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.

THERE are other persons connected with the administration of justice besides judges and lawyers, and they have special moral obligations of their own. A word must be said about the moral duties of prosecutors, defendants, and witnesses. By canon law the accusation of delinquents in an ecclesiastical criminal trial is reserved to the Promotor of Justice, but as a general rule anyone who has full use of his senses may prosecute according to English law. Nobody should undertake a prosecution when greater evil than good would follow from it, or when there is not moral certainty as to the guilt of the accused. Otherwise it may be done for the sake of the public good, and there may be an obligation to do it, as when one’s office compels one to undertake the task, or the defence of the innocent or the public good require it, or a precept of obedience command it. Thus by ecclesiastical law heretics and priests guilty of solicitation in the sacred tribunal are to be denounced to the Ordinary.

The defendant in a criminal trial is not himself subjected to examination according to English law, unless he offers himself voluntarily to give evidence, and then he may be examined like a witness. In canon law the accused is examined, and the question arises whether he is bound to tell the truth. According to Canon 1743: “ The parties are bound to answer the judge when he interrogates them legitimately, and to tell the truth unless there is question of a crime committed by themselves.”

The defendant may in self-defence make known the secret crime of a witness against him, if it really conduces to his defence; but of course he may never impute false crimes to anybody. A criminal may not defend himself against lawful arrest, for that would be to resist lawful authority, but he is not compelled to deliver himself up to justice, and it is not a sin to escape from justice if he can do so without violence, The law prescribes that he shall be kept in durance, not that he shall voluntarily remain in custody. A criminal lawfully condemned to death is not obliged to save his life by escape or other means if he can do so; he should submit to the execution of the sentence passed upon him, and may do so meritoriously.

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. 68; St. Alphonsus, Theologia Moralis, book IV, nn. 234-254; Homo Apostolicus, tract 13, nn. 73-78.)

I. Judicial Accusation. 1. Judicial accusation is the denunciation of someone's crime to a competent judge, for the sake of public vindication, with the burden of proving the crime. It is said:

a) The denunciation of a crime; and thus the accuser is distinguished from the actor or petitioner, who moves a lawsuit against another in a civil matter. The one who is accused, or against whom a lawsuit is moved in a civil matter, is called the defendant.

b) With the burden of proving the crime; and thus the accuser is distinguished from the denunciator, and accusation from denunciation; for the latter does not carry with it the burden of proving (St. Alphonsus IV, 235).

2. Judicial accusation for the most part belongs to those officials to whom this has been committed by law; primarily indeed to those who are customarily called the public ministry (St. Alphonsus IV, 236). To whom besides them it has been committed, see in the law of one's country.

II. Denunciation. 1. Denunciation is the denunciation of a crime to officials deputed for this, without the burden of proving it.

2. The following are bound to denunciation:

a) By office, those who have been expressly deputed to this by law, and generally all who, while carrying out a public office, detect some delict in the exercise of their office.

b) By precept of law, in many kingdoms even private persons who perhaps have been witnesses of certain graver crimes are obliged.

c) By natural law, everyone is obliged who knows some crime whose denunciation is necessary for the common good or for averting grave harm from a private person (St. Alphonsus IV, 236).

3. From the obligation of denouncing, if indeed there is question of the common good, a private cause does not excuse; otherwise, a proportionately grave cause excuses. A graver cause is required for those who are bound by office than for those who are bound only by law or by natural right. The principal causes are notable harm to be feared for oneself or one's own from the denunciation, and connection with the delinquent himself. Finally, an entrusted secret not only excuses from the obligation, but even prohibits one from denouncing someone. Except if, from omitted denunciation, grave harm threatens either the common good - in which case there is an obligation not to preserve the secret - or the one accepting the secret (St. Alphonsus IV, 236); if from omitted denunciation grave harm threatens a third person, the things said on p. 720 hold.

4. One who has falsely denounced (or accused) is bound, if he was gravely culpable, to restitution of the damages that followed. Besides, he is obliged to retraction, even with equal harm to himself, but not with much greater harm. If he was not gravely culpable, he is not bound to restore damages; nevertheless he ought to retract the testimony, if this can be done conveniently enough (n. 994).

