The judge's competence and just sentence

719. Notions. 1. A judge is a public person constituted by legitimate authority to pronounce right.

He pronounces right either by deciding in a civil process a matter disputed between parties, or by imposing in a criminal process a suitable penalty on a delinquent.

2. An ecclesiastical judge and a secular judge are distinguished according to the diverse authority by which he is constituted; a civil judge and a criminal judge according to the diverse matter in which he judges.

a. A judge who, either from the disposition of the law or by the litigants themselves, is constituted to settle a controversy existing between them, is called an arbiter.

b. From modern law in criminal causes sworn judges are customarily employed, who are only judges of fact: for they pronounce sentence only concerning the truth of the crime which is objected to the accused, or concerning his culpability; judges of law then decree the penalty.

We must treat: a. of the qualities of the judge; b. of the obligations of the judge; c. of the judicial sentence.

720. Qualities of the judge. In order that a judge can duly perform his office, he must have knowledge, jurisdiction, and integrity.

a. He must have sufficient knowledge, lest he be exposed to the danger of harming those whose causes he conducts. Therefore he must know the laws in force, according to which judgment must be instituted in the causes which are customarily brought to his tribunal.

a. A judge destitute of sufficient knowledge cannot be absolved unless he either leaves the office or acquires the due knowledge for himself and meanwhile abstains from the function, if he can, or at least strives to forestall the damages of others by seeking the counsel of one more learned, if he cannot abstain altogether.

b. A judge who, knowing his own lack of skill, conducts a cause is bound to repair the damages which the injured party has suffered.

c. If he has made an error to the damage of the litigant (even inculpably), he is bound (if he can without infamy) to warn him, so that he may provide for himself by appeal or another way.

b. Jurisdiction; for if this is lacking, he pronounces an invalid sentence (unless jurisdiction is supplied), and he can sin gravely, because he injures the right of the competent judge, whose power he usurps, and the right of the defendant, against whom he unjustly employs coercive force.

Therefore if a secular judge handles ecclesiastical causes in his own forum or drags ecclesiastical persons to his tribunal, he acts invalidly, sins gravely both against justice and against religion, and sometimes incurs excommunication.¹ Nevertheless today, through concordats, it has happened in most places that secular judges can licitly judge not only civil causes, but under certain conditions also criminal causes of ecclesiastical persons. Where this faculty has not been granted through concordats, it must be sought in individual cases; and indeed, in order that a cleric can be summoned, from the ordinary; in order that a bishop can be summoned, from the Apostolic See.² Genicot rightly judges that a judge who omits to seek this license ordinarily does not sin gravely where he is commanded by civil law to conduct causes of this kind. In the same way an ecclesiastical judge sins because of usurped foreign power if he judges merely temporal causes.

c. Integrity, by which in all things he preserves justice and is not bent to injuring right by respect of persons, by the passion of hatred or love, or by prayers or gifts.

¹ To this belongs the twofold excommunication (I, 6, 7) from the constitution Apostolicae sedis.

² Holy Office, Jan. 23, 1886.

721. On the acceptance of gifts. 1. It is not lawful for a judge to demand gifts from litigants as a stipend for judicial action or for a sentence to be rendered: for the judge is bound from office to dispatch causes brought to his tribunal and to render a just sentence; but it is repugnant to commutative justice that a price be received for a thing already otherwise due from justice.

If a judge, from a contract for rendering an unjust sentence, received a gift, before the sentence has been rendered he is bound to restore it, but after the sentence has been rendered he can retain it, unless either positive law has declared the contract concerning receiving the gift invalid, or he himself has been condemned to restitution, because he actually furnished the promised thing (n. 538). But if from a contract for rendering a just sentence he received a gift, he must return it even after the sentence has been rendered.

2. It is not lawful for a judge to receive gifts from litigants as presents offered from mere liberality, unless they are of small moment. For in order that every danger of corruption in the judge be cut off, the acceptance of gifts is prohibited both by natural and by positive law. It is prohibited by natural law, because one accepting gifts exposes himself to the danger of rendering an unjust sentence: for presents and gifts blind the eyes of judges.¹ But in positive law, both ecclesiastical and civil, this prohibition is contained in express words.² Small gifts, however, are not judged to have the force of enticing a judge to an unjust sentence.

