Summa Theologica Part III (Secunda Secundae) Part 110

Objection 1: It would seem that theft is a more grievous sin than robbery. For theft adds fraud and guile to the taking of another's property: and these things are not found in robbery. Now fraud and guile are sinful in themselves, as stated above (Q. 55, AA. 4, 5).

Therefore theft is a more grievous sin than robbery.

Obj. 2: Further, shame is fear about a wicked deed, as stated in _Ethic._ iv, 9. Now men are more ashamed of theft than of robbery.

Therefore theft is more wicked than robbery.

Obj. 3: Further, the more persons a sin injures the more grievous it would seem to be. Now the great and the lowly may be injured by theft: whereas only the weak can be injured by robbery, since it is possible to use violence towards them. Therefore the sin of theft seems to be more grievous than the sin of robbery.

_On the contrary,_ According to the laws robbery is more severely punished than theft.

_I answer that,_ Robbery and theft are sinful, as stated above (AA.

4, 6), on account of the involuntariness on the part of the person from whom something is taken: yet so that in theft the involuntariness is due to ignorance, whereas in robbery it is due to violence. Now a thing is more involuntary through violence than through ignorance, because violence is more directly opposed to the will than ignorance. Therefore robbery is a more grievous sin than theft. There is also another reason, since robbery not only inflicts a loss on a person in his things, but also conduces to the ignominy and injury of his person, and this is of graver import than fraud or guile which belong to theft. Hence the Reply to the First Objection is evident.

Reply Obj. 2: Men who adhere to sensible things think more of external strength which is evidenced in robbery, than of internal virtue which is forfeit through sin: wherefore they are less ashamed of robbery than of theft.

Reply Obj. 3: Although more persons may be injured by theft than by robbery, yet more grievous injuries may be inflicted by robbery than by theft: for which reason also robbery is more odious.

_______________________

QUESTION 67

OF THE INJUSTICE OF A JUDGE, IN JUDGING (In Four Articles)

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 uttered extra-judicially.

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?

_______________________

FIRST ARTICLE [II-II, Q. 67, Art. 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 jurisdiction.

Obj. 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.

Obj. 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 Deut. 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 Obj. 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 Obj. 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 Obj. 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.

_______________________

SECOND ARTICLE [II-II, Q. 67, Art. 2]

Whether It Is Lawful for a Judge to p.r.o.nounce Judgment Against the Truth That He Knows, on Account of Evidence to the Contrary?

Objection 1: It would seem unlawful for a judge to p.r.o.nounce judgment against the truth that he knows, on account of evidence to the contrary. For it is written (Deut. 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 p.r.o.nounce judgment according to what is alleged and proved in opposition to the truth which he knows.

Obj. 2: Further, in p.r.o.nouncing judgment a man should conform to the Divine judgment, since "it is the judgment of G.o.d" (Deut. 1:17). Now "the judgment of G.o.d is according to the truth" (Rom. 2:2), and it was foretold of Christ (Isa. 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 p.r.o.nounce judgment according to the evidence before him if it be contrary to what he knows himself.

Obj. 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 p.r.o.nounce sentence according to the truth which he knows.

Obj. 4: Further, the word "conscience" denotes application of knowledge to a matter of action as stated in the First Part (Q. 79, A. 13). Now it is a sin to act contrary to one's knowledge. Therefore a judge sins if he p.r.o.nounces 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 p.r.o.nounces sentence according to the law and the right." Now this is to p.r.o.nounce judgment according to what is alleged and proved in court. Therefore a judge ought to p.r.o.nounce judgment in accordance with these things, and not according to his private opinion.

_I answer that,_ As stated above (A. 1; Q. 60, AA. 2, 6) it is the duty of a judge to p.r.o.nounce 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 doc.u.ments and witnesses, and other legal means of information, which in p.r.o.nouncing 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 p.r.o.nouncing sentence.

Reply Obj. 1: The reason why, in the pa.s.sage 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 evidence.

Reply Obj. 2: To judge belongs to G.o.d 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 G.o.d and true man: whereas other judges do not judge in virtue of their own power, so that there is no comparison.

Reply Obj. 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 Obj. 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.

_______________________

THIRD ARTICLE [II-II, Q. 67, Art. 3]

Whether a Judge May Condemn a Man Who Is Not Accused?

Objection 1: It would seem that a judge may pa.s.s sentence on a man who is not accused. For human justice is derived from Divine justice.

Now G.o.d judges the sinner even though there be no accuser. Therefore it seems that a man may pa.s.s sentence of condemnation on a man even though there be no accuser.

Obj. 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 accuser.

Obj. 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."