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.

650. Who Must Assist, and How. In order that matrimony be valid, from the Tridentine decree and from the new Code at least two witnesses must assist at it.¹ The new law requires no special quality in them.

1. All can be witnesses who can testify concerning something; therefore, for the validity of matrimony, it makes no difference whether the witnesses are men or women, faithful or infidels, blood relatives or outsiders, pubescent or impubescent, provided they have use of reason and can testify concerning the contracted matrimony. Nevertheless acatholic witnesses are used illicitly where Catholics can be had.²

2. In order that they can validly testify concerning the matrimony, the presence of all the witnesses (of the parish priest and of the others) is required to be a. physical, so that they can know what is being done; b. simultaneous, for since they must make faith concerning the same act, they must be present at it together; c. formal, that is, the contracting parties must have the intention of using their presence for celebrating matrimony, which intention they can sufficiently express by eyes, nod, etc., provided the witnesses notice this intention.³

Therefore even one who is present by chance, who is induced by fraud or fear to testify, can validly be a witness; this nevertheless does not have force concerning the parish priest.

¹ Cn. 1094.

² S. Office, August 19, 1891, established that "they are not to be used (heretics); nevertheless they can be tolerated by the ordinary from a grave cause, provided scandal is not present."

³ Ballerini-Palmieri VI, n. 859.

Charity or obedience may impose an obligation to give evidence in a court of justice. If serious harm can be prevented by offering one’s self as a witness, there will as a rule be an obligation to do so, and obedience imposes the obligation when one is summoned by lawful authority.

A witness is bound by his oath and by obedience due to lawful authority to tell the truth in answer to the questions lawfully put to him. How far he is privileged when examined concerning what he knows under secret, we saw when treating of the Eighth Commandment of the Decalogue. He is not bound to incriminate himself, nor, of course, may the seal of confession ever be broken (cf. Can. 1755).

The canon law laid it down that two witnesses of unsuspected character were necessary and sufficient evidence of any fact alleged in a court of justice. A solitary witness was not usually sufficient or admissible evidence of a crime, and in keeping with this the theologians decided that a solitary witness should not declare what he knew of a crime, inasmuch as he was not lawfully interrogated. English law, however, with most modern systems, admits one witness, if credible, as sufficient evidence of a fact, and so as a rule there will be an obligation on such a one of answering according to his knowledge when questioned lawfully in a court of justice (cf. Can. 1791).

(St. Thomas, II-II, q. 70; St. Alphonsus, Theologia Moralis, book IV, nn. 255-271; Homo Apostolicus, tract 13, nn. 79-81.)

I. The Obligation of Testifying. The following are bound to testify and to confess the truth:

1. By charity one is bound if his testimony "is necessary for averting a great evil of a neighbor or of the state" (St. Alphonsus IV, 264).

2. By office, and by justice, the same persons are bound who by reason of office are bound to denunciation (n. 1140).

3. By precept, one is bound who is legitimately cited and questioned. One who flees when legitimately cited, or who does not confess the truth when legitimately questioned, sins, but does not wound commutative justice, and therefore is not bound to restore to him in whose favor he could have testified (St. Alphonsus IV, 264).

To what extent a cleric can be cited and questioned by a civil judge, see n. 1153.

II. Excusing Causes. A witness is excused from testifying and manifesting the truth (or even, according to circumstances, is bound to abstain from them):

1. If he has known the matter under sacramental secrecy, or has acquired knowledge of the matter for himself through injury, for example by opening letters. If he has received knowledge of the matter under an entrusted secret, the things said concerning denunciation hold (n. 1140; St. Alphonsus IV, 268). For the rest, the law itself also commonly exempts doctors, advocates, priests, etc., from testifying with respect to those things which have been manifested to them in view of their office.

2. "If from the testimony notable harm threatens you or yours, unless nevertheless public harm or another's private harm prevails" (St. Alphonsus, loc. cit.).

3. "If you received it from men not sufficiently worthy of faith; for then you can conduct yourself as if you knew nothing" (St. Alphonsus, loc. cit.).

4. If someone is brought before the judge without probable indications of a crime. For injury is done to such an accused person (cf. St. Thomas, II-II, q. 69, a. 2; St. Alphonsus, loc. cit.), which the witnesses should not increase by testifying against him; but this excusing cause will scarcely obtain.

5. If the accused is probably immune from grave theological fault (St. Alphonsus, loc. cit.); in which case the witness ought to respond that he knows nothing, or even that the accused did not commit the crime. If, however, there is question of a civil cause, the witness ought to confess the fact, even if only juridical fault was present.

6. A spouse and near blood relatives are often excused because of grave inconvenience; indeed civil laws generally exempt them.

Corollary I. One who is exempted or excused can also licitly use a restriction that is not purely mental. Moreover, the more obvious restriction is that by which the witness, when questioned, says that he knows nothing, understanding: which I am bound to manifest. And this holds even if he has sworn an oath to tell the whole truth; nevertheless he should proceed prudently.

Corollary II. A witness who is bound to testify and to confess the truth sins by merely concealing the truth: 1° against a just precept, which is grave from its kind; 2° against religion, if he swore that he would tell the whole truth. If, after this oath has been sworn, he lies or uses a purely mental restriction, he is guilty of perjury; if he is silent or uses a broad mental restriction, he is not indeed guilty of perjury, but he wounds the oath insofar as it is promissory; this is a sin grave from its kind (n. 689); 3° against commutative justice, if he is bound by reason of office; otherwise not, if he is bound only either by charity or by reason of the precept of the judge (St. Alphonsus IV, 270).

Corollary III. A witness "who knowingly has testified falsely, through which he was an efficacious cause of harm to another, is bound to the prevention or reparation of all damages which are caused. Likewise he is bound to retract with equal harm to himself, and even with danger of life, if the accused is endangered in it and he is thought by retracting to be about to accomplish something" (St. Alphonsus IV, 269). If he was not gravely culpable, he is not bound to restitution; nevertheless he ought to retract the testimony, if this can be done conveniently enough (St. Alphonsus, loc. cit.; n. 994).

III. With respect to ecclesiastical causes to be treated before an ecclesiastical judge, observe these things:

1. A witness duly cited ought to appear or make known to the judge the cause of his absence (can. 1765, § 1).

2. A disobedient witness, namely one who without legitimate cause does not appear, or even if he appears refuses to respond or to take an oath or to sign the attestation, can be coerced by the judge with suitable penalties and moreover fined in proportion to the harm which comes to the parties from his disobedience (can. 1765, § 2).

3. Witnesses must respond to a judge legitimately questioning them and confess the truth (can. 1755, § 1).

4. From the obligation assigned under 3 are exempted: 1° pastors and other priests as regards those things which have been manifested to them by reason of the sacred ministry outside sacramental confession; magistrates of states, doctors, midwives, advocates, notaries, and others who are bound to secrecy of office even by reason of counsel furnished, as regards matters subject to this secret; 2° those who fear that from their testimony infamy, dangerous vexations, or other very grave evils will come upon themselves or upon blood relatives or relatives by affinity in any degree of the direct line and in the first degree of the collateral line (can. 1755, § 2).

Reliability of Witnesses and Testimony.—A witness in court is a person who declares during a judicial proceeding that he knows some statement, deed or omission in reference to the matters at issue. The testimony of witnesses has proving force only in so far as these persons appear to have knowledge of the matters on which they testify and appear to be truthful. Hence, certain kinds of witnesses and certain kinds of testimony are unreliable.

(a) Thus, a witness is unreliable either through his own fault (e.g., if he is regarded in his community as below the standard in truthfulness, or has the reputation of being a calumniator) or without his own fault (e.g., if his powers of observation or his memory are subnormal, or he is devoted or hostile to or dependent on one of the contending parties). It is a duty, indeed, to presume good of a person in whom the opposite does not appear, if he is the only one whose interests are concerned; but when there is danger to a third party, one must be on one’s guard (see 1744). Hence, St. John admonishes not to believe every spirit (I John, iv. 1).

(b) Testimony is unreliable because of the number of the witnesses (e.g., one witness is often legally insufficient to prove, especially in graver matters), or the quality of their evidence (e.g., because in substantial points a witness contradicts himself or is contradicted by his co-witnesses, or because there are signs of collusion or conspiracy), or the counter-evidence of the opposition.

Obligation of Freely Appearing as a Witness.—(a) There is an obligation of commutative justice to offer testimony, if one is under contract to do this, as when one is hired as a detective or agent to gather evidence against lawbreakers.

(b) There is an obligation of legal justice to testify, even at the cost of serious inconvenience, if the testimony is necessary for averting a serious evil that threatens the common welfare. A person who knows of a plot against the peace of the State should bring this to the notice of the authorities, even at the risk of his life. But a person who knows that a crime has been committed, is not bound to give witness about it, if the escape of its author will not be a serious detriment to public or private welfare (e.g., if one knows that an apparent case of suicide was really a homicide committed by accident).

(c) There is an obligation of charity to testify (but not at the cost of serious inconvenience), if the testimony is necessary for averting a serious evil that threatens a private person. A person who can prove that the evidence which is about to hang an innocent man is false should testify for the accused, unless the testimony will bring an equal evil upon himself.

Obligation of Appearing under Lawful Citation to Give Testimony.—(a) He who avoids citation (e.g., by flight into another jurisdiction, by concealment of his person when the subpoena is being served), more probably does not violate legal justice by this act, since a precept that has not been received cannot be violated. (b) He who disregards citation offends legal justice, since the summons to appear has a claim on his obedience. But it does not seem that he violates commutative justice, unless the party for whom he could testify has a strict right to the testimony.

Obligation of Witness to Answer Truthfully.—A witness who is questioned legitimately (i.e., by one who has the authority to question him) and juridically (i.e., according to the form and order prescribed in law) is obliged per se to answer according to the truth as he knows it, for one is bound to obey a superior when he gives a lawful command. But there are exceptions to this rule per accidens, that is, when a higher law exempts one from the necessity of divulging a certain matter, or when the question asked refers only to what one knows juridically. In all these cases the witness may answer that he does not know, for he has no knowledge that he may, or should, or must use.

(a) Thus, the natural law permits reticence when a revelation would work notable damage to the witness or those closely related to him, for the command of a superior does not oblige under such great inconvenience. This supposes, of course, that the revelation is not required in order to prevent a great harm to the commonwealth or a far greater harm to a private person than that which threatens the witness. A person who knows that he will be assassinated if he testifies against a powerful criminal is not ordinarily bound to make the sacrifice. Canon and civil law excuse witnesses from making disclosures that would expose them to prosecution or penalties (see Canon 1755, Sec. 2, n. 2).

(b) The natural law commands reticence when a revelation would be injurious to divine, public or private rights.

Matters Regarding Which a Witness Should Not Testify.—There are certain cases in which natural law forbids a witness to make known a fact about which he is questioned.

(a) A witness may never testify to matters known to him only from Sacramental Confession, for to break the seal of confession is an injury to the rights of God. In an ecclesiastical process a priest may not testify from Sacramental knowledge, even though he has the penitent’s permission (Canon 1757, Sec. 3, n. 2).

(b) A witness may not testify as a rule to matters that are known to him only in a confidential way, such as the communications between lawyer and client, physician and patient; for the public interest as well as the interest of individuals requires that generally there be security against defamation for those who give their confidence to others, especially if they are in great need of professional assistance. Privileged communications are recognized both in Canon Law (Canon 1755, Sec. 2) and in civil law. But knowledge obtained as a secret may be used when this is necessary in order to avert a great evil that threatens the public welfare or the welfare of an innocent person, whether this person be the giver of the secret, or a third party, or oneself; for to oblige to secrecy in these cases would be to throw protection around crime. Thus, a lawyer may make disclosures of confidential knowledge, if this is necessary in order to defend himself against the false accusations of a client, or to prevent a crime which the client intends to commit.

(c) A witness may not testify to matters about which he has unjust knowledge (e.g., by wire-tapping, by unjust coercion, by intoxicating another person, by reading private papers without permission), for, as the knowledge was unjustly acquired, it cannot be justly used (see 2420).

Sinfulness of False Testimony.—When we speak of false testimony, we mean testimony which the witness knows to be false.

(a) By reason of his false oath, the witness is guilty of perjury, which is a grave sin against the virtue of religion.

(b) By reason of the injury done by the testimony, the witness is guilty of injustice, which from its nature is a grave sin. In the Decalogue (Exod., xx. 16) false testimony is forbidden among the sins against justice: “Thou shalt not bear false testimony against thy neighbor.” Legal justice is offended, since false testimony is an act of disobedience to lawful authority, and usually commutative justice is also violated, since by false testimony one of the litigants as a rule suffers loss.

(c) By reason of the deliberate falsehood, the witness is guilty of lying, which, however, is not always a grave sin.