(St. Thomas, II-II, q. 69; St. Alphonsus, Theologia Moralis, book IV, nn. 272-290; Homo Apostolicus, tract 13, nn. 82-87.)

The discussion is only about the accused in criminal matters.

I. The accused, according to present-day law,¹ is not bound to confess the crime. Therefore, even if he is questioned about it by the judge, he can answer, with a broad mental restriction, that he did not commit it, understanding: in such a way that I am bound to confess it. Likewise, using the same restriction, he can deny those things which could harm him, i.e. could lead to proof of the crime, provided he does not inflict injury on others. Nor is an oath now demanded from the accused; and if it were demanded, he could confirm by oath the broad mental restriction used by him, or to be used in the course of the trial. The things said do not prevent the accused, if the common good requires it, from being able and obliged to betray his associates (St. Alphonsus IV, 278).

According to ancient law, these things held: The accused, legitimately questioned, is bound to confess the truth; for it belongs "to the debt of justice that someone obey his superior in those matters to which the right of prelation extends. But the judge ... is superior with respect to the one who is judged; and therefore from debt the accused is bound to set forth to the judge the truth which he demands from him according to the form of law" (St. Thomas, II-II, q. 69, a. 1; St. Alphonsus IV, 274). Moreover, in order that he be legitimately questioned, at least probable indications of the crime must have preceded. The accused is excused: 1° if the judge "indeed questions the accused juridically, but only from a false presumption of delict" (St. Alphonsus IV, 273), as if someone is questioned about a homicide which he committed because of just defense of himself; 2° quite probably, if otherwise a most grave penalty threatens him (St. Alphonsus IV, 274).

¹ Cf. Staatslexikon, word Strafprocess, V, 604.

II. The accused can break the force of testimonies brought forth against him by disclosing the crimes of the witnesses, provided the revelation of the crimes is both necessary and efficacious for his defense. But "to oppose a false crime to a witness or accuser for defending one's own cause is always unlawful and a grave fault" (St. Alphonsus IV, 277).

III. The accused can decline the penalty as follows:

1. If he is innocent, he can flee both before and after sentence; he can also resist positively, for example by driving away the officers, frightening them, wrenching himself from their hands, indeed even by going further. The reason is that in the case the execution of the sentence involves an unjust aggression. Nevertheless, accidentally, positive resistance, especially graver resistance, is for the most part unlawful, because commonly it is not only useless, but also causes greater evils and gives occasion for scandal (St. Thomas, II-II, q. 69, a. 4; St. Alphonsus IV, 279).

2. If he is guilty, he can flee: 1° before he has been condemned; 2° after he has been condemned, if prison has been assigned not for punishment but for custody - that is, until the execution of the sentence. "The reason: because the sentence does not condemn the accused to not fleeing, but only to not resisting the ministers when they execute the sentence" (St. Alphonsus IV, 280, question 2; St. Thomas, II-II, q. 69, a. 4, ad 2). "But if prison has already by the sentence been assigned as a punishment, even perpetually, then one must deny that it is lawful for the accused to flee from prison; because in the execution of a just sentence the accused is certainly bound to obey ... Some except, however, if in prison necessities for sustenance are not given to him ..., or if the prison were excessively grievous, because it seems beyond human strength that someone should be obliged not to free himself, when he can do so without force and resistance, from a very hard penalty" (St. Alphonsus, loc. cit.; cf. St. Thomas, II-II, q. 69, a. 4, ad 2).

Besides, one who can flee can also remove impediments which stand in the way of flight, for example by breaking the prison. But if damage comes to the guards from this, that can be permitted. He can also deceive the guard by artifice, or make him drunk or put him to sleep when he is not paying attention. But he cannot corrupt him if he has been justly condemned, since there would be formal cooperation in the guard's sin (St. Alphonsus IV, 282).

IV. The accused, as is clear, is not bound per se by an unjust sentence, whether because of a neglected order of law or because of the intrinsic character of the cause. Accidentally, commonly it must be observed, namely lest public order be disturbed and scandals arise (St. Alphonsus IV, 215).

