Question III: On the injustice of false witnesses

If a Witness, whether knowingly and observantly, or out of crass ignorance, has given false testimony by which he unjustly injured another, that he is bound to restitution of the damage in full — Lessius asserts it lib. 2. cap. 30. disp. 7. num. 52. and they prove it from cap. si sua culpa, de iniuriando, and damn. dat. and from cap. Paroch. de sententia excom. Bartol. in Leg. Nunquam plura, ff. de privat. delict. Bald. in Leg. Quicumque, Cod. de serv. fuga, and in Leg. cum ancillam, Cod. de incest. nupt. Anan. in cap. 1. de crim. falsi. Farinac. part. 2. praxis quaest. 62. num. 5. Fagundez Lib. 8. cap. 42. num. 1. and not only in the forum of conscience is he bound to make good all damages, but even in the external forum the damaged party can bring a civil action against this false witness, for the damage done to him and the interest. So Abbas in dict. cap. 1. de crim. falsi. Anchar. there, Butrieus in the same place, num. 4. and Socinus num. 109. Castrens. in Leg. Presbyteri, num. 3. Cod. de Episcopis, et Clericis, Iason in Leg. Praescriptione, num. 8. Cod. si contra ius, vel utilitatem publicam; Tindar. de testimoniis, part. 1. cap. 9. num. 6. Angelus de Perus. in addit. circa materiam testium, num. 15. Iulius Clarus, §. falsum, Suarez in sua collecta com. opin. Littera T. number 155. Simanch. de Cathol. instit. tit. 64. Rubr. de testam. num. 85. Moncada ad Crot. de testibus, part. 9. num. 379. Bossius tit. de test. falsis, num. 149. and others in Bassaeus.

But Fagundez wonders num. 2. at Farinacius num. 6. Julius Clarus, §. falsum, at the verse poena autem, after Vincentius and Corsetus and the others he alleges, for having said that they are bound only in the Contentious Forum, not in the forum of conscience.

But if he has testified out of ignorance, or non-culpable inadvertence, or oblivion — at least not mortal — whereby someone is condemned, then he says, num. 5., with Diana P. 3. Tract. 5. resol. 105., that he is not bound to restitution: he alleges Cajetan 2. 2. quaest. 70. art. 4. Peter Navarrus lib. 2. cap. 2. num. 253., with whom, he says, Lessius does not entirely disagree lib. 2. cap. 7. dub. 6. He adds part. 4. Tract. 4. resol. 99. Becanus Quaesito 70. quaest. 5. concl. 2. against Strauesdorf. concl. 3. who asserts it. Add Bassaeus V. testis, num. 10.

If, however, he had been convicted as guilty by other witnesses; then, since the concurring testimony accomplishes nothing, they believe he is not bound to restitution. So Pitigian. in praxi. crim. can. de test. cap. 6. fol. 193. Diana loco cit. and others.

Diana adds part. 4. Tract. 4. resol. 79. and deservedly, that he is bound to retract the falsehood if he sees that it would be of profit, even though he should fear for himself the danger of a similar penalty. So also Lessius Lib. 2. cap. 30. dub. 7. num. 53. Peter Navar. lib. 2. cap. 3. num. 251. against Vulterus Strouesdorff, who teaches too rigidly that he is bound even if he doubts whether the retraction would be of profit.

What St. Bonaventure thinks of all these, I shall say: In the Mirror of the Soul, cap. 2, past the middle §. This he also teaches from St. Jerome Lib. 1. on Jeremiah cap. 4, and it is related, dist. 22. quaest. 2. cap. animadvertendo, that an Ought ought to have three companions: Truth, Judgment, and Justice. An oath lacks Judgment, when made without discretion and deliberation. An unlawful Oath, which is to the detriment of eternal salvation, lacks Justice. But it lacks Truth, when what is false is sworn: next, §. Item, as has been said, he places false testimony under injustice, obliging to restitution; but a false Oath, he says, §. circa iuramentum, is an oath "ancisorium", when what is false, or believed false, is sworn, which of its genus is mortal; this, however, seems to be so understood, when one sins with deliberation and is aware that he is sinning.

WHEREFORE an oath made out of ignorance — at least inculpable — does not oblige to restitution.

They doubt, however, besides: whether witnesses, or the Judge, or the notary may accept some remuneration for a just satisfaction, sentence, and writing.

FIRST, indeed, that for a just deposition or sentence they cannot accept a certain fee; and if they accept anything, they are bound to restore everything before the sentence.

It is PROVED from what was said in disp. de Iudice, quaest. 6. For whatever is given for a just testimony or just sentence is reckoned involuntary, given out of fear of an unjust attestation or sentence, as Lessius teaches lib. 2. cap. 14. dub. 8. num. 55. Fagundez lib. 8. cap. 42. num. 18.

