable; and a judge can not pass sentence according to a law which unjustly imposes the death penalty. If the law merely imposes a fine or imprisonment, such a penalty may be submitted to without sin, and if the judge can not escape the obligation of imposing the penalty without forfeiting his position, it is a probable opinion that he may impose it, and the subject should then submit to it for the common good, at any rate, when resistance would be useless, or would cause greater harm.²

2 Bucceroni, vol. ii, no. 19.

n. ¶12.

The case. Titius, a Catholic, refused to pay the school rate in order to give an object-lesson to the passive resisters, and because he thought it unjust to Catholics. Titius can be excused from sin on the general principle that English law does not bind under pain of sin, and because of his good faith, and also because his assertion is well grounded that Catholics are unduly burdened, inasmuch as they do not get a fair share of the public money contributed to education. Nor does this doctrine excuse the passive resisters, whose case is quite different. For they combine together to resist the law without justification, seeing that they get more than their share of public money for education. Whether they are in good faith or not can be known only to God.

n. ¶13.

Titius was brought up before Paul, a Catholic magistrate, who sentenced him to go to prison or to pay the tax. Paul acted rightly in passing sentence according to law, as is clear from what was said above. Nor need Philip be scandalized, for neither Titius nor Paul need necessarily have committed any sin in acting as they did.

Slater, Cases II

Thomas Slater, S.J. — 10 passages (filed under the subtopics)

Slater, Cases II, Duties of Laymen, Case 1. A Judge's Duty

Part I

Titius, a good Catholic, recently deceased, had left in his will one hundred pounds to be expended on Masses to be celebrated for his soul; Caius, the executor, intended to pay this legacy according to the will of the deceased. Julius, however, a Catholic and the residuary legatee of Titius’s goods, opposed this and brought the case before Marcus, a judge who was also a Catholic. Marcus, however, in accordance with English laws, declared the legacy of one hundred pounds invalid as having been assigned to superstitious uses, whence the whole sum accrued to Julius’s residue. Finally Philip, the priest upon whom devolved the spiritual care of all those who have been mentioned, asks about their obligations that have been violated or perhaps still remain to be fulfilled. Hence it is asked:

What is a will for pious causes, and what is required for its validity?

Can a Catholic judge render judgment according to the unjust laws of his country?

What is to be said of the case?

Solution

What is a will in favor of pious causes and what is required for its validity?

Pious causes, or objects, are such as belong to the service of God and religion. Alms left for the support of religion or for charitable purposes, if the main object was the honor of God, are considered as left for pious causes. Such pious causes are subject to the legislation of the Church, which lays down that no special formalities are required for the validity of wills and legacies to pious objects; all that is requisite is that there should be moral certainty resting on the evidence of two or more witnesses about the intention of the testator.¹

1 Ballerini-Palmieri, Opus Morale, tract, viii, pt. iii, c. iii, n. 703.

May a Catholic judge give sentence according to an unjust law?

If the law commands what is contrary to the law of God, no Catholic judge may pass sentence according to it. If the unjust law only affects the liberty of the subject or property rights, many theologians hold that a Catholic judge, like any other, may pass sentence according to such a law. His refusal to do so would not ordinarily benefit the accused, and the only effect would be to compel the judge to resign his office, and make it impossible for Catholics to hold such offices. Hence the accused may reasonably be presumed to submit to the action of the judge as long as the unjust law remains in force.²

2 Manual of Moral Theology, vol. i, p. 587.

The case. The legacy was void according to English law. Julius, however, was not justified in invoking the law to get the legacy declared void. He is a Catholic and is bound by the law of the Church, and for him, subjectively as well as objectively, the legacy is valid. Mark could not help doing as he did and so he may be excused. Philip, the parish priest, should admonish