Chapter 16
Wiiham ofOckham Chapter 16 Student Though we could, | think, make a large volume about the skill or prudence necessary to an emperor, yet let the above suffice for the present. I turn, therefore, to justice, which, as I believe, is necessary to an emperor. And I wish to know whether an emperor should always and in every case carry out the rigor of justice, Master It is answered chat an emperor should sometimes pass over justice completely, or defer it for a time; sometimes, however, it befits him -- indeed, he is obliged of necessity — to temper the rigor of justice with mildness; but sometimes he is obliged, of necessity for salvation, to carry out the rigor of justice.
Student These things could be demonstrated, [ think, by countless arguments and texts, but for the sake of brevity let us put them aside. For the present I wish to hear diverse opinions about one matter only, namely, whether all penalties for any crime whatever are at the emperor's choice when he exercises justice, so that it is permissible for him to inflict a pecuniary penalty, or another, for any crime whatever.
Master Concerning this diverse opinions are found. One is that all penalties are at the emperor's choice, so that it is permissible for him in any case whatever for any crime whatever to inflict any kind of penalties whatever. This seems to be supportable by the following argument, Where the penalty is not defined in the law, the penalty to be inflicted is entrusted to the choice of the inferior judge: and not unreasonably, because from the fact that there is not an explicit law according to which he ought ta punish, it follows that he shoutd punish according to his choice. But the emperor is above all positive laws. Therefore he is not obliged to punish according to any positive law, and, consequently, whenever he is obliged toe punish anyone's crime, he can inflict any kind of penalues whatever according to his choice.
There is another opinion that in doing justice the emperor cannot always inflict for every crime any kind of penalties whatever according to his choice. For the emperor should not always be content with a pecuniary penalty but is bound to inflict another; similarly, also, it should not always be enough for him to inflict a penalty of beating, deportation, proscription, or exile, but he is
A Dialogue, Part t1, Tract bound to impose a penalty of death, mutilation, imprisonment, or perpetual detention. And often it is not permissible for him to remit such penalty by reason of friendship, by reason of consanguinity, by reason of nobility, or other circumstance. The reason for this is as follows. Just as where a definite penalty is not enacted in the law an inferior judge should proceed "preserving equity" (Extra,
De transactionibus, last chapter), $0, because the emperor is above positive laws and is not above natural equity, if in doing justice he does not wish, for a reason, to infiict the penalty enacted in the law, he is obliged of necessity to inflict a penalty ''preserving equity," according to what he sees that the common good and the safety of subjects (and especially of the good) demand. But often a pecuniary penalty, or a penalty of deportation, proscription, or ; exile would not castigate a malefactor without some loss to the common good and danger to the obedient and good, as Ambrose testifies. In his De offictis, quoted in the Decreta, 23, q. 4, ¢. Est intusta, he says, "If anyone, moved by the pleas of his children and affected by the tears of his wife, thinks that a robber should be pardoned who still evinces a desire for robbery, will he not hand over the innocent to destruction, setting free one who plans the destruction of many?" Hence also, Jerome, as we read in dist.
45, [c. 17], speaking of those who spare the bad, says: "When they spare one, they work the ruin of the whole Church. What goodness is that? What mercy is it, to spare one and lead all into danger?" From these [passages] we gather that if an emperor inflicts on a malefactor king or prince who is a relative or otherwise allied with him, or on someone else, who still evinces a desire to disturb the empire or the common good or the innocent, only a pecuniary penalty, or any other whatever by which he is not perfectly restrained from carrying out an evil will, he sins mortally and reprehensibly infringes equity, which he is obiiged to follow. In such a case he is bound to inflict on such a malefactor (whether he is a king or prince who is a relative, or someone else) the penaity of physical death or perpetuai imprisonment or some other penalty by which he is altogether restrained from evil deeds and from the power of doing evil.
Student It seems that it would be permissible for the emperor to remit a penalty even as serious as [is duc] to one who had fallen into the crime of treason or committed any other outrage, because mins ee enamine nanan William ofOckkam a judge in punishing should "turn toward the more humane side,"
Extra, De transactionibus, last chapter; and a sentence "that forbids mercy" must be avoided, dist. 50, Penderet. It is therefore permissible for the emperor to show mercy to anyone whatever who has committed an outrage by remitting to him the penalty of death, or any other whatever.
Master It is answered that if the emperor knows that any criminal is perfectly reformed so that he gives up ali will to do evil, and no one prosecutes his injury against him, the emperor can remit ta him every penalty. But if he is not perfectly reformed, but it is feared with probability chat he intends, when he has the power, to repeat his evil ways and to involve himself in his accustomed crimes or others, then it is not permissible for the emperor to remit to him every physical penalty, nor is it permissible to show him such mercy. By showing such mercy he would not turn toward the more humane side, nor would he be merciful, but he would have to be regarded as most cruel and most inhumane and most wicked, as blessed Augustine testifies. In Ta Lothartus, as we read in 23, q.
5, ¢. Out viciis, he says: "One who, when vices are being fostered, spares and favors, so as not to grieve the will of sinners, is not merciful, any more than he who will not take a knife from a child so as not to hear him cry." Jerome also agrees with him. In Upon isaias, which we read in the same causa and question, in c. [28]
Non est, he says: "He is not cruel who slays the cruel." Such mercy is therefore an "unjust mercy," as Ambrose says;" indeed, it is a most wicked mercy, and worse than adultery, robbery, theft and very many other crimes regarded by everyone as enormities.
Student This opinion seems to me to have some plausibility.
Reiate, therefore, how the argument for the other opinion, which also does not lack all plausibility, is answered.
Master [t is answered that where the law is not explicit inferior judges cannot and should not punish according to their own choice and at their own will, but in such cases the penalties are at their choice in such a way that equity is preserved; namely, so that the judge punishes with such a penalty as is more beneficial to the commonwealth and to the preservation of justice, by which the wrongdoer is corrected more effectively. For according to Augus- " The source of the quotation from Ambrose has not been found.