SECOND, because there is nothing there saleable for which they could accept a price, for each is bound to testify justly or to decree justly: Therefore they act against justice by accepting something. So Navarrus cap. 25. num. 45. and cap. 17. num. 33. in summa Latina, and cap. Inter verba, 11. quaest. 3. concl. 6. corol. 63. Molina tract. 1. de iust. disp. 83. Fagundez num. 18., where he says that all those are bound to assert it who assert that a Witness, juridically interrogated, is bound by justice to confess the truth; and that he does an injury to the party, the judge, and the Commonwealth by not testifying to the truth; among whom is also St. Bonavent. cited in quaest. 1. He has the same thing in Diaeta, title 3. cap. 7. and it is plain from cap. cum ab omni specie, de vita, et honestate clericorum, where it is said: Since neither may a just judgment be sold by a judge, and venal sentences are reproved even by the secular laws themselves, which the Holy Doctor has almost word for word in the Mirror of the Soul, c. 2. §. Quartus fructus rapinae, around the middle.

The GREATER doubt is: whether the witness, Judge, and Notary are bound to restore what they accept for an unjust testimony, sentence, or instrument.

But there is NO doubt that they are bound to restore the damage inflicted on the party, as Fagundez notes num. 19. with St. Bonaventure in the places adduced, and cap. 1. speculi, §. Item damnificatio. But the whole question is: whether, besides restitution of the damage, they are bound also to restore the whole sum accepted for that injustice.

The FIRST opinion denies it. So Lessius tract. 1. cap. 14. dub. 8. from num. 52. Molina Tom. 1. disp. 89. Navar. sum. Lat. cap. 17. num. 30. and cap. 25. num. 45. Toletus Lib. 5. of the summa, cap. 21. and cap. 59. Peter Navar. lib. 4. de restit. cap. 2. after doubt 11. num. 132. Rodriquez summa, part. 2. cap. 40. concl. 2. St. Thom. 2. 2. q. 32. art. 1. and quaest. 67. art. 5. and others adduced in the disput. de Iudice.

The SECOND opinion asserts that all these are bound to restitution: Sayrus Lib. 10. cap. 2. n. 12. Cajetanus 2. 2. quaest. 32. ¶ 4. Fagundez on the eighth precept, Lib. 4. cap. 42.

Such is the opinion of St. Augustine, epist. 54. to Macedonius, where he says: More justly it is said to the Advocate: Restore what you have received, when you stood against the truth, you favored iniquity, you deceived the judge, you won by falsehood. What is another's must be restored, which is obtained in that very forum where sins are punished, while the laws forbid it; more wickedly is money accepted for an unjust sentence than for a just one, and for false testimony than for true.

From Sermon 19 on the words of the Lord, in St. Bonav. Lib. one of the Pharetra, cap. 26: So deeply has the evil of cupidity grown, that now by custom Judges are sold, laws are corrupted, and the very sentence is venal, and no cause can now be without a "cause".

With this second opinion St. Bonaventure thinks, cap. 1. of the Mirror of the Soul, §. Quartus fructus rapinae; where he cries out that gifts accepted for rendering an unjust sentence, or for violating justice in any way whatever, are mortal sin and robbery.

It is PROVED by the reason drawn from St. Bonaventure in the place adduced, which Fagundez uses, num. 25.

To the same virtue of justice belongs commanding works of justice and forbidding works of injustice; but that unjust acceptance is a work of injustice: Therefore it is forbidden by the virtue of justice: Therefore the one who accepts is bound to restore what he accepted unjustly; since he accepted it against justice.

To WHOM, however, it must be restored, the Holy Doctor admonishes in the Mirror of the Soul, cap. 2, at the end: that these are things which have not passed into the dominion of the receiver, since it is robbery; therefore they stand as an invalid contract, which must be rescinded, and restored to the giver; and it proceeds pari passu also with what is given and accepted through simony, to be rendered back to him who gave, as many Doctors note in Fagundez num. 30.

The assertion is PROVED next by the reason of St. Bonaventure loco cit. §. Quartus fructus rapinae. That price which is accepted against justice is liable to restitution by the law of nature, and therefore before every sentence: Such are gifts for rendering an unjust sentence: Therefore. The minor is proved, for the Witness, Judge, and Notary are bound to bear true testimony, a just sentence, to write a truthful instrument, and accordingly not an unjust one. Therefore they accept against justice, so as to damage their neighbor and act unjustly; and it certainly seems clear that it is against the law of nature, from which results the obligation of restoring damages inflicted on another.

Fagundez nevertheless notes, num. 32., with Sayro num. 16., that absolution must not be denied to the penitent who, having followed the former opinion, is unwilling to restore.