Summa Theologica by Saint Thomas Aquinas (whitelam books .TXT) 📕

is not contrary to justice. On the other hand to take other people's property violently and against justice, in the exercise of public authority, is to act unlawfully and to be guilty of robbery; and whoever does so is bound to restitution.

Reply Obj. 1: A distinction must be made in the matter of spoils. For if they who take spoils from the enemy, are waging a just war, such things as they seize in the war become their own property. This is no robbery, so that they are not bound to restitution. Nevertheless even they who are engaged in a just war may sin in taking spoils through cupidity arising from an evil intention, if, to wit, they fight chiefly not for justice but for spoil. For Augustine says (De Verb. Dom. xix; Serm. lxxxii) that "it is a sin to fight for booty." If, however, those who take the spoil, are waging an unjust war, they are guilty of robbery, and are bound to restitution.

Reply Obj. 2: Unbelievers possess their goods unjustly in so far as they are ordered by the laws of earthly princes to forfeit those goods. Hence these may be taken violently from them, not by private but by public authority.

Reply Obj. 3: It is no robbery if princes exact from their subjects that which is due to them for the safe-guarding of the common good, even if they use violence in so doing: but if they extort something unduly by means of violence, it is robbery even as burglary is. Hence Augustine says (De Civ. Dei iv, 4): "If justice be disregarded, what is a king but a mighty robber? since what is a robber but a little king?" And it is written (Ezech. 22:27): "Her princes in the midst of her, are like wolves ravening the prey." Wherefore they are bound to restitution, just as robbers are, and by so much do they sin more grievously than robbers, as their actions are fraught with greater and more universal danger to public justice whose wardens they are. _______________________

NINTH ARTICLE [II-II, Q. 66, Art. 9]

Whether Theft Is a More Grievous Sin Than Robbery?

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 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 (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 pronounce judgment according to what is alleged and proved in opposition to the truth which he knows.

Obj. 2: Further, in pronouncing judgment a man should conform to the Divine judgment, since "it is the judgment of God" (Deut. 1:17). Now "the judgment of God 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 pronounce 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 pronounce 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 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 (A. 1; Q. 60, AA. 2, 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 sentence.

Reply Obj. 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