Obligation of Witness to Make Restitution.—The obligations of restitution by a witness on account of failure to perform his duties properly are as follows:

(a) if the witness has not sinned against commutative justice, there is no obligation of restitution (see 1753). Hence, if he has evaded testimony to which he was bound in legal justice or charity alone, he is guilty of sin, but he is not held to restitution. Similarly, if he has given false testimony and thereby deprived the State of a fine under a penal law, or saved a guilty party from punishment, he has sinned against legal justice, but is not obliged to make good the fine or pay damages;

(b) if the witness has sinned against commutative justice, materially but not formally, he is not the gravely guilty cause of damage, and hence is not obliged from justice (but there may be an obligation from charity) to make restitution (see 1764). But if he perceives that his testimony was materially or venially unjust and will cause serious damage, he is obliged to recall his testimony, or in some other suitable way prevent the damage, if this is possible (see 1769);

(c) if the witness has sinned against commutative justice formally, he is the efficacious and culpable cause of the damage that results, and hence is bound to restitution, unless there is an excusing cause (see 1797 sqq.). Thus, if false testimony, or testimony about matters which the witness had no right to disclose, has led to the death sentence for an innocent man, the witness who gave that testimony must retract, even at the risk of his own life; for in equal danger the rights of the innocent have the preference. Again, if Titus by false testimony has saved Balbus from paying damages for injury done to public property, Titus must make restitution for the loss caused, if Balbus will not make reparation.

Is a witness guilty against commutative justice when he unlawfully conceals facts and damage results thereby to another person? (a) If by concealment is meant the destruction of evidence (e.g., the burning of a will or letter or forging), the witness or other person responsible is guilty of a positive act of commutative injustice and is bound to restitution. (b) If by concealment is meant silence about material facts that the witness is lawfully called on to disclose, distinction has to be made between the witness who is not obliged from contract to give evidence and the witness who is so bound. The former witness is a negative cooperator and sins against legal justice and charity; the latter witness is a negative cooperator and sins against commutative justice (see 1780).

Payment of Witnesses.—Is a witness permitted to accept pay for giving true and lawful testimony?

(a) For the testimony itself a witness may not accept pay, for he is bound to tell the truth freely, just as the judge is bound to dispense justice freely.

(b) For the expenses he incurs and the time he loses by reason of his assistance in court, he may accept pay; since, as St. Paul says, he who does a service for another is not required to meet the expenses of the service (I Cor., ix. 7). Both Canon and civil law make allowances for suitable compensation to be granted to witnesses (see Canons 1787, 1788). But if a witness receives compensation in excess of what is allowed by law, the court and the adverse party have a right to be informed of this.

Concealment of Truth in Presenting a Case.—Is concealment of the truth in the presentation or defense of a case sinful?

(a) If concealment is not unjust or mendacious, it is lawful. Indeed, a lawyer should conceal such facts as would be harmful to his own case (e.g., incidents that are really of no moment, but that would create prejudice against his client), or as he has learned in confidence. This is not unjust, since the opposite party has no right to the knowledge, and it is not deception, since it does not cause but merely permits others to draw erroneous conclusions. Neither is an advocate bound in justice to point out to the opposition matters favorable to their case, of which they are ignorant or which they do not notice.

(b) If concealment is unjust or mendacious, it is unlawful. Thus, if a lawyer discovers that serious fraud has been practised or that the court or the opposition has been harmfully imposed upon, he is unjust if he takes advantage of this through silence. Similarly, a prosecutor is unjust if he suppresses facts or testimony or papers that would establish the innocence of an accused person.

The Sinfulness of Introducing False or Corrupted Documents.—(a) Truthfulness is sinned against by this practice, whether the document be entirely fictitious or a copy substituted for an original that has been lost, or an authentic instrument has been changed or interpolated (see 1980 a, 1991).

(b) This practice is also against legal justice, since the law requires that no misrepresentations be made about the evidence produced. Indeed, this is a very serious matter, for, if it were ever permissible to tamper with documentary evidence, a way would be opened to frauds innumerable to the great detriment of the public.

(c) Commutative justice is offended by this form of dishonesty, if the cause defended is not certainly just; for the opposite party, since justice is perhaps on his side, has the right that he be not defeated by untruthful means. But if the cause defended is certainly just, there is not per se any violation of commutative justice, since the adverse party is not deprived of anything that is his, but is rather prevented from doing injustice; per accidens, though, there might be commutative injustice (e.g., if the use of a forged exhibit was known to be risky and did actually lose the case for a client).

(d) Charity to self is violated by this deception, since a lawyer should not value his client’s interests above his own conscience, reputation and prospects.

Note: Cases to be treated are some ecclesiastical, concerning sacred things or things annexed to them; others civil, concerning profane things; others are mixed. The former are directly of the ecclesiastical forum, the latter of the secular forum, unless they are cases of clerics, and indirectly also of the ecclesiastical forum, and the latter are of mixed forum, when the rights are at once civil and ecclesiastical; and in these there is place for the Rota. To the Rota are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. As regards ecclesiastical cases, once a supplicatory petition for obtaining a matter, whether pertaining to grace or to justice, has been brought and received by some office of the Roman Curia, no one for any reason is permitted of his own accord to approach another office for the same end; but the consent of the office itself with which business has begun is necessary, or a decree of the Consistorial Congregation, by which permission is given for transferring the business. Matrimonial cases pertain to the Church; and except in the case of the Church's toleration, lay judges cannot take cognizance of them.

The process concerning the validity of marriage must be instituted according to the Constitution Dei miseratione of Benedict XIV, November 3, 1741, and the Instruction of the S. C. C., August 22, 1840, unless the impediment is clear, for example, the impediment of bond; for then the Bishop, with the intervention of the defender of the bond, will be able to declare the marriage null. The tribunal in matrimonial cases is constituted of the judge, the chancellor, and the defender of the bond. Besides the plaintiff and the defendant, there are present witnesses of the seventh hand, indicated by the husband and wife, and they are seven persons joined to them by blood or affinity, if they can be had; or otherwise seven neighbors of good reputation who can testify, seven on the part of the man and seven on the part of the woman. Nevertheless others are not excluded who know the matter and are worthy of trust.

A dispensation from a ratified but non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. In this cause the Bishop cannot, without a special faculty obtained from the S. C. of the Sacraments, institute the process in this cause. But in other causes the Bishop is the competent judge in first instance. Constitution Sapienti Consilio, A. A. S. v. 1, p. 7 ff.

Rota: To it are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. The Proper Law must be observed by the S. R. Rota, which is appended to the praised Constitution Sapienti consilio. In it are established the constitution of the Tribunal, its competence, and the mode of judging. Moreover, in judgments the Rules approved by the Supreme Pontiff Pius X on August 2, 1910, and promulgated on October 25 of the same year, are to be observed. Finally, those things also are to be observed which pertain to it in the Constitution Sapienti consilio and in the Order to be observed in the Roman Curia. "Each Auditor of the Sacred Rota, after nomination, before he undertakes the office of judge, before the whole College, with one of the notaries of the sacred tribunal standing by, who will draw up the act, will take an oath concerning the office to be fulfilled duly and faithfully." "The same oath will be taken by each of the assistants of the Auditors and the ministers of the tribunal before the Dean of the Sacred Rota, with one of the notaries likewise standing by." Canon 7, title 1, Proper Law, A. A. S. v. 1, p. 21. "In a criminal matter, in spiritual causes, and in others, when from the revelation of some act prejudice can come upon the parties, or secrecy has been imposed by the tribunal itself, the Auditors, assistants of the Auditors, and ministers of the tribunal are held to the secrecy of office." Canon 8, title 1, ibid. "Auditors who have violated secrecy, or who from culpable negligence or deceit have brought grave detriment to litigants, are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the Apostolic Signatura, confirmed by the Most Holy One, they can be punished. "The ministers of the tribunal and procurators who have done similar things likewise are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the rotal College, according to the measure of damage and fault, they can be punished." Canon 9, title 1, ibid. Moreover, according to the Rules to be observed in judgments of the S. R. Rota: If it concerns a criminal case, the Promoter of justice must assist the Instructor.... But in causes regarding the bond of marriage, or the validity of religious profession or of sacred ordination, the intervention of the Defender of the bond is required according to the norm of the Constitutions Dei miseratione and Si datam.... It will belong to the Instructor in criminal accusations to assign to the accused a defender, who is to assist him even in the period of instruction, if he does not have an advocate, nor can sufficiently attend to his own defense by himself. Title 4, c. 1, sections 108, 109. From the same Constitution Sapienti consilio, the Proper Law of the S. R. Rota and Apostolic Signatura, if, after a case has been introduced, the plaintiff wishes to renounce the instance, or the lawsuit, or the acts of the case, this will always be permitted to him. Canon 34, title 1.

Sacred Congregations: "In cases to be conducted before the Sacred Congregations by the path of administration and discipline, the joinder of issue having been removed, the hearing of witnesses excluded, and no writings of patrons received, the question will be held; nevertheless the parties whose interest it is will always be heard, and the documents produced by them will be examined." Order to be observed in the Roman Curia, Special Norms, chapter 3, article 2, number 7.

Once a question has been instituted in a disciplinary manner before one Sacred Congregation, it is no longer lawful to institute a strictly judicial action. Pius X, Constitution Sapienti consilio, Order to be observed, special norms, c. 3, a. 2, n. 10.

Council of Trent: Council of Trent, sess. 25, c. 6 de R., establishes that in exempt Chapters, at the beginning of any year, the Chapter is to choose two from the Chapter, by whose counsel and consent the Bishop, when he proceeds outside visitation, is bound to proceed both in forming the process and in the other acts against anyone from the capitulars. But one vote belongs to both adjuncts, and one of them can accede to the Bishop. Lugo, Resp. Mor., l. 5, d. 23.

How one must proceed in causes of those defecting from Religion you have in the Council of Trent, sess. 25, c. 19 de Reg.; in causes of clerics who are concubinarians, ibid., c. 14 de Ref.; in causes of exempt persons, ibid., sess. 7, c. 14 de R.; in criminal and civil causes, ibid., sess. 7, c. 14 de R., sess. 24, c. 5, 20. Cf. also various decrees issued concerning this matter, Ferraris, supplement, v. Processus in causis clericorum; E. M. "It is unlawful for clerics, even those having lay power, to condemn the guilty to the penalty of death, from C. Continentia 2 de Cler. percuss. Yet the Pope can dispense in this. And Bishops themselves, or similar persons, having temporal dominion of some place, can licitly commit their power to laymen for cases of blood." L. 1. 3, n. 378; l. 7, n. 566; S. Th. 2. 2. q. 64. a. 4. A lay judge cannot drag ecclesiastical persons before his own tribunal unless this is permitted by Canonical Dispositions, Concordats, approved custom, or at least toleration. For this would be against the privilege of forum.

A judge sins by fraudulently inducing the defendant, or contrary to the order of law, to betray himself, or by using some knowledge unjustly extorted.

What are witnesses, and of how many kinds are they? - Witnesses in general are suitable persons who are used to establish faith concerning some matter. Suitable by natural law and by positive law, namely having the conditions required by the laws. For not all can testify by the laws. Some witnesses are testamentary, who are used in a testament; others instrumental, who are used in an instrument; others judicial, who are used in judgment. Witnesses are called co-witnesses if they depose concordantly concerning the same fact; singular if they do not agree in testimony, because they testify concerning a diverse fact. Decretals de Testib. et Attestationib.; C. L. 2506 ff.; S. Th. 2. 2. q. 70. a. 2 ad 2; Lugo, Resp. Mor., l. 1, d. 41.

A witness can be from his own knowledge, by sight, by hearing.

From the Rules to be observed in judgments of the S. R. Rota, title 4, c. 2, section 114, as regards the persons of witnesses, there are no absolute disabilities. From the Italian Code of Civil Procedure, art. 236, criminal 285, 286, strict blood relatives and relatives by affinity are excluded from bearing testimony, and also minors under fourteen years.

Witnesses of the seventh hand, in matrimonial causes, are seven relatives from either side. Each party indicates seven persons joined to him or her by blood or affinity, if this can be done, otherwise seven neighbors of good reputation. These fourteen witnesses are to be interrogated by the judge, whether they have the religion and honesty of that spouse known to them, so that for this reason it is likely to them, and they believe, that he has said true things. S. C. C. Instruction, August 22, 1840, 1034.

What is the obligation of testifying? - No one is bound from commutative justice spontaneously to offer himself for testifying, unless the discourse is about those who are held from office to accuse. The first reason is that not any citizen has a contract with society of testifying. The second reason is that these, by reason of the office assumed, enter as it were into a quasi-contract with society. Hence a witness who hides himself lest he be cited by the judge, or who after citation flees, or who appearing conceals the truth by silence, saying that he does not know it, when in reality he knows it; although he can sin, and gravely in a grave matter, against charity, legal justice, and obedience, as will be established from the things to be said, nevertheless by no means sins against commutative justice, and therefore by no means is held to restitution. L. 270.

Someone can be held to testify from charity, from legal justice, from obedience. The first reason is that, if it concerns the good of a private person, someone is held from charity toward the neighbor, so that grave injustice may be impeded if he can easily free an innocent person by his testimony. The second reason is that, if it concerns the common good, since any part is bound to look out for the safety of the whole, there is an obligation from legal justice of accusing and denouncing a crime pernicious to the republic, if public damage cannot be impeded by another way. Moreover, a crime pernicious to the republic is one which is directly and immediately against the common good, as heresy, betrayal of a city, etc. The third reason is that, if there is a precept of the superior or judge, someone is held to obey a superior legitimately commanding, unless there is a reason sufficiently excusing. Hence a witness legitimately cited is bound to present himself before the judges, to emit the oath prescribed by law, to say the truth completely and nothing besides the truth, and then to respond simply to the questions according to conscience. Wherefore a witness bearing false testimony, since he is perjured, and acting against justice, and lying, sins mortally. S. Th. 2. 2. q. 70. a. 1, 4; L. 264; Decretals de Testib. cogend. vel non; C. I. penal procedure 172, 292, 295, 305, 312; C. G. criminal instruction 317, 319, 321.

