Commentary on Genesis and Exodus, Theological treatise · Chapter 23 · Questions · Question 13 – Question 15
QUEST. XIII. Whether a Iudge ought alwayes to follow the evidence, when he himselfe knoweth the contrarie.
BUt here ariseth a great and weightie question, whether a Judge knowing in his owne conscience, that the man which is accused before him is innocent, and yet he is by the witnesses and other evidence found guiltie: whether he is bound to give sentence according to the evidence, against his owne knowledge, and whether in so doing he sinneth not.
1. The affirmative part is maintained by Thomas, Paulus Burgens. Tostatus, who putteth in these cautions: that the Judge knowing the partie to bee innocent as a private person, yet is to use all meanes to have the truth come to light: as by giving some secret intimation to the partie accused, how to defend himselfe; by fifting and examining the witnesses narrowly to see if he can make them to disagree, and so overthrow their testimonie: and if all this will not serve, to referre the matter to the superiour Judge: but if he have no superiour, then hee is bound to give sentence, secundum allegata, according to the evidence, & in hoc casu Index non peccat ferendo sententiam mortis, and in this case they resolve that the Judge sinneth not in giving sentence of death against the innocent party. Their reasons are these:
1. Index non interficit ipsum, sed illi qui accusant: The Judge that giveth sentence doth not slay him,2.2. q. 64. art. 6. respo…s. ad 3. argum. but they wich accuse him, Thomas. Like as a man holding a sword in his hand, another commeth and moveth his hand with the sword, and so killeth a man: Non est reus qui tenebat gladium: He is not guiltie which held the sword, Tostat.
Answ. 1. Though the false accusers are the chiefe in this action, yet the Judge is accessarie, because he consenteth unto them: otherwise Pilate that washed his hands, and knew Christ to be innocent, should not have sinned in condemning Christ. 2. That instance of one holding a sword is nothing like: for his hand is used against his will, and he himselfe acteth nothing: but the Judge is an agent. And the case is like, as if one having a sword in his hand should be urged himselfe to kill one, whom he knew to be innocent: for then he should be guiltie of the murther.
2. Solius est Dei judicare secundum veritatem quam ipse cognoscit: It belongeth to God onelyonly to judge according to the truth which he knoweth in himselfe. But the Judge must not be informed according to that which he knoweth as a private person, but as it appeareth unto him publikely in judgement, Burgens.
Answ. It doth not follow, but the contrarie rather, that because the Lord judgeth according to the truth, the Magistrate being in Gods place should doe the like also, not to give sentence against the truth: as Iehosaphat said unto his Officers and Judges: Yee execute not the judgements of man, but of the Lord, 2 Chron. 19.6.
3. Argum. He that judgeth against the law sinneth: but the Judge not following his evidence, judgeth against the law: therefore he herein should sinne, Tostat.
Answ. Hee that absolveth an innocent man condemned by false witnesses, goeth not against the intendment of the law, which would have no innocent man condemned, and all false witnesses to be punished.
4. Argum. If the Judge should cleere the innocent man, condemned by false witnesses, he should by this meanes defame the witnesses, as false men, which hee is not able to prove: and this would breed a great scandall.
Answ. 1. Of two evils the lesse is to be taken: better were it for the witnesses to run into infamie, than an innocent man to lose his life. 2. Neither would any scandall arise at all: for the Judges knowledge and credit may sway against the good name of the witnesses; who by other circumstances may also easily be detected, as the Judge may handle the matter.
5. Argum. Involuntarie actions deserve neither praise nor dispraise altogether, whether they be committed through ignorance, or by violence: but they helpe to excuse. Therefore the Judge which followeth the publike evidence, though he know the contrarie himselfe, is to be excused, because he is both simply forced by the law so to doe, and he is in part ignorant, quia nescit ut Iudex, because as a Judge he knoweth it not, though he know it as a private person, Tostat. qu. 6.
Answ. Ignorance cannot excuse the Judge at all in this case, because he was an eye witnesse to the contrarie: neither is there any such violence offred: for he might rather leave his place and office, than to bee compelled to give unjust sentence.
Now the contrarie part, namely the negative,The question resolved, that a Judge must not give sentence against his private knowledge. that the Judge is not to give sentence against his owne knowledge, and that in so doing he should sinne, is maintained by Lyranus, and Matthias Toring the Replier to Burgensis upon these reasons:
1. Lyranus urgeth this sentence of Augustine: Quomodo apud divinam providentiam à peccato liberi sunt, &c. How can they be free from sinne before the divine providence, which for those things which are to bee contemned are polluted with mans bloud, &c. His meaning is, that a Judge rather than hee would leave his place of honour and wealth, should not give a wrong sentence, to shed the bloud of the innocent: mans life ought to be more precious than any other worldly thing whatsoever, as it is said, Ioh 2.4. All that a man hath will he give for his life: therefore in this case, if there be no superiour Judge to deliver the innocent partie, debet priùs dignitatem dimittere, &c. he should rather give over his dignitie, than give sentence against the innocent.
Tostatus answereth, that he should doe well to give over his place, unlesse some inconvenience should ensue, as in this case there would: for, infamaret testes, he should by this meanes defame the witnesses.
