The Duties of Certain Professions

Duties of Certain Professions.—(a) Judges and Lawyers.—The duties of men of the law were discussed already in 1940 sqq. Clients on their part owe their lawyers fair treatment and just compensation for services, while those who have part in a judicial process must give respect to the judge and other officials of the court and due obedience to their directions.

(b) Teachers and Students.—Teachers must make themselves proficient in their matter and in the art of pedagogy; must take care that their teaching is accurate and beneficial; must be steady, punctual, orderly; must give no example or advice but what is good; must be neither too lenient nor too exacting; must preserve discipline in their classes by correcting, punishing, or expelling as need requires; must be just, neither petting nor bullying, and must award honors and averages according to merit. There may be grave harm and sin in denying important academic degrees (such as S.T.M., S.T.D., J.D.C., M.D.) to the worthy or in conferring them on the unworthy. Students on their part owe to their teachers respect and obedience in class matters, to their parents and themselves diligence in study, and to their school avoidance of cheating and of disorderly conduct. In athletics they should not aim at winning for winning’s sake, or playing for playing’s sake, but at the true goal of a sound mind in a sound body. In the selection of preferred studies they should remember that nothing worth while is won without hard work, and that the true objectives of learning are not mere utility, or gain or diversion, but the culture of mind and of spirit.

(c) Physicians, Surgeons, Nurses, and Druggists.—These persons must have sufficient knowledge and skill, and must keep up with the progress of medical science; they must not deny their services or delay to come when there is urgent need; they must give a case diligence proportionate to its seriousness; they must consult in case of doubt, follow the safer opinions, and use the more likely remedies. In his relations with his patient a doctor must be chaste (e.g., avoiding immoral advice or operations, unnecessary psychoanalytic conversations, or bodily exposures); loyal to the confidences received; honest and charitable, not prescribing useless remedies, or overcharging, or refusing service to the poor; mindful of the religious needs of his patients, being not too ready to exempt them from church duties nor slow to remind them when they should send for the priest. Patients on their part should honor the physician, call him in need, obey his directions, and properly compensate him for his services. What is here said of physicians and surgeons is true also of nurses in their duties and capacities. Pharmacists are bound to exercise great care in filling prescriptions; they should not cooperate with abortion or contraception by selling medicines, instruments or appliances to be used for those purposes; they should not sell drugs, dopes, poisons, liquors, etc., forbidden by law.

What is a notary, a scribe, an apparitor? - A notary or tabellion is said to be one who is constituted by legitimate authority for preparing and preserving acts or public instruments, which produce faith both in judgment and outside judgment. Hence he is also called an actuary. A scribe or secretary is one who from office reports in writing testimonies, documents brought forward, sentences of judges, and all other things which are transacted in tribunals. An apparitor is one who from office brings pledges and commands of justice, and completes executions decreed by the judge. But a lictor is said to be one who executes a sentence either of capital punishment or of lashes.

What are the qualities and obligations of a notary? - A notary must be experienced, diligent, faithful, and tenacious of justice. But especially he must know well those things which are required for the proof of contracts in the external forum. Cf. C. I. 1312 ff.; C. G. 1315 ff. The reason is that his office necessarily requires this. And especially for him "imperitia is numbered as fault." R. 132 de Reg. Iur.; Trent, sess. 22, c. 10 de R.

