739. Preliminary notions. 1. Witnesses are called suitable persons who are employed for establishing the credibility of some matter. Who can be witnesses, and who cannot, the laws teach.

2. It belongs to the nature of a witness that he know the fact concerning which he testifies; but a witness is judged to know only that which he himself perceives by his senses.

3. A witness in a civil cause, and for the most part also in a criminal cause, must bind himself by oath to saying only the truth and the whole truth.

4. Ancient laws required a determined number of witnesses (at least two) for proving a crime; but modern laws do not require a certain number of witnesses, so that even one witness suffices for condemning a defendant; nevertheless his bare testimony does not suffice for this unless other indications against the defendant are added.

5. A witness is not bound to give testimony except in legitimate judgment, that is, unless the judge legitimately and juridically questions him.¹

¹ A judge questions legitimately if he is a legitimate judge, that is, if he has been furnished with judicial power not only in general but in particular for this cause; he questions juridically if he questions in a judicial process instituted according to the norm of law.

740. On the obligation of appearing in judgment. 1. There exists no obligation of offering oneself spontaneously for testifying except in a twofold case: a. if this is necessary for averting grave damage to the republic: from legal justice we are bound to this even with grave inconvenience; b. if it is necessary for averting grave damage to the neighbor: from charity we are held to this if it can be done without grave inconvenience.

a. Yet where there is question only of the punishment of a past crime, no one must spontaneously offer himself for testifying, because from the omission of such punishment the republic scarcely suffers light damage.

b. If someone has been condemned because of a crime which you know was committed by another, you are not bound to betray the malefactor in order to free the innocent person, provided the malefactor is not the unjust cause because of which the innocent person has been condemned: for no one is bound to help his neighbor with the most grave damage of another, if the latter is not bound to betray himself.¹

2. He who has been cited by legitimate authority to testify is bound from legal justice to appear: for a superior legitimately commanding must be obeyed. This obligation of itself is grave, unless there is question of a matter of light moment or the testimony is not necessary.

¹ Cf. Lugo, disp. 39, n. 1 s.

741. On the obligation of testifying. 1. A witness is bound from legal justice to answer simply according to his conscience to the judge questioning, unless he is legitimately excused. This obligation also of itself is grave.

a. A witness who says false testimony in judgment sins: a. against truthfulness by lying; b. against religion, if, as is customary, he promised by oath that he would say what is true; and c. also against commutative justice if by his false testimony he inflicts damage on another.

b. One thing is to conceal the truth, another to testify falsely; he who, by denying that he knows anything, conceals the truth, does not positively inflict damage, but only does not impede it. Wherefore he does not sin against commutative justice except in the case in which from office or from contract he is bound to testify.

c. If a witness from false testimony given is the cause because of which the defendant is absolved and by this reason the fisc is deprived of a pecuniary fine, he is not bound to repair the damage toward the fisc. For the judge is not bound to repair damages which have come to the fisc from a pecuniary fine not imposed; therefore neither is the witness.¹

2. From giving testimony, even if the judge questions legitimately and juridically, the following are excused:

a. A confessor who knows the matter from sacramental confession, and this in absolutely every case.

b. He who knows the matter only under a natural or committed secret, except those cases in which even a natural or committed secret ceases to oblige.

c. He who from testimony reasonably fears grave damage to himself or his own, unless nevertheless the public or private damage which follows from denied testimony notably prevails. Therefore ordinarily no one is bound to testify against relatives, unless there is question of forestalling public damage, because the precept of the judge does not oblige with so great an inconvenience.

d. He who came to knowledge of the matter through injury, for example by opening another's letters or by inducing another through force or fraud to revelation.

e. He who does not certainly know the fact concerning which he must testify, if, for example, he received it from men not sufficiently worthy of trust.

Therefore if he is commanded to say what he knows, he can hide those things which he heard from others; and if he is commanded to say what he heard from others, he can hide those things which he received from men not altogether worthy of trust.

f. He who knows that the defendant did not sin in conscience, if, for example, he is accused of theft who took property in order secretly to compensate himself: for a witness can answer according to the mind of the one questioning; but the mind of the judge is to inquire into offenses. Nevertheless in a civil cause, in which there is question only of juridical fault, he must testify, even if the defendant did not commit theological fault.

g. He who alone knows the offense or the author of the offense: for unless another testimony or at least other indications of the offense can be brought, the defendant cannot be condemned.

