Question II: Who can be witnesses in a trial

MANY are indeed excluded by law from being judicial witnesses, as St. Thomas says, and it is plain from Can. si testes.

FIRST, in criminal causes slaves and women, and criminals, are excluded by Canon law, cap. serus de verb. signific. and cap. mulierem 33. quaest. 5.

By civil law, however, women are admitted in common, Leg. ex eo, ff. de Testibus. Except in a testament Leg. qui testamento, §. mulier, ff. de testamentis. So the Doctors commonly teach, as Lessius teaches Lib. 2. cap. 30. dub. 5. num. 36. Gomez cap. 2. num. 53.

A harlot, however, cannot be a witness in a criminal cause, as Julius Clar. hands down quaest. 24. num. 14., and so the Doctors commonly, as Jason testifies in Leg. cunctos populos, Cod. de summa Trinitate, and Cartad. in praxis, fol. 80. num. 18. But who is to be called a harlot, Julius Clar. teaches Leg. 1. sem. §. meretrix.

SECOND, by common law in criminal causes one under twenty years is excluded, by the Law in testimonium, ff. de testibus; yet his statement makes an indication sufficient for capture, not for torture, as Gomez and Lessius teach, alleged above, and Fagundez Lib. 8. cap. 40. num. 29.

If, however, he be pubescent, that is, a male of fourteen years, or a female of twelve, he is admitted in civil causes.

THIRD, enemies are excluded in criminal and civil causes, except in those crimes and lawsuits in which other witnesses not otherwise suitable are admitted, as in proving simony, heresy, and the like, cap. per tuas, de simonia.

FOURTH, the ascendants and descendants of the accuser; likewise collaterals; but these only up to the fourth degree. So Gomez cap. 12. num. 15. Lessius Lib. 2. cap. 30. disp. 7. num. 37. The same holds of the kinsmen of the blood; yet the relatives of the Accused are at times received to confirm his innocence, as Clarus teaches quaest. 24. num. 12.; for so usage carries it, when his innocence cannot otherwise be proved; So Lessius num. 38. with St. Bonaventure in 4. dist. 41. dub. 2.

FIFTH, the domestics of the accuser and his familiars are excluded, and those infamous with legal infamy, in criminal causes; and this is most certain without controversy, as Julius Clar. teaches quaest. 24. num. 23. Lessius num. 38. But one infamous in fact is at times admitted, when the truth cannot otherwise be had; but with torture. So Clarus quaest. 24. n. 23. Lessius loco cit. our Father Eliseus in his new Criminal Practice.

SIXTH, those who have committed perjury before, according to the common rule: Once wicked, he is always presumed wicked in the same kind, cap. si quis consentiens, and cap. parvuli 22. quaest. 5. as St. Bonaventure relates in confessionali, cap. 3. particula 33.

SEVENTH, partners in the crime are excluded, Leg. fin. Cod. de accusat. and cap. veniens, cap. de testibus. So Lessius num. 39. Fagundez num. 23. Yet some crimes are excepted, as heresy, sodomy, the crime of false coinage, Lèse-majesté, notorious theft, philiri, and sorceries.

EIGHTH, vile and poor persons are excluded, because they are suspect of being corrupted by payment, Leg. 3. and § 4. ff. de testibus. Syluester V. testis, quaest. 1. Lessius lib. 2. cap. 30. dub. 5. num. 38. Farinacius decis. 138. A vile person, moreover, means a hireling and a dishonorable woman, Farinacius decis. 79. Felinus in cap. Quoties, de testibus. But a poor man is one who is compelled to seek his daily livelihood with his hands; Glossa in Leg. Paupertas, ff. de excusat. tutor. Farinac. decis. 109.

NINTH, corrupted witnesses, who are proved in judgment to have accepted something for giving judgment, cap. 1. Si testes, de testibus, and Molina teaches disput. 83. §. de teste.

THEN they must be sworn witnesses, cap. nuper, de testibus, and cap. tuis quaestionibus, on the same title; for the divine testimonial is a bridle for us, lest we wander beyond the truth. This reason is adduced by all, by Lessius Lib. 2. cap. 30. disp. 4. num. 32. Sayro lib. 12. cap. 20., where from many laws he proves that a statement against a third party has no force unless confirmed by oath. Thus especially from Leg. Iurisiurandi, Cod. de testibus. St. Thom. 2. 2. quaest. 70. art. 3. ad 2. Couar. Lib. 2. var. cap. 13. num. 3. with St. Bonavent. in 3. dist. 39. dub. 5. and 5, letter, and art. 2. quaest. 1.

