Chapter VI. On the Obligation of Witnesses

27. • I. No one is bound from justice ¹ spontaneously to offer himself for testifying; but sometimes there is such an obligation from charity, for example, if someone can by his testimony easily liberate an innocent person, prevent a grave injustice, etc. - St. Ligorius, n. 264.

¹ ** Understand this of commutative justice, unless nevertheless the discussion is about those who from office are bound to accuse. For otherwise, speaking in general and from the nature of the thing, the general rule is that there is an obligation of accusing or denouncing a crime pernicious to the republic, if public damage cannot be prevented by another way. Thus the common opinion with St. Thomas (2.2, q. 68, art. 1). The reason is that the part from legal justice is bound to provide for the safety of the whole. But here a crime pernicious to the republic is understood as one which is directly and immediately against the common good, such as betrayal of the city, etc.

But although regularly it suffices to denounce, nevertheless sometimes there can be an obligation to accuse, where this would be needed to avoid public damage, when perhaps the nature of the danger does not allow delay for inquiry, and therefore it is necessary to free the judge from that burden and to present proof ready at hand. See Lugo, disp. 38, n. 2.

II. A witness legitimately cited is bound to present himself before the judges, to take the oath prescribed by law, to speak the whole truth ² and nothing beyond the truth, and then to respond simply according to conscience to the things asked. - Thus all.

² ** Except if what the witness knows he knows only from a secret committed to him, as below, q. 2, or if the judge does not question legitimately, etc.

III. A witness who has maliciously deposed what is false is perjured and a violator of justice ³; and therefore he is bound to the reparation of all damages, and also to the revocation of the false oath with equal damage to himself, even with danger of life, if by force of false testimony an innocent person has been condemned to death. - St. Ligorius, n. 269.

³ You have violated justice if someone lies to the damage of others, but not if he merely dissembles without damage to others; for thus he is only disobedient and a transgressor of legal justice. In this matter some account must also be taken of the prejudice not infrequent among the common people, to which charity seems to require that crimes be covered and thus the damage of one’s neighbor be guarded against.

28. Questions. - QUESTION 1º. To what is a witness bound who has said what is false from invincible ignorance, or inadvertence, or inculpable forgetfulness?

Resp. He is bound to disclose the false testimony, and in the way he can to prevent the damage; nevertheless he is not bound to reparation of the damage that has followed ⁴, since he is free from theological fault. - St. Ligorius, Bk. 4, n. 269, with Busembaum. Likewise one would have to say, more probably, even if he had sinned venially, according to what has been said about Restitution, n. 662.

⁴ Understand damage from his ignorance which has already followed and which he could not prevent. For if he can still forestall it and does not prevent it by correcting the error, he violates commutative justice and will be bound to restitution.

QUESTION 2º. What about him who substitutes or adulterates a writing, bond, or receipt, to supply lost acts, or to pursue a certain right?

Resp. 1º He sins at least venially by reason of the lie; because however the matter stands, the bond which is exhibited is different from that which gives credibility in court.

Resp. 2º He can sometimes sin gravely against charity toward himself, when he exposes himself to proximate danger of the gravest penalties if the falsity is detected.

Resp. 3º He in no way sins against commutative justice, and therefore is by no means bound to restitution.

29. • QUESTION 3º. When is a witness excused from giving testimony?

Resp. He is excused in the following cases: 1º if he received the matter only under the secret of confession; 2º if he knows the matter under a committed secret, or even under only a natural secret ⁵; 3º if he received the matter from men not worthy of faith; 4º if he knows that the accused did not sin mortally, for example, on account of ignorance; 5º if he foresees that grave damage will come to himself or to his own. Except if common damage is imminent from this. - St. Ligorius, n. 268.

⁵ If there is question of a witness juridically and legitimately questioned, and you take natural secret as it is distinguished from committed secret, this certainly does not exempt from the obligation of testifying, since not even a promise, even with an oath, excuses. See Lugo, On Justice, disp. 38, n. 6. But the words of St. Alphonsus (Bk. 4, n. 268), by which he says that you are not bound to testify if you received it under a natural secret, even only under a committed secret, etc., are plainly to be taken of committed secret, although not explicitly promised.

QUESTION 4º. Is a witness bound to reveal an altogether hidden crime, for example, one which he alone knows?

Resp. 1º Yes, according to the law in force in France or other places, which establishes that even a single witness can suffice for condemning the accused, and requires nothing else from the jurors except that they assert that they have no doubt about the truth of the fact, whatever finally may be the proofs on which their testimony rests ⁶.

⁶ Whatever may be the wisdom of this disposition, it is plain that the latter words of the Author cannot have this sense, as if there ought not be or could not be any foundation on which the persuasion of the jurors rests, but that they are not bound to render any reason why they so judge.

Resp. 2º More probably no, according to Roman Law, which necessarily requires two witnesses for condemning, even when the confession of the accused has been had. Hence the axiom: “One witness, no witness.” - St. Ligorius, n. 266, etc.

30. • QUESTION 5º. Whether and how does a witness sin who hides himself lest he be cited by the judge, or who flees after citation?

Resp. To the 1st: He does not sin 1º against legal justice ⁷, because no one is bound to obey the precept of a superior before it is imposed on him; 2º nor against commutative justice, because he has himself merely negatively. Nevertheless he can sin against charity toward his neighbor, as was said above, n. 27 ⁸.

⁷ It has been observed elsewhere that legal justice must not be confused with the virtue of obedience. Hence it happens that there can be an obligation of testifying by denunciation or accusation even apart from the precept of the superior or judge. See the notes to nn. 24 and 27.

⁸ ** He sins against charity toward his neighbor if there is question of the good of a private person; but he will sin against legal justice if there is question of the common good, to which detriment is directly brought from this.

Resp. to the 2nd: He sins gravely against legal justice, or against the obedience owed to the judge in a grave matter and one necessary to society; but more probably he does not sin against commutative justice, because that citation does not impose an obligation of justice, but only of obedience. - St. Ligorius, n. 270; Vogler, n. 337; Billuart; Lessius.

QUESTION 6º. Is a witness who, when legitimately questioned, conceals the truth, yet does not say what is false, bound to restitution?

Resp. Probably no. The reason is that then the witness has himself merely negatively, nor is he bound to depose the truth except from the precept of the judge; and therefore by concealing it then he sins only against obedience owed to the judge, or also against religion because of the oath taken about speaking the truth. - St. Ligorius, ibid.; Lugo; Lessius.