If a judge accepted a prohibited gift offered from mere liberality, he can retain it both from natural law and from positive law, because neither invalidates the donation. Positive law indeed is preceptive; therefore one accepting prohibited gifts sins, but he is not bound to restitution unless he has been condemned to make it by the sentence of a judge. What has been established particularly concerning ecclesiastical judges, canon law teaches.³

¹ Ecclus. 20:31.

² C. Statutum 11, de rescriptis in 6 (I, 3); cf. Deut. 16:19; l. 18, Dig. de officio praesidis. With Roman law all recent codes prohibit judges the acceptance of gifts.

³ Cf. Aichner, Compendium iuris eccles., 9th ed. (Brixen: Weger, 1900), p. 756 ss.

722. Obligations of the judge. The judge from justice, both legal and commutative, must conduct causes with due diligence and with justice: for by the quasi-contract which he enters into, in accepting the office with political power and in accepting the cause with the parties, he obligates himself to this.

1. Diligence, which must be employed in conducting causes, demands first that he employ that care which by the prudent judgment of prudent persons is necessary for the gravity of the cause; then, that he not prolong causes without necessity so long that damages arise for the parties.

If from excessive delay of a cause, and that gravely culpable, damages have arisen to a party, he is bound to repair them; and if from gravely culpable negligence he pronounced a false sentence, he is bound to restitution toward the injured party.

2. Justice, which he must observe in conducting causes, demands that he institute process and render sentence according to the laws in force, provided they are just: for he has been constituted to render sentence according to law. If he violates laws, he sins against legal justice, unless at the same time he acts against the strict right of another.

a. Therefore he injures commutative justice and is bound to restitution if in civil causes he does not give to litigants the right which belongs to them from law; likewise if in criminal causes he imposes penalties greater than legal ones. But if he unjustly frees a defendant from a pecuniary fine, he violates not commutative justice but only legal justice.

b. It is not lawful for a judge to suggest to one of the litigating parties that which the party can allege for himself, because this would be to act the part of an advocate, which is not lawful for a judge, who by his own office must judge only according to the things alleged and proved.

723. On the judicial sentence. The judge must render sentence according to juridical knowledge, which he acquired from judicial acts, or according to the things alleged and proved, not according to private knowledge: for he acts as a public person, and therefore must proceed according to public knowledge.

a. Therefore he must absolve him whom by private knowledge he knows to be guilty, if he has not been juridically convicted, so that he acts against justice and is bound to restitution if he condemns him.

b. But if by private knowledge he knows an innocent person who juridically has been proved guilty:

a. First he is bound to attempt all that he can in order to free the innocent person from undergoing the penalty, because from charity he is bound to avert a grave evil of the neighbor, especially an unjust one; and very rarely, says Lugo, can it happen that a judge cannot free him whom he certainly knows to be innocent.¹ But if he can rescue him by no means, practically, at his pleasure, let him absolve or condemn him, since the matter is much controverted among theologians.

b. For some teach that it is lawful for a judge to render sentence against an innocent person in all causes in which there is question of imposing a penalty in external goods, such as a pecuniary penalty or deprivation of office, over which goods public authority has power in view of the common good. For in this case public authority deprives a subject of his goods for the common good, which demands that the judicial order be preserved, unless natural right is violated, and gives the judge power of condemning the innocent. But if there is question of imposing a penalty in goods over which society has no power, such as the penalty of death or imprisonment, it is not lawful for a judge to pronounce sentence against an innocent person: for since society has no power over the life or liberty of an innocent person, it cannot confer on the judge the power of condemning the innocent.² Others, however, with St. Thomas, hold that the judge can always pronounce sentence according to the things alleged and proved, even if there is question of imposing the most grave penalty of death, because the judge is a public person, who must proceed according to public knowledge.³ But it must be demonstrated that it is not against the law of nature, and therefore not intrinsically evil, to condemn an innocent person, even if he is legitimately proved harmful. Besides, this question at the present time is not of great moment: for since almost everywhere there are sworn judges, this case can occur only where jurors affirm someone guilty whom the judge knows to be innocent.