UNDERSTAND this, however, unless the adverse party remits the oath, cap. tuis quaestionibus, de testibus, except in a matrimonial cause, Sanchez Lib. 3. disp. 41. num. 5. Mascardus de probationibus, concl. 1024. number 13.

MOREOVER, to make the proof there must be several concurrent witnesses, that is, of the same fact; for single witnesses do not prove, and this occurs when one testifies to one crime, e. g. theft of a horse; another to another, e. g. theft of a purse, etc., all of whom prove their own statement, not another's. So Lessius num. 23. Sayrus Lib. 12. cap. 21. num. 15. St. Thom. 2. 2. quaest. 70. art. 2. Cajetanus, Salonius, Aragon. ibidem, Filliucius Tomo 2. tract. 40. on the eighth precept, cap. 8. num. 236. and it is found in cap. licet universis, de testam. and cap. Licet causam, de probationibus.

Concurrent witnesses are those who depose about the same number of the crime and the same circumstances. Hence, to be concurrent, they must agree in time, place, and the species and number of the crime.

ANOTHER condition is that they perceived the fact by some sense, Leg. folium, de testibus, where the Gloss, and Lessius num. 34. Fagundez Lib. 8. cap. 40. num. 14. they must have seen the fact, or, if the crime lies in speech, heard it; in which case it is their cunning custom to hear through a wall the voice of a confessor, provided it is very well known, so as to lead him to confession in judgment. See Sayrum lib. 12. cap. 21. num. 22. and our Father Eliseus in prax. crim. de Testibus.

The FOURTH condition is that the witnesses be exempt from every exception, so that nothing can be opposed to them in law, and they suffer no exceptions; Lessius lib. 2. c. 30. dub. 5. num. 25. Fagundez cap. 40. num. 16. This was said above, when we excluded the unsuitable.

Now TWO witnesses exempt from every exception suffice; both in a criminal cause, even for condemning to death, and in any other grave cause.

It is PROVED from Deuter. 17 and 19: By the mouth of two or three witnesses shall he perish who is to be slain, and 1 ad Timot. 5: Against a priest receive not an accusation, except under two or three witnesses. And And from cap. licet causam, de probat. and cap. cum esset, de testam. So the Doctors commonly teach; St. Thom. quaest. 70. art. 2. where Caiet. Aragon. Bannes, Salon. Lessius Lib. 2. cap. 30. dub. 4. num. 24. Sayrus Lib. 12. cap. 21. num. 15. Filliucius tract. 40. on the eighth precept of the decal. cap. 8. num. 243. Sanchez Lib. 2. de matrim. disp. 45. num. 30. Fagundez on the eighth precept. Lib. 8. cap. 39. num. 1. and it is supposed by St. Bonavent. 3. dist. 39. and on the eighth precept, at the beginning of the opusculum, and he indicates ad 9. Lucae.

By common civil law in closed testaments seven witnesses are required: males, free, or reckoned as free, pubescent, requested, who come together at the same time and are present, and hear, see, and understand the testator's will, whether written or established by voice alone. If the testament be made by voice alone without any writing, subscription or seal is not necessary, Leg. hac consultissima, §. per nuncupationem, Cod. de testamentis, and Institut. de testamentis, §. ult. and Leg. Haeres palam, ff. on the same title; nor is it enough that they be present and hear the testator's voice, but it is also required that they see him. In open testaments, five: In Codicils, five: In graver causes, except a cause of death, one witness of exceptional authority suffices, as a King, Pope, Cardinal, as Sayrus notes lib. 12. cap. 21. num. 15. Filliucius tom. 1. tract. 40. on the eighth precept, cap. 8. num. 236. Fagundez lib. 8. cap. 39. num. 9.

By Canon law, however, that testament is valid which the parishioners make before their Priest, or Pastor, and three, or two other suitable persons, cap. cum esses, de testamentis.

For marriage two witnesses are required, and the Parish Priest; otherwise it is null, as the Holy Council of Trent decrees, sess. 24. cap. 1. And Sanchez notes it, lib. 3. de matrim. cap. 41.