In doubt concerning the justice of the sentence, it is to be presumed just; nevertheless it is lawful to appeal to a higher tribunal.

Note. With respect to ecclesiastical law, observe these things:

1° The accused, legitimately summoned, ought to respond (can. 1646); to respond, i.e. as juridical interpretation has it, is to present himself before the judge.

2° The accused is not bound to confess his own crime, according to these things: Parties are bound to respond to a judge legitimately questioning them and to confess the truth, unless there is question of a delict committed by themselves (can. 1743, § 1).

(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).

The Defendant.—The party who is required to make answer to the charges of the plaintiff or prosecutor is known as the defendant or the accused. We shall now speak of the ways in which he may be guilty of injustice, and shall consider the following cases: (a) the defendant in civil cases; (b) the accused in criminal cases who is innocent; (c) the accused in criminal cases who is guilty.

The Duties of the Defendant in Civil Cases.—(a) Before Sentence.—If the cause of the plaintiff is clearly just, the defendant as a matter of justice should recognize the claim and withdraw from the case. But a defendant may take exception to arguments offered by the plaintiff which, though actually valid, are not juridically made.

(b) After Sentence.—If the cause of the plaintiff is clearly just but loses in court, the defendant is obliged in conscience to pay the claim, even though the plaintiff does not appeal the case; he is also obliged in conscience to indemnify the plaintiff for the expenses of litigation, if the latter lost the case on account of unjust means employed by the defendant.

The Duties of One Who Has Been Arrested on a Criminal Charge.—(a) If the accused person is innocent, he may take to flight or even offer positive resistance, provided he does no injury to those who attack him, and public scandal or disorder does not result from the resistance. This is according to natural law, which permits one to use self-defense against unjust aggression; but since the positive law requires the accused to submit to arrest that is not manifestly unlawful and empowers the officers to employ force against those who resist, it seems that generally the accused should permit himself to be taken under protest, if he cannot escape.

(b) If the accused person is guilty, he may take to flight, since he has not yet been sentenced as guilty nor officially deprived of his liberty; but he may not offer resistance to those who are sent to apprehend him, since their aggression against him is not unjust. The accused person, if not yet convicted, may even use indifferent means to escape from prison, such as sawing his way out or eluding the vigilance of the guards; but he may not employ sinful means, such as bribery of officials.

Duty of the Accused to Plead Guilty, if Questioned by the Judge.—(a) If the accused is innocent, he may not plead guilty, as is clear. If to escape most grave evils he did plead guilty, he would be guilty of lying (if under oath, of perjury), but not of self-defamation; for, as the owner of his reputation, he has the right to sacrifice it in order to escape greater evils. Neither would he be guilty of suicide, according to some, if the death penalty were the consequence of the confession; for his purpose would be to avoid what he dreaded more than death.

(b) If the accused is guilty, he must reply truthfully, if the judge has the right to ask the question; for if the judge has the right to question, the accused has the obligation to answer, even though unpleasant things will befall him in consequence.

(c) If the accused is guilty, but the judge has no right to ask about his guilt (that is, if the judge does not question juridically or according to law, or if he questions from a false presumption of guilt), or if the accusation cannot be proved juridically, the accused is not obliged to answer. He may keep silence or evade the truth, but it is not lawful to lie.

Legal Right of a Judge to Question a Prisoner about His Guilt.—(a) According to older legislation a judge had this right, and could enforce it by torture, when the common good was involved and the guilt of the prisoner was likely on account of infamy or manifest indications of crime or half-proof of guilt. In itself, this practice was not opposed to natural law and had some good results; but it was open also to many abuses. Some moralists teach that a judge cannot impose a grave obligation of confessing guilt in capital or similar cases, if the accused has otherwise a hope of escape and no great evil is likely to befall the common interests by reason of an acquittal. They argue that human law cannot oblige so rigorously as a rule.