You will resolve: Notaries are unjust especially in the following cases: If they are ignorant of the things which pertain to their office, and for that reason do not rightly prepare instruments; if, with detriment to contracting parties or others, from negligence they omit necessary solemnities, for example, to use suitable witnesses, to place signatures, to indicate day, month, year, etc. If they prepare a false, usurious, or unjust instrument; if, to the damage of another contracting party or of a third party, they feign in the instrument those things which are not; if they put false notes of the day, or change true ones, even if they do not intend damage; likewise if they counsel such things; if they prepare acts which exceed their office, or if they exercise their ministry outside the territory assigned to them; for then their acts are by that very fact void. If they do not describe faithfully the wills of the contracting parties, or through ambiguous drafts provide place for lawsuits and injustices; if they do not warn the parties concerning clauses which can harm them, or concerning difficulties which can arise from them. For they are held to these things from quasi-contract with the parties. If they falsely write that the sum has been paid before them, or already before, with damage to the other party or to a third party; likewise if they easily write such things, gravely suspecting that they are being deceived by the contracting parties; for then they cooperate in their sin. If they guard acts and instruments negligently, with danger of damage to the parties; if they delay the expedition of instruments so that they may extort money; if they commit something to a copyist with danger of error. If they change anything in the protocol, from which some right is violated or impeded; if they admit false witnesses; if they do not exhibit, conceal, or deny a transcript of some necessary testimony to their client. If they communicate acts to others than the parties; if by their fault they lose protocols; if they violate oaths or secrets; if they add anything to, or subtract anything from, the sayings or deeds of the parties, or from the testimonies of witnesses; if they do not transcribe all things sincerely, as they stand. If they neglect to watch over their ministers, and because of this instruments are badly prepared; for notaries are bound to answer for all ministers whom they use. If they sign instruments, whether prepared by other notaries or by their own ministers, not duly prepared, before they have diligently reviewed them and have had perfect knowledge concerning the things which are contained in them; likewise if, where several notaries are required, they declare absent ones as present.

If they exact a stipend beyond what is just, or if they seek beyond the tax or approved custom, or if they amplify writings, or write with a larger or more extended character, so that the number of pages is notably increased; if they draw out affairs to be treated for the sake of increasing salary. In all these and similar matters notaries are held in themselves under grave obligation, and to restitution as unjust damagers or cooperators. L. 230, 231; C. B. 841; C. Si culpa 9 de Iniuriis. Cf. n. 39.

Is a notary bound to restitution toward the treasury, if in preparing an instrument of sale or of inventory, at the request of the parties, or even with himself hinting at it, he does not inscribe the true price of the thing, but another lesser one, so that the tax may be diminished? - It is controverted. Some affirm, because he lies and thus cooperates in the defrauding of taxes, which is inequitable and unjust on the part of a public official.

Others deny, provided at least the lowest price, or the middle, or a little less than above half, is reported in the authentic writing. The chief reason of these is that this is the common usage of paying taxes. And equity does not permit that the good be burdened more than the bad. Wherefore, if private persons can effect this, notaries can also prepare the act, and use a restriction not purely mental, namely of declaring the price which by received custom is subject to tax. Finally, others excuse him totally. The reason is likewise: 1. the custom even of fearful persons; 2. because if the parties are not held by dissimulating the true price, neither is the notary held from cooperation; for although he is a public official, nevertheless he is not constituted as superintendent of taxes for exacting taxes, but for preparing instruments. Cf. vol. 1, n. 234. But he can sin gravely against charity toward himself. For penal Codes decree grave penalties against public officials who act fraudulently. C. I. penal 275 ff. Likewise he can easily sin by a lie against truth. Cf. n. 39. Nor indeed can mental restriction be understood in a public official fulfilling his office; nor can that mental restriction be understood in a public document which ought to serve not only for the payment of taxes, but for several other effects of commutative justice. Wherefore a broadly mental restriction cannot have place in this sense, that this is the price liable to tax. Nor indeed can there be mental restriction in this other sense, that, since in the present matter taxes are unjust, this is the price liable to just tax. This second explanation also cannot be admitted, because the injustice of the law, since the matter is not clear and evident, cannot be affirmed, and anyone in the case would become judge of that justice. Justice at least, from the general rule, is presumed, when injustice is not clear. But a manifest lie is had when in truth there is no sale, but a mere donation. And indeed the lie is often, if not always or almost always, damaging to others.

