The Reign of Christ. Book Two. Chapter Fifty Eight: The Twelfth Law: the Establishment and Correction of Tribunals and Judges
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Upon this restoration and repair of written and living laws, i.e., of magistracies, there ought to follow next the reform of courts, by which suitable remedies may be provided to the commonwealth against law violation. For in regard of these things many dreadful complaints are publicly circulated by men of unquestionable piety.
First, they complain that trials throughout the realm take place under men who are hostile to or plainly negligent of pure religion, who are openly avaricious and ready to take bribes and given to other vices so that the judgments rendered by them are in many ways vicious and corrupt. And it is said, and the truth of this is only too clearly evident to all, that when wicked judges do not dare to gratify themselves for their own favor or gain by a judgment adverse to either the defendants or the plaintiffs, they allow amazingly fraudulent amplifications of the procedures, so that if they wish some defendant exempted beyond the right of prosecution of a just plaintiff, they transfer him to a far distant prison without the knowledge of the plaintiff; and so when the trial is held in that place, a place unknown to the plaintiff, a defendant who by rights ought to be condemned is absolved from a very serious crime because no plaintiff is present.
On the contrary, if men of influence and power wish an innocent defendant, falsely accused of crimes, to be detained for some time in prison and chains, while there is despair of obtaining his release or his conviction, they are suborned. And when the defendant comes to be absolved, after the first plaintiff has proved nothing, they intercede and ask that he be kept in custody as an accused, for they claim to have something of Your Majesty’s business to bring against him in another trial. And so, for several more months, that wretch is compelled, contrary to everything right and holy, with no calumniator’s complaint outstanding against him, to risk both his health, because of the squalid condition of the prison, and the order of his household, because they lack his care and control, and at the same time he must undergo no small loss of his assets, since in the meantime he is neither able to do any work himself nor can he set his servants to work.
Frequent complaint is furthermore heard about various fraudulent aspects of other trial procedures and also about frustrating delays, which are extremely irritating to those who go to law but lucrative to the judges, attorneys, procurators, and godless litigants, partly on account of the obscurity and complexity of the laws, about which I have warned above,72 partly on account of the insatiable avarice of these men and their unlimited extravagance, the parent of this avarice.
And so Your Majesty, mindful that “all judgments are made not for men but for God, and that God is present in the administration of all law” (II Chron. 19:6), will work with most watchful and efficient care to restore to his people the purity and holiness of the courts, and will bring it about, first, that the office of a judge is not entrusted to anyone unless, according to the testimony of all good men, he is a man of observed and proved sanctity, tried and celebrated piety, legal ability and virtue, who is not afraid to offend evil men and professes and practices perpetual and implacable enmity against all vices and evildoing.
Also, Your Majesty will see to it that the number of judges is so increased and these so distributed to convenient places that the remedy of a responsible judgment is available always and everywhere to those who have suffered wrong and that punishments are ready for those who violate the laws and offend against the commonwealth and good morals. For God demands that administrators of justice should avenge as soon as possible those who have been wronged (Luke 18:2 ff.) as everyone with right reason wishes to have done in his own case; and there is no other responsibility which pious judges can rightly put before this one, provided that the state is at peace and that there is domestic tranquillity. For this is their proper office and concern by which they should worship God and give help in human affairs. Realizing this, the emperor Constantine decreed that “in whatever case a man is accused,” whether there is a private plaintiff or a matter of public concern which has brought him before the court, a judicial inquiry must at once be made: he must either be punished as an offender or released as an innocent man.”
Furthermore, the same inviolability is to be required of judges that is required of magistrates in the performance of their duty, so that they undertake the function committed to them gratuitously and mindful of the commonwealth, and also discharge it gratuitously, rejecting the snares of bribery and everything sordid (cf. II Chron. 19:7).
Finally, this must also be required of judges, that they judge sincerely according to the laws, i.e., according to the meaning germane to the laws, and not permit themselves to relax any part of the laws in any case. For if some case demands an amendment of the laws or if in another case a dispensation is required, this is to be sought from superiors and the magistrates appointed for this very purpose, and even from Your Majesty himself. For as there is need of as many judges as possible, so it is the duty of only a few to write good laws and also to amend them or to decide what their exceptions ought to be. Therefore, Aristotle (Aristotle, Rhetoric, I, 1, 1354 a-b.) rightly counseled that, wherever possible, whatever might happen in any case should be explained and defined by the laws, so that as little as possible should be left to the judges to decide or modify besides the one point: whether the deed brought into court was done or not, whether it was rightly done or otherwise, whether there was much offense or little. For what profit is it to make excellent laws if it is conceded to the judges that they may depart from them according to their good pleasure in making judgments, or even that they interpret laws fraudulently? And so judges should take an oath that they will judge according to the laws, and this must be demanded of them with utmost severity, and those who have manifestly not acted in very good faith should be most severely punished.
In order, however, that these men may not be caused by the laws to make frustrating postponements and conclusions and adjournments, Your Majesty will take care that certain well-explained methods are prescribed for making inquiries and judging cases by which any litigation can take place as soon as possible and be justly heard and judged, and by which the proper procedures can be effectively observed by all in as serious a manner as possible.