(b) According to modern civil legislation the right of exacting a confession is denied to a judge. Thus, according to American law no person may be compelled “in any criminal case to be a witness against himself” (Constitution, Article V). In American law the plea of not guilty is not a lie, even though the accused knows that he is guilty, for, as everyone understands, the plea means either that one is innocent or that one is using the privilege of not confessing. Neither is it considered a lie to say that an unprovable charge is a calumny, for an accusation that cannot be proved juridically is juridically a calumny.

(c) The general law of the Church rules for ecclesiastical processes that, when the judge questions the parties-litigant, they are obliged to answer and to confess the truth, unless the question is not legitimate (e.g., questions about irrelevant or privileged matters, or questions made in a captious or leading manner), or the answer would incriminate the parties themselves (Canon 1743). Neither is an ecclesiastical judge permitted to put an accused in a criminal case under oath to tell the truth (Canon 1744). An instruction of the Holy Office of 1866 required that the guilty party in a case of solicitation should confess, but the instruction was directive rather than preceptive. Particular law (e.g., the statutes of a Religious Institute) might perhaps prescribe confession by an accused, but most Constitutions of Religious Institutes bind only under penalty, and, as for the rest, an ecclesiastical superior could at most advise, but could not impose, confession by an accused.

Rights and Duties of Accused in Conducting His Own Defense.—(a) In Reference to Judge or Attorneys.—The accused, if questioned, may not conceal the truth by lies, ambiguities, or half-truths, since these are evil means, nor may he use evasion if he is lawfully interrogated. But if the question put to him is unlawful, he may evade an answer. It is commonly held that lies told in giving testimony or evidence are not necessarily mortal sins, as there may be no perjury committed or grave harm done another by reason of them (e.g., when an innocent man “doctors” a paper and thereby without harming anyone escapes from an unjust sentence).

(b) In Reference to the Opponent or His Witnesses.—The accused has the right to disclose secret but real crimes of the accusers, when this is an exercise of his legal right of taking exception to the witnesses as incompetent, or of his natural right of clearing himself of the charge against him. It makes no difference whether the evidence of the accusers is true or false, whether given according to the order of law or not. But he must not go beyond the limits of moderate self-defense (see 1826). Innocent XI condemned the proposition that it is probable that calumny may be used without mortal sin as a defense of one’s justice or honor (Denzinger, n. 1194).

If the accused objects secret crimes of the opposition, he must beware of injustice or uncharitableness. (a) Thus, it is unjust to disclose crimes that cannot be proved, or that are irrelevant (e.g., it may be irrelevant to prove that the person who testifies that the accused committed murder is himself a fornicator, but it would be relevant to show that this witness is a liar, or dishonest, or an enemy of the accused), or that need not be revealed (e.g., if the witness’s testimony can be overcome by showing that the witness is weak-minded or under obligations to the opposition, it is not necessary to defame him).

(b) It is uncharitable to disclose a crime, if the witness will suffer far more from this defamation than the accused would suffer from the testimony. If, however, the witnesses are giving false evidence of their own accord, they take the risk of revelations by the defense.

Rights and Duties of an Accused Who Has Been Found Guilty.—(a) Appeals.—It is lawful to appeal from a sentence that is unjust (whether because of the innocence of the accused, or of the illegality of the process), because appeal is a means of self-defense granted to the innocent. It is not lawful to appeal from a sentence that is certainly just, merely in order to cause delay or to defeat an adversary; but one may make an appeal when there are just reasons (e.g., in criminal cases the hope of getting an easier sentence or of prolonging life, in civil cases the discovery of new proofs, or of probable arguments against the sentence given). But one who has pledged his word not to appeal from the decision of an arbitrator should abide by his promise, and there is no appeal from the final decision of the highest court, which in the Church is the Roman Pontiff (Canon 1880), and in the State the Supreme Court.