Does a law establishing a tax for honoraria or stipends to be received oblige in conscience? - This question has place for all those to whom a fee is owed for some office which they carry out in judgments. Now Navarrus and others affirm, since it is a just law. But Lugo and others deny, because since the notary and other ministers of justice must live from the stipends of their proper office, and with the passage of time the prices of things and expenses increase, according to custom, concerning food and clothing, but those ancient laws remain always the same with the passage of time; therefore they themselves do not unjustly exact something above the tax, especially if the circumstances of labor and skill are attended to. "And the Salmanticenses say that this opinion of Lugo seems more conformable to equity in these times." Indeed they add that a tabellion can receive an extraordinary stipend if he furnishes extraordinary labor. L. 231. Cf. l. 3, n. 180, 181.

Does a notary sin who prepares instruments on Sunday or a feast day? - By custom now general, they can prepare any instruments whatever, provided they do not pertain to contentious jurisdiction, that is, to forensic business. Thus they can prepare instruments of contract, testaments of the sick, matrimonial agreements, processes of elections to public office, and other similar things. But writings pertaining to the contentious forum they can by no means prepare on feast days. This is prohibited not only by canon law, but by civil law itself. But if a notary prepared such acts on a feast day and affixed a different assignment of day, he would sin against ecclesiastical and civil law, and would write a false instrument. Yet nothing prevents the whole context of the writing from being drawn up on a feast day, to which afterward, on a legitimate day, signatures and the other solemnities are added.

What are the qualities and obligations of secretaries? - A secretary himself also must be skilled in his office, faithful, diligent. The reason is that this is necessarily demanded by his office.

You will resolve: A scribe can commit various injustices, especially: If he does not apply due diligence to reporting into writing exactly all things heard and established or decided; for omission in matters of this kind can easily become grave. If he does not use serious and constant attention for reporting into authentic books all things brought forth and transacted in the tribunal; for very easily a defect of attention in a scribe can induce grave fault and obligation of restitution, unless it is altogether involuntary. For who does not see how great damages can follow from even a slight defect on the part of secretaries?

If from malice he omits something in writing, or if he adulterates or badly guards public tablets committed to him; if he does not place or take care that due formalities and signatures are placed; if he does not faithfully transcribe testimonies, whether by exaggerating, or diminishing, or inverting. If in distributing lawsuits he obeys favor rather than order; if for increasing salary he makes the acts to be distributed greater, for example, by writing on two pages the things which could have been reported on one. If he betrays a secret committed to him; if he manifests a sentence not yet published; if he shows completed processes to the parties without the judge's prescription. If he hands over acts of the judge to the parties before they have been signed according to the legal forms. For then he exhibits a defective and false instrument, whose expedition is considered of no value. L. 229.

What are the qualities and obligations of an apparitor? - An apparitor himself also must be sufficiently instructed concerning all things which pertain to his office. He must furnish fidelity and charity in executing the commands of the tribunal. The reason for the first is that it especially falls to him not to omit any necessary formalities in his acts; otherwise he would often injure justice, and would be bound to repair the damages arising from it. The reason for the other is that he must beware equally both of negligence and of rigor and vexation toward those whom public justice pursues.

You will resolve: Apparitors conduct themselves unjustly especially: If they allow themselves to be corrupted by price or favor to the prejudice of the client, for example, by neglecting denunciations of sentences, or by doing other things from which they are the cause why the creditor cannot receive payment. Likewise by favoring certain debtors in solidarity, so that they do not comprehend them in executions. If they adulterate juridical acts; if they do not execute them at the prescribed time, and from delay or acceleration damage follows for the plaintiff or defendant. If, while searching houses, they act more harshly so that they may extort some gift; if they inflict unjust force or another injury. If they exceed the mandate of the judge or the statutes of the law in seizing the things or goods of private persons; if they do not preserve a just price in the sale of seized things, if they retain part of this price for themselves, etc. C. I. Civil Procedure 41, 42.

The things said concerning an apparitor are applied in due manner to other public ministers.