Contra. 1. But a greater inconvenience would follow if he doe it not, both the innocent partie shall be condemned, and the Judge commit a great sinne before God. 2. Neither is here any inconvenience to be feared at all: for by this meanes false witnesses should be detected, not defamed: for they are worthie of all disgrace and infamie for their falsehood.
2. Argum. The Apostle saith, Whatsoever is not of faith is sinne, Rom. 14.23. But a Judge giving sentence against his knowledge and conscience, cannot doe it of faith: therefore therein he sinneth.
Burgens. answereth, that a Judge in those things which concerne his private person, may informe his conscience by his private knowledge; but in publicke matters, he is to take his information by publicke evidence.
Contra. True it is, if that publicke information be not against the truth which he knoweth in his conscience; otherwise he sinneth, because his action is not then of faith: which rule of the Apostle serveth not onelyonly for private, but for publike actions also.
3. Si privata persona peccat, publica non eximitur, &c. If a mans private person sinneth, his publike is not exempted, Thoring. This respect of private and publike is before man, but the judgement of sinne belongeth unto God. A politike humane respect cannot dispense then with a sinne against God.
4. To these reasons may bee added that saying of the Wise-man which is most evident, Deliver them that are drawne to death, and wilt thou not preserve them, that are led to be slaine? If thou say, Behold, wee knew not of it: Prov. 24.12.he that pondereth the hearts, doth not he understand it? Here all they are found guiltie before God which doe not deliver the innocent from death: if private men negligent herein are condemned, much more the publike Judge. And this place meeteth with that curious distinction, that as he is Judge he knew it not, though he knew it as a private man: for if he knew it in his conscience and before God, it is enough to convince him before him that searcheth the heart.
5. And if it were so, then a Judge condemning an innocent man, cast by false witnesses, even against his knowledge, should be free: then Pilate who condemned Christ, being by false witnesse, and the malice of the Jewes accused, whom he knew to be an innocent man, giving this testimonie of him, I find no fault in him at all, Ioh. 19.4. should notwithstanding herein have beene without fault.
Therefore upon these reasons, the former conclusion of Lyranus standeth sound and good: that a Judge sinneth in giving sentence against the innocent, condemned and cast by false evidence, if hee in his conscience knew him to be innocent: And that he ought rather in this case to give over his office and dignitie, if there be no other way to deliver the innocent, rather than to be guiltie of his bloud.
QUEST. XIV. A Iudge is not bound of his knowledge to condemne a man, not found guiltie in publike judgement.
BUt as the Judge is bound in conscience to deliver the innocent, whom he knoweth so to be, that yet is found guiltie through malice and envie: notwithstanding it d…th not follow, that hee should likewise condemne him, that is cleared in publike judgement, whom he knoweth in his private knowledge to be guiltie of the crime, as of murther, adulterie, whereof he was accused, but by favour and partialitie acquited: and the reasons of this difference, are these:
1. The law is more readie to spare than to punish, to extend favour than to shew rigour: according to that rule in the law, Odia restringi decet, favores convenit ampliari, Hatred is fit to be restrained, and fafour to be enlarged, Tostat.
2. In condemning a man of his owne knowledge, he doth more than in dismissing the innocent: for here he doth not absolve him by any sentence, but onelyonly suspendeth the sentence of condemnation, and giveth over his place, rather than he will give sentence against him; but here he giveth sentence against the other.
3. If he should condemne any upon his private knowledge onelyonly, he should doe it as a private man, but so he hath no power to condemne, Lyran.
4. Yet the Judge knowing the partie accused to be guiltie, may by some meanes so worke, and give such direction, that his wickednesse may be found out, but of his owne knowledge, without further processe or evidence in judgement, he cannot condemne him whom he knoweth to be guiltie.
QUEST. XV. What a dangerous thing it is for a Iudge to take gifts.
Vers. 8. THou shalt take no gift. 1. That is, the Judge, when any cause of his is in hand, who bestoweth the gift upon him: otherwise for the Prince or Magistrate to take a present or gift of acknowledgement, which the subjects and inferiours doe offer, to shew their dutie and thankfulnesse, it is not here forbidden: nay those wicked and unthankfull men, that brought Saul no presents, are reproved, 1 Sam. 10.27. Osiander. 2. And a difference is to be made betweene Judges and Advocates, for these may safely take their fee, so they exact not more than is due unto them: because both they have not their set stipends as Judges have, and beside, they are but pleaders, not givers of sentence, and so the danger is the lesse: whereas Judges have their certaine solarie appointed them, and in their sentence definitive the cause standeth or falleth, Tostat. 3. This also must bee understood of extraordinarie and unusuall gifts: for inferiour Judges have by order, certaine fees allowed them in every cause, which they may safely take: in some places they have publike allowance, maintenance and revenues, wherewith they ought to be contented: as Nehemiah was allowed the bread of the Governour, though he tooke it not, chap. 5.15. 4. And not he only which receiveth silver and gold, sed etiam qui propter landom judicat male, munus acciple, &c. but he also which for praise doth judge unjustly, receiveth a reward, August. In Psalm. 25.And there are three kindes of taking of gifts; munus à corde est captata gratia à cogitatione, &c. there is a gift from the heart, when a man thinketh to winne favour; munus ab ore; a gift from the mouth, in praise and commendation;9. Moral. c. 2…. munus ex manu, a gift out of the hand, by receiving of a reward, Gregor.