(b) Escape from Prison.—If the sentence was unjust, it is lawful to escape, unless the means employed are intrinsically evil (e.g., killing of guards), or the results will be more harmful than continuance in prison (e.g., the overthrow of public order, the too great risk of the attempt to escape). If the sentence was just, there are various opinions on the lawfulness of flight. Some think it is never lawful, because a just sentence is a precept of authority and should be obeyed; others think that flight is lawful in grave cases (e.g., when the prisoner has been sentenced to death or to life imprisonment, or when the conditions of prison life are unbearable, because human law cannot impose as a normal regulation what is too difficult for human nature); still others think that flight is always lawful, because the court sentence is that the prisoner be forcibly confined, not that he remain in prison voluntarily. But one is not necessarily bound to escape (see 1857).

(c) Resistance to Sentence.—If the sentence is unjust, resistance is not unlawful per se, because one has the right of self-defense against unjust aggression (Ezech. xxii. 27). Hence, if one were condemned to execute oneself (e.g., by taking poison), the common opinion is that the sentence would be unjust (see 1856), and therefore not obligatory. If the sentence is just, even though it be a capital sentence, resistance is not lawful, for the judge who duly pronounces sentence on a guilty man has the right to obedience (Rom., xiii. 1-5).

Jail-Breaking and Restitution.—If one does not sin by jail-breaking, is one bound to restitution for the damages connected with the escape?

(a) If the damages are not caused by, but only follow accidentally on the flight (e.g., escape of other prisoners, dismissal of guards), there is no obligation to make restitution for them; for the flight would not be the efficacious or the unjust cause of such damages.

(b) If the damages result from the flight as from their efficacious and unjust cause, there is an obligation of restitution (see 1763), as when a prisoner, in order to escape, does needless damage, or damage out of all proportion to the evil from which he seeks to escape. But ordinary property damage, such as a hole cut in a wall, does not seem unjust, if there is no other way to get out.

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).

There are also certain cases in which a question refers only to what the witness knows juridically, or in which he is called upon to answer according to the mind of the questioner.

(a) If the witness is asked to state what he knows about a case, he is not obliged to mention what he merely thinks or what he is uncertain about; and if he is asked what he has heard, he is not obliged to state what was told him by persons of poor authority.

(b) If he is asked whether the accused was to his knowledge guilty of a crime, he is not obliged to mention an act of the accused that was unlawful but done in good faith. But in a civil case, in which inquiry is made about juridical faults, the witness should testify even to the existence of delinquencies in which there was no element of theological fault.

(c) If he is the only one who has knowledge of a delinquency and it will be certainly useless for him to testify about the matter without corroboratory evidence, it seems that he may keep silence about what he knows. But if the testimony of one witness is sufficient according to law, then the witness should speak of the facts known to him.

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.

It may happen then, though rarely, that false testimony is only a venial sin, for example, when the witness is not under oath and he gives false testimony in a matter of small importance, or without full deliberation on what he is saying, or when he forges or corrupts a document to supply for another that has been lost and from which his certain right could be proved.

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.