Are apparitors bound to restitution if they have received a stipend above the tax determined by law under the title of donation? - R. Negatively, if it concerns a tax determined by ancient laws, remaining the same. Cf. 50. But otherwise affirmatively in itself. The reason is that such a donation generally cannot be called spontaneous. Hence, if the excess of price is something grave, they can be obliged under mortal sin to restore it. Generally; for in many circumstances the donation can and must be considered entirely spontaneous. They can; for not every less spontaneous donation is to be judged to lack that consent which suffices for transferring ownership. For not rarely occasions offer themselves even to the unwilling, which import a certain necessity of giving, and yet no one thinks that the burden of restoring should be imposed on the donees.

Moreover, to receive gifts, after an oath has been furnished, is prohibited to ministers of any order in the Roman Curia from the Constitution Sapienti Consilio, Order to be observed, Common Norms, chapter 3, and also to synodal examiners.

Can an apparitor exact multiple salary if he brings different summonses on one and the same occasion? - From natural law considered in itself alone, it seems that it must be affirmed, because he furnishes the same utility to each one requiring him, as if for one alone he undertook the journey and work. Thus St. Liguori, H. A. tr. 13, n. 68, etc. From civil law this is prohibited. Yet usage has prevailed, with the Government knowing and seeing, that advocates and procurators arrange the matter thus, that for each summons apparitors have almost the same price. Lugo d. 37, n. 138.

Must lictors and apparitors execute a sentence if it is unjust? - Affirmatively, if they themselves only think the sentence to be unjust. For they themselves are not judges, and by acting otherwise they would usurp the office of the judge to themselves. Besides, this would be to the very grave detriment of the public good. R. Negatively, indeed they cannot, if the sentence is evidently unjust and to execute it is intrinsically evil, as to kill a man who is innocent and not proved guilty. It is controverted if, although the sentence is unjust, nevertheless to execute it is not intrinsically evil, as to extort goods from one condemned, so that they may be made public. It seems that it must be denied, because as a judge cannot condemn one innocent and not proved guilty, so neither is it lawful for an apparitor to execute his unjust sentence. But he affirms D'Annibale, 3rd ed., p. 2, n. 592, because the damage of the republic prevails. This indeed has force when the sentence, although materially unjust on the part of the thing, is nevertheless at least formally just on the part of the judge, because namely he observed judicial form and right process.

The Angelic Doctor has these things concerning the present question, 2. 2. q. 64. a. 6 ad 3: "The minister of a judge condemning an innocent man, if the sentence contains an intolerable error, ought not obey; otherwise executioners who killed martyrs would be excused. But if it does not contain manifest injustice, he does not sin by executing the precept, because he himself does not have to discuss the sentence of the superior; nor does he himself kill the innocent man, but the judge, to whom he furnishes ministry." C. Pastoralis section Quia vero de Off. et pot. iud. deleg.

What are the obligations of guards, merchants, and artisans? - Guards are those who are set over the custody of woods, fields, etc., by the Prince or by a private master. Merchants are all those who exercise commerce by buying and selling goods. Artisans, moreover, are all those who give their labor to some mechanical art for a received stipend. Guards, besides the sin which they commit against religion by guarding negligently, if they have taken an oath, also sin against commutative justice toward those damaged, and in defect of the damagers are held for damages culpably not impeded. Probably, however, they are held only by reason of the damage, not by reason of the fine. L. 237; H. A. 73; Lugo d. 37, n. 99 ff. Merchants are unjust by buying and selling goods at an unjust price, by not manifesting hidden defects of things, by mixing new and old things together and selling both at the same price, by not observing the conditions of contracts, etc.; in which cases they are held to restitution, according to the things said under the seventh precept of the Decalogue. Artisans are unjust by hiring out their labors at an unjust price, by not manifesting defects of works, by wasting time through culpable negligence, by not observing the conditions of contracts, by turning other workers away from labor, with damage to the association and to masters, by turning other workers away from labor and taking away from them the freedom of working, by turning other workers away from labor with force and violence applied against them and against masters, by turning other workers away from labor when they are content with a smaller stipend. "This kind of cessation (from labor) harms not only the employers and the workers themselves, but it hurts commerce and the interests of the republic; and since it is not far from violence and disturbances, it very often brings public tranquility into danger." Leo XIII, Encyclical de Condit. opific. In these cases they themselves also are held to restitution according to the things said under the seventh precept of the Decalogue. E. M.