¹ Lugo, De iustitia, disp. 37, n. 41.

² Cf. Lugo, disp. 37, n. 42 ss., with whom Laymann, Lessius, St. Alphonsus (n. 208), and others hold the same.

³ Cf. St. Thomas, II-II, q. 64, a. 6, ad 3; q. 67, a. 2.

724. On the force of a judicial sentence. 1. A certainly just sentence of a judge produces obligation in conscience: for it is like a precept of a legitimate superior in a particular case, which obliges in conscience.

a. A sentence of a judge in a penal cause produces an obligation of obedience, because penal laws are to be observed from obedience which is owed to a just law (from legal justice); wherefore a fine imposed by the sentence of a judge must be paid from obedience.

b. A sentence of a judge which defines a strict right, for example that an heir must pay a legacy, imposes an obligation of commutative justice with the burden of restitution.

c. In a doubtful cause, whether the doubt is of fact or of law, anyone can stand by the sentence of the judge with a safe conscience: for it belongs to the judge to resolve doubts.¹

2. A certainly unjust sentence cannot produce obligation in conscience. And this indeed holds in every case, whether the sentence is false only in itself or even juridically from the order of judgment not being observed, whether the judge pronounced sentence in good or bad faith.

Therefore he who by a certainly unjust sentence of a judge has been deprived of his property can, if no other means is available, recover his property by hidden compensation; and he who as a litigant in good faith obtained property by an unjust sentence, for example an inheritance, is bound, once the injustice of the sentence is known, to restore it to the legitimate heirs; but he is not bound to compensate expenses, because he acted in good faith.²

3. If the sentence is doubtfully just, an appeal can indeed be interposed, but the sentence itself must be observed, not only in the external forum but also in conscience: for in doubt the sentence of the judge must be presumed just.

¹ Marres, De justitia, 2nd ed. (Roermond: Romen, 1889), I, n. 18.

² Lugo, disp. 37, n. 187.

725. On a judicial sentence in a doubtful cause. If a cause is doubtful, whether by doubt of fact or doubt of law, one must distinguish.

A doubt of fact is had if it is doubted whether the defendant committed the crime, contracted the debt, etc., because on each side there are only probable reasons; a doubt of law is had if it is doubted in what sense the law according to which judgment must be rendered is to be understood, because it is explained probably by doctors on either side.

a. In criminal causes and in causes in which a penalty is to be imposed, favor must be shown to the defendant, that is, the defendant must always be absolved, because he cannot be punished unless the crime is certainly established.

b. But in civil causes concerning a disputed matter one must again distinguish: if one is in certain possession of the disputed matter, the matter must be adjudged to him until the other party sufficiently proves his right. But if neither party is in certain possession of the disputed matter, and a. probability on each side is unequal, the matter must be adjudged to him whom the greater probability favors, from proposition 2 condemned by Innocent XI.¹ If b. probability on each side is equal, the judge can advise an amicable composition, or even adjudge the matter to one whom he prefers.

a. It is the more common opinion, which St. Alphonsus holds (n. 210), that the matter must be adjudged to the possessor until the other party certainly proves his right, because the certain right of possession cannot be struck down except by another certain right. But others judge that the matter must be adjudged to the possessor so long as on each side there are equally probable reasons: for in an equal cause the right of the possessor is better; but if the plaintiff has greater probability, the matter can be adjudged to him, because he has the greater right for himself, which strikes down the presumption which the fact of possession furnishes to the other.

b. The reason why the judge must adjudge the matter to him whom the greater probability favors is this: because the judge has been constituted by supreme authority so that in the better way in which he can he may investigate and follow the truth, and therefore assign right to the parties according to the merit of the cause; but he would fail in this office if he favored that party which has a lesser appearance of truth and a greater danger of error.² But if in this case the less probable right of the other is injured, supreme power by reason of the common good (that lawsuits may be ended) demands that the injured person yield from his right.

c. From natural law nothing prevents the judge from dividing the matter among the litigants according to the proportion of probability, whether on both sides it is of equal or unequal probability; but from positive law he must follow the positive laws of tribunals, which establish that the disputed matter must be adjudged to one or the other party.

d. If the causes of the litigants are equally probable, it is not lawful for the judge to accept money in order to favor one before the other;³ indeed this manner of acting is also unjust, because the judge doing these things furnishes nothing besides that which from justice he already must furnish.⁴

¹ I probably think that a judge can judge according to an opinion even less probable. Proposition 2 condemned by Innocent XI.