Testimony concerning what matter must be brought forth? - No one is understood as a witness except of that fact which he himself knows. Wherefore he must bring forth only those things which he himself has perceived by his senses, for this is to know; not the things which he himself thinks or believes, nor the things which he received from others, unless he is interrogated expressly concerning these. S. Th. 2. 2. q. 70. a. 2 ad 2; a. 4 ad 1; L. 268.

When does the judge not interrogate legitimately? - The judge does not interrogate legitimately, so that someone is not bound to manifest the truth: 1. When someone has not been cited by a legitimate precept, with the order of law observed, as a witness, or the judge is not legitimate, as is clear in itself. L. 273; S. Th. 2. 2. q. 70. a. 1. 2. When he does not observe the judicial form, as if he interrogates without previous accusation, at least virtual, etc. The reason is that he has no other power of interrogating except according to the prescriptions of law. But virtual accusation is had when notoriety of the crime is present, or such indications of the crime that it cannot probably be denied. L. 199, 266, 267, 272, 273; S. Th. 2. 2. q. 70. a. 1. 3. When in a criminal case the delict in reality was not present, or is altogether hidden, or as yet there is not half-full proof of the delict, and no common or private damage of another is imminent from reticence of the delict. The reason is that otherwise he would defame the defendant without any right; for the judge in instructing a judgment can proceed only from public knowledge of the delict. L. 199, 201, 273; S. Th. 2. 2. q. 70, a. 1. But half-full proof is present when there is, says St. Alphonsus 266, "one witness by sight or by his own hearing, or if there is notoriety or infamy of the crime, or evident indications, or if the accuser offers himself to prove the delict by several witnesses (otherwise, even if several witnesses are present concerning some crime, none of them would be held to reveal the crime); for all these things are equivalent to half-full proof; and when this intervenes, the delict is no longer called secret, and therefore the judge then has a right that the witness manifest the truth.... But for the witness then to be held to respond, it is required that infamy, or half-full proof, or indications, as above, be already proved and manifested by the judge to the witness; unless it is established that the judge is upright and asserts that he interrogates legitimately." S. Th. Quodl. 4, a. 12; 2. 2. q. 33. a. 7; C. I. penal procedure 85, 286, 288; C. G. criminal instruction 322; C. G. penal 378.

These things, as regards substance, have the same force in more recent Law. For at present no one is condemned and cited unless at least several indications are present; and several witnesses regularly are accustomed to be present, although their number is not determined, and one witness alone suffices.

In a criminal case; for in a civil case, in which there would be question of merely civil fault, a witness would then be legitimately interrogated, and would be bound to tell the truth concerning the committed fact, containing juridical fault, if indeed it truly had been committed, although without any theological fault.

What are the reasons sufficiently excusing from testifying, even if the judge legitimately interrogates? - They are the following: 1. If you know the matter from confession, and not from elsewhere. 2. If you have received it under an entrusted natural secret, as a counselor, advocate, physician, etc., provided however that it is not necessary for averting a great evil of the republic or of the neighbor; for then it is lawful to disclose such a secret, even if you had sworn that you would tell it to no one, because such an oath does not bind, since by natural law you are held to the contrary.

S. Th. 2. 2. q. 68. a. 1 ad 3, q. 70. a. 1 ad 2. 3. If notable damage threatens you or your own from the testimony, unless however public damage or another's private damage prevails. Hence commonly you are not bound to testify against a blood relative. Struggl, on the Fourth Precept, q. 2, n. 3; de Virt. Relig., q. 3, n. 16 ff. From the law itself, strict blood relatives and those who from office are held to secrecy are not bound to testify. 4. If you have received it from men not sufficiently worthy of faith; for then you can hold yourself as if you knew nothing. 5. If you understood the fact through an injury, for example by opening letters, by compelling another to revelation, etc. Except, unless the circumstances are such that even by force you could procure knowledge for yourself. 6.

If the other did not sin in the fact, either because of ignorance, or because he received something in hidden compensation of a debt, concerning which he is inquired into as if concerning a thief. The reason is that the mind of the judge is to inquire concerning a delict. The same holds for the defendant. Cf. n. 61. L. 248, 268, 273; l. 3, n. 161, n. 334; C. I. penal procedure 287, 288; C. G. criminal instruction 322; C. G. penal 378; C. L. 2511.

Is a perjured witness held to reparation of damages? - He who knowingly has testified falsely, through which he was the efficacious cause of damage to another, is held to the prevention or reparation of all the damages which are caused. Likewise he is held to revoke his testimony with equal damage to himself, and with danger even of life, if the defendant is in peril of it, and it is thought that by revoking he will effect something. The reason is that in equal damage, account is rather to be had of the innocent person. Knowingly; because, if from inculpable ignorance, inadvertence, or forgetfulness he has testified falsely, although he is held to prevent damage if he can, nevertheless he is not held to restitution, even if the defendant is condemned. The reason is that he is held neither from a thing received nor from a delict. The same more probably would have to be said even if he had sinned venially. Efficacious cause; because, if on the part of the matter that false testimony had effected nothing, for example because by the false testimonies of others the whole cause of the damage had already been given, so that the judge was moved in nothing by this testimony, he will be held to nothing. L. 269.

Whether he is also held to reparation of damage toward the treasury, which is deprived of the revenue of the fine because the defendant is absolved by false testimony, is disputed. There are those who deny it, because the judge is not held to repair that damage. Therefore neither is the witness. But others affirm it, because the treasury is deprived of the revenue of that fine by an iniquitous and unjust means, a damaging lie.

Is a witness bound to reveal an altogether hidden crime, which he alone knows? - Reply: Negatively, speaking in itself, and abstracting from other circumstances, if there is question truly of a crime altogether hidden, or secret. The reason is that the judge cannot inquire against the defendant unless at least some infamy, or public rumor, or other indications have preceded. S. Th. Quodl. a. 16, Quodl. 4, a. 12, Quodl. 11, a. 13. Therefore a witness is not held to manifest an altogether hidden crime which he alone knows. But the fact that modern laws require necessarily not two witnesses, as the ancient Law did, L. 9 de Testib. C., but only one witness, proves nothing to the contrary; for laws of this kind always suppose a crime harmful to society, a continuing danger for the future, etc. Very clear in this matter is the opinion of the Angelic Doctor, 2. 2. q. 70, a. 1: "If the testimony of some subject is required by the authority of a superior... there is no doubt that he is bound to bear testimony in those things in which, according to the order of law, testimony is received from him; for example in manifest things, and in those concerning which infamy has preceded. But if testimony is demanded of him in other things, for example in hidden things, and concerning which infamy has not preceded, he is not held to testify." And 2. 2. q. 33, a. 7 ad 5: "A prelate is not judge of hidden things, but God alone; whence he does not have power to command anything concerning hidden things, except insofar as they are manifested through some indications, for example through infamy, or through some suspicions, in which cases the prelate can command in the same way as a secular or ecclesiastical judge can demand an oath about telling the truth." Roncaglia tr. 15, q. 1, c. 1, question III, r. III; S. Th. 2. 2. q. 68, a. 1 ad 3; C. I. penal procedure 60, 84, 85, 98, 101, 172, 179, 288.

Speaking in itself; for "there are certain hidden sins which are to the hurt of neighbors, either corporal or spiritual... (In these) one must at once proceed to denunciation, so that a hurt of this kind may be impeded." S. Th. 2. 2. q. 33, a. 7. "It must be said that concerning those things which have been committed to a man in secret through confession, he ought in no way to bear testimony, because he does not know such things as a man, but as a minister of God; and the bond of the sacrament is greater than any precept of man. But concerning those things which are otherwise committed to a man under secrecy, one must distinguish. For sometimes they are such that as soon as they come to the knowledge of a man, the man is bound to manifest them; for example if they pertain to the spiritual or corporal corruption of the multitude, or to the grave damage of some person, or if there is anything else of this kind which one is bound to disclose, either by testifying or by denouncing. And against this debt he cannot be obligated by an entrusted secret, because in this he would break the faith which he owes to another. But sometimes they are such things as one is not bound to disclose. Hence he can be obligated from this, that they are committed to him under secrecy. And then he is in no way bound to disclose them, even from the precept of a superior; because to keep faith is of natural law. But nothing can be commanded to a man against that which is of natural law." S. Th. 2. 2. q. 70, a. 1 ad 2. "It must be said that to reveal secrets unto the evil of a person is against fidelity, but not if they are revealed for the common good, which must always be preferred to private good. And therefore it is not lawful to receive any secret against the common good. Nor, however, is that altogether secret which can be proved by sufficient witnesses." S. Th. 2. 2. q. 68, a. 1 ad 3. And in the quodlibetal questions the Angelic Doctor likewise has these things, especially as regards religious: "For there is some secret which it is unlawful to conceal; such as that which tends to the danger of others, whom someone is bound to guard; whence also in the oath of fidelity it is contained that servants ought to reveal secrets of this kind to their lords. Therefore, at the precept of the prelate, a religious is bound to disclose such a secret, even if he promised not to reveal it, according to Isidore saying: In evil promises break faith; unless perhaps he heard it in confession, because then it would in no way have to be revealed. But there is another secret which of itself can be concealed without sin, and such a secret a religious ought in no way to disclose to a commanding prelate, if it has been committed to his fidelity; for he would sin by breaking faith in the committed matter." Quodl. 1, a. 15.

1. Barbantius, a priest of most unimpaired reputation, visiting on a certain occasion Armanda, a married woman of excellent reputation, sinned with her. By a fortuitous chance Melchior, a man of corrupt morals, saw them; he immediately reported the matter to Armanda’s husband, and then testified to the same in court, with great scandal of the city.

It is asked: What as to the Case?

R. Fr. Gury raises the question: Is a witness held to reveal an altogether occult crime? and he responds, n. 19: “More probably in the negative by Common Law, if the witness is wholly certain that the crime is known to himself alone; because for condemning the accused two witnesses are necessarily required. Hence the axiom: one witness, no witness. But otherwise one must speak according to French Law, or another similar law, by which one witness can suffice for the condemnation of the accused, and nothing else is required from the jurors except that they assert that they have an intimate conviction of the fact, without their needing to prove their sentence.”

But from the fact that the jurors are not held to prove their sentence, and that it suffices that they have an intimate conviction of the fact, it does not follow that a witness is held, or even is able, to reveal an altogether occult crime. Indeed rather the contrary follows. For jurors do not pronounce their sentence independently of the trial, but after they have been present in court for the whole discussion of the case and the examination of witnesses; whence the crime is already supposed by that very fact to be publicized, at least half-proven, or certainly at least producing great suspicion of itself, and indeed from knowledge of facts already public in themselves. Wherefore from the sentence of jurors, to be pronounced according to intimate conviction, nothing indeed is drawn for that resolution, but rather the contrary. Nor indeed does that other thing prove anything better, namely that by more recent Law one witness suffices; for one thing is that one witness can make full proof even in court, another thing, altogether diverse, that therefore a witness can also reveal an altogether occult crime. There is no necessity for such an interpretation, which, since of itself it is not consonant with Natural Law, consequently is not to be asserted without a manifest declaration of the law itself. Cf. I. M. 70. And in the proposed case and in similar ones, the very grave disadvantages of this opinion easily appear.

Therefore it does not seem that Melchior is held, indeed even that he can, reveal that most occult crime either to the husband of Armanda, with so great harm and infamy of Armanda herself and of Barbantius; or even to the judge, with so great public scandal. Nor indeed in the Case is there question of a crime impending and to be avoided, and to be prevented in the future; for, as is clear from the exposition of the Case, that offense was committed wholly in passing, nor is there any indication of future danger, which otherwise would have to be met by other means altogether honorable and useful.

2. “Alexius promises by oath to Marcus that he will never manifest to anyone either the homicide which, while he saw and was not seen, Marcus had secretly perpetrated, or the theft which, an agreement having been made concerning the keeping of secrecy, Marcus had confided to his ear.

It is asked: Can Alexius, summoned by the judge, give testimony?

R. A promise supervening upon knowledge of a secret known from elsewhere does not oblige to secrecy in those cases in which, the promise being excluded, one would be obliged to manifest the secret. The matter becomes clear by an example. You have caught Peter in the very act of crime. The public report of the crime having spread, or half-proof of the crime already having been had, the judge calls you and legitimately asks what is known to you concerning an offense of this sort. There is no doubt that you ought to affirm that it is established concerning that offense, and you would sin gravely if you denied it. Therefore the very same thing will be of right, even if you promised, indeed even swore, that you would keep that offense secret forever; indeed even if you swore that you would not betray it even to the judge, because a promise, even one confirmed by oath, cannot bind anyone to anything illicit; but it is illicit not to obey a judge legitimately asking; therefore, the promise notwithstanding, rashly fortified by oath, you must manifest the offense, in order that you may obey. Certainly faith even sworn, supervening upon knowledge already had of a thing, cannot prevent either the judge from examining witnesses about the offense, or witnesses from deposing about the offense before the judge legitimately examining them, and by privative right, especially since this obligation of deposing arises as soon as knowledge of the offense is had....