In doubt the condition of the possessor is better. C. 6 de Praescript. This axiom in the external forum, both ecclesiastical and civil, has been received as a certain rule of judgments. For it is to be presumed that he who possesses a thing possesses it by right, unless the contrary is clear. The same certainly has force in the internal forum of conscience. For certain and legitimate possession produces moral certainty concerning the dominion of the thing, L. 1. 1. n. 35, l. 4. 210, l. 6. n. 905. 927; and the reason is that, given human customs, no one is, morally speaking, negligent; indeed on the contrary all are diligent and very diligent in guarding their own things. Moreover, where one does not proceed from a false supposition, the right of the external and internal forum is the same; for each forum is founded on the principles of natural justice and equity. Hence theologians commonly admit the aforesaid rule for the forum of conscience. L. 1. 1. n. 26. Now some say that this axiom has force only in the matter of justice. "Yet I," says S. Alph. l. c., "do not know how it can be denied in all matters." And this certainly is by far the more common and truer opinion. The reason for this extension also to other matters, with due proportion, is the same as in the matter of justice. For no one can justly be despoiled without sufficient reason of a good which is his own. But man naturally, and therefore certainly and altogether legitimately, possesses his liberty, which certainly is some good and right of his own. Therefore this good also pertains to justice, and he who unjustly either takes it away or weakens it violates justice. Without injustice a free man cannot be subjected to servitude. But there can be no doubt that in doubtful laws liberty is always in prior possession of itself. For upon whom is law imposed except a free man? Whence it is that what is licit is not whatever the law permits, but what the law does not prohibit, L. 28. § 2 Ex quib. caus. maior., and therefore this prohibition must be manifestly proved, C. 23 de Verb. signif. - Suarez tr. 3. d. 12. s. 5. n. 8; Lugo De Iust. et Iur. d. 17. n. 87, d. 23. n. 110. In doubt: that is, in negative doubt, and the reason of the axiom is then clear, because possession stands for the possessor, and therefore moral certainty; for the petitioner no prudent reason is had. Cf. Lugo De Iust. et Iur. 23. n. 110. But in positive doubt, or probability, if probability is present on each side, so that on one side possession and probability of right stand, and on the other only equal or almost equal contrary probability of right, the condition of the possessor is again better, as is clear of itself. But if on one side indeed possession stands, but on the other contrary probability of right; or on one side possession and at the same time probability of right, and on the other far greater contrary probability of right, then certainly the condition of the possessor is not better, but doubtful. Indeed the first opinion holds that the judge is bound to adjudge the thing to the plaintiff, because the right of possession prevails in an equal cause, but not in a less probable cause. For Rule 65 of the Law in the Sixth has it thus: "In equal fault, or cause, the condition of the possessor is stronger"; and in L. 128 ff. de div. Reg. Iuris it is said: "In an equal cause the possessor ought to be held stronger." But the second opinion holds that the condition of the possessor is still better, and that the judge cannot despoil him of possession. The reason is that "it is certain that legitimate possession gives to each a certain right of retaining the thing, until the right of another is not established, as they say most commonly... a certain right, which cannot be overcome except by the certain right of another through certain convincing reasons." For possession is defined: the right of insisting in a thing not prohibited to be possessed. L. 1. 1. n. 36; Ithur. Cas. 1. n. 2. Cf. L. 1. 3. n. 547. 562. 711, etc.

Therefore the possession about which the present saying speaks is certain and legitimate possession. It is called certain, that is, that the fact of possession is certain; legitimate, that is, begun and continued in good faith, and likewise begun and continued by a just title, at least apparent, or at least thought to exist, or presumed, such as, for example, donation, purchase, inheritance, and similar things, through which ownership of some thing is usually acquired. Therefore if possession is doubtful, or begun with doubtful faith, or by a doubtful title, it by itself does not exhibit to the possessor a special prerogative and presumption against which no contrary probability has force. L. 1. 1. n. 36. 47, l. 4. n. 210.

Probability of right, which can be only on one side or on each side, is the probability of a real just title, or of one actually existing, from which true and real dominion and ownership of the thing arise. For for legitimate possession, about which the axiom speaks, it suffices that the just title at least appears, because, for example, a donation or purchase intervened from him who was thought to be owner, although he was not; or at least was thought to exist, because the action signified by the title is thought to have intervened, although it did not intervene, as happens when someone thinks that the thing was given to him or bought by him, and nevertheless this was not done; or at least presumed, because, for example, because of length of time in peaceful possession or other circumstances, it is prudently thought that some title intervened, although the possessor cannot allege any determinate one. Therefore this probability of right, as is clear, is altogether outside possession itself, which only gives the right of insisting in the thing, or of holding it, although perhaps its dominion and ownership does not belong to you, since a just title was not really present. Now the probability of a real just title, or of one actually existing, can be in two ways: 1. Probability of the justice of the title for beginning or continuing possession and ownership of the thing, for example, a testament lacking legal formalities. 2. Probability of the reality or existence of a just title for the same effect, for example, of donation, when it is also probable that the thing was taken by theft. The former probability is called of right; the latter is called of fact. Where this latter is treated, "when the fact is not plainly proved, it is not probable that the accused can be condemned, since laws never permit the accused to be condemned unless the crime or debt is fully proved; but it is not proved fully and sufficiently for a sentence when, although two or three witnesses testify, nevertheless other witnesses testify the contrary; for through these the testimony of the former is destroyed or diminished, and therefore the sufficient proof required for full proof and condemnation does not remain." Lugo De Iust. et Iure d. 16. n. 100. Cf. also d. 23. n. 100, d. 16. n. 34. 96. 99.