² Lugo, disp. 16, n. 99; Ballerini-Palmieri IV, n. 578; Lugo, disp. 37, n. 114 s.

³ This proposition (26) was condemned by Alexander VII: When litigants have equally probable opinions for themselves, the judge can accept money for rendering sentence in favor of one before the other.

⁴ Cf. Lehmkuhl, Casus consc., I, 496.

726. On a judicial sentence rendered according to an unjust law. 1. If a law is unjust because it is contrary to the laws of ecclesiastical immunity, from which the Church can dispense, the judge must seek from ecclesiastical authority the faculty of judging such a cause, unless it has already been granted. The faculty sought is easily granted, lest a good and upright judge be forced to leave office; but he must forestall public scandal which can arise from use of the faculty.

2. If the law is unjust because it is contrary to divine or natural laws, it is not lawful to render sentence according to that law, because the matter is intrinsically evil; wherefore the judge would have to leave office rather than conduct a cause of this kind.

a. A sentence rendered according to an unjust law either commands a dishonorable thing, as if it pronounces that those who are joined only civilly must cohabit, or imposes a penalty on the innocent. Now a sentence of this kind must be called intrinsically evil, even if there is question only of imposing a penalty; wherefore it is not lawful for the judge, in order to avoid his own grave damage, to impose even a light penalty on an innocent person, unless from the at least presumed consent of him who must undergo the penalty. For this reason it can be called lawful that a judge who cannot abstain from sentence without his own grave damage impose a fine on a priest who assists those about to marry in church before civil marriage.¹

b. There are some who try to demonstrate that a sentence rendered according to an unjust law is lawful, because a judge rendering sentence only declares what the wicked law establishes; but to declare this is not evil. Nevertheless the force of a judicial sentence is altogether different: for it itself produces a new obligation or new right not existing before, so that a judicial sentence is customarily called a particular law.²

¹ Genicot II, n. 5.

² St. Thomas, II-II, q. 67, a. 1.

727. Obligation of a judge who rendered an unjust sentence.

a. If he did this with grave fault (whether from iniquity or from lack of skill), he is bound to revoke the sentence if he can, even with great inconvenience, and if he cannot, he must repair the damages.

b. If he did this inculpably (from error or forgetfulness), he is bound to revoke the sentence if he can without great inconvenience, because he is bound to impede the evil which from his action is going to come upon another; if he cannot, he is bound to nothing. But if from gravely culpable negligence he does not revoke an unjust sentence which he can conveniently revoke, the whole damage must be imputed to him and he is bound to repair it.

c. If he imposed a penalty greater than just, he injured commutative justice and is bound to restitution. A penalty is also judged greater than just if, although it is contained within the limits of the law, nevertheless, considering the circumstances of the cause and the practice of tribunals, it manifestly exceeds measure.¹

d. If a judge has unduly freed someone from a pecuniary fine to be paid from the law as punishment of an offense, he is not bound to restitution toward him to whom the fine had to be paid: for he to whom from law the fine is to be paid does not have a strict right to the fine before the sentence of the judge, whether he is the fisc or some private person.²

¹ Genicot II, n. 5.

² St. Alphonsus, l. 4, n. 196.

728. On jurors. Sworn judges are called by this name from the oath which they emit, that they will perform their office duly. They are not employed except in criminal causes. Their office is, from their intimate persuasion, to judge concerning the existence of the crime and concerning the guilt or innocence of the accused; the judge properly so called then decrees the penalty according to law. But the culpability which they must affirm or deny is understood as formal culpability (Zurechnungsfahigkeit), namely a crime committed with moral fault. They are never held to render a reason for the sentence which they pronounce; wherefore the danger of abuse is clear unless the jurors are men of most upright conscience.

1. He who is assumed to the office of sworn judge can follow it with a safe conscience, provided he has the will never to affirm guilt unless it is certainly established concerning it.

