Judging by the evidence, not private knowledge

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.

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.

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.

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.

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.

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).

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).

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.

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.

2. 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.

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."

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thus far we have dealt with homicide committed by private authority; now we must deal with homicide by public power.

First, I suppose that a judge is bound by CHARITY under pain of mortal sin to deliver an innocent man from death, if he can by any means, even if he is proven guilty, whether he does so by terrifying or obstructing the accusers, or by examining the witnesses most rigorously, etc.

Secondly, many admit that a judge, when he cannot deliver the innocent man, is bound to make his innocence manifest in the courtroom.

Thirdly, they say that an inferior judge, bound by the allegations and proofs made to condemn the innocent man, is bound to send to the superior with the information, proofs, and indications of his innocence.

The whole difficulty is: whether, when none of these things can be done, it is lawful to condemn the innocent man to death or to another punishment.

The first opinion is that the judge is indeed bound to condemn him. So St. Thomas 2. 2. quaest. 67. art. 2, and quaest. 64. art. 6. ad 3, and there all the Thomists; Soto L. 5. de Iustitia, quaest. 4. art. 2; Petrus Navarrus L. 2. de restitut. cap. 3. num. 157, speaking only of civil matters; Covarruvias lib. 1. var. cap. 1. num. 6; Navarrus summa Latina, cap. 25. num. 13; Bartolus Lex, Illicitas, §. Veritas, ff. de offic. praesidis; Innocent cap. Venerabilis, de censibus; the Archdeacon in cap. 1. de offic. ordin; Cardinal and John Andrea in cap. Pastoralis, de offic. delegati, with the Gloss there, §. quia vero; Sylvester V. Iudex 2. num. 5. and 6; Toletus Lib. 5. summa, cap. 6. num. 11; Fagundez in 5. Praeceptum Decal. cap. 14; Cajetan, Bannes, Salon, Aragon 2. 2. quaest. 67. art. 2; Valentia Tom. 2. disp. 5. q. 11. punct. 2; Sayrus L. 12. cap. 8. n. 13; Sirouerd tf. de Iustitia, 2. 2. quaest. 67. art. 2; Lezan V. Iud.; Tanner tract. 3. disp. 4. quaest. 4. dub. 2. num. 51. Corduba is finally inclined to this, as cited in Diana, part. 5. tract. 4. Resol. 22.

The second opinion denies altogether, both in civil and in criminal matters, that a judge can condemn an innocent man in the manner described; but that he is bound to resign his office, even if he knows nothing will come of it, when he can deliver him by no other way. Nay, this opinion adds that he is bound to deliver him, even if he were to lose his life. So teach Lessius Tom. 1. dub. 29. L. 2. num. 78. and 82; Lyranus in cap. 23. Exodi, expounding that: The innocent and the just, etc.; Adrian quodl. 6. art. 3; Angelus V. iudicare, num. 7; Petrus Navarrus L. cit. num. 161; Hostiensis, Calderinus, Panormitanus cap. Pastorali de offic. deleg.; Corduba lib. 1. quaest. 37, where he fights with 16 arguments (though defeated at the end); Raynaldus in gloss. cum Syl. V. Iud. 2. quaest. 5. Sà num. 13; Bonacina tract. 1. disp. 20. q. 2. punct. 2; Filliucius tract. 40. cap. 6. q. 5; Sylvius 2. 2. quaest. 67. art. 2; Bassaeus V. Iudex, num. 5; Biel, sent. quaest. 138.

The third opinion is that indeed in civil causes, and grave ones, and in criminal causes of lesser moment, the Judge can proceed according to what is proven; but in causes of death he is bound to acquit the accused. So Lessius Tom. 1. L. 2. cap. 29. disp. 10. num. 84; Petrus Navarrus L. 2. de restit. cap. 3. num. 157; Aragon 2. 2. quaest. 60. art. 5. DIANA part. 5. Tract. 4. resol. 22 concludes: If a grave loss should befall the Judge from the deposition of his office, he is not bound to lay it down; but he can condemn: and he refers to Filliucius Tom. 1. tract. 48. cap. 6. num. 171, and others. Tostatus holds almost the same ad cap. 25. Exodi, quaest. 6.

What St. Bonaventure thought I shall make clear. Therefore serm. 6. de decem praeceptis, he says, the Public Minister of the Law can kill, provided there be a just cause, a just order, and a just mind. A just cause must be present, because it is said in Deuteronomy 16: That which is just thou shalt execute justly. Hence there must also be a just order of proceeding. Likewise it must be done from love of Justice, not from lust for vengeance, and thus there will be a just mind. And in the speculo animae, cap. 2. post medium, he has almost the same.

He brilliantly defends the second opinion, however, in part. 2. de Ecclesiastica Hierarchia, cap. 2, and proves it. And again in part. 4. cap. 3 he subscribes.

This opinion is so deeply fixed in me that I greatly wonder that so many Princes of Theology depart from it.

I ASSERT, therefore, that a judge can by no means condemn an innocent man to any punishment, and especially to death, however much, according to the allegations and proofs, he may deserve death.

