Quartum capitulum, de modo executionis justitiae in judiciis et causis.
The Foundation of Justice
The uprightness of justice should guide judgment, following Job's example of diligent investigation to bring swift aid to the truth.
Let the uprightness of justice therefore instruct the practice of judgment, so that following the example of blessed Job, the most diligent investigation may be made into cases not yet known, and so that aid may be brought more swiftly to the truth.1
The Oath of Good Faith
Both parties to a lawsuit must swear oaths against false accusation and bribery, with refusal resulting in exclusion from the suit or presumption of guilt.
Once a case has come before the court, the principal parties shall not be admitted to litigation unless they have first sworn an oath that they will not bring a false accusation — or, if they do bring one, that they will press their claim without any intent to defraud. The plaintiff, therefore, shall swear first that he brings the suit not with any intention to make a false accusation; the defendant, that he enters the case either to fend off harassment or to defend himself without fraud. Both parties shall swear together at the same time that they have given nothing, promised nothing, and will give nothing — whether through themselves or through an intermediary — to the judges or to any other persons whatsoever, except for those things that by legal custom are permitted to be given to advocates and to certain specified individuals. If the plaintiff refuses to swear this oath, he is excluded from the suit and loses his case, being treated as a dishonest litigant; but if the defendant refuses to submit to this oath, he is to be regarded as having confessed — either outright or as one convicted.
The Advocate's Oath and the Problem of Delay
Advocates must swear to pursue only truthful claims and not drag out lawsuits, since princely courts unjustly prolong cases for many years.
Indeed, the advocates of cases — so that the investigation of the case may be more faithful and more diligent — will likewise be bound by oath from the joinder of the lawsuit to truth and good faith, swearing that to the best of their ability they will present to their clients only what they have judged to be true and just, and that they will not deliberately drag out lawsuits through their own calculated effort.234 Since lawsuits ought to be concluded within two or three years, it seems quite unjust that the same cases in the courts of princes should be dragged out to the span of many years — where the interests of at least one of the litigants are put at risk, and the delay is not caused by any real difficulty in the matter.567
The Sophist's Paradox
The story of Pythagoras and Evallus illustrates how delayed justice leaves even clear cases unresolved, as a sophistical fee dispute defeats every judgment.
For there is scarcely anything so clear or so accessible that, if it comes before the examination of certain princes and is postponed by the passage of time, it does not at last remain obscured — and, what is worse, unresolved. So in cases debated before judges, the problem of Pythagoras or Protagoras seems to have returned — whose theme, if I remember the opinion correctly, runs like this: Evallus, a young man — or rather, one wanting to learn oratory, which we call rhetoric — paid the money agreed upon and promised it to Pythagoras, but gave half the fee first, and promised the remaining half on the day he would have pleaded his case before the judges and won. But when, after a long time, he heard the master and denied a defense to those pleading — perhaps lest he return the money he had promised — he is brought to trial, and Pythagoras brings a lawsuit against him, and thus begins his case against the young man: 'Most foolish young man, in either case you owe me back what I seek — whether judgment has been rendered for you or against you.' For if judgment has been rendered against you, the fee will be owed me by the judgment, because I will have won; but if judgment has been given in your favor, the fee will still be owed me by our agreement, because you will have won. But he replied: 'Most wise master, in either case I do not owe what you seek to be repaid — whether judgment has been rendered against me or for me.' For if judgment has been rendered for me, I owe you nothing by the judgment, because I will have won; but if judgment has been rendered against me, I owe you nothing by our agreement, because I will not have won. This question has been left unresolved by the judges, and still, with further delay intervening, the judgment hangs.
The Prudence of Timely Judgment
What can be settled swiftly should be, and what cannot must be deferred only with due care and within proper time limits.
Now this example seems to point to the following: what cannot be hurried along, we ought to settle with more mature and swifter judgment; but what cannot be settled more maturely or more quickly must be put off for more deliberate handling, provided the cause is not imperishable and the span of time owed does not run out.89
Read the original Latin
Informet ergo justitiam judicii rectitudo, ut secundum exemplum beati Job causae incognitae diligentissima fiât investigatio, et ut veritati citius feratur praesidium.
