FOURTH ARTICLE [II-II, Q. 67, Art. 4]

Whether the Judge Can Lawfully Remit the Punishment?

Objection 1: It would seem that the judge can lawfully remit the

punishment. For it is written (James 2:13): "Judgment without mercy"

shall be done "to him that hath not done mercy." Now no man is

punished for not doing what he cannot do lawfully. Therefore any

judge can lawfully do mercy by remitting the punishment.

Obj. 2: Further, human judgment should imitate the Divine judgment.

Now God remits the punishment to sinners, because He desires not the

death of the sinner, according to Ezech. 18:23. Therefore a human

judge also may lawfully remit the punishment to one who repents.

Obj. 3: Further, it is lawful for anyone to do what is profitable to

some one and harmful to none. Now the remission of his punishment

profits the guilty man and harms nobody. Therefore the judge can

lawfully loose a guilty man from his punishment.

_On the contrary,_ It is written (Deut. 13:8, 9) concerning anyone

who would persuade a man to serve strange gods: "Neither let thy eye

spare him to pity and conceal him, but thou shalt presently put him

to death": and of the murderer it is written (Deut. 19:12, 13): "He

shall die. Thou shalt not pity him."

_I answer that,_ As may be gathered from what has been said (AA. 2,

3), with regard to the question in point, two things may be observed

in connection with a judge. One is that he has to judge between

accuser and defendant, while the other is that he pronounces the

judicial sentence, in virtue of his power, not as a private

individual but as a public person. Accordingly on two counts a judge

is hindered from loosing a guilty person from his punishment. First

on the part of the accuser, whose right it sometimes is that the

guilty party should be punished--for instance on account of some

injury committed against the accuser--because it is not in the power

of a judge to remit such punishment, since every judge is bound to

give each man his right. Secondly, he finds a hindrance on the part

of the commonwealth, whose power he exercises, and to whose good it

belongs that evil-doers should be punished.

Nevertheless in this respect there is a difference between judges of

lower degree and the supreme judge, i.e. the sovereign, to whom the

entire public authority is entrusted. For the inferior judge has no

power to exempt a guilty man from punishment against the laws imposed

on him by his superior. Wherefore Augustine in commenting on John

19:11, "Thou shouldst not have any power against Me," says (Tract.

cxvi in Joan.): "The power which God gave Pilate was such that he was

under the power of Caesar, so that he was by no means free to acquit

the person accused." On the other hand the sovereign who has full

authority in the commonwealth, can lawfully remit the punishment to a

guilty person, provided the injured party consent to the remission,

and that this do not seem detrimental to the public good.

Reply Obj. 1: There is a place for the judge's mercy in matters that

are left to the judge's discretion, because in like matters a good

man is slow to punish as the Philosopher states (Ethic. v, 10). But

in matters that are determined in accordance with Divine or human

laws, it is not left to him to show mercy.

Reply Obj. 2: God has supreme power of judging, and it concerns Him

whatever is done sinfully against anyone. Therefore He is free to

remit the punishment, especially since punishment is due to sin

chiefly because it is done against Him. He does not, however, remit

the punishment, except in so far as it becomes His goodness, which is

the source of all laws.

Reply Obj. 3: If the judge were to remit punishment inordinately, he

would inflict an injury on the community, for whose good it behooves

ill-deeds to be punished, in order that men may avoid sin. Hence the

text, after appointing the punishment of the seducer, adds (Deut.

13:11): "That all Israel hearing may fear, and may do no more

anything like this." He would also inflict harm on the injured

person; who is compensated by having his honor restored in the

punishment of the man who has injured him.

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Summa Theologica, Part II-II (Secunda Secundae) Translated by Fathers of the English Dominican Province · 第 463 / 1128 题