Manual labor is useful for removing idleness, for subduing the body, for seeking sustenance. It is under precept when by it someone must come to the aid of the neighbor's necessity or his own. S. Th. Quodl. 7, a. 17.

20. • A notary, or tabellion, is said to be one who is constituted by legitimate authority to write acts or public instruments, which have credibility both in court and outside court.

Hence it appears how great is the importance of the office of notary, how widely it extends, and by how grave obligations it is bound. Therefore notaries must enjoy knowledge equal to this office, uncommon perspicacity, and especially outstanding fidelity, prudence, and probity. For since they must handle business and contracts of every kind, from their negligence, ignorance, and defect of attention the greatest evils can follow for society, and damages for the parties.

21. • Notaries are unjust especially in the following cases:

1º If they are ignorant of the things which pertain to their office, and therefore do not make instruments rightly; if, with detriment to the contracting parties or others, from negligence they omit necessary solemnities, for example, to employ suitable witnesses, to append signatures, to indicate the day, month, year, etc.

2º If they make a false, usurious, or unjust instrument; if to the damage of another contracting party or a third party they feign in the instrument those things which are not; if they append false notations of the day, or change true ones, even if they do not intend damage; likewise if they counsel such things; if they make acts which exceed their office, or if they exercise their ministry outside the territory assigned to them: for then their acts are by that very fact void.

3º If they do not describe faithfully the wills of the contracting parties, or by ambiguous drafts furnish occasion for lawsuits and injustices; if they do not warn the parties about clauses which can harm them, or about difficulties which can be born from them. For they are bound to these things from quasi-contract with the parties.

4º If they write falsely that a sum has been paid before them or previously, with damage to the other party or a third party; likewise if they easily write such things, gravely suspecting that they are being deceived by the contracting parties; for then they cooperate in their sin.

5º If they negligently guard acts and instruments with danger of damage to the parties; if they delay the dispatch of instruments in order to extort money; if they commit something to a copyist with danger of error.

6º If they change something in the protocol (la minute), from which some right is violated or impeded; if they admit false witnesses; if they do not exhibit, or conceal, or deny a transcript of, some necessary testimony to their client.

7º If they communicate acts to others than the parties; if by their fault they lose protocols; if they violate oaths or secrets; if to the sayings or deeds of the parties, or to the testimonies of witnesses, they add or subtract something; if they do not transcribe all things sincerely, just as they stand.

8º If they neglect to watch over their ministers, and for that reason instruments are badly made; for notaries are bound to answer for all the ministers whom they employ; if they sign instruments made either by other notaries or by their own ministers before they have diligently reviewed them and have had perfect knowledge of the things contained in them; likewise if, where several notaries are required, they have declared absent ones as present.

9º If they ask a price beyond the tariff or approved custom ², or if they amplify writings, or write in a larger or more extended character, so that the number of pages is notably increased; if they prolong business to be handled for the sake of increasing the wage.

² Compare the things said above in the note to n. 17.

In all these things, and many other similar things, notaries are bound under grave obligation, of itself, to restitution, as unjust damagers or cooperators, as is plain from what was said in the Treatise On Justice and Law. - St. Ligorius, nn. 230, 234.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. In a civil cause, doubts of fact are solved for the accused. For this is perpetual: the proof lies upon him who affirms, not upon him who denies. This reason is already enough for preferring the possessor, insofar as he merely repels the action of the other.

But what concerning a doubt of law?