Is it lawful by public authority to kill the guilty? - It is lawful by public authority either to imprison, or to beat, or to mutilate in some member, or even to kill malefactors, according to the various gravity of offenses. The reason is that this is a necessary means for procuring the common good of the whole society. Indeed, for preserving society itself; which indeed cannot be obtained except by these penalties, and often not except by the death of wicked men. Therefore God must be said to have conferred the power without which society could not stand. "Every singular person is compared to the whole community as a part to the whole. And therefore, if some man is dangerous to the community and corruptive of it because of some sin, he is laudably and wholesomely killed, so that the common good may be preserved... he is deprived of a member because of some lesser faults." S. Th. 2. 2, q. 64, a. 2; q. 65, a. 1. And by the same reason it is lawful to beat him and imprison him because of the abuse of the free use of his members to the harm of the community. S. Th. 2, q. 65, aa. 2, 3. This is also clear from the practice of every legislation, from Sacred Scripture, and from the universal consent of all. Lugo d. 10, n. 64; Struggl 34; Ithur. Cas. 40, nn. 11-12; S. Th. 2. 2, q. 64, aa. 2, 3; q. 65, aa. 1, 3; q. 66, a. 6 ad 2, a. 8; q. 67, a. 3; q. 108, aa. 3, 4; L. 375; E. M.

Resolutions: A superior is not bound to restitution if he distributes the offices of society to those less worthy, because he does not violate the strict right of the more worthy person, nor of the community, which cannot demand anything else except that the unworthy be kept away from offices. But it is otherwise if in a competition the superior preferred the less worthy to the more worthy, because in a competition, speaking of itself, a pact intervenes, from which strict right belongs to the more worthy person. A superior who distributes merely honorific dignities, whether to the less worthy or even to the unworthy, is not bound to restitution, because he deprived no one of his right, although he sinned because of acceptance of persons. One guilty of damage is not held if he denies his crime lest goods be extorted from him; nor is he held who carries out prohibited merchandise against the command of the laws, although from this their price increases. L. 547; l. 4, n. 107; St. Thomas, 2. 2, q. 63.

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 is an accuser? What is a denouncer? How many kinds of denunciation are there? - An accuser is said to be one who in criminal causes reports a crime to the judge, and from him demands vindication on account of the common good, and at the same time undertakes the obligation of proving the crime objected. But in civil causes, he who as the injured party compels the adversary to the judge is not called accuser, but plaintiff. An accuser differs from a denouncer, who reports a crime to a superior or judge, and nevertheless does not undergo the obligation of proving it.

Denunciation is twofold: one juridical, another evangelical. The former is a report made to a superior as to a judge, so that, once the case has been known, he may proceed from judgment; and its scope is the punishment of the delinquent and the good of others, especially the common good, which redounds from the punishment of the wicked, and also the good of the denouncer himself. The latter is a report made to a superior as to a father; and its scope is not punishment, but the amendment of the neighbor, or the good of the one denounced, through the paternal admonition of the superior intervening, from which, on account of his authority, a more certain amendment is hoped for. When denunciation is made to a Superior as to a father, he cannot himself proceed as judge.

Juridical denunciation can be made judicially, the due forms having been observed, and extrajudicially, by simply manifesting the matter to the superior and committing to his prudence what ought to be done. It pertains to the same virtue to which the vindication of the judge belongs, namely to legal justice.

L. 235; S. Th. 2. 2. q. 68. a. 1, 2 c. ad 3; s. q. 62. a. 3 ad 6; Quodl. 1, a. 16; Quodl. 11, a. 13.

Who are prohibited from accusing? - From natural law, regularly speaking, infamous persons, stained by greater crimes, are prohibited from accusing; for their testimony can be of no authority. Enemies; because accusation is reasonably presumed to proceed from an affection of vengeance. Children against parents, a wife against a husband; for this is repugnant to piety, unless it concerns imminent common damage, or one's own or another's damage which cannot otherwise be avoided. These also are repelled from bearing testimony. L. 236.