Since these things are so, you see that our Alexius, who, with the religion of an oath interposed, had promised Marcus in the species of the Case that he would never manifest to anyone the homicide which Marcus himself had perpetrated while Alexius was watching, could not so bind himself that, when legitimately summoned by the judge, he ought or could conceal the homicide.... And apply this manner of speaking to the case also in which Marcus had called Alexius as a companion of the homicide, pledge of secrecy having been given and accepted with an oath; because a secret of this sort is not properly committed, but would be contained within the mere bounds of a promise, since Alexius himself had received knowledge of the matter not from communication made to him by Marcus, but from the fact with his own eyes....

A secret is then truly said to be committed when we cannot obtain secret knowledge of the thing from elsewhere than from the free manifestation of the thing which another makes to us, depositing the thing in our trust, so to speak, under this inviolable law, that, deposited forever in the chest of the heart, pressed under deep silence, it be guarded; by which law the obligation of secrecy increases to such a degree that not even in cases in which otherwise you would be bound ought you or can you manifest it, unless the manifestation is for avoiding some harm of the commonwealth, or even of some private person, as the Angelic Master teaches, 2.2, q. 70, a. 1, ad 2....

Now since the theft of which there is question in the species of the Case does not pertain to that kind of things which, as soon as they have come to our knowledge, we are immediately held to manifest: for I suppose that it pertains neither to the harm of the commonwealth nor to the harm of anyone else, if it is retained occult (the matter will so happen if you suppose, for example, that a horse taken by theft has perished, and that Marcus is unable to pay, or that he has been induced by the counsel of Alexius to restore the horse); it follows from the unshaken principle of St. Thomas that Alexius, asked by the judge whether he knows anything about the theft of Marcus, can and ought freely to answer that he knows nothing about it; lest, if he affirms that he knows, he break the faith which by natural law he is compelled to keep intact and safe toward Marcus.” Ithur., Cas. 37, nn. 8–11.

Thus indeed, if there is question of a theft committed in passing by some person and with the circumstances set forth. But, practically speaking, in the proposed Case the matter would have to be weighed seriously; since there is question of Marcus as at once a homicide and a thief. Wherefore it may well be that Marcus is a thief by profession, and is disposed to continue thefts with danger also of another homicide; and in such a case, notwithstanding the committed secret, since at least a most grave harm to private persons impending in the future is verified, he would absolutely have to be denounced to the judge, which otherwise the same Ithur. then affirms in the following numbers. Cf. n. 32.

Besides, in the proposed Case, since Alexius has already been summoned by the judge, and the judge asks him both about the homicide and about the theft, it seems that in truth both crimes of Marcus, not only the homicide but also the theft, have already been spread by public report. Moreover the same Ithur. afterwards, n. 24, gives these warnings as regards theft committed to another under the law of secrecy: “But I speak of a secret which can be guarded without sin, and which cannot be disclosed without injury to natural right; and in cases of this sort of urgent necessity I persist in stoutly defending that one ought to conduct himself with the judge just as if he did not know what he does indeed know, but under that inviolable law of the committed secret, that he himself knows it, but no one besides him.” Moreover when the matter is spread abroad and publicly known, it has already ceased to be secret; and therefore an obligation of secrecy can no longer be given; for since that obligation is an obligation toward a secret, it perseveres only so long as the thing remains secret or occult. — Cf. I. M. v. 1, n. 1536 seqq.

3. Albert having died without necessary heirs, two of his nephews were claiming the whole inheritance. But behold Laelius produces a holograph testament, by which the whole inheritance of Albert is to be divided between himself and his brother Narcissus. Hence a suit arises between Laelius and the nephews of Albert, who assert that the testament is false. Narcissus, knowing that his brother had in truth made a false testament, approaches a confessor, asking from him whether he can deny it in court, since he has been cited in it and, an oath having been interposed, he is compelled to tell the truth; but once it is manifested, there is grave danger that his brother, and perhaps even he himself, will be condemned to most grave penalties besides the public infamy which certainly will result from it.

It is asked: What as to the Case?

R. The Case certainly, practically, is not without grave difficulty. But since there is question of a civil case and not of a criminal case, although this latter may afterwards take place; since there is question of grave harm to the neighbor impending and to be inflicted, and of an offense to be consummated, Narcissus certainly cannot deny the truth and affirm falsity, especially with an oath interposed. Wherefore, that he may free himself from grave difficulty of fact, let him persuade his brother to compose the matter amicably with the nephews of Albert, asking them to be willing to desist from the prosecution of the case before the tribunal, and by yielding the whole inheritance at once to those to whom it belongs, under any specious pretext, lest he defame himself.

4. Tiburtius, a public robber of the roads, who committed many thefts and homicides, was condemned to prison for thirty years. Mauritius, his intimate friend, persuades him to flight; indeed he supplies to him a file and a chisel, so that he can break the bars of the window and leap out of it into the public road, where Mauritius, with a gun, observing by night the outcome of the matter, is ready to defend Tiburtius against the guards of the prison. The matter succeeded altogether well, and the two friends wander free through the Roman Campagna.

It is asked: What as to the Case?

R. That it is licit for the accused to flee, if he obtains a good opportunity, is admitted almost commonly. For all penalties are in fact established by law and decreed by the judge in such a way that they are to be inflicted by ministers of justice. Wherefore an accused person cannot be condemned who, the right of another remaining uninjured, withdraws himself, provided however that he does not employ violence and does not disturb public order. Moreover, although in the case there is no question of the penalty of death, nevertheless there is question of a most grave penalty. Since no one is understood willingly to suffer a penalty of this sort, the accused sins not only not by fleeing, but even by breaking the prison and by using deceit and moderate force, by which he may consult for himself, without a lie and without grave harm to others. Wherefore as regards Tiburtius, speaking of itself, he does not seem to be disturbed for fleeing from prison and therefore breaking the bars of the window.

Nevertheless, the same does not seem to be said of Mauritius persuading flight and supplying the instruments necessary for it. If there were question of another accused person, Mauritius also would not have to be disturbed, from the general doctrine that, if flight is licit for the accused, consequently it is licit for others to advise him to do what is licit for him, and to furnish assistance to one using his own right. But since in the Case there is question of a public robber of the roads, whose flight will certainly be pernicious to the public good, it is certainly not licit for Mauritius to persuade flight, and much less to supply the instruments for it. But what Mauritius does, namely that with a gun in the public road he observes the outcome of the matter, ready to defend Tiburtius against the guards of the prison, is wholly illicit, since neither is it licit for Tiburtius himself to inflict violence upon the legitimate ministers of justice, and to kill or wound them. St. Alphonsus, l. 4, nn. 281–283.

27. • I. No one is bound from justice ¹ spontaneously to offer himself for testifying; but sometimes there is such an obligation from charity, for example, if someone can by his testimony easily liberate an innocent person, prevent a grave injustice, etc. - St. Ligorius, n. 264.

¹ ** Understand this of commutative justice, unless nevertheless the discussion is about those who from office are bound to accuse. For otherwise, speaking in general and from the nature of the thing, the general rule is that there is an obligation of accusing or denouncing a crime pernicious to the republic, if public damage cannot be prevented by another way. Thus the common opinion with St. Thomas (2.2, q. 68, art. 1). The reason is that the part from legal justice is bound to provide for the safety of the whole. But here a crime pernicious to the republic is understood as one which is directly and immediately against the common good, such as betrayal of the city, etc.

But although regularly it suffices to denounce, nevertheless sometimes there can be an obligation to accuse, where this would be needed to avoid public damage, when perhaps the nature of the danger does not allow delay for inquiry, and therefore it is necessary to free the judge from that burden and to present proof ready at hand. See Lugo, disp. 38, n. 2.

II. A witness legitimately cited is bound to present himself before the judges, to take the oath prescribed by law, to speak the whole truth ² and nothing beyond the truth, and then to respond simply according to conscience to the things asked. - Thus all.

² ** Except if what the witness knows he knows only from a secret committed to him, as below, q. 2, or if the judge does not question legitimately, etc.

III. A witness who has maliciously deposed what is false is perjured and a violator of justice ³; and therefore he is bound to the reparation of all damages, and also to the revocation of the false oath with equal damage to himself, even with danger of life, if by force of false testimony an innocent person has been condemned to death. - St. Ligorius, n. 269.

³ You have violated justice if someone lies to the damage of others, but not if he merely dissembles without damage to others; for thus he is only disobedient and a transgressor of legal justice. In this matter some account must also be taken of the prejudice not infrequent among the common people, to which charity seems to require that crimes be covered and thus the damage of one’s neighbor be guarded against.

28. Questions. - QUESTION 1º. To what is a witness bound who has said what is false from invincible ignorance, or inadvertence, or inculpable forgetfulness?

Resp. He is bound to disclose the false testimony, and in the way he can to prevent the damage; nevertheless he is not bound to reparation of the damage that has followed ⁴, since he is free from theological fault. - St. Ligorius, Bk. 4, n. 269, with Busembaum. Likewise one would have to say, more probably, even if he had sinned venially, according to what has been said about Restitution, n. 662.

⁴ Understand damage from his ignorance which has already followed and which he could not prevent. For if he can still forestall it and does not prevent it by correcting the error, he violates commutative justice and will be bound to restitution.

QUESTION 2º. What about him who substitutes or adulterates a writing, bond, or receipt, to supply lost acts, or to pursue a certain right?

Resp. 1º He sins at least venially by reason of the lie; because however the matter stands, the bond which is exhibited is different from that which gives credibility in court.

Resp. 2º He can sometimes sin gravely against charity toward himself, when he exposes himself to proximate danger of the gravest penalties if the falsity is detected.

Resp. 3º He in no way sins against commutative justice, and therefore is by no means bound to restitution.

29. • QUESTION 3º. When is a witness excused from giving testimony?

Resp. He is excused in the following cases: 1º if he received the matter only under the secret of confession; 2º if he knows the matter under a committed secret, or even under only a natural secret ⁵; 3º if he received the matter from men not worthy of faith; 4º if he knows that the accused did not sin mortally, for example, on account of ignorance; 5º if he foresees that grave damage will come to himself or to his own. Except if common damage is imminent from this. - St. Ligorius, n. 268.

⁵ If there is question of a witness juridically and legitimately questioned, and you take natural secret as it is distinguished from committed secret, this certainly does not exempt from the obligation of testifying, since not even a promise, even with an oath, excuses. See Lugo, On Justice, disp. 38, n. 6. But the words of St. Alphonsus (Bk. 4, n. 268), by which he says that you are not bound to testify if you received it under a natural secret, even only under a committed secret, etc., are plainly to be taken of committed secret, although not explicitly promised.

QUESTION 4º. Is a witness bound to reveal an altogether hidden crime, for example, one which he alone knows?

Resp. 1º Yes, according to the law in force in France or other places, which establishes that even a single witness can suffice for condemning the accused, and requires nothing else from the jurors except that they assert that they have no doubt about the truth of the fact, whatever finally may be the proofs on which their testimony rests ⁶.

⁶ Whatever may be the wisdom of this disposition, it is plain that the latter words of the Author cannot have this sense, as if there ought not be or could not be any foundation on which the persuasion of the jurors rests, but that they are not bound to render any reason why they so judge.

Resp. 2º More probably no, according to Roman Law, which necessarily requires two witnesses for condemning, even when the confession of the accused has been had. Hence the axiom: “One witness, no witness.” - St. Ligorius, n. 266, etc.

30. • QUESTION 5º. Whether and how does a witness sin who hides himself lest he be cited by the judge, or who flees after citation?

Resp. To the 1st: He does not sin 1º against legal justice ⁷, because no one is bound to obey the precept of a superior before it is imposed on him; 2º nor against commutative justice, because he has himself merely negatively. Nevertheless he can sin against charity toward his neighbor, as was said above, n. 27 ⁸.

⁷ It has been observed elsewhere that legal justice must not be confused with the virtue of obedience. Hence it happens that there can be an obligation of testifying by denunciation or accusation even apart from the precept of the superior or judge. See the notes to nn. 24 and 27.

⁸ ** He sins against charity toward his neighbor if there is question of the good of a private person; but he will sin against legal justice if there is question of the common good, to which detriment is directly brought from this.

Resp. to the 2nd: He sins gravely against legal justice, or against the obedience owed to the judge in a grave matter and one necessary to society; but more probably he does not sin against commutative justice, because that citation does not impose an obligation of justice, but only of obedience. - St. Ligorius, n. 270; Vogler, n. 337; Billuart; Lessius.

QUESTION 6º. Is a witness who, when legitimately questioned, conceals the truth, yet does not say what is false, bound to restitution?

Resp. Probably no. The reason is that then the witness has himself merely negatively, nor is he bound to depose the truth except from the precept of the judge; and therefore by concealing it then he sins only against obedience owed to the judge, or also against religion because of the oath taken about speaking the truth. - St. Ligorius, ibid.; Lugo; Lessius.

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.