Note. In all these cases a witness who has a just cause of concealing the truth can say that he does not know: for these words from the circumstances can be understood of the knowledge concerning which he is questioned at present.²

¹ Cf. Lessius, De iustitia, l. 2, c. 13, n. 70 ss.

² Genicot II, n. 17.

742. On the obligation of a false witness. He who gave false testimony is bound:

a. To revocation of the testimony; and indeed if he said it materially, or from error, he is bound when revocation is useful to another and does not bring grave damage to himself; but if he said it formally or knowingly, he is bound when it is useful to another and does not bring greater damage to himself than can arise to another from the false testimony. Therefore he is bound even with danger of life, if he has cast the other into the same danger, because in equal damage regard must rather be had for the innocent person.

b. To restitution under this threefold condition: a. if by his false testimony he truly inflicted damage on another (efficacious cause); b. if he did this knowingly, that is, if he knew that he was giving false testimony and that he was held concerning its effects (theological fault); c. if he indeed gave false testimony in good faith, but afterwards did not revoke it, although he conveniently could and revocation would have been useful to another, because he did not impede the damage which he foresaw would follow to another from his materially unjust action.

Question Sixth. On Physicians

Concerning the obligation of having sufficient knowledge and of employing diligence proportionate to the gravity of the matter, it is established from those things which were said above (n. 722); but concerning the obligation of helping the poor, those things must be transferred here which were said above (n. 738) concerning advocates.

743. On undertaking care of the sick. 1. A physician who has not been hired by a stipend is bound to help the sick only from charity.

Hence he commits grave sin if he refuses to help one laboring under a grave disease, where another physician is not present and he himself is not excused because of grave inconvenience.

2. A physician who has undertaken the care of a sick person, from the contract tacitly entered into with him, is bound from justice: a. to help the sick person in the better and more certain way in which he morally can; b. not to abandon him, even if the disease becomes contagious, unless another is found who will conduct his care.

3. A physician who has been hired by stipend is bound from justice: a. to hasten at any hour, even of the night and with his own grave inconvenience, unless he certainly knows that from delay no damage will follow to the sick person; b. to help the sick even in the time of contagious disease.

744. On remedies to be employed. 1. The physician is bound to employ the remedy which he judges safer; therefore if he has a certain one, he must employ it and omit the doubtful one; if he has only doubtful ones, he must employ the more probable, because he must provide for the sick person in the better way in which he can.

a. If the safety of the sick person is despaired of and there is present only a doubtful remedy, namely one which can help and in no way harm, he can and must employ it, because by this reason he helps the sick person in the better way in which he can.

b. If the safety of the sick person is despaired of and there is present only a doubtful remedy, namely one which can bring health but also can hasten death, it is lawful to employ it, provided he has some reason, even slight, of thinking that it will be useful, because this reason causes the harm from the remedy to become less, and the hope of advantage greater.¹

c. If the safety of the sick person is not despaired of, it is not lawful to employ a doubtful remedy, namely one which can help and can harm, because it can happen that a doubtful death is rendered certain. In this case it must be committed to nature, that nature itself may raise itself up, especially if the sick person would be unwilling; therefore if a remedy doubtful in this sense is employed without the knowledge of the sick person, at least his interpretative consent must be established.

2. Since to expose another's life to danger is evil in itself, it is never lawful to test a remedy with danger to health or life, not even with the consent of the sick person, since he is not the master of his own life. Nor is the reason valid that the remedy, once its power is known, will be salutary to others, because it is not lawful to do evil that goods may come to others. Yet it would be lawful to test a remedy with the consent of the sick person if there were question of light damage, which can easily be repaired.

3. He must altogether abstain from employing illicit remedies and operations, of which kind are: a. procurement of abortion; b. remedies of sterility; c. craniotomy; d. mesmerism; e. use of morphine, opium, cocaine, etc., in that mode and degree in which these harm mind and body, and things of this kind.² Whether it is lawful to employ hypnotism will be said below.

