Front Page Titles (by Subject) QUESTION LXVII.: OF INJUSTICE IN A JUDGE. - Aquinas Ethicus: or, the Moral Teaching of St. Thomas, vol. 2 (Summa Theologica - Secunda Secundae Pt.2)
Return to Title Page for Aquinas Ethicus: or, the Moral Teaching of St. Thomas, vol. 2 (Summa Theologica - Secunda Secundae Pt.2)
The Online Library of Liberty
A project of Liberty Fund, Inc.
QUESTION LXVII.: OF INJUSTICE IN A JUDGE. - St. Thomas Aquinas, Aquinas Ethicus: or, the Moral Teaching of St. Thomas, vol. 2 (Summa Theologica - Secunda Secundae Pt.2) 
Aquinas Ethicus: or, the Moral Teaching of St. Thomas. A Translation of the Principal Portions of the Second part of the Summa Theologica, with Notes by Joseph Rickaby, S.J. (London: Burns and Oates, 1892).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF INJUSTICE IN A JUDGE.
Article I.—Can it be just to sit in judgment on one who is not a subject of the court?
R. The sentence of a judge is a sort of private law made on occasion of some individual act. And therefore as a general law ought to be fraught with coercive power, so also should a judge’s sentence be fraught with coercive power, whereby both parties may be bound to observe the sentence of the judge: otherwise the judgment would not be effectual. Now coercive power is not lawfully wielded in society except in the hands of public authority. They who bear such authority count as superiors in respect of those over whom they have received authority, whether ordinary or delegated. And therefore no one can sit as judge except over one who is in some way his subject, whether by delegation or by ordinary authority.
§ 3. The Bishop in whose diocese a person commits an offence, is rendered his superior by reason of the offence, even though the offender be an exempt religious, unless he happen to offend in some exempt matter, as in the administration of the goods of an exempt monastery. But if any exempt religious commits theft, or murder, or any crime of that sort, he may justly be condemned by the Ordinary.
Article II.—Is it lawful for a judge to give sentence against what is to him the known truth, on the ground of the evidence that is brought forward to the contrary?
R. To give sentence is the office of the judge inasmuch as he bears a public commission; and therefore in passing sentence he ought to be informed, not by what he knows himself as a private individual, but by what comes to his knowledge as a public person. Knowledge comes to him in that capacity both in general and in particular: in general by the public laws, whether divine or human, against which he ought to admit no pleas; in the particular business on hand by deeds and witnesses and other such lawful informations; and these he ought to follow in giving sentence rather than what he himself knows as a private individual. By this latter source of information however he may be aided in making a severer examination of the evidence alleged, so as to trace out where it is wanting. But if he cannot lawfully set it aside, he ought to follow it in giving sentence.
§ 4. In what belongs to his own person, a man ought to form his conscience by his own knowledge: but in what belongs to public authority, a man must form his conscience according to what can be known in a public court of law.
Article III.—Can a judge condemn where there is no accuser?
R. In criminal cases a judge cannot pass sentence on any one unless he has an accuser, according to that: “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 things laid to his charge.”1
§ 2. In denunciation2 there is intended, not the punishment of the offender, but his amendment; and therefore nothing is done against him whose sin is denounced, but for him; and therefore no accuser is necessary there.
Article IV.—Can a judge lawfully remit the penalty?
R. There are two things to observe about a judge: on the one hand, he has to judge between accuser and accused; on the other, he does not pass a judicial sentence of his own, but by public authority. And therefore there are two reasons to hinder a judge from letting a guilty person off his punishment: first, on the part of the accuser, to whose right it sometimes appertains to have the accused punished, as for some wrong done him which it is not in the judge’s power to condone, because every judge is bound to render to every man his own. In another way, he is hindered on the part of the commonwealth, whose authority he wields; since it concerns the good of the commonwealth that wrong-doers be punished. Nevertheless on this point there is a difference between inferior judges and the Supreme Judge, or Sovereign, to whom the plenitude of civil authority is entrusted. For an inferior judge has no power to let a guilty party go scot-free, against the laws laid down for his guidance by higher authority. But if the person who has suffered the injury is willing to pardon it, the Sovereign, having full power in the State, can lawfully discharge the guilty party, if he sees that course to be not prejudicial to the public interest.
[1 ]Acts xxv. 16.
[2 ]As practised in Religious Orders. See Suarez, On the Religious State, translated by Humphrey, vol. iii. pp. 352, seq. Also II-II. q. 33. art. 7; q. 68. art. 1; q. 68. art. 2. § 3.