IT IS PROVED by St. Bonaventure, first, serm. 6. in Decal. on Deuter. 16: Judges and Masters shalt thou constitute in all thy gates, which the Lord thy God shall give thee, throughout thy tribes: that they may judge the people with just judgment, and not decline to either side. Thou shalt not accept person nor gifts: for gifts blind the eyes of the wise, and change the words of the just. Justly thou shalt pursue that which is just: that thou mayest live, etc. Where the Hebrew has: Justice, justice shalt thou pursue, that thou mayest live.

He alludes, however, to Exodus 23, as the Marginal postils note, where it has: The innocent and just thou shalt not kill: because I abhor the wicked, where Pagninus has: for I will not justify the wicked.

But that we may understand this phrase, we must note with St. Bonaventure loco cit. and Tostatus quaest. 6. in 16. Deuter., that it is not enough to do a just thing, unless it be done justly, because the manner belongs in moral matters to the species of the act. For it does not suffice to do a just thing, but it must be done justly; yet it is not just to condemn an innocent man, even if it be just to judge according to the allegations and proofs; for to condemn an innocent man is a most grave crime against the natural law: but to judge according to allegations and proofs is only according to human laws extra de constitut. cap. Canonum statuta, and cap. Ne innitaris prudentia tua, and Cod. de legibus, and Cod. de iuris, et facti ignorantia in Lege, Constitutiones.

Indeed Laws and Canons, according to the Politicians, fall under part of the natural law or part of the positive law, as is clear in 5. Eth.; nevertheless, if they per accidens depart from the natural law, they are not to be interpreted as if they commanded in every eventuality: they decree, however, that judgment be given according to allegations and proofs from the fact that right knowledge of the accused is required of the judge, that he may give sentence; but among things proven, those of lesser weight are those which are true, whencever they come.

Therefore God, who is above the Laws, commands that two be not killed, namely the innocent, and that the just be not killed. Indeed it would be the same thing repeated, because in such a case the innocent and the just would be the same. Now he forbids the innocent to be condemned, that is, him who is proven guilty by false witnesses, but is in truth innocent; and thou, O Judge, knowest this, as a private person, thou shalt not kill this man. But the just thou shalt not kill, that is, him who has been thus proven in judgment; and in this way Tostatus himself expounds it.

Behold that double justice, Deuter. 16: Justice, justice thou shalt pursue, that is, delivering both the innocent, proven guilty in the forum, and him who has been proven just.

By this argument you dissolve all the opposing foundations, taken from the necessity of the Laws of judging according to allegations and proofs. For against them stands here the law Divine and of Nature in this case.

IT IS PROVED, secondly, by St. Bonaventure loco cit. Ecclesiastica Hierarchia, from Proverbs 24: Deliver them that are led to death: and cease not to deliver those that are dragged to destruction. If thou say: Strength is not enough: he that is the inspector of the heart, he understandeth, and nothing deceiveth the keeper of thy soul, and he shall render to a man according to his works.

Behold: in order to the internal judgment of conscience he commands that the innocent, condemned to death by the laws, be diligently delivered, because, namely, it is Divine and Natural law, as our Doctors cry out.

I LAUGH at the answer of the opponents, that judgment is rendered justly according to nature, when judgment is given according to allegations and proofs, because the public good is preferred, while innumerable scandals are warded off.

THESE are flattering little words. For where is the scandal, while an innocent man is being weighed and the Judge publicly protests that he knows it, in attestation of his own honor?

NAY, these opinions are received with the applause of the whole world, just as the deliverance of Susanna was received, who by the sole slight diversity of the tree under which she was accused of having fallen was proven innocent.

But that which they keep forever in their mouths, that the natural law commands that judgment be given according to allegations and proofs, and that although this order is of positive law, one is nevertheless bound by the natural law to keep it, as Fagundez answers; it is so ridiculous that it provokes even the scant smiles of the wise to loud laughter. For where does any merely positive law compel its observance by the law of nature? Surely the law of observance arises from the law of the law itself. And is the public good really that the innocent be condemned? Is it because again the laws condemn according to the allegations? Be it so; since nevertheless the laws are human, must they not at least be taken with their epieikeiai?

FURTHERMORE the end of the law is the heart of the law, and it commands judgment according to allegations and proofs, that judgment may be given justly according to the truth, which is ever the companion of justice. But if, as a public person, the judge is bound to smile upon the public clamor, as Fagundez and the others cry in their principal foundation; then let them believe the clamoring and tumultuous people crying against CHRIST: Crucify him, who nevertheless had been proven innocent by a private interrogation alone. Surely Pilate is not thereby excused.

The public GOOD is that which is more profitable for the Republic. But nothing is more necessary than to foster and protect the innocent, as the Saintly Doctor expounds at length part. 2. Ecclesiast. Hier. cap. 2. These zealots fear scandals. What greater scandal than to pave the ways for calumnies and to lay snares of death for the innocent? Away with that scandal.

