QUESTION 67: OF THE INJUSTICE OF A JUDGE, IN JUDGING
We must now consider those vices opposed to commutative justice, that
consist in words injurious to our neighbors. We shall consider (1) those
which are connected with judicial proceedings, and (2) injurious words
Under the first head five points occur for our consideration: (1) The
injustice of a judge in judging; (2) The injustice of the prosecutor in
accusing; (3) The injustice of the defendant in defending himself; (4)
The injustice of the witnesses in giving evidence; (5) The injustice of
the advocate in defending.
Under the first head there are four points of inquiry:
(1) Whether a man can justly judge one who is not his subject?
(2) Whether it is lawful for a judge, on account of the evidence, to
deliver judgment in opposition to the truth which is known to him?
(3) Whether a judge can justly sentence a man who is not accused?
(4) Whether he can justly remit the punishment?
Article 1: Whether a man can justly judge one who is not subject to his jurisdiction?
Objection 1: It would seem that a man can justly judge one who is not subject
to his jurisdiction. For it is stated (Dan. 13) that Daniel sentenced the
ancients who were convicted of bearing false witness. But these ancients
were not subject to Daniel; indeed they were judges of the people.
Therefore a man may lawfully judge one that is not subject to his
Objection 2: Further, Christ was no man's subject, indeed He was "King of
kings and Lord of lords" (Apoc. 19:16). Yet He submitted to the judgment
of a man. Therefore it seems that a man may lawfully judge one that is
not subject to his jurisdiction.
Objection 3: Further, according to the law [*Cap. Licet ratione, de Foro
Comp.] a man is tried in this or that court according to his kind of
offense. Now sometimes the defendant is not the subject of the man whose
business it is to judge in that particular place, for instance when the
defendant belongs to another diocese or is exempt. Therefore it seems
that a man may judge one that is not his subject.
On the contrary, Gregory [*Regist. xi, epist. 64] in commenting on Dt.
23:25, "If thou go into thy friend's corn," etc. says: "Thou mayest not
put the sickle of judgment to the corn that is entrusted to another."
I answer that, A judge's sentence is like a particular law regarding
some particular fact. Wherefore just as a general law should have
coercive power, as the Philosopher states (Ethic. x, 9), so too the
sentence of a judge should have coercive power, whereby either party is
compelled to comply with the judge's sentence; else the judgment would be
of no effect. Now coercive power is not exercised in human affairs, save
by those who hold public authority: and those who have this authority are
accounted the superiors of those over whom they preside whether by
ordinary or by delegated authority. Hence it is evident that no man can
judge others than his subjects and this in virtue either of delegated or
of ordinary authority.
Reply to Objection 1: In judging those ancients Daniel exercised an authority
delegated to him by Divine instinct. This is indicated where it is said
(Dan. 13:45) that "the Lord raised up the . . . spirit of a young boy."
Reply to Objection 2: In human affairs a man may submit of his own accord to the
judgment of others although these be not his superiors, an example of
which is when parties agree to a settlement by arbitrators. Wherefore it
is necessary that the arbitrator should be upheld by a penalty, since the
arbitrators through not exercising authority in the case, have not of
themselves full power of coercion. Accordingly in this way did Christ of
his own accord submit to human judgment: and thus too did Pope Leo [*Leo
IV] submit to the judgment of the emperor [*Can. Nos si incompetenter,
caus. ii, qu. 7].
Reply to Objection 3: The bishop of the defendant's diocese becomes the latter's
superior as regards the fault committed, even though he be exempt: unless
perchance the defendant offend in a matter exempt from the bishop's
authority, for instance in administering the property of an exempt
monastery. But if an exempt person commits a theft, or a murder or the
like, he may be justly condemned by the ordinary.
Article 2: Whether it is lawful for a judge to pronounce judgment against the truth that he knows, on account of evidence to the contrary?
Objection 1: It would seem unlawful for a judge to pronounce judgment against
the truth that he knows, on account of evidence to the contrary. For it
is written (Dt. 17:9): "Thou shalt come to the priests of the Levitical
race, and to the judge that shall be at that time; and thou shalt ask of
them, and they shall show thee the truth of the judgment." Now sometimes
certain things are alleged against the truth, as when something is proved
by means of false witnesses. Therefore it is unlawful for a judge to
pronounce judgment according to what is alleged and proved in opposition
to the truth which he knows.