Cum in causam ventum fuerit non recipiantur ad litem nisi prius personae principales praestiterint sacramentum quod calumniam non facient aut proponent, quod justitiae suae sine vitio fraudis insistent. Jurabit igitur prius actor quod non calumniandi animo litem movet, reus vero quod ut vexationem redimet, vel ut se sine fraude defendat hoc sustinet. Uterque vero simul hoc juret se nihil dédisse, aut promisisse, aut daturum esse, vel per se vel per mediam personam, sive judicibus sive aliis quibuscumque personis, exceptis hiis quae advocatis et quibusdam certis personis de juris indulgentia dari licet. Quod si sic jurare recusaverit ipse actor, exclusus a lite cadit ab actione tanquam improbus litigator ; reus vero qui se huic noluerit subicere sacramento, pro confesso habendus est s simpliciter aut convicto.
Patroni vero causarum, ut fidelior et diligentior causae investigatio habeatur, a litis contestatione ad veritatem et fidem sacramento similiter actabuntur, jurantes quod pro viribus illud quod verum et justum existimaverint clientibus suis inferre procurabunt, et quod non ex sua industria litigia protelabunt. Cum enim lites oporteat infra biennium vel triennium terminari, satis iniquum videtur easdem in principum curiis usque ad multorum annorum curricula protelari, ubi dumtaxat alterutrius litigantium periclitatur utilitas, et moram non trahit negotii difficultas.
Vix enim est aliquid ita clarum aut pervium quod si ad principum quorumdum examen venerit, dilatione temporis protelatum, tandem non remaneat involutum, et tandem, quod est deterius, insolutum. Ut in causis quae coram f judicibus ventilantur rediisse problema Pitagorae vel Prothagorae videatur, cujus thema, si bene sententiam memini, sic habetur : Evallus adolescens aftem oratoriam, quam rethoricam dicimus, volens arfdiscere, pecuniam ex condicto dédit atque promisit Pithagorae, sed medietatem pecuniae primitus dédit, medietatem residuam die quo apud judices causam perorasset atque vicisset se daturum eidem promisit. Sed cum longo tempore magistrum audiret, et causantibus patrocinium denegaret, forte ne pecuniam quam promiserat redderet, judicio sistitur, et cum eo litem Pithagoras contestatur, et sic contra juvenem exorditur : Stultissime adolescens, utroque modo id mihi debes reddere quod requiro, sive pro te pronuntiatum fuerit sive contra te. Nam si contra te sententia lata fuerit, merces mihi ex sententia debebitur, quia ego vicero ; si vero secundum te judicatum fuerit, quia viceris, debebitur mihi merces ex pacto. At ille : Magister sapientissime, utroque modo non debeo quod petes reddere, sive contra me sententiatum fuerit, sive pro me. Nam si pro me sententia lata fuerit, nihil tibi ex sententia debeo, quia ego vicero ; si vero contra me sententia lata fuerit, nihil tibi ex pacto debeo, quia non vicero. Relicta est ista quaestio a judicibus insoluta, et adhuc, interveniente dilatione, pendet sententia.
Hoc autem exemplum illo videtur tendere ut quod accelerari non poterit, maturiori debeamus et celeriori calculo diffinire ; quod vero maturius aut celerius diffiniri non potest, consultiore tractatu differendum est, dum tamen immortalis causa non fumt et debiti temporis spatium non excédât.
Notes
- 1 ↩Rectitudo rendered as 'uprightness' to capture the moral-straightness sense of the Latin rather than a purely procedural 'correctness.' Fiât (subjunctive of fieri) and feratur are both jussive subjunctives, rendered with 'may be made' and 'may be brought' to preserve the exhortatory force.
- 2 ↩sacramento: here in the legal sense of a binding oath, not the sacramental sense; rendered as 'by oath' to avoid confusion.
- 3 ↩industria: can mean 'diligence' in a positive sense, but here the context (protelabunt 'they will protract') suggests deliberate or calculated effort to delay, hence 'calculated effort.'
- 4 ↩vero: postpositive particle rendered as 'indeed' for confirmatory emphasis rather than strong adversative 'but.'
- 5 ↩Cum enim: causal conjunction pair rendered as 'Since' with the explanatory force of enim absorbed into the sentence flow.
- 6 ↩curricula: literally 'courses' or 'spans'; rendered as 'span' to convey the metaphorical sense of years stretching out.
- 7 ↩dumtaxat: 'at least' or 'only'; here emphasizing that even one party's interests being at stake makes the delay unjust.
- 8 ↩The Latin reads 'fumt' at token 34, a scribal error. The normalized text retains the raw form; the translation assumes the intended reading fiat ('may be/become') from fio, which fits the dum tamen clause ('provided…not become imperishable'). An alternative reading fuit ('was') is possible but less natural in context.
- 9 ↩diffinire/diffiniri rendered 'to settle/to be determined' to capture the legal-judicial sense of rendering a definitive decision, distinct from mere discussion.
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