Case VIII: Duties of a Witness

In a certain parish, where it is difficult to enforce the civil law, the illegal sale of intoxicating liquors was causing much trouble, and in particular it had a baneful effect on the morals of the young peo-- ple. The parish priest, in order to put a stop to this illegal liquor traffic, asked the civil authorities to take action in the matter, and caused B and other witnesses to be subpoenaed to give their evidence in court, on a certain day, against A, an illegal liquor dealer. On the day appointed for the court none of the witnesses appeared. Some of the witnesses were willing to appear, but both A and B persuaded all the witnesses not to appear at the court. This caused some trouble and expense to the civil authorities. Warrants were issued for the arrest of all the witnesses. Some of them were arrested and fined, but B and others escaped. Evidence enough was obtained to convict A.

Now B comes to Confession, but the priest refuses him absolution until he would consent to make some settlement with the civil authorities. B refuses to do this. Then the priest offers B that he will intercede with the civil authorities in his behalf so that they would be as lenient with him as possible, but B refuses to submit under any consideration, and says that he is satisfied if the civil authorities will take him by force.

Did the priest act right or wrong in refusing him absolution?

Answer.—Strictly speaking, we think the priest exceeded his powers when he refused absolution to B because B refused to make restitution to the civil authorities for the expense his refusal to testify caused them. B was subpoenaed by lawful authority to appear in court and give evidence against an illegal liquor dealer.

The cause was a just cause, the public good. Therefore, B was bound in conscience to obey the summons. In fact, objectively speaking, he was bound sub gravi to obey the mandate of the court or of the grand jury and to appear in court and to tell what he knew. Of this there is no doubt. In a grave matter we are obliged to obey sub gravi legitimately constituted authority, when there is no sufficient reason for refusing to obey. In the present instance we suppose that B had no good and sufficient reason for refusing to give his evidence against the liquor dealer. He might have had what seemed to him a good reason for not appearing, but we suppose that he did not have any such reason. He was bound, therefore, in conscience, sub gravi, to obey the subpoena, and to go into court and to testify. He was bound by the virtue of obedience to do so. The civil authorities had a right to subpoena him. He, on his part, had a corresponding obligation to obey, and that obligation was binding in conscience. B was also bound to obey the summons of the magistrate by reason of the obligation laid on him by the virtue of legal justice. Every citizen is bound to render to the State his just share of service in order to promote the public good. Among these services is the duty of serving on juries and appearing as a witness, when commanded by the civil authorities to do so. All this, of course, is known and admitted by all. B was guilty, theoretically or objectively, of a grave sin of disobedience to lawful authority in refusing to obey the court in a grave matter. But obedience and legal justice do not impose an obligation of restitution, if they are violated. B was guilty of a sin of disobedience and of neglect of his civil duties, but to hold him bound to make restitution, one would have to show that B in refusing to testify, violated also the virtue of strict commutative justice. For only those who violate commutative justice are bound to restitution.

The question, therefore, arises: Did B, by refusing to testify when he was summoned by lawful authority to do so, violate the virtue of commutative justice, and make himself responsible thereby for the expenses his refusal to testify caused the court in securing the liquor dealer’s conviction? St. Liguori, De Lugo, Lessius, etc., etc., maintain that B in refusing to obey the summons of the court sinned against charity, or against obedience, or against legal justice, but not against commutative justice, and that, therefore, he incurred no obligation to make restitution for any expense caused to others. B would not be bound to make any restitution, even though through his refusal to obey the court’s summons and to testify, an innocent defendant might lose his suit and incur heavy damage. According to these theologians the mandate of the court or the subpoena imposes an obligation of obedience, but not of justice, and whoever disobeys it commits a sin of disobedience, but not of injustice. The words of St. Liguori are:

“Is a witness who flees after being summoned bound to restitution?

