Liber III, Pars II — Quae, et quot oporteat considerare iudices, ut indulgeant humanis, et ut sint clementes potius quam crudeles. Cap. XXIII.

Liber III, Pars II — Quae, et quot oporteat considerare iudices, ut indulgeant humanis, et ut sint clementes potius quam crudeles. Cap. XXIII.

As far as the present is concerned, we can count ten things that seem to touch upon the matter. I. Rhet. Regarding what a judge should consider, he ought to indulge human weaknesses and be more merciful than harsh. The first is human nature itself, the second is the legislator, the third is a compassionate understanding of the laws, the fourth is the intention of the one acting, the fifth is the multitude of good deeds, the sixth is the duration of time in the past, the seventh is the excess of goodness over malice, the eighth is the patience of the accused, the ninth is the amendability of the sinner, and the tenth is the subject of the delinquent. For first, human nature itself cries out for mercy for the delinquent. For since human nature is weak, changeable, and prone to evil, if someone happens to sin, the weakness of nature pleads for forgiveness: therefore it is said, I. Rhetor. It is said that it is fitting to be indulgent toward humans, for he is called merciful who is above justice or above righteousness. Therefore, the philosopher calls the one who is merciful to humans as being above justice, because mercy should be exalted above truth and above justice. According to what inclines the judge toward mercy, he himself is the legislator. For perhaps the king himself, or the prince who has the authority to enact laws, if he were to consider the conditions of the sinner, would be inclined to grant them mercy; therefore, if the judge can think that the legislator would dispense in the laws and spare the accused, he should act with him more mercifully than cruelly. Therefore, it is said that. Rhetoric. For the judge should look more to the legislator than to the laws. The third inclination toward piety is the pious understanding of the laws. The laws are meant to instill a greater severity to terrify wrongdoers; therefore, if the words of the law are intended to frighten sinners, it is fitting that the severity of punishment be moderated by a pious understanding. This is why it is said, 'I.' Rhetor. A judge should not focus on the words of the laws, but rather on the understanding of the law. The fourth consideration is the intention of the one acting. For even if someone is accused of wrongdoing, he may not have acted so wickedly as his actions suggest; and since ambiguous cases should be judged in a more favorable light, if a judge can perceive that a sinner did not sin out of choice, but out of ignorance or misfortune, he should lean towards mercy. This is why it is said, 'I.' Rhet. A judge should not focus on the action itself, but rather on the choice that led to it. The fifth consideration that leads to mercy is the multitude of good deeds. For, since it often happens that someone who has committed an offense has done many good works beforehand, the judge should not only consider the specific act in question but also the overall good that the person has done. As the Rhetorician says. A judge should not focus on the part of the action, but on the whole. The sixth consideration is the duration of the past time. For it can happen that someone commits an offense even in a short time after having done many good works over a long period; therefore, a judge should consider the overall good that has been done rather than just the offense. These two considerations, although they often go together, can also be separated: for a person does not serve another unless the time and opportunity for serving arise; it can happen that in a long time only a few opportunities occur, and in a short time many. This sixth inclination toward mercy looks at the duration of time, which is not the same as the fifth, which considers the multitude of good deeds. Therefore, if it happens that one of the subjects now commits an offense during some part of time, while he has behaved well throughout the preceding time, he should be treated mercifully, and it is more important to consider the entirety of the preceding time than just this brief moment in which he has sinned. Thus it is said in the first. The Rhetorician. A judge should not look at how the accused is now, but rather at how he has always been in the much longer time preceding this. The seventh inclination toward mercy is the excess of goodness over malice. For just as good exceeds evil and is more worthy in itself, so it is more worthy to remember the good and the favors we have received from someone than the injuries we have suffered from him. Thus, Julius Caesar is greatly commended for this, because (as it is said) he did not remember the injuries, but forgot them; therefore, when someone has sinned against us, from whom we have received many good things in the past, we should treat him mercifully and remember the good we have received more than the injuries inflicted. Therefore, it is said that a judge should lead those who are being judged to mercy. I. Rhet. He says that judges should remember more the good things that the offender has suffered than the injuries they have caused. The eighth is patience in being accused. For if someone is accused of a crime for which they are punished by a judge, if they endure the punishment patiently and do not complain about the penalty imposed on them, they should be treated more mercifully. Therefore, it is said I. Rhet. It is necessary to show indulgence toward people if it happens that a person suffers punishment patiently. The ninth is the ability to be corrected by the sinner. For there are some who are so correctable and so teachable that they improve solely through reprimand, that is, through mere words, and they cease to act wrongly; therefore, they should be treated with great indulgence, and such people should be treated very kindly. Therefore, it is said I. Rhet. A judge should show indulgence toward people if he believes that the sinner prefers to be judged by words rather than by actions. The tenth inclination toward mercy is the humility of the offender: for if the offender completely submits himself, humbles himself entirely, and places himself totally in the judgment of the one judging, he should be treated gently. Therefore, it is said I. Rhet. A judge, that is, a just one, should show mercy to people if he sees that the offender prefers to go to judgment rather than to dispute: for it is entirely against reason not to show mercy to humility, since even beasts do this; dogs do not bite those who humble themselves before them. Therefore, it is said 2. Rhet. Moreover, it is evident that anger should cease toward those who humble themselves, as even dogs show, not biting those who are submissive. Therefore, it is clear how judges ought to be more merciful than severe. And if this is fitting for judges, it is even more fitting for kings and princes, who should excel in greater goodness. Thus, it is appropriate for them to be merciful and kind, not because they abandon justice, for without it peace in the kingdom and the good status of the citizens cannot be maintained; but, preserving the common good and the peace of the kingdom as much as possible, they should lean toward mercy. However, it will become clear below how mercy can coexist with justice.