Objection 2: Further, in pronouncing judgment a man should conform to the
Divine judgment, since "it is the judgment of God" (Dt. 1:17). Now "the
judgment of God is according to the truth" (Rm. 2:2), and it was foretold
of Christ (Is. 11:3,4): "He shall not judge according to the sight of the
eyes, nor reprove according to the hearing of the ears. But He shall
judge the poor with justice, and shall reprove with equity for the meek
of the earth." Therefore the judge ought not to pronounce judgment
according to the evidence before him if it be contrary to what he knows
Objection 3: Further, the reason why evidence is required in a court of law,
is that the judge may have a faithful record of the truth of the matter,
wherefore in matters of common knowledge there is no need of judicial
procedure, according to 1 Tim. 5:24, "Some men's sins are manifest, going
before to judgment." Consequently, if the judge by his personal knowledge
is aware of the truth, he should pay no heed to the evidence, but should
pronounce sentence according to the truth which he knows.
Objection 4: Further, the word "conscience" denotes application of knowledge
to a matter of action as stated in the FP, Question , Article . Now it is a sin
to act contrary to one's knowledge. Therefore a judge sins if he
pronounces sentence according to the evidence but against his conscience
of the truth.
On the contrary, Augustine [*Ambrose, Super Ps. 118, serm. 20] says in
his commentary on the Psalter: "A good judge does nothing according to
his private opinion but pronounces sentence according to the law and the
right." Now this is to pronounce judgment according to what is alleged
and proved in court. Therefore a judge ought to pronounce judgment in
accordance with these things, and not according to his private opinion.
I answer that, As stated above (Article ; Question , Articles ,6) it is the duty of
a judge to pronounce judgment in as much as he exercises public
authority, wherefore his judgment should be based on information acquired
by him, not from his knowledge as a private individual, but from what he
knows as a public person. Now the latter knowledge comes to him both in
general and in particular ---in general through the public laws, whether
Divine or human, and he should admit no evidence that conflicts
therewith---in some particular matter, through documents and witnesses,
and other legal means of information, which in pronouncing his sentence,
he ought to follow rather than the information he has acquired as a
private individual. And yet this same information may be of use to him,
so that he can more rigorously sift the evidence brought forward, and
discover its weak points. If, however, he is unable to reject that
evidence juridically, he must, as stated above, follow it in pronouncing
Reply to Objection 1: The reason why, in the passage quoted, it is stated that
the judges should first of all be asked their reasons, is to make it
clear that the judges ought to judge the truth in accordance with the
Reply to Objection 2: To judge belongs to God in virtue of His own power:
wherefore His judgment is based on the truth which He Himself knows, and
not on knowledge imparted by others: the same is to be said of Christ,
Who is true God and true man: whereas other judges do not judge in virtue
of their own power, so that there is no comparison.
Reply to Objection 3: The Apostle refers to the case where something is well
known not to the judge alone, but both to him and to others, so that the
guilty party can by no means deny his guilt (as in the case of notorious
criminals), and is convicted at once from the evidence of the fact. If,
on the other hand, it be well known to the judge, but not to others, or
to others, but not to the judge, then it is necessary for the judge to
sift the evidence.
Reply to Objection 4: In matters touching his own person, a man must form his
conscience from his own knowledge, but in matters concerning the public
authority, he must form his conscience in accordance with the knowledge
attainable in the public judicial procedure.
Article 3: Whether a judge may condemn a man who is not accused?
Objection 1: It would seem that a judge may pass sentence on a man who is not
accused. For human justice is derived from Divine justice. Now God judges
the sinner even though there be no accuser. Therefore it seems that a man
may pass sentence of condemnation on a man even though there be no
Objection 2: Further, an accuser is required in judicial procedure in order
that he may relate the crime to the judge. Now sometimes the crime may
come to the judge's knowledge otherwise than by accusation; for instance,
by denunciation, or by evil report, or through the judge himself being an
eye-witness. Therefore a judge may condemn a man without there being an
Objection 3: Further, the deeds of holy persons are related in Holy Writ, as
models of human conduct. Now Daniel was at the same time the accuser and
the judge of the wicked ancients (Dan. 13). Therefore it is not contrary
to justice for a man to condemn anyone as judge while being at the same
time his accuser.
On the contrary, Ambrose in his commentary on 1 Cor. 5:2, expounding the
Apostle's sentence on the fornicator, says that "a judge should not
condemn without an accuser, since our Lord did not banish Judas, who was
a thief, yet was not accused."
I answer that, A judge is an interpreter of justice. Wherefore, as the
Philosopher says (Ethic. v, 4), "men have recourse to a judge as to one
who is the personification of justice." Now, as stated above (Question , Article ), justice is not between a man and himself but between one man and
another. Hence a judge must needs judge between two parties, which is the
case when one is the prosecutor, and the other the defendant. Therefore
in criminal cases the judge cannot sentence a man unless the latter has
an accuser, according to Acts 25:16: "It is not the custom of the Romans
to condemn any man, before that he who is accused have his accusers
present, and have liberty to make his answer, to clear himself of the
crimes" of which he is accused.