Since jurors are ordinarily citizens not instructed in juridical knowledge, who nevertheless sometimes must render judgment in a difficult and intricate cause, it can be asked whether it is lawful for them to perform this office. But if they strive to have a mind empty of disordered affections and diligently attend in judicial actions, it can scarcely happen that they judge an innocent person guilty. But because it is not lawful for jurors to affirm guilt unless it is certainly established concerning it, it can more easily happen that they absolve a delinquent; but this is to be imputed not to the jurors, but rather to the mode of judging through jurors instituted by civil authority.

2. Since a juror from law must affirm only that of which he is intimately persuaded, it is not lawful for him to affirm guilt unless it is certainly established concerning it, even if by this reason sometimes a delinquent is absolved.

3. They must acquire for themselves from the judicial acts the intimate persuasion according to which they pronounce their sentence, yet they are not prohibited from also using private information.

The reason for the first is that it belongs to the nature of a judicial sentence that it rest on the things alleged and proved in judgment; the reason for the second is that the law itself furnishes them this faculty by commanding them to render sentence according to intimate persuasion: for intimate persuasion cannot arise so long as private knowledge stands opposed.

4. Therefore if by private knowledge they certainly know that the accused is innocent, they must free him, because they cannot have persuasion that he is culpable; and if by private knowledge alone they know that he is guilty, they must likewise free him, because from the judicial acts, from which one cannot abstract, the defendant is not proved.

Berardi (III, n. 108) contradicts this last opinion, which Lehmkuhl (I, n. 807) and Ballerini-Palmieri (IV, n. 593) defend, because criminal law does not permit nor can it permit that a juror draw intimate persuasion from private knowledge alone; Berardi thinks that the law of the criminal code must be understood so that a juror can declare guilty him concerning whose guilt he has intimate persuasion, even if he drew this only from his own private knowledge.

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 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).

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).

(c) According to the law which they use courts are ecclesiastical or secular.

(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.

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.

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.

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.

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.

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.

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).

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.

1. • 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.

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:

1. 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).

2. 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.

3. 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.

4. 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;

2. 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);

3. 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.

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.

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.

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.

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.

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.

IN this matter it is certain, first, that among Christians there can be just Judgments, against the error of the Waldensians and the Anabaptists, as Tannerus warns, disp. 4. quaest. 4. dub. 1.

IT IS PROVED

IT IS PROVED at length by the Saintly Doctor, p. 2. de Eccles. Hier. cap. 2., where the Saintly Doctor shows that Judges and Princes ought to be like the supernal Virtues, so that they may judge rightly. He brings forward several Scriptures on this point, 1. Reg. 14., where of King David it is said: But you, my lord the King, are as an Angel of God, who is moved neither by blessing nor by cursing. From this he deduces that the Judge must be strong, in order to judge rightly. Therefore Eccles. 7. Do not seek to be made a Judge, unless you have the strength to break through iniquities, lest perhaps you fear the face of the mighty. Sap. 6. Hear, O Kings and Judges, who judge the earth: to you is Power given by the Most High. The same is found in Psalm. 2. in the New Testament: Be instructed, you who judge the earth. Therefore in Exodus 32. rules for judging are given to the faithful: You shall not accept gifts, etc., and Deuter. 16. You shall not respect persons nor accept gifts, for they blind, etc. Second Paral. 19. See what you do: for you do not exercise the judgment of men, but of God. Isa. 1. Judge for the orphan, help the oppressed.

THUS David judged, 1. Reg. 30.: David rescued all that the Amalekites had taken, nor was anything missing from the spoils: but all things whatsoever they had seized, he brought back and restored. And 2. Reg. 22. Whom he shall repay fourfold, where he is called by the holy prophet to judge. And Solomon, 3. Reg. 3., judged — while he was holy — over those two little harlots concerning the stolen child. Many other passages from the Scriptures the Saintly Doctor brings forward in the Biblia pauperum, cap. 50. also for the law of grace.