For those operations must be called illicit and unjust both by which the sick person, without his consent, is exposed to danger of life, and those by which the sick person, illicitly consenting, exposes himself to danger of life. Now one may expose oneself to grave danger of life only in order to remove a notable or dangerous inconvenience. In such great proclivity as now exists of rashly performing any surgical operations whatever and of employing harmful or doubtful remedies, especially in hospitals of the poor and of children, physicians easily offend against justice, so that they are held even to repairing damages.

4. A physician sins gravely against chastity who, without true necessity or manifest utility, inspects or touches the genital organs of women; and more gravely he who gives counsels to the sick which are directly opposed to the law of chastity.

¹ Cf. Burghaber, Centuriae casuum, I, n. 12.

² Cf. Capellmann, Medicina pastor., p. 32 ss.

745. Obligation as regards the sick person. 1. By natural right physicians are bound, either by themselves or through another, to warn a sick person who is in proximate danger of death concerning the grave danger, so that he may receive the sacraments and arrange his temporal affairs, if the warning is necessary for avoiding grave damages: for from charity they are bound to remove grave evil from the neighbor if they can without grave inconvenience.

a. If others either would not wish or would not be able to warn the sick person, likewise if the sick person would not believe others warning him concerning the danger, the physician himself is bound to warn him. Nevertheless in a twofold case he is excused from giving this warning if inconvenience is added: a. if he knew with moral certitude that the sick person is in the state of grace and has already arranged his temporal affairs; b. if with the same certitude he knew that the sick person is so hardened in his impiety that even if warned he would reject the sacraments.

b. The Fourth Lateran Council under Innocent III (1215) had decreed that a physician should not undertake the care of a sick person (dangerously lying ill) unless he had confessed.¹ St. Pius V, in the constitution Supra gregem (Mar. 8, 1566), confirmed this decree and at the same time prescribed that physicians, before they were promoted to the doctorate, should promise by oath that they would warn the sick person laboring under grave disease, before undertaking his care, about making confession, and that they would no longer visit him if he had not confessed within three days. Nevertheless these laws in most regions were never received; but where they had been received, they fell into desuetude.

2. They are bound to keep secret (official-committed), if need be, concerning those things which they perceived only from care of the sick person.

As regards the obligation of bearing testimony in judgment concerning those things which a physician knows under a committed secret, diverse codes establish diverse things; likewise as regards the right and obligation of revealing a secret for driving damage away from the neighbor, for example, of revealing the hidden disease of a bridegroom, lest marriage be contracted with danger of infecting the future wife.

¹ C. Quum infirmitas 13, De poenit. et remiss. (V, 38).

746. Obligation as regards expenses. 1. They are bound from justice to avoid useless expenses.

Therefore they sin if without necessity they call other physicians; if for the sake of gain they multiply visits without utility; if they demand too great a stipend for visits; if they prolong treatment for too long; if they prescribe useless or superfluous remedies.

2. They act unjustly if they demand a price greater than ordinary: for he who seeks the work of a physician in a common infirmity is judged implicitly to agree with him concerning the ordinary price. The ordinary price is determined by use and is diverse according to the diverse condition of men.

If extraordinary services are sought from a physician, for example a difficult surgical operation which supposes singular skill, and a pact concerning the price to be paid has not preceded, it is not lawful for him to demand whatever price he likes at will, but that price into which the sick person is judged tacitly to consent. But he tacitly consents to a price which, taking account of the labor, difficulty, etc., has proportion with the stipend which the same most skilled persons are accustomed to demand for ordinary services from persons of the same condition.¹

Whether it is lawful to provide to a sick person whose safety is despaired of remedies which are indeed harmless, but also useless. It is lawful with the presumed consent of the sick person and after warning his relatives, provided the expenses are not great. For if the sick person is troubled on the one hand because nothing is prescribed for him, but on the other hand is affected by consolation because something is provided to him, the remedies must not be called wholly useless, so that the consent of the sick person in this case can easily be presumed.

¹ Genicot II, n. 21.