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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.
Objection 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.
Objection 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 (Dt. 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 (Dt.
19:12,13): "He shall die. Thou shalt not pity him."
I answer that, As may be gathered from what has been said (Articles
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 to Objection 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 to Objection 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 to Objection 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 (Dt. 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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