In our last lecture, gentlemen, we considered the nature and causes of delusional insanity. We saw that its essence lies in mistaking imaginations for realities with a firmness of conviction which no argument to the contrary can shake. The reasoning of the insane man may be logically faultless, we said, but he reasons from false premises supplied to him by the phantasms of a diseased imagination. The cause of the disease I showed to lie in an abnormal action of the brain, which is the storehouse of the phantasms or brain-pictures. And this abnormal action may itself proceed either from a local lesion of the brain, or from a sympathetic affection due to indisposition in other parts of the human body. I finished by examining the responsibility of an insane man for his actions, and arrived at this practical conclusion, that a victim of delusional insanity should not be held responsible for any acts which he insanely thinks right, but should be held responsible for all his other human acts.

I. This teaching of psychological and ethical science is to-day the received rule of action followed by the courts of justice in England and the United States. Sound philosophy and positive law are in perfect agreement on this subject. But it was not so a hundred years ago. It is wonderful to us now how strange and erroneous were the views of insanity formerly entertained by English jurists. For instance, when, in 1723, Arnold was tried for shooting at Lord Onslow, the instruction given to the court was that, for one to be exempt from punishment in such a case, “it must be a man that is totally deprived of his understanding and does not know what he is doing, no more than an infant, than a brute or a wild beast.” On such a theory, very few lunatics indeed would be acquitted; few ever are so totally demented.

The first jurist that pointed out the true test of insanity was Lord Erskine, who, in 1800, when Hudfield was tried for shooting at the king, delivered a celebrated speech, in which he maintained that the real test of insanity was in delusion: if delusion existed the man was insane; else, he was not insane. The deluded man, he said, might reason with admirable logic from his false principles; he was nevertheless demented if he mistook his imaginations for realities, and did so irresistibly and persistently.

Erskine’s test has been, from that time on, followed in the courts of England. But you will notice, on careful consideration, gentlemen, that while the principle is correct so far as it goes, it does not go far enough to cover all cases of disputed responsibility. It will apply, indeed, to all cases of total insanity, that is, when the delusion existing in a lunatic’s mind affects a variety of subjects; then his premises are never reliable, and therefore he cannot be held accountable for any of his acts.

But what if his insanity is partial only, if he is a monomaniac, deranged on one point and sound in mind on all other matters? This was not clearly understood till about the middle of the present century. In order to secure uniform views and action on this important matter, the British Parliament, in 1843, proposed various questions to the judges, with a request that they would agree upon and report answers. This investigation, and in fact the whole history of English legislation on insanity, is briefly and yet clearly explained in an article of Rev. Walter Hill, S.J., which appeared in the “American Catholic Quarterly Review” for January, 1880. The first question was: What was the law respecting the crime of one who is partially deluded but not insane in other respects, when he commits what he knows to be a crime in order to redress some wrong or obtain some public benefit? The answer was that such a one, even though insane, is to be punished for the crime which he knew he was committing.

To another of those questions the judges answered, that a person partially insane was to be treated as if the facts were just what he imagined them to be, as if his delusions were realities. His conduct was to be judged by his own premises. This was accepted as law by England, and is the law now both there and here, and, I suppose, throughout the civilized world. Now, these are exactly the conclusions about an insane man’s responsibility which we had arrived at before, reasoning from psychological and ethical first principles.

It is therefore for the consequences of an insane delusion only that a man is not responsible before the inward court of conscience and the outward courts of justice.

But the case is altogether different when the error is not the result of insane delusion. When a man, sane or partially insane, has reasoned himself into a false opinion or conviction, not the result of his insanity, that the crime he is going to commit is justifiable, such conviction being his own free act does not exempt him from punishment. This was the precise point on which turned the celebrated case of Guiteau, the murderer of President Garfield. His trial before the Supreme Court, District of Columbia, December, 1882, was one of the most interesting that have ever occurred in this country or elsewhere in connection with the plea of insanity. In his very able and exhaustive instructions to the jury on that occasion, Judge Cox states the rule that is to guide the jury in these words: “It has been argued with great force on the part of the defendant that there are a great many things in his conduct which could never be expected of a sane man, and which are only explainable on the theory of insanity. The very extravagance of his expectations in connection with this deed—that he would be protected by the men he was to benefit, would be applauded by the whole country when his motives were made known—has been dwelt upon as the strongest evidence of unsoundness. Whether this and other strange things in his career are really indicative of partial insanity, or can be accounted for by ignorance of men, exaggerated egotism, or perverted moral sense, might be a question of difficulty. And difficulties of this kind you might find very perplexing if you were compelled to determine the question of insanity generally, without any rule for your guidance.

“But the only safe rule for you is to direct your reflections to the one question which is the test of criminal responsibility, and which has been so often repeated to you, viz., whether, whatever may have been the prisoner’s singularities and eccentricities, he possessed the mental capacity, at the time the act was committed, to know that it was wrong, or was deprived of that capacity by mental disease.”

What furnished the clearest proof, gentlemen, that Guiteau’s opinion concerning the expediency of killing the President resulted not from an insane delusion but from his own reasoning is contained in a paper which he had himself drawn up to justify the murder.

It is an address to the American people, published on June 16, in which he says: “I conceived the idea of removing the President four weeks ago; not a soul knew my purpose. I conceived the idea myself and kept it to myself. I read the newspapers carefully, for and against the Administration, and gradually the conviction dawned on me that the President’s removal was a political necessity, because he proved a traitor to the men that made him, and thereby imperilled the life of the Republic.” Again he says: “Ingratitude is the basest of crimes. That the President under the manipulation of the Secretary of State has been guilty of the basest ingratitude to the Stalwarts, admits of no denial. The express purpose of the President has been to crush Senator Grant and Senator Conkling, and thereby open the way for his renomination in 1884. In the President’s madness he has wrecked the once grand old Republican Party, and for this he dies.—This is not murder. It is a political necessity. It will make my friend, Arthur, President, and save the Republic,” etc.

When instructing the jury, Judge Cox told them clearly that, if they found, from all the testimony presented, that the culprit had been led to commit the murder by an insane delusion, they were to acquit him; but that reasoning one’s self into an opinion or conviction was not acting upon an insane delusion. “When men reason,” he said, “the law requires them to reason correctly, as far as their practical duties are concerned. When they have the capacity to distinguish between right and wrong, they are bound to do it. Opinions, properly so called, that is, beliefs resulting from reasoning, reflection, or examination of evidence, afford no protection against the penal consequences of crime.” On this precise point of the question then the verdict was to depend.

But to understand this matter thoroughly there remains one more important point to notice in the instructions of Judge Cox. It relates to the question on whom rests the burden of proof regarding the existence of insanity in the culprit. Is the prosecution bound to prove that insanity did not influence the crime? Or is the defence to prove that it did? And, in case neither party can prove its point to a certainty, so that the jury remains in doubt as to the existence or the influence of insanity in the crime, is the doubt to weigh in favor of the culprit or against him? The judge, after a careful exposition of the conflicting views on this subject by different courts, and after weighing their respective claims, favors the opinion which holds that “the sanity of the accused is just as much a part of the case of the prosecution as the homicide itself, and just as much an element in the crime of murder, the only difference being that, as the law presumes every one to be sane, it is not necessary for the government to produce affirmative proof of the sanity; but that, if the jury have a reasonable doubt of the sanity, they are just as much bound to acquit as if they entertain a reasonable doubt of the commission of the homicide by the accused.”

But the jury, enlightened by the lucid instructions of the court, were convinced that Guiteau had not been led to commit the murder by an insane delusion, but by his own reasoning and his own free will, and that, therefore, he was to bear the consequences of his own deliberate choice. Their verdict was “guilty,” and the political crank was hanged.

II. We have now done with the study of mental or delusional insanity; it remains for us to speak of moral insanity. Of late years, the legal and medical professions have been much divided upon the question whether there exists a disease which may properly be called moral, emotional, or affective insanity, and which can justly be pleaded as an excuse from legal responsibility.

Dr. Pritchard, and later on, Dr. Maudsley, with very many followers, have maintained the existence of such a disease, and have claimed that, even when it is not accompanied by any delusion, it ought, nevertheless, to free a man from all punishment for crimes committed under its influence. Moral insanity consists, they say, in a perversion of the will, which by this disease is deprived of its liberty, so that the morally insane man does what he knows to be wrong, but cannot help doing it. And they claim that therefore he cannot be blamed nor punished for the crime he thus commits, although he commits it knowingly and willingly.

But I absolutely deny that such a state of insanity is possible. It is against those clear principles of psychology and ethics which are not only speculatively evident, but practically necessary to maintain the fabric of human society. I do not deny that there exists an emotional insanity of another kind, which I will explain further on, but not an insanity of the will, as they understand it, which would excuse a man from the consequences of his wilful acts. Upon this subject Dr. Chipley justly remarks: “If one is born with all the emotional endowments of our nature, but destitute of understanding, his irresponsibility is unquestionable. The same is true when the faculties of the understanding are perverted, impaired, or destroyed by disease.

“In every aspect in which man’s accountability is viewed, we arrive at the same point that its sole basis is the existence and soundness of the intellectual powers. Those wonderful endowments which so eminently distinguish man from other animals, which enable him to discriminate between good and evil, right and wrong, and to choose the one and avoid the other; or in the language of Judge Robertson, he is accountable because he has the light of reason ‘to guide him in the pathway of duty, and a free and rational presiding will to enable him to keep that way in defiance of all passion and temptation.’

“If then accountability is a structure erected solely on the intellectual power, must it not remain unshaken so long as its foundation is sound and unbroken? Is it not illogical to set out with the fundamental proposition, that man is made responsible for his acts only because he is gifted with an understanding and then arrive at the conclusion that he may become irresponsible without the impairment or disease of any of its powers?” (Wharton and Stillé, “Mental Unsoundness,” p. 170.)

Gentlemen, let me give you a specimen of the false reasoning used in support of their theory by those who believe in the insanity of the will. “It would be as rational,” says one of their leading writers in this country, “to punish a schoolboy whose antics and grimaces, the result of chorea [St. Vitus’ dance], are a source of laughter and distraction to his schoolmates, as to inflict punishment upon the insane criminal who, knowing the difference between right and wrong, has it not in his power to execute that which his judgment dictates. One is under the dominant influence of insanity of the muscles, the other is under the influence of insanity of the will. To punish one would be as cruel as to punish the other.” This is indeed a very illogical argument. The reason why we do not blame the boy is because his will is not in it; he moves against his will. The reason why we blame the other is because his will is in it; he does what he wills to do.

The will being a spiritual power can no more be diseased than can the intellect. But as the imagination, an organic power, can be disorganized by an affection of the brain, and by delusion deceive the intellect, thus producing mental insanity, similarly I fully admit that a man’s passions, which are also organic powers, common to us and to brute animals, can become disordered by bodily disease; and the passions, when excited, will strive to drag along the consent of the will, as we all experience. A man whose passions are abnormally influenced by bodily disease, so that he is constantly inclined to act very unreasonably, may well be called morally insane. Such a state of insanity is not a rare occurrence, and there is no objection to denominate it emotional, affective, or moral insanity.

But in such a disease the will remains free; if a man does what he knows to be wrong and criminal, he then sees reasons for not doing it; and in this lies the root of his liberty. For seeing himself drawn in one direction by one motive and in another by another motive, he is not determined in his choice but by the act of his free will. A merely organic faculty must be determined by the stronger attraction, as is the case with brutes; but a spiritual faculty, as our will is, acts freely in choosing between two opposing motives of action. This is the philosophical or psychological explanation: and I am well pleased to find that here again, as in the matter of mental insanity, the courts of England and the leading courts of the United States follow the sound teachings of philosophy.

The nearest advance I know of, that has been made towards the recognition of this moral insanity as a total bar to responsibility, was made in 1864 by the court of appeals in Kentucky, and again in 1869 under the same presiding Judge Robertson. But Chief Justice Williams rebukes this strange ruling in most emphatic language. He says: “In all the vague, uncertain, intangible, and undefined theories of the most impractical metaphysician in psychology or moral insanity, no court of last resort in England or America, so far as has been brought to our knowledge, ever before announced such a startling, irresponsible, and dangerous proposition of law, as that laid down in the inferior court. For, if this be law, then no longer is there any responsibility for homicide, unless it be perpetrated in calm, cool, considerate condition of mind.

“What is this proposition if compressed into a single sentence? that, if his intellect was unimpaired and he knew it was forbidden both by human and moral laws; yet if at the instant of the act his will was subordinated by any uncontrollable passion or emotion causing him to do the act, it was moral insanity, and they ought to find for the plaintiff?... If so, then the more violent the passion and desperate the deed, the more secure from punishment will be the perpetrator of homicide or other crimes.... The doctrine of moral insanity, ever dangerous as it is to the citizen’s life, and pregnant as it is with evils to society, has but little or no application to this case. Too uncertain and intangible for the practical consideration of juries, and unsafe in the hands of even the most learned and astute jurist, it should never be resorted to for exemption from responsibility save on the most irrefragable evidence, developing unquestionable testimony of that morbid or diseased condition of the affections or passions, so as to control and overpower or subordinate the will before the act complained of” (ib., p. 172).

