§ 1. Concerning Auxiliaries Of The Litigants

To help litigants there intervene witnesses, advocates, procurators.

2313. • WITNESSES in general are suitable persons who are employed for establishing faith in some matter.

Preliminary Notes. For testifying in judgment, some are never assumed, some only in certain causes; nor is the same number of witnesses always required in all causes. - We have said 1. Some never; for several are excluded by the laws. Thus, in canon law,⁵ the insane, the immature, the blind, those corrupted by money, infamous persons, criminals, perjurers, the excommunicated, vile persons, parents, spouses against each other, servants, women, an associate in crime, etc. are excluded: all of whom, however, have their own proper exception.⁶ - 2. Some only in certain causes; for, from canon law, lay persons are regularly not admitted against clerics in a criminal cause; and from civil law, in some regions, witnesses are regularly not admitted concerning an agreement concerning a thing exceeding the value of 300 francs, but authentic writings are required. - 3. The same number of witnesses is not always required; for sometimes one witness suffices: for example, if there is question of lighter penalties to be inflicted, e.g. in theft from woods; or of an expert in his art, e.g. if a physician testifies that someone's death is natural. Regularly, one witness also suffices in favorable causes: e.g. if it is asked whether someone was baptized, whether a church was consecrated, etc.⁷ - Sometimes more than two or three are required, as happens for a solemn testament in several kingdoms; and from canon law, if there is question of a criminal process against a Bishop.⁸ - Yet:

Regularly, TWO suitable WITNESSES are required and suffice for full proof in every judgment, both civil and criminal; provided that they have perceived by external sense what they testify, depose with oath, and agree among themselves, not only in the substance of the fact, but also in the principal circumstances of person, place, time.⁹ Hence that saying of Matt. 18:16: In the mouth of two or three let every word stand, and the axiom of Law: One witness, no witness. The reason is, because for proving human actions moral and probable certitude suffices.

2314. • Principles. I. Anyone is held TO TESTIFY: 1. from charity, namely when this is necessary for averting a great evil of the neighbor or of the Republic; - 2. from precept, when the judge legitimately interrogates; for a just precept obliges in conscience (n. 2307).

Moreover, the judge legitimately interrogates (as was said above), when either half-full proof of the crime, infamy, evident indications, are present, or also when the accuser offers himself to prove the offense by several witnesses. If these things are at hand, and become known to the witness through the judge, the judge interrogates legitimately, and the witness is held to reveal the truth.¹⁰

But he is NOT HELD to reveal it: 1. If he knows the matter from sacramental secret, or under natural or committed secret; provided that from observance of the natural or committed secret, there does not threaten the republic or an innocent person great damage, which cannot be averted by another way; - 2. if he cannot testify without grave damage to himself or his own, provided that public damage, or another's private damage, does not prevail; - 3. if he has heard the matter from men worthy of no faith; for then he can hold himself as if he knew nothing; or by an unjust manner, for example by force or fraud, e.g. by opening letters; 4. if he knows that the defendant did not sin in conscience, e.g. because of ignorance; because the mind of the judge is to inquire concerning an offense.¹¹

2315. • II. A witness legitimately interrogated, and not excused from the obligation of testifying, is held TO SPEAK THE TRUTH integrally, and nothing besides the truth, by responding to the questions simply, according to his conscience. Thus all.

Hence: 1. The witness sins, and is held to restitution: 1) if he receives a price for speaking the truth, since by every law he is held to speak it freely; - 2) if knowingly he affirms what he is ignorant of, or opens things to be hidden, or testifies falsely; and he is obliged to reparation whenever, by acting thus, he has been the effective cause of damage. Whence, he is held to retract himself, even with damage equal to life or goods, provided that the retraction is foreseen to be profitable. - Mark the words knowingly, effective; for if grave fault is lacking, he is indeed held, insofar as lies in him, to impede the damage, but not to repair what he did in ignorance. Likewise, if by his false testimony he effected nothing, he is held to nothing¹² (cf. 948 and 949).

2. He also sins, but without the burden of restitution: 1) if, in a case in which he is held to testify, he hides himself, lest he be cited by the judge; because he injures charity; 2) if he flees after citation; 3) if, legitimately interrogated, he hides the truth: because he injures obedience, indeed also religion, if he has furnished an oath. - In these things, however, since he is only a negative cause, he does not sin against justice: unless he entered into a special pact, with a party, concerning manifesting the truth.¹³

2316. • An ADVOCATE (patron, pleader) is he who is called to assist a litigant in pleading, or defending, a cause.

A PROCURATOR (caretaker for another) is he who by legitimate mandate conducts and administers the affairs of another (cf. n. 1091). - A judicial procurator can be: 1. on the part of the State or republic, and is called fiscal or royal (cf. n. 2303); 2. on the part of the advocate, namely he who is the helper of the advocate in the defense of the suit, or the second advocate; 3. on the part of the litigant, whose place he bears in judicial acts.¹⁴

2317. • Principles. I. Not all indiscriminately can exercise the office of judicial ADVOCATE or PROCURATOR. - For some are excluded by civil law: such as women, minors, infamous persons, judges in the same cause, etc.; others by canon law, namely: the excommunicated, monks, clerics constituted in Sacred orders, beneficiaries, unless there is question of certain causes which we have designated above, n. 2226. - By natural law itself those lacking necessary knowledge are prohibited, who consequently are held concerning damages that followed from ignorance.¹⁵

2318. • II. An advocate or procurator cannot assume ALL CAUSES; but only those which, after diligent examination, he has judged to be JUST and LAWFUL. This is clear through itself. But now, in an unjust cause, the advocate is held to repair the damages both of the opposing party and of his own client, if he has concealed from the latter the injustice of his own cause. But if the client also is in bad faith, he himself is held, in the first place, to make restitution to the opposing party, as one commanding; but in the second place, the advocate, as executor.

