94. On Witnesses and on the Accused

1. Barbantius, a priest of most unimpaired reputation, visiting on a certain occasion Armanda, a married woman of excellent reputation, sinned with her. By a fortuitous chance Melchior, a man of corrupt morals, saw them; he immediately reported the matter to Armanda’s husband, and then testified to the same in court, with great scandal of the city.

It is asked: What as to the Case?

R. Fr. Gury raises the question: Is a witness held to reveal an altogether occult crime? and he responds, n. 19: “More probably in the negative by Common Law, if the witness is wholly certain that the crime is known to himself alone; because for condemning the accused two witnesses are necessarily required. Hence the axiom: one witness, no witness. But otherwise one must speak according to French Law, or another similar law, by which one witness can suffice for the condemnation of the accused, and nothing else is required from the jurors except that they assert that they have an intimate conviction of the fact, without their needing to prove their sentence.”

But from the fact that the jurors are not held to prove their sentence, and that it suffices that they have an intimate conviction of the fact, it does not follow that a witness is held, or even is able, to reveal an altogether occult crime. Indeed rather the contrary follows. For jurors do not pronounce their sentence independently of the trial, but after they have been present in court for the whole discussion of the case and the examination of witnesses; whence the crime is already supposed by that very fact to be publicized, at least half-proven, or certainly at least producing great suspicion of itself, and indeed from knowledge of facts already public in themselves. Wherefore from the sentence of jurors, to be pronounced according to intimate conviction, nothing indeed is drawn for that resolution, but rather the contrary. Nor indeed does that other thing prove anything better, namely that by more recent Law one witness suffices; for one thing is that one witness can make full proof even in court, another thing, altogether diverse, that therefore a witness can also reveal an altogether occult crime. There is no necessity for such an interpretation, which, since of itself it is not consonant with Natural Law, consequently is not to be asserted without a manifest declaration of the law itself. Cf. I. M. 70. And in the proposed case and in similar ones, the very grave disadvantages of this opinion easily appear.

Therefore it does not seem that Melchior is held, indeed even that he can, reveal that most occult crime either to the husband of Armanda, with so great harm and infamy of Armanda herself and of Barbantius; or even to the judge, with so great public scandal. Nor indeed in the Case is there question of a crime impending and to be avoided, and to be prevented in the future; for, as is clear from the exposition of the Case, that offense was committed wholly in passing, nor is there any indication of future danger, which otherwise would have to be met by other means altogether honorable and useful.

2. “Alexius promises by oath to Marcus that he will never manifest to anyone either the homicide which, while he saw and was not seen, Marcus had secretly perpetrated, or the theft which, an agreement having been made concerning the keeping of secrecy, Marcus had confided to his ear.

It is asked: Can Alexius, summoned by the judge, give testimony?

R. A promise supervening upon knowledge of a secret known from elsewhere does not oblige to secrecy in those cases in which, the promise being excluded, one would be obliged to manifest the secret. The matter becomes clear by an example. You have caught Peter in the very act of crime. The public report of the crime having spread, or half-proof of the crime already having been had, the judge calls you and legitimately asks what is known to you concerning an offense of this sort. There is no doubt that you ought to affirm that it is established concerning that offense, and you would sin gravely if you denied it. Therefore the very same thing will be of right, even if you promised, indeed even swore, that you would keep that offense secret forever; indeed even if you swore that you would not betray it even to the judge, because a promise, even one confirmed by oath, cannot bind anyone to anything illicit; but it is illicit not to obey a judge legitimately asking; therefore, the promise notwithstanding, rashly fortified by oath, you must manifest the offense, in order that you may obey. Certainly faith even sworn, supervening upon knowledge already had of a thing, cannot prevent either the judge from examining witnesses about the offense, or witnesses from deposing about the offense before the judge legitimately examining them, and by privative right, especially since this obligation of deposing arises as soon as knowledge of the offense is had....

Since these things are so, you see that our Alexius, who, with the religion of an oath interposed, had promised Marcus in the species of the Case that he would never manifest to anyone the homicide which Marcus himself had perpetrated while Alexius was watching, could not so bind himself that, when legitimately summoned by the judge, he ought or could conceal the homicide.... And apply this manner of speaking to the case also in which Marcus had called Alexius as a companion of the homicide, pledge of secrecy having been given and accepted with an oath; because a secret of this sort is not properly committed, but would be contained within the mere bounds of a promise, since Alexius himself had received knowledge of the matter not from communication made to him by Marcus, but from the fact with his own eyes....

A secret is then truly said to be committed when we cannot obtain secret knowledge of the thing from elsewhere than from the free manifestation of the thing which another makes to us, depositing the thing in our trust, so to speak, under this inviolable law, that, deposited forever in the chest of the heart, pressed under deep silence, it be guarded; by which law the obligation of secrecy increases to such a degree that not even in cases in which otherwise you would be bound ought you or can you manifest it, unless the manifestation is for avoiding some harm of the commonwealth, or even of some private person, as the Angelic Master teaches, 2.2, q. 70, a. 1, ad 2....