You will notice, gentlemen, that Chief Justice Williams does not deny the existence of every kind of moral insanity. As I explained before, not the will but the passions may really be diseased or insane, and they may prompt the lunatic to commit very unreasonable and even criminal acts. When the impulse of a passion is violent, so that a man is carried along by it before he has had time to reflect on the criminal nature of his act, or at least before he could do so calmly and deliberately, the courts readily recognize such passion as a partial excuse: murder thus committed in a moment of strong provocation becomes manslaughter, not murder in the proper sense of the word. It is not justifiable; but yet it is far less criminal and less severely punished than when committed in cold blood, or, as the law terms it, with malice prepense or aforethought. This practice of our courts is right and highly reasonable, because on such occasions the will of the culprit is partly overpowered, or deprived of freedom.

It is a matter of much discussion among jurists whether a passion can ever be so violent as to overpower the will absolutely, so as to deprive it of all freedom at the moment. If it can, then the culprit should be totally acquitted for doing what he could not help doing. In several States of the Union, such an invincible impulse has been recognized by the courts of justice, and men have been acquitted for acting on what was supposed to be an invincible impulse to commit crime; the courts considered this as an extreme form of moral insanity.

I have shown above that on sound principles of philosophy the will can never be compelled to do wrong; at most it could be said that, in the cases just referred to, the will was not in the act. Now this, I suppose, is the case in hydrophobia or rabies, in which terrible disease the biting of the sufferer appears to be spasmodic, not voluntary. It is very doubtful whether such excuse can be substantiated in what is called moral insanity.

The courts of England and the leading authorities in the United States have never departed from this correct rule, that a man is accountable, to some extent at least, for whatever he does willingly and without the influence of delusion.

Moral insanity thus understood, as a derangement of the passions lessening a man’s full mastery of himself, but not destroying it altogether, assumes various forms. There are kleptomania, or an abnormal impulse to steal; pyromania, an impulse to set things on fire; dipsomania, or an abnormal fondness for intoxicants; nymphomania, or the tyranny of lustful passions; homicidal mania, or a craving to commit murder; etc. In all these the nature of the disease is the same, it would appear. The imagination seizes the pleasure vividly, yet, it is claimed, without delusion: and the passion, owing to organic disorder, is abnormally excitable. The organic derangement is supposed to be in the brain. For the human brain, a masterpiece of the Creator’s wisdom, is now generally believed to consist of various portions which are the organs of the passions, of motive power and the phantasms, erroneously called ideation. Hence it is easy to understand how it may happen that one portion is diseased while the other parts are in a normal condition. And on the other hand it thus appears very probable also that a brain partially diseased is liable to be soon affected in the other parts as well. Hence we may suspect that moral insanity is likely to bring on delusional insanity, and vice versa. In fact, I find that a medical expert of note, who had for many years taught that moral insanity was quite a distinct disease and separate from mental insanity, has in his old age changed his mind to some extent on this subject. “Of late years,” says Dr. Bauduy, of St. Louis, in his learned work on “Diseases of the Nervous System,” “I have believed, notwithstanding the doctrine of Pritchard, that a careful study of moral insanity will enable us to detect some evidence, although, it must be confessed, often very feeble, of mental weakening. Even the classic cases of Pritchard,” he adds, “who first defined the so-called moral insanity, when carefully examined, will confirm this statement” (p. 227). Usually, as the same Dr. Bauduy explains, those who are morally insane are at least on the high road to mental insanity (p. 228). Moral insanity is known to exist when there is a sudden change of character which can have no other source than bodily disease; as when a most honest man becomes of a sudden an habitual thief, a decent man openly profane, a miser becomes extravagantly liberal, an affectionate father a very tyrant to his children, without any traceable causes for such transformation. The disease is made more manifest if such a sudden change is preceded by certain physical conditions, such as epilepsy, hereditary taint, suicidal attempts, “the insane temperament,” as it is called, and other influences which are to be taken into consideration.

If ever you be summoned, gentlemen, to testify or pronounce on a person’s insane condition, let me give you one piece of advice which may spare you much unpleasantness: be unusually cautious of what you say. If you appear as an expert or a witness, and you make a mistake unfavorable to the patient, he will be your enemy for life; even he may at times recover damages for libel. If he is really crazy, he may be all the more dangerous. Do your duty, of course, as an honest man must always do; but do it very prudently.

Dr. Bauduy is very emphatic on the assertion that moral insanity is not moral depravity. He is perfectly right; yet we must not forget that moral depravity is often screened before the courts by the plea of insanity. When a man of bad antecedents commits a crime, and is known to have been sane just before and after the deed, he ought not to be excused on the plea that he may have been insane at the moment when he committed the act; there is no reason for such a plea. And with the victims of kleptomania, dipsomania, and other moral manias, it is well known that a sound whipping will often stop the nuisance. The rod for the juvenile offender, and the whipping-post for adults, would cure many a moral leper and be a strong protection for society at large, especially if applied before bad habits freely indulged have demoralized the person beyond the usual limits. All of us have our passions; they are an essential part of our nature and even an indispensable part. But they should be controlled by reason and will, whereas they are often indulged with guilty weakness. They are much strengthened by indulgence, especially in those predisposed to certain vices by hereditary transmission. No doubt some children have worse passions to contend against than others. It is still worse if, at the same time, their surroundings are unfavorable to virtue; and this is a constant source of increase to the criminal classes.

Wise statesmen will study the ways in which temptations to vice may be diminished; but it is mistaken mercy and dangerous to the community to spare the guilty when once they have committed criminal acts. If ever the principle were admitted in our courts of justice that the possible existence of mental insanity ought to protect a culprit from punishment, crime would soon increase tenfold both in the sane and in the insane. Both classes must be kept impressed with the conviction that the law rules supreme and will not tolerate the destruction of public safety. Your profession, gentlemen, in this matter as in many others, by its sound views on Jurisprudence and Ethics, is one of the strongest bulwarks of the common good.

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.

1074. • I. No one is held from justice spontaneously to offer himself for testifying; but sometimes there is given such an obligation from charity, for example if someone by his testimony can easily free an innocent person, impede a grave injustice, etc.¹

II. A witness legitimately cited is held to present himself before the judges, to emit the oath prescribed by law; to say the truth entire and nothing besides the truth, and then to respond simply according to conscience to legitimate questions. - Thus all.

III. A witness who maliciously deposed what is false is perjured, and, if through this he was the efficacious cause of damage to another, a violator of justice; and therefore he is held to reparation of all damages, and also to revocation of the false oath, with equal damage to himself, even with danger of life, if by force of the false testimony an innocent person has been condemned to death.⁴

1075. Questions. - Query 1° To what is a witness held who said what is false from invincible ignorance, or inadvertence, or inculpable forgetfulness?

Resp. He is held to open the false testimony, and to impede damage in the way in which he can; yet he is not held to reparation of damage already following, since he is without theological fault.¹ - The same would have to be said more probably even if he had sinned venially. Cf. things said n. 746. 3°. - 749. q. 3°. - 773. q. 7.

Query 2° What concerning him who supposes or adulterates a writing, note, or receipt, to supply acts that have been lost, or to prosecute a certain right?

Resp. 1° He sins at least venially by reason of lying; because, however the matter stands, the note which is exhibited is diverse from that which makes faith in judgment.

Resp. 2° Sometimes he can sin gravely against charity toward himself, when he exposes himself to the proximate peril of most grave punishments if the falsity is detected.

Resp. 3° In no way does he sin against commutative justice, and therefore he is by no means held to restitution.

1076. • Query 3° When is a witness excused from furnishing testimony?

Resp. He is excused in the following cases: 1° if he accepted the matter only under the secret of Confession; 2° if he knew the matter under a committed secret; 3° if he accepted the matter from men not worthy of faith; 4° if he knows that the accused did not sin mortally, for example on account of ignorance; 5° if he foresees grave damage going to come to himself or to his own; 6° if he has knowledge of the fact through injury, for example by opening another's letters, or unjustly compelling another. Except, as to 2°, 5°, 6°, if common damage or another's private damage prevails.³ - Yet by the laws of all States the excusing cause alleged 2°, or even 1°, is not admitted. Cf. n. 541. q. 1°.

Query 4° Whether a witness is held to reveal an altogether occult crime, for example which he alone knows?

Resp. Affirmatively, in States in which common law is in force, which establishes that even one witness can suffice for condemning the accused.⁴

1077. • Query 5° Whether and how a witness sins who hides himself lest he be cited by the judge, or who flees after citation?

Resp. To the 1st. He does not sin 1° against legal justice, because no one is held to obey the precept of a Superior before it is imposed on him; 2° nor against commutative justice, because he conducts himself merely negatively. Yet he can sin against charity toward neighbor, as was said above (n. 1074).

Resp. to the 2nd. He sins gravely against legal justice, or against obedience owed to the judge in a grave matter and necessary to society; but more probably he does not sin against commutative justice: because that citation does not impose an obligation of justice, but only of obedience.¹

Query 6° Whether a witness is held to restitution who, legitimately interrogated, conceals the truth; yet does not say what is false?

Resp. Negatively, probably. The reason is that the witness then conducts himself merely negatively, nor is he held to depose the truth except from the precept of the judge: and therefore by concealing it then he sins only against obedience owed to the judge, or even against religion on account of the oath furnished of saying the truth.²

2323. • Auxiliaries of judges help them in settling causes in a threefold manner: 1. by counseling: in which office auditors or referendaries, and assessors or counselors, function; 2. by writing the acts of the judgment: which notaries do, who are also called scribes, chancellors, actuaries, tabellions, protocolists; 3. by executing what the judge commands: in which business attendants and judicial messengers are occupied, who are also called apparitors, runners, beadles.

Principle. Auxiliaries of judges "are held to exercise their office JUSTLY AND FAITHFULLY, whether from the debt of the office only, or also from oath. - Likewise, they are held TO KNOW those things which pertain to their office, and to employ due DILIGENCE, furnishing all necessary things, asking for just terms, appealing, when it has been necessary."⁵

This general principle having been premised, it remains that the following things be noted separately.

2324. • I. Referrers or Ponents are those to whom the examination of the suit or recognition of the cause is committed, that they may refer it to the judges to be defined. Generally such an office is committed to one from the judges themselves, who by this reason is called the commissioner of the cause, or judge-relator.

The Referrer SINS and is held to reparation of the damage that comes about: 1. If by defect of study, or by carelessness, he reports badly, or omits things which pertain to the substance of the suit; - 2. if he favors either party; - 3. if he divulges the sentence before the time.

Note. But from the fact that knowledge of the cause belongs to the Referrer, it by no means follows that the other judges can neglect knowledge of the cause; for if they were to neglect it, the judgment would depend, in great part, upon the report of the Referrer alone, which not rarely totters. - Therefore each judge is held to weigh the cause considerately, and then, from his own knowledge, to cast his vote.

II. Counselors are held to the same things as the judge himself, insofar as they cooperate proximately with him in passing sentence. - Recall what was said concerning the Judge, n. 2296 sqq.; and concerning Counselors, n. 980, 983, 984, and 988.

2325. • I. A scribe or secretary is said to be one who has been deputed by legitimate authority, that in writing he may report testimonies, the sentences of judges, and the other things which are done in tribunals. From this it is clear how great prudence the office of Secretary requires for itself; for he himself is, as it were, the right hand of the judge.⁶

A SCRIBE can commit various injustices, especially:

1. If he does not use due diligence for reporting into authentic books all things brought forward and done in the tribunal. For defect of this diligence, unless it is altogether involuntary, easily induces grave fault and the obligation of restitution.

2. If from malice he omits something in writing, or if he adulterates the public tablets committed to himself, or keeps them badly; if he does not add the due formalities and signatures, or does not take care that they be added; if he does not faithfully transcribe the testimonies or words of witnesses, whether by exaggerating or diminishing, or by changing or inverting.

3. If he betrays a secret committed to himself; if he manifests a sentence not yet published; if, without the prescription of the judge, he shows the processes completed to the parties; if he hands over to the same parties the acts of the judge before they have been signed according to the legal forms. For then he exhibits a maimed and false instrument, the dispatch of which is of no value.

4. If, for increasing his salary, he amplifies more than is equitable the acts to be distributed; if he demands an unjust price, etc. - Moreover, as to stipend, he is held to stand by the legal or usual tariff, if by the passage of times the legal tariff has become insufficient. - Besides, all commonly say that the scribe cannot receive from the parties anything beyond the just price, even under title of donation; for such largesses are never spontaneous. Yet, if he undertook some extraordinary labor, it would certainly be lawful to receive something more.⁷

2326. • II. A notary or tabellion is said to be one who has been legitimately instituted for writing and noting acts, or instruments, which make faith either in judgment or outside it. The office of Notary is most grave, since public faith is committed to him. Hence that very well-known verse:

Let the notary be experienced, faithful, diligent.

Therefore he ought to be: 1. Experienced; whence he sins gravely against justice, if from ignorance or negligence of his office he omits those solemnities and necessary conditions which are required for the validity of the act. - 2. Faithful; whence he likewise sins gravely against justice, if he violates an oath, or a secret; if he conceals instruments from the party requesting them, especially those which contain legacies; if he makes a false instrument; if he writes the testament of a man deprived of the use of reason; if he adds to or takes away from the pacts of the contracting parties something of grave moment; if he does not warn them concerning clauses which can harm them, etc. - 3. Diligent; whence he sins gravely, and is held concerning damage, if he prepares acts negligently, e.g. through an unsuitable transcriber, or keeps them badly; if he defers, without just impediment, the dispatch of the cause; or brings it about that judicial acts come to other judges than to those whom the order of the forum designates, etc.⁸

Concerning the Notary, moreover, those things are valid which above (n. 2325) we said concerning the scribe.

