§ 3. On The Obligations And Sins Of Witnesses

160. 1. Generally speaking, the statutes of civil laws concerning giving or refusing testimony can be considered as obliging in conscience, since they seem to be sufficiently just.²⁴⁶ A much greater obligation rests upon those who by force of their office are held to furnish an oath or testimony (commonly Amtseid) than upon other men, who by transgressing those statutes of themselves wound only legal justice.

2. The obligation of giving testimony can arise:

a) from charity, namely, if testimony is necessary for avoiding damage of the neighbor or of the republic. Since this obligation of charity arises from natural law, anyone is held even spontaneously and unasked to offer himself for testifying if otherwise notable damage of the neighbor or of the republic cannot be avoided.²⁴⁷ Hence if someone has been condemned for a homicide which you certainly know was committed by another, you must appear spontaneously as a witness for freeing the innocent man.²⁴⁸ But when testimony is joined with damage of the one testifying, the rules given above, I, n. 579 sqq., concerning the order of charity must be applied. For no one is held from charity to forestall another's damage with equal or greater damage of his own.

b) from commutative justice, namely, if someone by force of his office is held to give testimony; e.g., a guard who is asked by a legitimate superior about some crime seen.²⁴⁹

c) from legal justice or from obedience, namely, if someone is lawfully cited by a legitimate judge to testify.²⁵⁰ For this citation of witnesses is necessary for the common good and for preserving judicial order.

3. Excuses from giving testimony. Several cases are found in which a cited witness either can or must refuse testimony. Cases of this kind are:

a) The secret of the confessional seal to be observed. For those things which the priest knows from sacramental confession he does not know as a man, but as a minister of God. Hence the confessor never ought, indeed cannot even, testify concerning those things which he knows from confession.²⁵¹ And truly the greatest inconveniences would arise for the Christian religion if ever a confessor could, without the express permission of the penitent, disclose a secret had from sacramental confession. Indeed it has been salutarily established in canon law that a priest, even if released from the bond of the seal, can never in ecclesiastical judgment testify concerning those things which he knew from sacramental confession.²⁵²

b) Professional secret also for the most part prohibits testimony from being given. Hence physicians, advocates, pharmacists, etc., neither can nor ought to testify concerning matters known from their office.²⁵³ I say "for the most part"; for if it is necessary for averting grave damage, whether common²⁵⁴ or another's or one's own, there can be an obligation of testifying; e.g., a physician who from his office knows that some woman procures abortion rather often in other women is held to render testimony for avoiding the gravest evils of several abortions.

c) If from the testimony grave damage arises either for the one testifying himself or for the near relatives of the one testifying. This excusing cause is usually admitted by modern Codes and also by the Code of Canon Law c. 1755. Hence, e.g., no one is held to give testimony against his own parents.

d) If the judge is not legitimate, or if he does not interrogate legitimately. Hence, e.g., a cleric, speaking absolutely, is not held to furnish testimony before a civil judge. Nevertheless, because modern laws are not accustomed to acknowledge this immunity of clerics, and because illegal refusal of testimony is gravely punished, hence in practice a cleric neither can nor ought to refuse testimony from the sole title of clerical immunity.

e) If the witness came to knowledge of the matter through injury, e.g., because he secretly opened another's letters.²⁵⁵ For the acquisition of the knowledge was already unjust, and the testimony of that knowledge would be still more unjust.

f) If there is question only of the punishment of someone's crime, which is not so necessary for the common good; e.g., one knowing of a homicide committed by someone drunk can sometimes by lawful means withdraw himself from giving testimony, provided that from this no suspicion of the crime falls upon another or other grave damage arises.

4. The fault of false testimony. He who gives false testimony of himself sins gravely against justice; hence a false witness in Sacred Scripture is called hateful before God.²⁵⁶ According to St. Thomas,²⁵⁷ false testimony has a threefold deformity: a) from perjury, because witnesses are not usually admitted to testifying unless sworn. But perjury is a very grave sin against the virtue of religion, which is a potential part of justice. b) from violation of justice, whether legal justice, which gravely commands true testimony to be given by a witness legitimately cited, or commutative justice, since almost always from false testimony grave real damages of the neighbor or of the republic arise. c) from the lie itself; for false testimony is directly opposed to the virtue of truthfulness, which likewise is a potential part of justice. Therefore St. Augustine deservedly says: "A false-speaking witness is liable to three persons: first to God, whose presence he contemns; then to the judge, whom he deceives by lying; last to the innocent man, whom he wounds by false testimony."²⁵⁸ - By accident (but rather rarely) false testimony furnished without an oath can be a light sin, namely, if it arose from inadvertence or forgetfulness, or from very slight matter.

