Article II: On the Plaintiff, the Accused, and Witnesses

S. Th. II-II, q. 68-70.

640. The duties of the plaintiff and accuser. A plaintiff (demandeur; eischer, aanlegger) is one who in a civil cause calls another into judgment. He is held: 1. to seek just things; 2. to proceed according to the tracks of law; 3. to bring forward proofs. But if he seeks unjust things, or drags an innocent person into judgment without reason, he sins against commutative justice and is held to repair the damage thereby inflicted (q. 68, a. 4).

An accuser is one who in a criminal cause brings a crime to the judge and takes upon himself the burden of proving. By present-day law, only judicial denunciation belongs to private persons, by which an offense is brought to the judge or prosecutor, without the one denouncing taking upon himself the burden of proving; but true judicial accusation is now reserved to the royal prosecutor or prosecutor of the republic, or to the investigating judge, upon whom it is incumbent to make inquiry concerning crimes and offenses.¹

¹ Cf. Cod. instr. crim., § 2, arts. 11 and 275.

They are held to denounce crimes or offenses:

1. From justice, even commutative justice, those who by force of office or special pact have been constituted for this, such as public officials, guardians of fields, vineyards, or forests, etc.; hence, if the office of denouncing has been neglected, they are held to restitution of damage as negative cooperators (n. 316);

2. From legal justice, all citizens, even if civil law does not specifically prescribe this, when a crime turns to public damage and can be proved (q. 68, a. 1); moreover, that crime which positive law commands to be denounced from a just cause;²

² Cf. ibid., art. 30.

3. From charity, all are held to denounce a crime, whether a) about to be committed, from which grave damage threatens an innocent person and cannot otherwise be averted, or b) already committed, which cannot be kept silent without grave damage to another.

But that denunciation may be made licitly, the crime must be certain, or at least very likely; in which latter case it must be manifested not as certain but only as likely.

641. The duties and permissions of the accused. The accused is called one who is dragged into judgment and against whom action is taken.

A. In a civil cause, the defendant who knows the cause of the plaintiff to be certainly just cannot begin a lawsuit, but is held to satisfy the just petition of the plaintiff; if the matter is doubtful, he can defend his probable right.

Yet 1. the defendant who has been absolved in judgment is not excused from the obligation of paying the debt; because the injured party, even if he does not appeal from the sentence pronounced, is not judged in the forum of conscience to have renounced his right;

2. But if he obtained the sentence by unjust means, he is held besides to compensate the expenses of the lawsuit; but he is not held to this if the sentence was passed in his favor on account of defect of proof.

B. In a criminal cause: 1. the accused, considered in himself, is held to respond with truth to a judge legitimately questioning according to the order of law, unless perhaps it concerns graver penalties (q. 69, a. 1); but 2. by present-day law he is not held to confess a crime committed by himself, but can declare himself innocent;1 because, given this disposition of law, from the circumstances such a declaration signifies that he has not been judicially convicted of this crime; and 3. he always has the right of defending himself against accusers by licit means; hence he can also manifest hidden offenses of witnesses, if this is necessary for weakening the force of their testimony, because he is not held to preserve their reputation with grave inconvenience to himself; yet he cannot calumniously impose upon them a false crime (n. 429), nor a fortiori introduce false witnesses or kill an unjust judge:2 for evil things are not to be done that good things may come about (a. 2).

The accused is not held to concur actively in his own punishment; therefore:

a) Even if justly captured, he can flee, or escape from prison;

b) Indeed probably he can break prison, in order to preserve life or liberty;

c) Likewise if he has even been justly condemned, at least in order to evade death or harsh prison;

d) Therefore he can deceive and terrify guards and officers, but not inflict force upon them or corrupt them so that they fail in their office;

e) Yet an innocent person can, by giving money, induce guards not to obstruct his flight, and repel them or terrify them with arms, because he does not entice them to an act objectively evil; but it is not lawful to wound them gravely or kill them.

To an accused person licitly fleeing, others who are not guards by office can furnish counsel and help; but not by force or breaking of prison, nor if it would greatly harm a third party or the common good.

1. Thus also in the new canon law, at least universal law (can. 1743, § 1 and 1947).

2. Proposition 18 condemned by Alexander VII: "It is permitted to kill a false accuser, false witnesses, and even a judge, from whom an iniquitous sentence is certainly imminent, if in no other way can an innocent person avoid damage."

642. The duties of a witness. Witnesses are those who are legitimately called into judgment to bear testimony concerning the litigated matter; and they can be obliged to appear in judgment, or even to testify.

A. To appear, he is obligated: 1. who has been cited by legitimate authority, because legitimate authority commanding is to be obeyed. The obligation is grave, unless it concerns a matter of lighter moment, or the testimony is not necessary;

2. One not cited, whose testimony is necessary for averting grave damage to the republic or to an innocent third party: for although no one is held per se to offer himself spontaneously for testifying, nevertheless, on account of special circumstances someone is obligated, and indeed if the public good is at stake, even with grave inconvenience to himself; if the private good is at stake, regularly only without grave inconvenience (q. 70, a. 1).

B. To testify, he is obligated who is legitimately questioned by the judge with the order of law preserved; and indeed:

1. He is held under grave obligation to respond according to truth and conscience, unless he is excused by a legitimate cause (a. 1);

2. He can be excused from bearing testimony on account of a founded fear of a public or private evil very notable and proportionate; in which case he can conceal and be silent, indeed say that he does not know when the external circumstances sufficiently indicate that he is not held to speak, because then the manifest sense is: I do not know it for telling in judgment;

3. Yet he can never lie and give false testimony: for this is always a sin, and of itself grave, both against truth, and against religion if an oath has first been given according to custom, and against justice: commutative justice if damage is thereby inflicted upon another, and also legal justice if it is done in public judgment (a. 4).

Generally he is excused from bearing testimony:

a) Who knows the matter from a natural and committed secret; and indeed, if the secret is sacramental, of confession, it can never be violated; if otherwise, unless the common good demands it, or also, but more rarely, the greatest private good (a. 1, ad 2), as will be said where the virtue of truth is treated (n. 855);

b) Who came to knowledge of the matter unjustly, by force or fraud, for example, by unjustly opening another's letters;

c) Who certainly knows that the accused did not sin, although he materially committed the offense;

d) Who prudently fears from his testimony that the greatest damage will befall himself or his own, unless from the testimony denied something much greater would follow;

e) Who knows the fact only from witnesses of little trustworthiness: for then he is judged not to know.

Let it be noted that one who has brought forward false testimony is held to restitution for the damage thereby inflicted, because he positively cooperates in injustice;³ on the contrary, one who concealed or kept silent the truth which he ought to have confessed, and held himself negatively, is not held, unless, however, from commutative justice he had the office of denouncing, because then he is properly a negative cooperator.

³ Cf. Cod. poen., art. 215 sq.