THESE he also pursues at length ad cap. 6. Sap., in these words: Power has been given to you by the Lord, and strength by the Most High, who will question your works; for, though you were ministers of his kingdom, you did not judge rightly, nor keep the law of justice. Where he adduces that Rom. 13. There is no power but from God; Ioan. 19. You would have no power against me unless it had been given you from above. That Isa. 1. They do not judge for the orphan, and the cause of the widow does not come to them. The same he laments, Hierem. 5.

THE SAME authorities the Saintly Doctor pursues at length on that Ioan. 19. You would have no power, etc., where in the New Testament the power of judging is asserted by Christ, and by the Apostle, Rom. 13., and by St. Peter.

THE SAME he pursues in serm. 22. Hexaëmer., where he observes that it was promised in Isaiah, chapter 1: I will restore your judges as they were at the first: after this you shall be called the city of the just, the faithful city of Sion; she shall be redeemed in judgment, etc. Whence it follows that judgments erected in the Old Testament were not destroyed in the New, as regards power.

THEREFORE Paul also appealed to Caesar, Act. 25. and 26., and therefore, together with Peter, he exhorted the faithful to submit to the judgment of Princes, Rom. 13. Let every soul be subject to the higher powers, etc. For he does not carry the sword without cause: for he is God's minister: an avenger into wrath upon him who does evil, as the Saintly Doctor shows in 2. dist. 44. art. 3. quaest. 1., and in the first Epistle of Peter, 2. Servants, be subject to your masters, not only to the good, but also to the froward, etc. Therefore in the first Epistle to the Corinthians, 6., Paul praises judgments.

IT IS PROVED more fully by the Saintly Doctor in Hexaëmer. serm. 16. from the constant usage of the Church from the times of the Apostles onward; for St. Peter condemned Ananias and Sapphira, Act. 5., and in the following centuries there were always ecclesiastical and secular judgments in the Church, as is shown in the Tract. de Legibus, and p. 1. Tract. 1. Disputationibus Prooemialibus. These are confirmed by the ancient monuments of Councils, histories, and Decretals. Only this was most constantly provided: that ecclesiastical judgments should be held among ecclesiastics, as appears in the Decretis; and secular judgments among the faithful, if they could be held, as the Apostle teaches, prima Corinth. 6.

IT IS PROVED thirdly by the Saintly Doctor, in 2. dist. 44. art. 2. quaest. 1. ad 1., by the most solid argument of St. Peter, prima cap. 2., where, having described the state of the holy liberty of the New Testament, he concludes: Be subject, therefore, to every human creature for God's sake: whether to the King, as excelling: or to governors, as sent by him to punish malefactors, but for the praise of the good: for so is the will of God. From this the reason is drawn out, which he magnifies against the fourth argument of the following quaestio, and which Valencia uses, disp. 5. quaest 4 punct 2.: What is useful and necessary by natural law for the good of the commonwealth is not abolished, but established by the decrees of the Christian Religion; for Religion does not destroy, but perfects, the law of nature. But judges and judgments are necessary for the Christian commonwealth: Therefore. The minor is proved by the example of all nations, and from God's ordinance, Deuter. 16. Judges and Magistrates you shall constitute, that they may judge the people. Then the minor is evident: for if there were no judges and judgments by which the disputes of men would be terminated, and punishments assigned to crimes, and rewards to rightly performed political works, the greatest disturbance and overthrow would appear. With this reasoning he argues at greater length in p. 2. de Ecclesiastica Hier. cap. 2., as I shall say below.

NOR do the heretical adversaries lean on a firm foundation.

THEY OPPOSE, indeed, Matth. 5.: If any one will contend with you in judgment and take away your tunic, give him also your cloak.

THE SAINTLY DOCTOR ANSWERS on this passage, Lucae 6., that judgments are not forbidden; but contentions and quarrels, and the lust of vengeance, as St. Augustine says, epist. 5. Therefore, in sum, it must be held (says the Saintly Doctor) that the correction of a neighbor, or the hindering of evil, or the punishment of a crime committed by one who can and ought to hinder it — such as the Minister of the law — is not forbidden; but here the lust of revenge is forbidden and restrained, both as to the hand, and as to the sign, and as to the mind. In the same way St. Augustine says it is to be understood of what he said there also: And whoever shall strike you on one cheek, offer him the other also, and yet he himself, Ioan. 19., corrected the striker and did not offer the other cheek: similarly Paul, Actorum 23., struck on the cheek, answered: God shall strike you, you whited wall, and yet both were most patient in spirit, as the Saintly Doctor observes, loc. cit. ad locum Ioan., from St. Augustine, tract. 113. and epist. 5. — see him. Thus answers Valencia, disp. 3. quaest. 16. punct. 1. col. 742. and disp. 5. quaest. 4. p. 2., and Tannerus in the cited place.