2327. • IT IS ASKED. Whether a notary is held to restitution toward the FISC, if in preparing an instrument of sale or inventory, at the request of the parties, or even with himself hinting it, he does not inscribe the true price of the thing, but another lesser one, so that the TRIBUTE to be paid may be DIMINISHED?

Resp. It is controverted. - Some affirm, because thus he cooperates with the defrauding of tributes: which is wicked and unjust on the part of the magistrate, to whom the Republic trusts. - Others deny, provided that at least the lowest price is reported in the authentic writing. - Finally others totally excuse him, because from custom generally received even by upright men, the whole price, even the lowest, is not usually declared, but only a little beyond the middle part, or about two thirds of this price, is declared. But if the parties do not sin by dissimulating the true price, neither does the notary sin from cooperation; for he himself is not constituted, like one placed over taxes, for exacting tributes, but for preparing instruments. Thus Gury⁹ (cf. n. 967).

2328. • I. An apparitor (elsewhere Commissioner) is he who by office brings the order of appearing in judgment and the mandates of justice, and carries out the executions decreed by the judge.

Apparitors sin and are held to restitution: 1. If they allow themselves to be corrupted by price or favor to the prejudice of the client; - 2. If they do not grant the time prefixed for juridical acts; - 3. If, searching houses, they act more harshly, that they may extort some gift; - 4. If they exceed the mandate of the judge, or the statutes of the law, etc.; - 5. If, under title of donation, they receive a price above the tariff determined by law; for such a donation generally cannot be called spontaneous: as we have already noted concerning the scribe n. 2325, 4.¹⁰

2329. • IT IS ASKED. Whether an apparitor or commissioner can exact a MULTIPLE SALARY, if at one and the same time he brings diverse summonses?

Resp. St. Alphonsus:¹¹ It is necessary to distinguish: 1. If a price has been taxed for the apparitor (Executor or Commissioner) for the occupation of each day of his, he cannot exact more, as is clear. - 2. If the commissions are disparate, and a special salary has been assigned for each procuration, Lugo rightly says that the Commissioner can exact several salaries according to the number and quality of the executions, and Lessius holds the same (cf. n. 1036, q. 2).

In FRANCE, Gury testifying,¹² although the law prohibits this, nevertheless the usage has prevailed, the Government knowing and seeing it, that advocates and procurators so arrange the matter that for individual summonses apparitors have almost the same price.

2330. • II. The other MINISTERS of judges, for example interpreters, attendants, armed horsemen, keepers of prisons, etc., are similarly held to fulfill their own office rightly, faithfully, and justly.

Whence they sin and are held concerning damages: 1. If they exact anything beyond the just stipend; - 2. if they warn defendants whom they have been ordered to seize, that they may take flight; or debtors, that they may hide goods to be assigned to creditors; - 3. if they act more harshly and inhumanly toward them, especially for extorting money or other gifts; - 4. if they do not execute the things commanded at the constituted time.¹³

G. A sin most damaging to the neighbor is false testimony brought forth in judgment, which is wont to contain a threefold deformity: against legal justice, namely as harmful to public justice and to the good of the community; against commutative justice, because it is apt to cause unjust damage to the neighbor; and against religion, if it is done under oath, because then it is perjury strictly so called.

A false witness is bound to revoke the testimony and to reparation of damage following from it.

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.

I say 1st. No one is bound by justice spontaneously to offer himself for testifying; but sometimes there is given such an obligation from charity, for example, if someone can by his testimony easily free an innocent man, impede a grave injustice, etc. - Cf. St. Alphonsus, n. 264.

I say 2nd. A witness legitimately cited is bound to present himself before the judges, to pronounce the oath prescribed by law, to say the whole truth and nothing except the truth, and then to respond simply according to conscience to the things asked. The reason is that, a citation legitimately applied being supposed, an obligation arises by force of legal justice.

I say 3rd. A witness who maliciously has testified falsely is perjured and a violator of justice, if by his lie he positively influenced the harm of others; and therefore he is bound to reparation of all damages, and also to revocation of the false oath, even with equal damage to himself, even with danger of life, if by force of the false testimony an innocent man has been condemned to death. - Cf. St. Alphonsus, n. 269.

Question 1. To what is a witness bound who said what was false from invincible ignorance, or from inculpable inadvertence or forgetfulness?

Resp. He is bound to disclose the false testimony and to impede the damage in that manner in which he can; nevertheless he is not bound to reparation of damage already following, since he is free from theological fault. Cf. St. Alphonsus, n. 269.

Question 2. When is a witness excused from giving testimony?

Resp. He is excused in the following cases: 1st. if he accepted the matter only under the secret of confession; 2nd. if he knew the matter under committed secrecy, even if it was not explicitly promised; 3rd. if he accepted the matter from men not worthy of faith; 4th. if he foresees that grave damage will come to himself or to his own. Except, however, with regard to the 2nd and 4th case if common damage threatens from it. - Cf. St. Alphonsus, n. 268. - Lugo, de just. et jur., disp. 39, n. 12.

Question 3. Is a witness bound to reveal an altogether hidden crime, for example, one which he alone knows?

Resp. Affirmatively, according to the laws which establish that even one witness alone can suffice for condemning the accused. Cf. Kenrick, n. 123.

Question 4. Whether and how a witness sins who hides himself, lest he be cited by the judge, or who flees after citation?

Resp. A witness who hides himself lest he be cited sins neither against obedience, because no one is bound to obey the precept of a superior before it is imposed upon him, nor against commutative justice, because he conducts himself merely negatively. Yet he can sin against charity toward the neighbor, as was said above. But a witness who flees after citation sins gravely against legal justice and against obedience owed to the judge in a grave matter and one necessary to society; but more probably he does not sin against commutative justice, because that citation does not impose an obligation of justice, but only of obedience. - Cf. St. Alphonsus, n. 270. - Vogler, n. 337.

Question 5. Is a witness bound to restitution who, legitimately questioned, conceals the truth, yet does not say what is false?

Resp. Negatively, probably, and the reason is that the witness then conducts himself merely negatively, nor is he bound to depose the truth except from the precept of the judge; and therefore, by concealing it then, he sins against only the obedience owed to the judge, or also against religion on account of the oath given about saying the truth. - Cf. St. Alphonsus, ibid.

IV. QUESTION II. Who are free from the obligation of bearing witness? ANSWER. Confessors, who know facts by force of sacramental confession. Likewise all those who know facts under a natural secret, or for the sake of giving counsel or aid, such as are advocates, physicians, midwives, surgeons, theologians, and so forth. Nor does the judge's intention regard this, that those things which are known by these ways be revealed. Because the observance of secrets is necessary to civil society and to the common good. All nevertheless except with St. Thomas testimony necessary for hindering a grave loss of the community. For then the secret is concerning an unlawful matter — the sacramental seal excepted, which in no case can be revealed. Those who saw an offence, and afterwards swore that they would not reveal it, ought to obey the precept of the superior, although it be not a question of a neighbour's loss to be averted, because that oath is against the right of the superior. As soon as a man knows a thing, there arises a right in the superior of questioning, and consequently that oath is concerning an unlawful matter in respect of the superior, although the sworn secret is to be kept in respect of others. Witnesses are immune from bearing witness when from the same a grave loss threatens themselves or their blood-relations, unless you are bound by the precept of charity to hinder either the public good or a neighbour's loss. For human laws absolutely, and certain cases excepted, do not oblige with a very grave detriment. A father, son, husband, wife, brothers, sisters, blood-relations, and connections of the offender, up to the second and according to many up to the fourth degree, are not bound to bear witness, that domestic concord may be preserved. There are always excepted the cases of heresy, of treason, of the betrayal of one's country, and so forth. In some places servants also are exempted from bearing testimony against their master.

V. QUESTION III. When does a witness gravely sin, and is bound to restitution? ANSWER. He sins: first, if he affirm as true what he did not certainly know; second, if he hide the truth known to him from one lawfully questioning; third, if he bear false witness, because, as is said in Proverbs 21, a lying witness shall perish; fourth, those who write false instruments, or tear up true ones; fifth, those who adulterate some bond or writing. All these, besides the grave sin, are bound to compensate all the losses which thence follow. Sixth, he who in good faith uttered false testimony is bound to retract it. Let this at last be the general rule. Judges are the keepers and defenders of society and of the public good. All subjects are bound to obey their own superiors when they lawfully command. Nor can private persons judge when they lawfully command, but they ought to obey them. Wherefore, when they are cited even in general, they cannot hide themselves or take to flight, but ought to stand before the tribunal.

Since the whole truth of the Judgment hangs on the words of the Witnesses, the Judge ought before all else to be most well instructed in examining these with the greatest care, whose first duty in this office is to admonish the witnesses how grave and criminal a thing is the crime of falsehood; second, he is bound to commit to writing the things which they depose against or for the Accused; and if he believes them reasonably suspect, in the sifting of the truth he ought to employ every diligence, and even acuteness; yet not suggestion, or cavillation: Third, he is bound to search out all the circumstances of the fact, from which its gravity, or levity can be discerned; finally, omitting all the crimes of the witnesses themselves, except those which plead unfitness; he ought not, however, to examine Clerics, or Religious without the license of their superiors; yet once examined they are bound; These things seen, we must speak of the obligation of the witnesses themselves.

When proceedings are conducted by way of denunciation or accusation, the witnesses are already presumed to be named. When, however, by special inquisition, they come forward of their own accord when requested, or are named by those requested. That witnesses are at times bound to answer the truth is certain, when the Judge exercises his power justly.

Therefore, if a witness is juridically interrogated, he is bound to answer out of obedience and Charity: whether, however, he is also bound out of Justice.

The negative opinion is upheld by Sylvius 2. 2. quaest. 71. art. 1. quaeritur 1. concl. 6. Ioan. de Cruz part. 1. pract. 8. art. 4. disp. 13. concl. 6. Pitig. prac. part. 2. cap. 6. fol. 191. It pleases Julius Clar. L. 5. sent. §. falsum, num. 19., who nevertheless speaks paradoxically; Valencia disp. 5. quaest. 14. puncto 1.

The second opinion is that persons of this sort sin against Justice and are bound to restitution. So St. Thomas 2. 2. quaest. 70. art. 4. in corpore. Navarr. sum. Lat. cap. 25. num. 40. and 41. Lessius Lib. 2. cap. 30. dub. 8. num. 54. Filliucius Tom. 2. tract. 4. cap. 8. n. 288. Salon 2. 2. quaest. 70. art. 1. Sotus Lib. 2. de Iust. quaest. 7. art. 1. Bannes loco cit. D. Thom. (though Valencia is falsely alleged.) Petrus Nauarrus, Fagundez on the tenth precept Lib. 8. cap. 42. Malder. 2. 2. tract. 6. cap. 2. disp. 9. Turrianus 2. 2. disp. 52. num. 2. Azor. part. 3. lib. 13. cap. 27. dub. 4. Medina, Sotus, Orellana, and others in Diana part. 3. tract. 5. resol. 101, among them Octauianus Spartatius in pract. regul. tract. 7. cap. 11. num. 7. Molina Tom. 1. de iust. tract. 2. disp. 83. §. de teste, and tom. 4. disp. 700. num. 4. teaches that a witness who either speaks falsely in judgment or keeps silent about the truth sins against justice and is bound to restitution of damages; but that if by fraud, flight, or some fiction he has prudently declined the judgment, and by that declination has been the cause of damage, he is not bound to restitution; and that this is not improbable, says Lessius num. 59, where he says that on this point learned men of the University of Louvain were consulted by him, and so they answered him. Diana judges it more probable, and Villalobos tomo 2. tract. 12. diffi. 23. num. 12. Tanner indicates it disput. 4. quaest. 4. dub. 6. number 110. Bassaeus says this is most probable, V. Testis 11.

This seems to me the opinion of St. Bonaventure p. p. censil. sect. 13. and in the Mirror of the Soul, cap. 1, in which places he numbers among Detractors, liable to restitution, those who keep silent against a detractor when they know the slandered person to be innocent. Now the reason is the same, and the necessity and obligation; indeed greater in the case of one who, summoned juridically to judgment to defend the truth and innocence of someone, either evades the judgment or in judgment keeps silent about the truth.

I assert, with this opinion, that such a person, so close to the one doing the damaging, sins against Justice.

It is proved, because he cooperates in the damaging of his neighbor, when he is bound not only to obey Justice, but also not to squander the goods of his neighbor to its damage — not only of the damaged party, but also of the whole Commonwealth, which will suffer grave detriment if a way is opened for hiding the truths of justice.

Therefore this obligation is enjoined by justice, lest Justice, by which Commonwealths are governed, perish; to which obligation all and singular those who are members of the Commonwealth are bound, whether they will or not: for the Commonwealth could impose an obligation of this kind for its own preservation: For without justice Kingdoms and Empires are not preserved, as Fagundez defers to the point at num. 14, and Lessius loco cit., after St. Bonaventure on Ecclesiastical Hierarchy, part. 2. cap. 2. and on cap. 6 of Wisdom.

From this the argument of Molina collapses, which was taken from the fact that, just as no one is bound to accept the office of tutor, so neither the parts of justice; and Diana's reason, that since before the judge's mandate he would not be bound by commutative justice, and after the mandate he is bound only by Legal justice, he is not bound by Commutative Justice.

