Article II: On the Witness and the Accused in Judgment

I. On the Witness. The obligation of testifying, on account of sufficient private or public necessity, is from charity, whose debt is urged by legitimate citation.

But he who appears is held from justice to say nothing false which is harmful to a party. But when an oath has been taken, he is now forbidden by religion to lie, and he must tell the whole truth to one legitimately questioning him concerning the cause which is being treated. As to telling the whole truth, this promissory oath admits smallness of matter. Cf. what was said at n. 193.

An oath which is furnished to an incompetent judge can be regarded either as fictitious, or, if it was true, it will not oblige except to manifesting those things which can be narrated to such a judge.

Nor should the following be said even to a legitimate judge: a) those things concerning which he questions illicitly or not legitimately, i. e. without the order of law being observed; b) those things which are known under committed secrecy or by injury, with the exceptions saved which limit the obligation of secrecy (cf. nn. 698 and 699); c) those things which would be too damaging to the witness or to his own; indeed, the damage of a third party which would clearly outweigh the utility of the testimony seems to suffice that you conceal the matter: the judge is not presumed to wish that you reveal these things; d) facts in which another has not sinned, if the interrogation is concerning a delict.

If at some time you must confirm by oath the legitimate response "I do not know," by which you merely declined a response, you are judged to confirm that true thing itself which signifies: "I do not wish to respond." Or if that sense is too hidden, the oath will lack an object, i. e. it will confirm nothing.

Revocation of false testimony is governed by common principles. To aid sincerity, laws sometimes establish that false testimony is not consummated except after the final words by which the witness declares that he perseveres in what he has asserted.

To free an innocent man, you will have to appear of your own accord: not, however, if another, even one guilty, would thence be condemned to an excessive penalty. The principles concerning the obligation of charity must be applied.

On the accused in criminal judgment. 1. On confession of the delict. Now by no civil law is the accused held to confess the delict.

Must the same be said in canon law? Noldin, II, n. 733, thinks that the distinction still comes into use which, before the Code, was made between lesser delicts, which one legitimately questioned had to confess, and greater delicts, which one, with attention to grave penalties, would not confess without heroic virtue. But he uses an argument of no value. For he adduces the words of canon 1646: "the accused, legitimately convened, must respond"; but in that canon the word respondere is taken in a juridical signification, which is the same as if you should say: "one legitimately convened must present himself before the judge." But in a criminal judgment the Code so orders the process that it in no way mentions an obligation of confession; and for one accused who confesses, it wills per se that judicial correction be substituted for criminal judgment (c. 1947).

But if the accused can conceal the delict, neither are the words which he uses for concealment to be held as lies. For from the circumstances themselves they appear not to have been uttered seriously.

But where, either from defect of competence or from violated law, legitimate interrogation is lacking, it is manifest that those arts are much more lawful.

2. On action against witnesses. Whether they are voluntary or compelled, it is lawful for the accused to defend himself against witnesses, even by revealing a fact whence their reputation is injured, provided there is an equal proportion between the damage thus actively permitted and the hoped-for utility of the revelation. The accused must abstain from calumnies. Yet if the witness himself was lying, or is questioned in a non-legitimate judgment, that defense seems to oppose truth, but not justice.

3. On declining the penalty. It is lawful for the accused to decline the penalty by flight, even, if the utility is of sufficient moment, by breaking open or destroying the prison. In this matter he can be aided by friends, but not by public guards. He cannot resist them, nor corrupt them by money. He is not forbidden to deceive the same men craftily. The damage which they will suffer cannot be imputed from justice to the accused who is using his right; yet where proportion between his own utility and the guard's damage is lacking, charity will command that he abstain from the injurious action. Nor, according to the opinion of many, must he repair damage brought upon the building. Cf. Lehmkuhl, I, 979.

If the sentence was unjust, it will be lawful to corrupt the guard, forewarned concerning the injustice, or to buy his connivance by a price. If the sentence was only materially unjust, Lehmkuhl, I, 978, permits the accused only that resistance which he can employ without grave violation of others and with hope of escape. But if it is formally and sufficiently notoriously unjust, there will now be no scandal given through resistance. St. Thomas, 2, 2, q. 69, art. 4, says that that judgment is similar to the violence of robbers. Then, with attention always to the proportion of the evil of the penalty, the hope of success, and the damage of the others who will at least be materially unjust aggressors, it will be lawful to resist the ministers of justice themselves as robbers.

But it is not lawful to anticipate by killing a false accuser, false witnesses, or a judge from whom an unjust sentence certainly threatens. Cf. the already cited proposition 18 of Alexander VII (cf. n. 607).

I. 1. The virtue of truth or veracity inclines to the right use of signs by which man communicates with others or has commerce. Taking care that words are consonant with our mind, it procures the truth which is called moral. Insofar as it pursues equality and rectifies our conversation with others, it is a potential part of justice. Its office can in some cases be commanded by the very virtue of justice.

2. Sincerity, midway between distrustful dissimulation and indiscreet revelation of one's own affairs, impels man to a full but prudent manifestation of himself.

3. To these virtues there are opposed, by excess, indiscretion; by defect, lying. While dissimulation merely hides one's own person, simulation is lying by deeds. Hypocrisy means a peculiar simulation by which someone simulates himself as different from what he is.

II. Obligation of a witness in judgment. Charity urges the very obligation of testifying; justice forbids that anything false harmful to a party be said; the religion of a promissory oath besides obligates the witness, when legitimately questioned, to lay open the whole truth. Except, per se, those things which are known either by injury or under committed secrecy; those which are too damaging to the witness or to his own; indeed, according to the reasonable will of the judge, those things which would bring damage to a third party not at all compensated by the utility of the testimony; facts by which another has not sinned, if the interrogation is made concerning a delict.

III. By modern law, the accused is never bound to confess his crime or sin. Wherefore neither is his denial to be held as a lie, since, from the circumstances, it can be ambiguous and merely signify the will of not confessing.

He is permitted usefully to defend himself against witnesses, even by revealing their hidden vices, if proportionate utility is hoped from this.

He can decline the penalty by fleeing, but not by violently resisting ministers or corrupting them with money, unless he has wished to redeem himself from the vexation of an unjust sentence.