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

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

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

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

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

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

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

What is lawful for a judge concerning gifts?.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. If in the progress of the cause he recognizes its iniquity, he ought at once to warn the client and persuade him to desist. For since he has been hired for a fee, justice itself obliges him to this warning insofar as this care was tacitly promised: this will have to be gathered from customs and from the honesty of the client. Nor can he persuade a composition by which something is remitted from right, because composition has no place except when the matter is doubtful. Yet he does injury to no one if he induces him to a transaction without damage, deception, force, and fear, or to redeem by composition the unjust obstinate vexation of the other party. Even of an unjust cause which he deserts he ought to keep the secrets. Make exception if revelation were the only means of averting a gravest damage from an innocent person. But even then, on account of the prohibition of positive law or the greatest inconveniences, for the most part he will not be held to make that revelation. Cf. the things to be said concerning secrecy in the treatise on truth.

4. An advocate in an unjust cause ought to repair to the contrary party all damages following from the unjust action; and indeed as principal cause, if he has concealed the injustice from his own party; of himself as secondary cause, if the injustice of the cause was clear to the client. Then toward his own client he of himself is held to nothing. The client, from a just cause, for example by friendly composition, can desert the lawsuit; in which case it is enough that he furnish the equitable price of the labor done. But if without a just cause he renounces the suit, and the fee was fixed from the beginning, not a few, with St. Alphonsus himself, L. 4, n. 225, permit that he exact this whole fee. Why, however, unlike another hired laborer, he could exact more than emergent damage and ceasing gain, we confess this escapes us.

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

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

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

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

Can they execute an unjust sentence?.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. They ought to fulfill the offices of spiritual and temporal charity, frequent occasion of which is offered to physicians. Therefore they will take care that they themselves can in a case of necessity validly confer baptism, especially on fetuses; they will make a dying man aware of his state in time, so that he can provide for his salvation and also for temporal affairs. It is better that they perform this themselves, nor for the most part do they have grave inconveniences to fear for themselves from it. But if others can and will make the warning, it is enough that these be made more certain. They can be excused from grave obligation if either they know that all things have already been ordered, or they hold it certain that it will profit nothing because of the perverse disposition of men. Yet this will rarely happen.

3. They cannot institute more visits in number than the true utility of the sick man demands; or than the solace suggests which is expected from the reasonable will of the sick man or of his family. Say the same concerning remedies to be administered.

4. They cannot exceed the usual rate in fixing a price, yet with account taken also of his skill and reputation. From the poor they cannot exact except the lesser price which it is customary to concede to them: for that alone the poor have tacitly promised.

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

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

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

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

Let us call all these by the name of brokers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SINCE from the process of judgments, both private and public advantages are wont to accrue, either to the actor or to the commonwealth; therefore in forensic matters one must act with that caution that provision be made for future suits by the exhibition of the deeds of predecessors; wherefore all things are wont to be committed to writing. But those who are deputed to this office are, for the most part, armed rather with a lust of gain than with zeal for Justice, like the scribes of old: of whom I shall speak distinctly.

AMONG the other persons who come together at a trial and take part in it are the Notaries and Tabellions, concerning whose creation and obligations the Jurists and the Summists differ, whom Sayrus reviews Lib. 12. cap. 15. Their principal obligation is to write and transcribe faithfully writings, instruments, testaments, proceedings, and other documents, since they act by the public authority of the Emperor, King, Republic, or Prince who creates them; therefore they must be honest persons, and for that reason one who is infamous in law or in fact cannot be a public Tabellion, per Panormitanus cap. cum dilectus. Felin. in cap. fraternitatis de baret. Alex. consil. 80. Couar. Lib. pract. qq. cap. 19. For other conditions see in those places.