“Sotus, Sanchez, and others affirm that he is, because by the very fact that a witness has been summoned, he is bound in justice to give testimony; just as, if a judge orders someone to produce a document pertaining to a case, he is bound in justice to exhibit it, otherwise he must restore the loss to the party. But Lugo and Molina more commonly and more probably deny it, and Bonacina and Lessius with Sylvius consider the denial probable. The reason is that the summons imposes not an obligation of justice but only of obedience. Nor does the comparison with producing a document stand in the way; for Lessius rightly answers that the document must without doubt be produced in justice, since it is an external thing which the commonwealth can justly dispose of, as it can of the other goods of citizens when this is necessary to protect their rights; it is not so with the obligation of testifying” (lib. 5, c. 3, 270).

De Lugo admits that if a witness gives false evidence in civil or criminal suits and thereby injures another, he sins against justice and is bound to make restitution. But when a witness acts merely in a negative manner, that is to say, when he refuses to testify or conceals the truth and thereby injures another, does such a witness sin not only against obedience and charity, but also against justice, and is he bound in conscience to make restitution? “The more common opinion,” says De Lugo, “teaches that he sins against justice and with the burden of restitution; so Sotus, Navarrus, and others. Hence many infer that the same applies to a witness whom a judge wishes to summon, but who deliberately hides himself so that the judge’s order cannot be served upon him; or at least, after he has been summoned, fraudulently evades the summons so that he does not appear, or after he has appeared, so that he is not questioned; so Sanchez. Others teach that this is not a sin against commutative justice, but against charity, against obedience, or against legal justice, or against the sanctity of the oath; and therefore it does not entail a debt of restitution. Lessius says that this opinion is probable, and he himself seems to incline toward it, yet does not venture to decide. Molina expressly teaches the same,” etc. This latter opinion De Lugo calls verior, because although a witness has been subpoenaed to testify, still the law does not bind him or constrain him as yet; indeed, Malderus admits this very thing in the case of one upon whom the judge’s summons has already been lawfully served and who put forward a false pretext as an impediment in order to excuse himself. Even if the witness should appear in court and were examined or questioned by the judge, De Lugo holds that he would be bound to testify to the truth only by reason of his oath or on account of the command of the court, he is not otherwise bound to testify to the truth, except either from the sanctity of his oath or from the command of the judge; therefore, by keeping silent about the truth he does not sin against another virtue. It can not be affirmed of the witness, as it can of the judge, that his office of witness obliges him to testify to the truth. The judge has a quasi-contract binding in justice to investigate the truth, once he accepts the office of judge. The witness, on the contrary, refuses to accept the office of witness in our case, and sins by disobedience in thus refusing, but does not sin against justice, since he refuses the office of witness.

Now some will say that, although a witness refuses to testify, even though subpoenaed, still the State may supply for him the consent which he refuses, and thus he does in reality assume the office and duties of a witness, even against his will, because the State supplies his consent. The State can do this in the transfer of property and why not in imposing on him the duty of giving evidence? This, says Lugo, would be quite harsh and novel, that the commonwealth or magistrate should impose upon subjects an obligation in justice concerning personal acts.... Therefore it does not seem that it should be said that the judge can bind witnesses in justice to give testimony, but only in obedience.

The conclusion that De Lugo arrives at, after much discussion, is this:

“We therefore hold that a witness who does not testify sins indeed against obedience, not against justice, and therefore is not bound to restitution unless, by positively testifying falsely, he was the cause of the harm inflicted” (De Lugo, de justitia et jure, disp. 39, sect. 1).

B is not answerable for the damage or expense that his refusal to testify may have caused the town authorities or private individuals. The priest, therefore, could not lawfully condition the absolution upon the restitution of the penitent. B refused to accept the office of witness which the magistrate sought to impose on him by sub-poenaing him; therefore, B had no quasi-contract, binding in justice and entailing restitution, to give evidence against the liquor dealer. In refusing to accept such office, he may have sinned against obedience and legal justice or the duties of a good citizen, but he did not sin against commutative justice; and the violation of commutative justice alone entails the obligation of making restitution. If B were duly sorry for his sin of disobedience, if he looked on it as a sin, and were otherwise disposed, he had a right to receive absolution.