Liber III, Pars II — Qualiter est in iudicio procedendum, et quod sermones passionales sunt coram iudice prohibendi. Cap. XXI.

Liber III, Pars II — Qualiter est in iudicio procedendum, et quod sermones passionales sunt coram iudice prohibendi. Cap. XXI.

Judges should pay attention to how they proceed in court, so that passionate speeches, which provoke emotions like anger and hatred, are prohibited in court: for many litigants, knowing they have a bad case, do not recount what has happened and what has not, but turn to stir up the judge to anger and hatred against their adversaries, and to kindness and mercy towards themselves. However, we can investigate why such speeches should be prohibited in three ways. The first is based on the fact that such speeches compel the judge, who must be like a standard in judging. The second reason is that the aforementioned speeches disrupt the order of judgment. The third reason is that they are irrelevant to the matter at hand. The first way is clear. For we must understand that a judge, in judging disputes, should conduct himself among the litigants as a tongue willingly discerning flavors, or like any other sense willingly discerning its proper sensibles, should maintain himself among the flavors or among the proper sensibles. For the sense is a median proportion of the sensibles, and as long as it is not infected by one of the opposing qualities, it gives a correct judgment about the senses; just as as long as the tongue is not infected by some humor, it judges correctly, saying that bitter is bitter and sweet is sweet. If, however, the judge is influenced by anger or phlegm or some other humor, then he does not judge as if he were in the middle, but rather he is swayed to one side or the other, judging perversely, saying that bitter is sweet and vice versa, as is evident in those who are sick and have a corrupted taste. Thus, when the judge is in the middle between the litigants, not leaning toward one side, he ought to judge rightly, determining what is just and what is unjust. If the judge leans toward one party out of mercy and friendship, and withdraws from the other out of anger and hatred, he will judge perverse judgments, as this is what passionate speeches do; allowing such things in court is nothing other than to distort the rule: just as it is inappropriate to allow the rule to be bent, it is inappropriate to allow passionate speeches in court. However, if it happens that some passionate speeches are tolerated, it is because (as will be evident in what follows) judges ought to be more inclined to show mercy than to punish; therefore, passionate speeches that provoke mercy or goodwill should be tolerated more than those that provoke hatred or anger. The second reason for not allowing all passionate speeches is that such things distort the order of judgment. In judgment, there is indeed a certain order, because there is something there that is considered supreme, something that is considered medium, and something that is considered lowest: the king himself or the prince, or another legislator is indeed the supreme; the judge is the medium; but the accused, or the indicted, or the litigants are the lowest: for the judge is in the middle between the legislator and the litigants, and because the medium must receive something from both extremes, the judge, as the medium, receives something from both. For from the legislator, he receives what is just and what is unjust; for if through the laws it is discerned what is lawful, the judge learns from that what is just in human affairs, according to whose laws he is governed in judgment, therefore the judge learns from the legislator what is just. But from the parties, he learns what has been done or not done. If, however, he learns from them what is just, this is only incidentally, as they refer to the laws established by the legislator. Therefore, when passionate speeches sway the will and make something appear just or unjust, since those who are passionate—like lovers, haters, joyful, and sorrowful people—are not judged equally, allowing passionate speeches in court is to distort the order of judgment: it is to make the parties act as if they were the legislators and to hold the highest position in judgment, which they should not. Such an order is perverted there, because the parties, by being passionate, make the judge see something as just or unjust, which is not the role of the parties but of the legislator: it is through the legislator or through the laws established by him that the judge should see what is just and what is unjust; this should not happen through the litigating parties or through passionate speeches promulgated by them. The third way is taken from the fact that such speeches are irrelevant to the matter at hand and are outside the business of judgment. For when there is a dispute about some act or some matter, nothing should be said in court except what pertains to the issue or the business at hand regarding which the litigation exists: however, to sway the judge or to recount the injuries that the opposing party inflicted on him, or to recount the good things that they have done for the judge, and in this way provoke the judge to malice against himself, is entirely irrelevant to the matter: therefore, such things should not be permitted.