They URGE that the judge is a public person, and therefore must not follow what he knows as a private person.

COME NOW! I should like to know: does he not use the knowledge of the sciences and arts which, as a private person, he imbibed in the University amid his studies?

But let us hear St. Bonaventure in the cited place on Ecclesiastical Hierarchy, Part 2, cap. 2: The Virtues are called Angels on account of their strong and unchangeable manliness in imitation of God, a Deiform motion that does not sin. All these things, understood figuratively, are to be referred to those who receive the power of judging. For that peace and concord may be had in the Church of Christ, justice is ordained of the Lord; Psalm 71: Let the mountains receive peace for the people, and the hills justice. He shall judge the poor of the people, and shall save the children of the poor, and shall humble the calumniator. Because he shall deliver the poor from the mighty, and the poor that had no helper. Because there would be no peace in the mountains, that is, in proud men; unless there were justice in the hills, that is, in good and humble prelates and Judges, in whom Angelic manliness, or virtuousness, is required, so that by neither blessing nor cursing are they moved from the rectitude of justice, as of David, 2 Kings 14: But thou, my Lord the King, art as an Angel of God, who is moved by neither malediction nor benediction. Therefore the Judge must be strong and manly, lest through fear, hatred, or love he be deflected from justice. Hence counsel is given in Ecclesiasticus, cap. 7: Seek not to be made a judge, unless thou have strength in virtue to dash down iniquities, lest thou haply fear the face of the powerful, and lay a stumblingblock in thy equity; and Wisdom 6: Hear, O ye kings and judges, that judge the earth: to you is given power from the Most High, who shall question your works, and search out your thoughts, because, being ministers of his kingdom, you have not judged rightly, nor kept the law of justice, nor walked according to the will of God. Horribly and speedily shall he appear to you, 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. For they that have kept just things justly shall be justified. And Ecclesiasticus 44: Men rich in virtue, etc. Making peace in their houses: they are therefore the Virtues as regards the manly execution of justice.

Likewise, on account of the virtuous defense of justice: For it is said Ecclesiasticus 4: Fight for justice, and strive even unto death for Justice, etc.

Likewise, on account of the imitation of Divine Wisdom. For human justice ought to imitate the Divine, as far as is possible, and, that it may not err through ignorance, to be enlightened by the divine light; Hence it is said, Wisdom 6: Love the light of wisdom, all ye that are over the peoples.

Likewise, on account of the swift and manly deliverance of the oppressed, the Judges are called Virtues: For the virtuous judge manfully snatches away the oppressed innocents, and sets himself with all his strength against him who does the injury. Whence in Proverbs 24: Deliver them that are led to death. But if thou say: Strength is not given to me: he that is the inspector of the heart, he himself understandeth, and nothing deceiveth the keeper of thy soul, and he shall render to everyone according to his works. Where the Hebrew: Deliver them that are carried captive unto death, and thou shalt forbid them that stagger unto slaughter; and Job 29: Because I had delivered the poor man that cried out, and the orphan that had no helper. The jaws of the wicked I broke, and out of their teeth I snatched away the prey: the blessing of him that was perishing came upon me. Where the Hebrew: The blessing of those perishing came upon me.

Isaiah first: Judge for the orphan, help the oppressed. Where the Hebrew: Direct your affection to the injured.

Behold the duties of the public person expounded by St. Bonaventure from the storehouse of the Scriptures.

And on Wisdom 6 he observes the apparatus of the Holy Spirit, to admonish judges: Better is wisdom than strength. Hear therefore, ye kings; learn, ye judges, etc. — the reason taken from the peril of their office. Hence also Proverbs 1: The wise man hearing will be wiser: and understanding, he shall possess governments; and on John, cap. 19, he observes that Pilate, who had known in secret the innocence of CHRIST, nevertheless condemned him unjustly on the testimony, and he brings forward Proverbs 17: He that justifieth the wicked, and he that condemneth the just, both are abominable before God. And he considers gravely that Christ discoursed so gravely with Pilate about the truth, because in it consisted the whole equity of the judgment, that the Governor might judge according to the truth, snatching the innocent from the hands of the calumniators. But because knowing the innocent he condemned him, most certainly, the Divine Justice so ordaining, he was condemned by the Emperor and rejected by God.

All of them, crowding in ranks, hurl the argument of St. Thomas, which indeed Bannes calls a moral demonstration. The judge in judging sustains the public person of the Republic: therefore he ought to use only public knowledge, which is rendered probable to the community itself. It is confirmed, because a man ought not to use that opinion which opens the way to frauds. They labor to prove the same by the authorities of the Fathers and the Canons, which Tannerus reports in number 52.

It is answered easily with St. Bonaventure in the cited places. The public person is bound to the defense of the innocent, and therefore so to bear himself that in the face of the Republic he be an asylum of innocence, as I showed above. Nor indeed does he open the way to frauds who uses certain private knowledge; nay, rather there is to be feared the false witnesses, with whom the whole world overflows.

Furthermore, the Holy Fathers and the Canons enjoin a due public skillfulness in conducting causes.