SINCE, however, their justice is exceedingly necessary to the Republic, and is not always intact; therefore the laws in grave criminal cases do not commit the examination of witnesses to them alone; indeed the Judges themselves must be present, as is arranged in Authen. Apud eloquentissimum, Cod. de fide instrumentorum, et Authen. de testibus, et Cod. in causis civilibus, the same must be done, according to the text in Leg. Divus, ff. de testibus, et the Gloss on Leg. Hac consultissima, §. vult. Cod. Qui testamenta facere possint; nevertheless, on account of the many affairs by which Judges are distracted in civil cases of lesser moment, the examination of witnesses is committed to the Tabellion, an oath having first been taken before the Judge concerning the fidelity to be observed, cap. si qui testium, de testibus, cap. 2. de iudic. in 6. Leg. Ad egregias de iureiurando. Couar. Lib. 2. variarum, cap. 13. num. 10.

EXCELLENT was the law of the Athenians reported by Postellus de magistratibus Athenis, cap. 26. which had appointed six men as assistants to the Notaries and Tabellions, so that they might watch whether these men added or omitted anything. At least they ought to appoint someone. For men of that kind are of great authority.

IT IS DISPUTED here: what number of witnesses, at a minimum, can prevail against a Tabellion.

IT IS CERTAIN that he, as a public person, prevails over one witness, even one swearing an oath, that the writing is not true, Leg. si quis decurio, Cod. de falsis, cap. ad audientiam, de praescrip.

MANY say that two witnesses, above every exception, prevail. Others say three are required. See Fagundez lib. 8. cap. 44. Couarruvias L. 2. var. cap. 13. who seems to distinguish well: two witnesses suffice, if they are of those who appear in the writing.

THEY INQUIRE here: whether they, making false writings, or falsifying, or erasing something, are bound to restitution, as for a mortal sin committed against Justice.

ALL ASSERT so, with St. Bonaventure in speculo animae, cap. 2. per Fagundez Lib. 8. cap. 44. numero 6. et other places, and Sayrus Lib. 21. cap. 15. numero 12. Nor does it suffice that he not make false instruments; he must also not do forbidden things; such as a usurious instrument, or one against Ecclesiastical immunity.

FURTHERMORE, one who draws up a nuncupative testament for someone not of sound mind sins, and is bound to restore to the legitimate heirs, if he does this knowingly. Navar. man. cap. 25. num. 54. Baldus on Leg. Cod. de Sacros. Eccles. num. 71. says likewise, even if, corrupted by a price, he induces the testator to institute as heir someone other than the one the testator himself wished, he is bound to restitution. D. Antonin. 3. part. tit. 6. cap. 3. §. ult. Toletus l. 5. cap. 61. Sayrus num. 15.

He must also take care not to exact a price exceeding the norm. Then, not to exact a price for a thing for which no price is to be paid, such as for Ordinations, for Dimissories, or testimonials, if he has a salary; but if he has none, he cannot receive for individual dimissories or testimonials more than a tenth part of one gold piece, from the Council of Trent session 21. de reform. cap. 1.

Likewise, not to receive gifts and prices beyond the salary, if he obtains it. Of these things something has already been said above.

Moreover, the Notary must abstain from drawing up public instruments which demand a longer time on the more solemn days, on which the people are bound to be free for God; especially if they are contracts serving commerce. For this is gathered from cap. 1. de feriis; moreover this is provided in various places by Synodal decrees, as Bonalis notes in his Theologia morali, written in French, tom. 1. tract. 7. sect. 2. and he cites Suarez, Filliucius, and several others, in Bonacina disp. 5. quaest. unica, part. 2. num. 10. He excepts, however, the custom of the place, known and permitted to the Prelates, as also public necessity, to which you may add even private piety, as when it is done in favor of some poor person.

Finally the Notary must take care not to knowingly serve in writing usurious contracts; for by these he violates the oath he would take when called to his office; yet he is not bound to restore anything, since he received nothing by reason of usury. If, however, the debtor, compelled by force, binds himself to the Creditor by a usurious contract, and this becomes known to the Notary; he is bound, as Bonalis says ubi supra tract. 17. lect. 77., to restitution, since he cooperated in that wickedness, from which by reason of his office he ought to have abstained entirely.