Hence: 1. An advocate questioned by a client is held to examine the cause with diligence proportioned to the gravity of the matter, to preserve fidelity to the same, and finally to declare the quality and state of the cause, lest there be proceeding to vain expenses.¹⁶

2. If he has assumed the cause in good faith, at least as probable, and notices its injustice in the course of the process, he is held to abandon it, and to advise the client to desist. Nor in this case can he advise a composition with damage to the other party; because there is no place for composition, except when the matter is doubtful.

2319. • Questions. QUAER. 1. Whether an advocate or procurator can defend a LESS PROBABLE cause?

Resp. 1. In a civil cause, according to the more probable and more common opinion, if the doubt is of law, the advocate (or procurator) can assume and defend the slightly less probable parts, whether of the plaintiff or of the defendant, yet with the litigant warned concerning the quality of his right. "The reason is, both because an opinion less probable in the course of time can become more probable; and because many times the opinion which appears less probable to the advocate seems more probable to the judge." But if the doubt is of fact, he cannot, whether in lesser or even equal probability, defend the cause; because in such a cause the defendant, or possessor, is altogether to be favored; and therefore if a suit were brought against him, he would be vexed unjustly, and the plaintiff would be compelled to useless expenses.¹⁷

2. In a criminal cause the defendant, even truly culpable, can always be defended, provided that it is done without fraud and lying; because he is not held to the penalty unless convicted. But the accuser or denouncer cannot, in a doubtful criminal cause, be helped by the fiscal procurator or by another, because these would sin, just as the accuser himself, by cooperating with his illicit denouncement.¹⁸

QUAER. 2. To what is an advocate held by reason of HONORARIUM or STIPEND?

Resp. 1. He can receive nothing beyond the just price, namely that taxed, where it exists, or determined by the judgment of the prudent, account being taken of the business, of his own skill, of the labor which he expends, and of approved custom. - Yet if the client, without just cause, abandoned the lawsuit begun, he could contend for the whole salary.¹⁹

Resp. 2. As to the poor: 1) He is held, even with grave inconvenience to himself, to assist gratuitously those who are in extreme necessity, and have no other recourse; 2) likewise, but short of his own grave inconvenience, those who are in grave necessity; 3) finally, to those who are in common necessity, it suffices if he bestows some of his work.²⁰

2320. • From these things you resolve: - I. An advocate SINS: 1. If he defends or prosecutes a cause certainly unjust as to ownership, although it were just as to possession; for just as the defendant then cannot retain the thing, so neither can the advocate protect him. 2. If he prosecutes a just cause by unjust means, by bringing forward, e.g., false writings, or abrogated laws. 3. If, after the lawsuit has been begun, he makes an agreement concerning stipend; for concerning this an agreement must be made either before or after; because if he were to agree during the course of the suit, the client could easily be compelled to acquiesce in every stipend, however immoderate; and he sins much more gravely by agreeing concerning a proportional part of the suit, e.g. concerning a third part, if the cause is won; for such a pact casts him into proximate danger of employing every device, that by right and wrong the suit may be obtained. Nevertheless, if the price were certainly just, and deceit were absent, he would not be held to restore what he had received. - 4. If he undertakes more causes than he can conveniently handle, the client not having been warned. - 5. If he patronizes each party; because it is repugnant that he defend each party equally, at least in the same cause. - 6. If he opens the secrets of his client to the opposing party. There are indeed some who except the case in which another, because the secret is observed, would unjustly suffer grave damage; but others with St. Thomas do not admit this limitation, except in the very rare case in which the defendant would be punished capitally, and the accuser proceeded unjustly. - 7. If he uses deceits or delays not making for the matter; finally if by negligence or grave imprudence of his own he loses the cause¹ (cf. n. 974).

2321. • II. The fiscal procurator (or his substitute) SINS AGAINST justice: 1. If from negligence, from precipitation, or prejudice, from hatred or acceptance of persons, etc. he drags an innocent person into detention, into judgment, into an unjust sentence to be undergone. 2. If he sustains an accusation after in the course of the cause he has recognized the innocence of the accused, or has gravely doubted concerning it. 3. If he defers the exercise of his office with injury to citizens. But what he has acquired for himself by arts of this kind, he is held to restore.²

2322. • III. The procurator of the parties SINS against justice: "1. If he procures an unjust suit; 2. if he undertakes more causes than he can dispatch; - 3. if he receives more pay than is just; - 4. if he persuades the defendant or party to deny the truth unjustly; - 5. if by his carelessness, negligence, or other fault, he is the cause that the suit is lost; - 6. if in the name of the party he swears, without particular information from him, with danger of perjury; - 7. if culpably he is not present at the tribunal, from fear of future inconvenience, etc.; - 8. if he brings the parties to an inequitable agreement; - 9. if he defers the cause, or perverts the judge, asks for impertinent terms or superfluous delays; - 10. if he induces false witnesses."³

IT IS ASKED. What of him who substitutes or adulterates WRITINGS, for supplying lost acts, or for prosecuting a certain right?

Resp. 1. He sins, at least venially by reason of lying, because, however the matter stands, the note of hand which is exhibited is diverse from that which makes faith in judgment. It can also happen that he sins against prudence, namely if he exposes himself to the danger of incurring most grave penalties.

Resp. 2. He does not sin against justice, since he prosecutes a certain right; and consequently he is not held to restitution. Except, if he conducts the cause of another, as an advocate, and from the discovery of the fraud damage comes to his client or to the opposing party.⁴

NB. What is lawful for an ADVOCATE and PROCURATOR in a cause of Divorce, see n. 2126, 2.