²⁴⁶ For ecclesiastical law see Code of Canon Law c. 1755.

²⁴⁷ Cf. S. theol. 2, 2, q. 70, a. 1.

²⁴⁸ The contrary opinion of Lugo (De iust. disp. 39, n. 1) and of his followers does not seem probable.

²⁴⁹ The obligation of giving true testimony is grave for officials of this kind, both because an oath (Amtseid) intervenes and because, by freely undertaking such offices, they have entered a contract of denouncing to legitimate superiors those things whose care was imposed upon them. Hence officials of this kind are held to restitution if real damage has come about from their false testimony or from the omission of due testimony.

²⁵⁰ Code of Canon Law c. 1766.

²⁵¹ S. theol. 2, 2, q. 70, a. 1 ad 2.

²⁵² Code of Canon Law c. 1757, § 3, n. 2.

²⁵³ Ibid. c. 1755, § 2.

²⁵⁴ S. theol. 2, 2, q. 68, a. 1 ad 3.

²⁵⁵ St. Alphonsus, Theol. mor. l. 4, n. 268 (5).

²⁵⁶ Cf. Prov. 6, 19.

²⁵⁷ S. theol. 2, 2, q. 70, a. 4.

²⁵⁸ It is also found in c. 1, X 5, 20.

161. 5. The obligations of a false witness. He who knowingly and voluntarily has given false testimony and in this way has truly wounded commutative justice is held to repair all damages arisen from this false testimony. But from false testimony commutative justice is not always wounded; e.g., he who by false testimony has freed a guilty person from the penalty of prison quite often has brought grave real damage upon no one and therefore is not held to restitution. The matter stands somewhat otherwise if someone by false testimony has freed the guilty person from a monetary fine to be paid to the government. On this matter Noldin²⁵⁹ writes after Lessius: "If a witness from the false testimony given is the cause on account of which the guilty person is absolved and by this reason the treasury is deprived of a monetary fine, he is not held to reparation of damage toward the treasury. For the judge is not held to repair damages which have come to the treasury from a monetary fine not imposed; therefore neither is the witness." But whatever is to be said concerning the obligation of the judge, which seems to have to be judged according to the diverse laws which he violates, insofar as they are either merely penal laws or preceptive laws,²⁶⁰ the false witness impeding a monetary fine to be paid to the treasury is held to restitution if this fine is imposed for repairing damages caused, but not if this fine is the effect of a merely penal law. E.g., Peter, who brought damage to a public building, is freed from the obligation of repairing the damage by the perjury of Paul. If Peter does not repair this damage, the obligation falls upon Paul. But Peter, who is just about to be condemned to pay a fine of one hundred francs on account of injurious words against the emperor, is freed from this fine on account of the perjury of Paul. In this case neither Peter nor Paul is held to pay the fine.

When the false witness has culpably wounded commutative justice, he is held to repair the damage caused, even if he himself must suffer equal or even somewhat greater damage. The reason is that the false witness is an unjust damager, who is held to repair every damage which he caused with grave theological fault. If a witness by bringing forth false testimony from inadvertence or with light fault has caused grave damage, he is held to revoke his testimony and thus repair the damage. But what if the false witness cannot repair the damage caused unless by gravely defaming himself and incurring the greatest damages, e.g., the penalty of a rather long imprisonment? - Lehmkuhl²⁶¹ asserts against Schwane that the false witness is held to confess his crime. But in the work Cases of Conscience²⁶² he speaks more mildly. And truly the common adage says: "No one is held to defame himself." Besides, it seems to be a heroic act, which cannot be exacted from a penitent, that he should confess that he voluntarily committed perjury and that he should accept the harshest penalties of prison and deprivation of honor imposed against perjurers. Hence the obligation of gravely defaming oneself in practice is not to be imposed upon the penitent, unless nevertheless there is question of avoiding the death of another. It is sufficient that he repair the damages caused to others by whatever better ways he can.²⁶³ The quantity of this reparation can sometimes be determined with difficulty.

6. Price for testimony. A witness of himself can exact nothing for giving the testimony itself.²⁶⁴ Nevertheless modern civil laws and also ecclesiastical law determine the fitting compensation due to him for expenses of the journey or for time spent.²⁶⁵

²⁵⁹ De praeceptis n. 241.

²⁶⁰ Cf. above, n. 153.

²⁶¹ Theol. mor. I, n. 982.

²⁶² I, n. 639.

²⁶³ Cf. Gopfert, Moraltheol. II, 263.

²⁶⁴ Cf. S. theol. 2, 2, q. 71, a. 4 ad 3.

²⁶⁵ Cf. Code of Canon Law c. 1787.