Reply to Objection 1: God, in judging man, takes the sinner's conscience as his
accuser, according to Rm. 2:15, "Their thoughts between themselves
accusing, or also defending one another"; or again, He takes the evidence
of the fact as regards the deed itself, according to Gn. 4:10, "The voice
of thy brother's blood crieth to Me from the earth."
Reply to Objection 2: Public disgrace takes the place of an accuser. Hence a
gloss on Gn. 4:10, "The voice of thy brother's blood," etc. says: "There
is no need of an accuser when the crime committed is notorious." In a
case of denunciation, as stated above (Question , Article ), the amendment, not
the punishment, of the sinner is intended: wherefore when a man is
denounced for a sin, nothing is done against him, but for him, so that no
accuser is required. The punishment that is inflicted is on account of
his rebellion against the Church, and since this rebellion is manifest,
it stands instead of an accuser. The fact that the judge himself was an
eye-witness, does not authorize him to proceed to pass sentence, except
according to the order of judicial procedure.
Reply to Objection 3: God, in judging man, proceeds from His own knowledge of the
truth, whereas man does not, as stated above (Article ). Hence a man cannot
be accuser, witness and judge at the same time, as God is. Daniel was at
once accuser and judge, because he was the executor of the sentence of
God, by whose instinct he was moved, as stated above (Article , ad 1).
Article 4: Whether the judge can lawfully remit the punishment?
Objection 1: It would seem that the judge can lawfully remit the punishment.
For it is written (James 2:13): "Judgment without mercy" shall be done
"to him that hath not done mercy." Now no man is punished for not doing
what he cannot do lawfully. Therefore any judge can lawfully do mercy by
remitting the punishment.
Objection 2: Further, human judgment should imitate the Divine judgment. Now
God remits the punishment to sinners, because He desires not the death of
the sinner, according to Ezech. 18:23. Therefore a human judge also may
lawfully remit the punishment to one who repents.
Objection 3: Further, it is lawful for anyone to do what is profitable to
some one and harmful to none. Now the remission of his punishment profits
the guilty man and harms nobody. Therefore the judge can lawfully loose a
guilty man from his punishment.
On the contrary, It is written (Dt. 13:8,9) concerning anyone who would
persuade a man to serve strange gods: "Neither let thy eye spare him to
pity and conceal him, but thou shalt presently put him to death": and of
the murderer it is written (Dt. 19:12,13): "He shall die. Thou shalt not
I answer that, As may be gathered from what has been said (Articles ,3),
with regard to the question in point, two things may be observed in
connection with a judge. One is that he has to judge between accuser and
defendant, while the other is that he pronounces the judicial sentence,
in virtue of his power, not as a private individual but as a public
person. Accordingly on two counts a judge is hindered from loosing a
guilty person from his punishment. First on the part of the accuser,
whose right it sometimes is that the guilty party should be
punished---for instance on account of some injury committed against the
accuser---because it is not in the power of a judge to remit such
punishment, since every judge is bound to give each man his right.
Secondly, he finds a hindrance on the part of the commonwealth, whose
power he exercises, and to whose good it belongs that evil-doers should
Nevertheless in this respect there is a difference between judges of
lower degree and the supreme judge, i.e. the sovereign, to whom the
entire public authority is entrusted. For the inferior judge has no power
to exempt a guilty man from punishment against the laws imposed on him by
his superior. Wherefore Augustine in commenting on John 19:11, "Thou
shouldst not have any power against Me," says (Tract. cxvi in Joan.):
"The power which God gave Pilate was such that he was under the power of
Caesar, so that he was by no means free to acquit the person accused." On
the other hand the sovereign who has full authority in the commonwealth,
can lawfully remit the punishment to a guilty person, provided the
injured party consent to the remission, and that this do not seem
detrimental to the public good.
Reply to Objection 1: There is a place for the judge's mercy in matters that are
left to the judge's discretion, because in like matters a good man is
slow to punish as the Philosopher states (Ethic. v, 10). But in matters
that are determined in accordance with Divine or human laws, it is not
left to him to show mercy.
Reply to Objection 2: God has supreme power of judging, and it concerns Him
whatever is done sinfully against anyone. Therefore He is free to remit
the punishment, especially since punishment is due to sin chiefly because
it is done against Him. He does not, however, remit the punishment,
except in so far as it becomes His goodness, which is the source of all
Reply to Objection 3: If the judge were to remit punishment inordinately, he
would inflict an injury on the community, for whose good it behooves
ill-deeds to be punished, in order that. men may avoid sin. Hence the
text, after appointing the punishment of the seducer, adds (Dt. 13:11):
"That all Israel hearing may fear, and may do no more anything like
this." He would also inflict harm on the injured person; who is
compensated by having his honor restored in the punishment of the man who
has injured him.