Now since the theft of which there is question in the species of the Case does not pertain to that kind of things which, as soon as they have come to our knowledge, we are immediately held to manifest: for I suppose that it pertains neither to the harm of the commonwealth nor to the harm of anyone else, if it is retained occult (the matter will so happen if you suppose, for example, that a horse taken by theft has perished, and that Marcus is unable to pay, or that he has been induced by the counsel of Alexius to restore the horse); it follows from the unshaken principle of St. Thomas that Alexius, asked by the judge whether he knows anything about the theft of Marcus, can and ought freely to answer that he knows nothing about it; lest, if he affirms that he knows, he break the faith which by natural law he is compelled to keep intact and safe toward Marcus.” Ithur., Cas. 37, nn. 8–11.

Thus indeed, if there is question of a theft committed in passing by some person and with the circumstances set forth. But, practically speaking, in the proposed Case the matter would have to be weighed seriously; since there is question of Marcus as at once a homicide and a thief. Wherefore it may well be that Marcus is a thief by profession, and is disposed to continue thefts with danger also of another homicide; and in such a case, notwithstanding the committed secret, since at least a most grave harm to private persons impending in the future is verified, he would absolutely have to be denounced to the judge, which otherwise the same Ithur. then affirms in the following numbers. Cf. n. 32.

Besides, in the proposed Case, since Alexius has already been summoned by the judge, and the judge asks him both about the homicide and about the theft, it seems that in truth both crimes of Marcus, not only the homicide but also the theft, have already been spread by public report. Moreover the same Ithur. afterwards, n. 24, gives these warnings as regards theft committed to another under the law of secrecy: “But I speak of a secret which can be guarded without sin, and which cannot be disclosed without injury to natural right; and in cases of this sort of urgent necessity I persist in stoutly defending that one ought to conduct himself with the judge just as if he did not know what he does indeed know, but under that inviolable law of the committed secret, that he himself knows it, but no one besides him.” Moreover when the matter is spread abroad and publicly known, it has already ceased to be secret; and therefore an obligation of secrecy can no longer be given; for since that obligation is an obligation toward a secret, it perseveres only so long as the thing remains secret or occult. — Cf. I. M. v. 1, n. 1536 seqq.

3. Albert having died without necessary heirs, two of his nephews were claiming the whole inheritance. But behold Laelius produces a holograph testament, by which the whole inheritance of Albert is to be divided between himself and his brother Narcissus. Hence a suit arises between Laelius and the nephews of Albert, who assert that the testament is false. Narcissus, knowing that his brother had in truth made a false testament, approaches a confessor, asking from him whether he can deny it in court, since he has been cited in it and, an oath having been interposed, he is compelled to tell the truth; but once it is manifested, there is grave danger that his brother, and perhaps even he himself, will be condemned to most grave penalties besides the public infamy which certainly will result from it.

It is asked: What as to the Case?

R. The Case certainly, practically, is not without grave difficulty. But since there is question of a civil case and not of a criminal case, although this latter may afterwards take place; since there is question of grave harm to the neighbor impending and to be inflicted, and of an offense to be consummated, Narcissus certainly cannot deny the truth and affirm falsity, especially with an oath interposed. Wherefore, that he may free himself from grave difficulty of fact, let him persuade his brother to compose the matter amicably with the nephews of Albert, asking them to be willing to desist from the prosecution of the case before the tribunal, and by yielding the whole inheritance at once to those to whom it belongs, under any specious pretext, lest he defame himself.

4. Tiburtius, a public robber of the roads, who committed many thefts and homicides, was condemned to prison for thirty years. Mauritius, his intimate friend, persuades him to flight; indeed he supplies to him a file and a chisel, so that he can break the bars of the window and leap out of it into the public road, where Mauritius, with a gun, observing by night the outcome of the matter, is ready to defend Tiburtius against the guards of the prison. The matter succeeded altogether well, and the two friends wander free through the Roman Campagna.

It is asked: What as to the Case?

R. That it is licit for the accused to flee, if he obtains a good opportunity, is admitted almost commonly. For all penalties are in fact established by law and decreed by the judge in such a way that they are to be inflicted by ministers of justice. Wherefore an accused person cannot be condemned who, the right of another remaining uninjured, withdraws himself, provided however that he does not employ violence and does not disturb public order. Moreover, although in the case there is no question of the penalty of death, nevertheless there is question of a most grave penalty. Since no one is understood willingly to suffer a penalty of this sort, the accused sins not only not by fleeing, but even by breaking the prison and by using deceit and moderate force, by which he may consult for himself, without a lie and without grave harm to others. Wherefore as regards Tiburtius, speaking of itself, he does not seem to be disturbed for fleeing from prison and therefore breaking the bars of the window.

Nevertheless, the same does not seem to be said of Mauritius persuading flight and supplying the instruments necessary for it. If there were question of another accused person, Mauritius also would not have to be disturbed, from the general doctrine that, if flight is licit for the accused, consequently it is licit for others to advise him to do what is licit for him, and to furnish assistance to one using his own right. But since in the Case there is question of a public robber of the roads, whose flight will certainly be pernicious to the public good, it is certainly not licit for Mauritius to persuade flight, and much less to supply the instruments for it. But what Mauritius does, namely that with a gun in the public road he observes the outcome of the matter, ready to defend Tiburtius against the guards of the prison, is wholly illicit, since neither is it licit for Tiburtius himself to inflict violence upon the legitimate ministers of justice, and to kill or wound them. St. Alphonsus, l. 4, nn. 281–283.