I add, however, that it is probable, as Diana subjoins with Malderus, that one who has imprudently damaged someone by his word, thinking himself legitimately interrogated about this, is not bound to restitution of the damage inflicted; he is bound, however, to retract it if he can.

A question arises, however: whether a witness who doubts whether the Judge interrogates juridically is bound to answer.

Pitigianus teaches affirmatively in pract. crim. can. de secundo substantiali iudicii, c. 3. fol. mihi 175., and it seems the opinion of St. Bonaventure, as I said, prima secundae, Tract. 2. disp. 17. de Conscientia dubia. But the reason seems different here.

Yet they deny it: Lessius lib. 2. cap. 31. dub. 3. num. 10. Sanchez tract. 2. lib. 6. cap. 3. num. 24. Salas prima secundae, quaest. 21. tract. 8. disp. unic. sect. 13. n. 155. Henriquez Lib. 14. cap. 3. in Glossa, letter X. Bannes, Sotus, Medina, and others cited by them, with whom Diana subscribes, part. 3. tract. 5. resol. 106.

I ASSERT, therefore, that the first opinion is probable.

The reason of St. Bonaventure, which the others use, is, that in doubtful matters the condition of the possessor is better; but the superior is in possession of the power of commanding; the subject is certainly a subject; but only merely doubtful for this case; but St. Bonaventure speaks only in relation to ordinary religious obedience; but in relation to judging the life of one's neighbor, by no means; because there is another grave reason on the opposite side, because that neighbor is in possession of life, honor, and wealth, and it is a most grave matter, and higher than the obedience owed to a superior, which rests almost solely on human law; and therefore he is bound not to prejudice the life of another who exists in possession, provided I sustain as doubtful the jurisdiction of Man in this matter.

Therefore the second opinion seems to me truer, and more according to the mind of the Seraphic Doctor.

They raise another question: whether, if the deed is notorious, but the perpetrator is hidden — for instance, if a slain corpse lies in the road and is recognized by the Judge, who inquires about the killer — the neighbors who know are bound to reveal it.

I SUPPOSE, from what was said in disput. de Iudice, quaest. 8. dub. 3., that the Judge legitimately inquires in this manner about the Accused, nor do the Canons stand in the way: cap. cum oporteat, cap. Inquisitionis, cap. Qualiter, et quando, for there it is only prohibited that inquiry be made about someone in particular against whom no infamy has preceded, e. g. by suggesting: Say: Whether Paul killed; but in general.

They ASSERT, therefore, that they are bound to answer and reveal: Aragon. 2. 2. quaest. 69. art. 2. disp. ult. Ioan. Valer. in diff. utriusque fori, v. Inquisitio, num. 9. Miranda de ord. iudic. tom. 1. quaest. 6. art. 6. concl. 3. and others alleged in the place cited, especially our Father Eliseus.

Their REASON is that, since in the proposed case the judge has the right of proceeding for the sake of the common good to be preserved, and of interrogating witnesses manifestly, it follows that they themselves also are bound, for the sake of the same common good to be preserved, to speak the truth and reveal the accused; otherwise innumerable crimes would go unpunished, and a broad way would be opened to assassins for bloodshed.

But that they are not yet bound, the Neoterics commonly teach, in Diana p. p. Tract. 15. Miscell. resol. 63. So Turrianus tract. 2. in 2. 2. disp. 50. dub. 5. Filliucius tomo 2. tract. 40. cap. 6. num. 185. Lessius lib. 2. cap. 29. dub. 14. num. 118. Bonac. de Legibus disp. 10. quaest. 2. part. 5. num. 14. Navar. de restit. lib. 2. cap. 4. num. 67. Salon. 2. 2. tract. 1. quaest. 63. art. 2. controu. 7. and others.

The REASON is that when it is doubtful whether the judge interrogates juridically, and the probable opinion is that he does not judge juridically, and consequently (which is the same thing) that he is not a judge, in that case the subject is not bound to obey, because he may embrace the probable opinion which asserts that the Judge in that case has no right. So Turrianus, who reproves Peter Navarrus, saying that in this case there is given a just war on both sides, so that the judge, according to a probable opinion, has the right; and the subject, according to the probable opposite, is not bound to manifest the truth — which response Filliucius defends. Whatever may be said of the reason, Diana concludes that those holding the opposite opinion tremble at the airs.

It will seem to someone that the Holy Doctor opposes this in prima secundae, Tract. 1. disp. 17., because the Judge seems to be the possessor of the right of inquiring. But this right is only probable: nor is the case similar to that of a Prelate, having a certain right of commanding subjects; and to this mere probability those are bound to acquiesce in the way of St. Bonaventure, with a genuinely higher motive, namely, that the Prelate is given by God as a leader to life; not so the judge.

WHEREFORE with excessive hyperbole Clarus says, §. fin. quaest. 5. citing Innocent in cap. bonae memoriae, that in the whole world an affirmative opinion is sustained. They follow it: Megala in Praxi, cap. 11. Farinac. quaest. 1. num. 49. and the Doctors on cap. Inquisitionis, de Accus. especially Ananias num. 4. Felin. num. 6. and Ambrosin. de modo formandi processum, Lib. 1. cap. 1., saying that it is the universal custom, as Bictus quaest. 11. num. 8. relates.

WHETHER, indeed, one who by his testimony could free someone from an unjust death or oppression, and who truly is not interrogated by the Judge, could nonetheless do so — whether he sins mortally and is bound to restitution.

I SAY that this man sins mortally against Charity, not against justice, and accordingly is not bound to restitution. St. Bonaventure so holds in the Mirror of the Soul, cap. 1., where he condemns this dissimulation of damaging as a mortal fault; he does not, however, bind to restitution. They follow: Navar. sum. Lat. cap. 25. n. 47. and in cap. Inter verba, 12. quaest. 3. num. 638. 706. and 722. Gabriel. in 4. dist. 15. quaest. 6. art. 2. concl. 7. St. Thom. 2. 2. quaest. 70. art. 1. in corpore, Lessius lib. 2. cap. 30. dub. 8. num. 58. Sotus Lib. 5. de Iust. quaest. 7. art. 1. Salonius 2. 2. quaest. 70. art 1. disp. 3. Fagundez on the eighth precept, Lib. 8. cap. 42. num. 6.

This seems commanded, Proverb. 24: Rescue those who are led to death; if you say: strength does not suffice me: He who inspects the heart, He himself understands. Thus it is proved by St. Bonaventure de Ecclesiast. Hierarch. part. 2. cap. 2., where he also hints that one is not bound to expose himself to his own grave damage to testify to the innocence of an innocent person; and if he is compelled by a judge, he may equivocate. So also Lessius num. 56. Navar. num. 50. Baldus in cap. cum nuncius de testibus, Sylvester V. denunciatio, q. 1. and V. correctio, §. 7. Filliucius tom. 2. tract. 40. num. 255. Sayrus lib. 12. cap. 20. num. 24. Sotus de teg. secreto, mem. 2. disp. 3. quaest. 7. Fagundez on the 8th precept of the decal. Lib. 8. cap. 42. num. 7.

MANY are indeed excluded by law from being judicial witnesses, as St. Thomas says, and it is plain from Can. si testes.

FIRST, in criminal causes slaves and women, and criminals, are excluded by Canon law, cap. serus de verb. signific. and cap. mulierem 33. quaest. 5.

By civil law, however, women are admitted in common, Leg. ex eo, ff. de Testibus. Except in a testament Leg. qui testamento, §. mulier, ff. de testamentis. So the Doctors commonly teach, as Lessius teaches Lib. 2. cap. 30. dub. 5. num. 36. Gomez cap. 2. num. 53.

A harlot, however, cannot be a witness in a criminal cause, as Julius Clar. hands down quaest. 24. num. 14., and so the Doctors commonly, as Jason testifies in Leg. cunctos populos, Cod. de summa Trinitate, and Cartad. in praxis, fol. 80. num. 18. But who is to be called a harlot, Julius Clar. teaches Leg. 1. sem. §. meretrix.

SECOND, by common law in criminal causes one under twenty years is excluded, by the Law in testimonium, ff. de testibus; yet his statement makes an indication sufficient for capture, not for torture, as Gomez and Lessius teach, alleged above, and Fagundez Lib. 8. cap. 40. num. 29.

If, however, he be pubescent, that is, a male of fourteen years, or a female of twelve, he is admitted in civil causes.

THIRD, enemies are excluded in criminal and civil causes, except in those crimes and lawsuits in which other witnesses not otherwise suitable are admitted, as in proving simony, heresy, and the like, cap. per tuas, de simonia.

FOURTH, the ascendants and descendants of the accuser; likewise collaterals; but these only up to the fourth degree. So Gomez cap. 12. num. 15. Lessius Lib. 2. cap. 30. disp. 7. num. 37. The same holds of the kinsmen of the blood; yet the relatives of the Accused are at times received to confirm his innocence, as Clarus teaches quaest. 24. num. 12.; for so usage carries it, when his innocence cannot otherwise be proved; So Lessius num. 38. with St. Bonaventure in 4. dist. 41. dub. 2.

FIFTH, the domestics of the accuser and his familiars are excluded, and those infamous with legal infamy, in criminal causes; and this is most certain without controversy, as Julius Clar. teaches quaest. 24. num. 23. Lessius num. 38. But one infamous in fact is at times admitted, when the truth cannot otherwise be had; but with torture. So Clarus quaest. 24. n. 23. Lessius loco cit. our Father Eliseus in his new Criminal Practice.

SIXTH, those who have committed perjury before, according to the common rule: Once wicked, he is always presumed wicked in the same kind, cap. si quis consentiens, and cap. parvuli 22. quaest. 5. as St. Bonaventure relates in confessionali, cap. 3. particula 33.

SEVENTH, partners in the crime are excluded, Leg. fin. Cod. de accusat. and cap. veniens, cap. de testibus. So Lessius num. 39. Fagundez num. 23. Yet some crimes are excepted, as heresy, sodomy, the crime of false coinage, Lèse-majesté, notorious theft, philiri, and sorceries.

EIGHTH, vile and poor persons are excluded, because they are suspect of being corrupted by payment, Leg. 3. and § 4. ff. de testibus. Syluester V. testis, quaest. 1. Lessius lib. 2. cap. 30. dub. 5. num. 38. Farinacius decis. 138. A vile person, moreover, means a hireling and a dishonorable woman, Farinacius decis. 79. Felinus in cap. Quoties, de testibus. But a poor man is one who is compelled to seek his daily livelihood with his hands; Glossa in Leg. Paupertas, ff. de excusat. tutor. Farinac. decis. 109.

Lucia, Caia’s maidservant, knew that Caia had committed adultery. When, however, she was summoned to give testimony on a future day concerning the adultery committed, in an action for divorce brought against Caia by her husband, she doubted whether she could and ought to reveal her mistress’s crime, since she alone besides the parties themselves knew it. Hence she went to a confessor, who, insofar as by divine, civil, and ecclesiastical law two witnesses are required to prove a crime and a single witness is not lawfully questioned by a judge about a crime which that witness alone knows, replied that Lucia ought not reveal the crime. When Titius, another priest, heard this, he judged that the confessor had sinned against justice, since by his reply he had prevented the husband from obtaining a good, namely a divorce, to which he had a right. Hence it is asked:

1. What are the obligations of witnesses, and whence do they arise?

2. To what extent do the prescriptions of ecclesiastical law and English law differ concerning the number of witnesses required to prove a crime, and is the English law just?

3. What is to be said of the case?

1. What are the duties of witnesses, and whence do they arise?

The question concerns witnesses in Courts of Justice, and in general any one may be under an obligation to give evidence about what he knows when this is necessary to prevent great harm to others or to the State. One who is summoned by lawful authority is also bound to give evidence by the obedience which he owes to that authority. As he has sworn to tell the truth, he will be bound also by his oath to tell the truth in answer to the questions that are put to him lawfully.¹

1 Manual of Moral Theology, vol. i, p. 504.

2. How does English law differ from canon law concerning the number of witnesses necessary to prove a crime, and is English law on the point just?

In canon law, as in the Mosaic and Roman law, two witnesses were necessary and sufficient to prove a crime. Except in the case of treason and one or two other crimes, one witness is held sufficient to prove a fact in English and many modern systems of law. This provision of modern law can not be called unjust, for practically always the evidence of the one witness is corroborated by other circumstantial evidence of the crime.²

2 Stephen’s Commentaries, vol. iv, p. 357; Génicot, vol. ii, n. 17.

3. The case. If the trial were about to take place in an ecclesiastical Court, in which Caia’s husband wished to obtain a divorce a toro et mensa, Lucy would not be bound to tell what she knows, unless there were already semiplena probatio of Caia’s guilt. To avoid needless complications in the case we will waive the question about the State’s competence in marriage cases. In England it is at least competent in cases of judicial separation. If, then, Lucy were summoned in such a case she would practically be bound to tell what she knows. Nor is this substantially at variance with the provisions of canon law,' for ordinarily when a witness is summoned, there is semiplena probatio, or infamy, or evident signs of guilt, and in those circumstances a single witness was obliged to give evidence even according to canon law. From what has been said it will be clear how far the confessors were right or wrong.