THEY OPPOSE, secondly, Matth. 7.: Judge not, that you be not judged.

THE SAINTLY DOCTOR ANSWERS, p. 1. Concil. sect. 10., from St. Augustine, lib. 2. de serm. Domini in monte, cap. 28., that not every judgment is forbidden; but one rashly passed without firm reason. The same is the judgment of St. Hilar., Can. 5. in Matth.

THE SAINTLY DOCTOR ANSWERS, de septem Itineribus aeternitatis, Itinere primo, dist. 4., from St. Jerome, that the order of correction is taught, so that first, judging ourselves, we amend ourselves, casting the beam out of our own eye, before we contemplate the mote in another's eye.

THAT indeed he does not condemn every judgment is found in Ioan. 12.: Judge not according to the face, but judge just judgment, as St. Bonaventure there observes.

THEY OBJECT also from the first Epistle to the Corinthians, 6.: Brother contends with brother in judgment: and that before unbelievers? Indeed already altogether it is a fault in you, that you have judgments among yourselves.

IT IS ANSWERED, not that judgment is condemned, as I said above — indeed it is instituted; but that an undue one is reproved. Four conditions, however, are laid down by the Doctors that a judgment be just: thus St. Thomas, 2.2. quaest. 60. art. 1. and 6.; St. Bonaventure, in 2. dist. 44., in the cited places, and lib. 1. Pharetra, cap. 45.

T H E F I R S T is legitimate authority, such as ordinary Judges have, or Delegates, or even Arbitrators, who have that power by the law of nations over those who freely commit themselves to them. And such also would be one who, by a special judgment of God, fulfilled that office, as Phinees, Numer. 25., slew the Madianite and the Hebrew man, as the Saintly Doctor notes in the Biblia pauperum, cap. 51.

Because of the lack of this condition a Judgment is said to be unjust by usurpation, as St. Thomas says, art. 6.; St. Bonaventure, 2. dist. 44. art. 2. quaest. 1.

Y E T it can happen that the judgment of some Tyrant, who truly lacks legitimate power, be otherwise just and bind, namely if he be in peaceful possession. For otherwise the peaceful state of the commonwealth could not stand, unless what the ruler justly decreed is obeyed: Thus Valencia, punct. 2., who says that Victoria is held to have thought so, and it is the opinion of St. Bonaventure in the cited place, in the body and ad 2., where he teaches that the Tyrant, although he rules without legitimate power, and accordingly decides unjustly by reason of usurpation, must nevertheless be heard, if he decide justly, for the punishment of malefactors and the praise of the good, as is said in the first Epistle of Peter, 2.; and accordingly his decrees are just, and it is just to subject oneself to them.

T H E S E C O N D condition is, that the Judgment be conformed to the rule of Justice, namely, that what is decreed be just, even if the judge does not act from the virtue of Justice; but from the political rule, lest he be deprived — such was that Judge, Luc. 16., who finally sanctioned what was just for the Widow out of fear of punishment; as Valencia observes after St. Bonaventure on that passage. By the lack of this condition, the Judgment is said to be unjust, and it does not bind in conscience, as Innocent and Panormitanus teach, in cap. Plerique, extra de immunitate Ecclesiae; Sylvest., under the word Sententia, quaest. 11.; Sotus, lib. 3. de Iustitia, quaest. 4. art. 2.

¶ T H E T H I R D condition is the due judicial order: citation, hearing of the Accused, defenses, etc.

T H E F O U R T H condition, that he judge from the affection of Justice. So all the Interpreters of St. Thomas, quaest. 60. art. 2.; Suarez, 3. p. Tom. 5. disp. 4. sect. 7.; Tannerus, in the cited place.

Note, however, that this condition does not render the judgment invalid, as the cited authors warn. But an order failing in essentials renders it null. But of this there will be a sub-disputation.

A F I F T H condition is added: its conformity with the rules of Prudence. Now for this it ought to have two conditions: one, that it decide with due consideration; the other, that it not be from a depraved affection of hatred, or some other affection, or of gifts, etc.

¶ I T O U G H T also to be asserted that a Judge does not straightway lose his power because he lies in mortal sin, against Wicleph, whose error is condemned in the Council of Constant., sess. 8.

I T I S P R O V E D at length by the Saintly Doctor, in 2. dist. 44., where Peter, prima cap. 2., commands obedience to Masters, even to the froward. Iob 34. He makes the Hypocrite to reign. Osee 13. I will give them a King in my wrath. Ioan. 19. You would have no power unless it had been given you from above. The Saintly Doctor adduces examples of these in the Biblia, cap. 102. For thus of Nabuchodonosor it is said, Danielis 4.: Your power reaches to the ends of the whole earth. The same is asserted in cap. 5.; and to Ieroboam, 3. Reg., the Lord gave the kingdom of Israel, and to other wicked men, as the Saintly Doctor observes in the cited place. And Matth. 22.: Render to Caesar the things that are Caesar's. Now Tiberius was impious, which the Saintly Doctor elegantly discourses upon in serm. 5. Dom. 22. post Pentecosten.

T H E R E A S O N also is that of St. Bonaventure which Valencia uses: because the foundation of jurisdiction is not the grace of God, but his will in the order of political governance, and often also for the punishment of peoples, as he discourses in 2. dist. 44. art. 2.

N O W it is controverted: whether the judgment of a judge is rendered mortally evil because it is passed by a judge constituted in mortal sin — and indeed in the times of St. Bonaventure most Theologians held this, at least concerning Ecclesiastical Judges: Alens., 3. p. quaest. 40. membr. 3.; St. Thomas, 4. dist. 19. quaest. 2. art. 2. St. Bonaventure seems to suspect it in those words, Ioan. 8.: He who is without sin among you, let him cast the first stone, where he speaks of the danger for such judges, and more especially for those living in public sin, because they scandalize the peoples whom they ought to admonish and call away from evil.

F O L L O W I N G this were Paludanus, 4. dist. 19. quaestione 3. artic. 3.; Sylvester, under the word correctio fraterna, quaestione 16.

T H E O P P O S I N G opinion, however, is the common one: Thus St. Thomas, hic, art. 2. ad 3., where he abandoned the former opinion. Thus Caietanus; Sotus, lib. 3. de Iustitia, quaest. 4. art. 2.; Navar., in Comment. super Rubricam, de Iud. num. 42.; Valencia, disp. 5. quaest. 4. punct. 2.; and it is St. Bonaventure's, in the cited place.

I A S S E R T with St. Bonaventure that there is some sin in that case, but I do not lay down that it is always mortal, but dangerous, lest it lead to mortal sin.

I T I S P R O V E D first by St. Bonaventure, loc. cit., from that saying of Christ, He who is without sin among you, let him cast the first stone, which passage Anselm there expounds thus, and St. Augustine, tract. 33., who say that those unworthy to judge the woman were brought forward by Christ. Since, therefore, such judges are unworthy, it follows in some way that they sin, as Valencia confesses, freely responding.

I T I S P R O V E D secondly by St. Bonaventure, lib. 1. Pharetrae, cap. 45., from many Fathers.

St. G R E G O R Y, homil. 26. in Evang.: It is hard, that one who knows not how to hold the measures of his own life should become judge of another's life. Lo, the peril to which a depraved man exposes himself, when he makes himself judge of another's life.

St. I S I D O R E, de summo bono, cap. 55. sent. 1.: None of the foolish or the wicked ought to be a judge: for the fool by sloth, the wicked man by wickedness, corrupts the truth which he has learned.

St. A U G U S T I N E, epistol. 174.: It is unjust that anyone should wish to judge another and be unwilling to be judged himself.

St. A M B R O S E, in 2. Apol. David, cap. 2.: Let each one who is about to judge another first judge himself, and let him not condemn lesser errors in another, when he himself has committed graver ones.