From Canon Law clerics are barred from the office of accuser in secular judgment, especially in a case of blood. Except, however, if they accuse the defendant for this end, that they may guard against their own damage, or that it may be repaired to them; then a cleric and religious can accuse the malefactor even before a lay judge. This is lawful not only in one's own case, but also in the case of one's own church, or of relatives to the fourth degree, or even of domestics. Likewise, if common evil or the evil of others cannot otherwise be impeded, they must denounce the delict, even if it is worthy of death. Nevertheless, to avoid danger of irregularity, the cleric and religious must first make protestation before the judge that he does not act unto vengeance, nor unto penalty of blood, but rather for the defense only of himself or his own and for the triumph of justice. If this protestation is omitted, even through inculpable forgetfulness, irregularity is still incurred; because forgetfulness excuses from fault, not from this irregularity, which was introduced by reason of gentleness. C. Praelatis 2 de Hom. in the Sixth; L. 1. 7, n. 468.

Laymen cannot accuse clerics, unless the cleric is a dissipator of the goods of the church, or a heretic, simoniac, sacrilegious person, etc.; or unless the layman prosecutes his own case, or the case of his own, or if damages are to be inflicted on others in the future in such a way that they cannot otherwise be impeded. Likewise clerics cannot accuse religious, who can be accused only by religious of the same Order. L. 238; l. 7, n. 468. Non-tolerated heretics and excommunicated persons cannot be accusers with respect to the faithful. L. 238. "Children are commonly prohibited from accusing parents, subjects prelates, servants masters, likewise public sinners, as is gathered from various Decrees.... Yet all these can denounce when the crime is pernicious to the republic.... For one's own injury anyone can accuse. Moreover, as regards this, an injury is reputed one's own which pertains to himself or to his own." Lugo d. 38, n. 7, 10. Decretals de Accusationib.; S. Th. 2. 2. q. 68. a. 1 ad 1, 2; q. 70. a. 1 ad 3, a. 3.

From Roman Law, wards, those below puberty, women, magistrates, infamous persons, those closely joined, that is, children with respect to parents, brothers with respect to brothers, a wife with respect to her husband and conversely, are prohibited from accusing. L. 1 ff. de Accusationibus et inscriptionibus. "It is not permitted to a woman to make anyone a defendant in public judgment." L. 1 de Accus. et Inscript.

From C. I. penal procedure 41, 42, 98, 422 ff., denunciation of a crime can be made by anyone to the General Procurator, the royal Procurator, or another official of judicial police. But the accusation in judgment is sustained by the General Procurator. The same is had from C. G. criminal procedure 22, 29, 30, 271, 284, 315.

When is someone bound to accuse or denounce? - He is bound to accuse or denounce, whether judicially or at least extrajudicially, even without fraternal correction having been sent beforehand: 1. When it concerns avoiding common damage. But crimes against the common good are heresy, rebellion, falsification of coinage, homicides and thefts committed by assassins or highway robbers, subornation of votes in elections to public chairs, offices of magistrates, etc., the sin of a religious bringing damage to religion, etc. "If the crime," says the Angelic Doctor, 2. 2. q. 68. a. 1 c., "has been such that it turns to the detriment of the republic, a man is bound to accusation, provided that he can prove it sufficiently, which pertains to the office of an accuser; for instance, when someone's sin turns to the bodily or spiritual corruption of the multitude." Lugo d. 38, n. 2, 14; L. 236.

2. If grave damage is imminent to an innocent person. For charity obliges us to impede the damage of the neighbor. But by hypothesis this can be done either by accusing or by denouncing. Therefore there will be a grave obligation of making accusation, or at least denunciation. Eccl. 4, 9; L. 236.

Note "nevertheless, that there is not always an obligation of impeding the damage of an innocent person through denunciation of him who inflicts the damage, if this latter person would have to suffer equal damage, because since he is a neighbor, there is no source from which an obligation arises to damage him so in favor of the other; not always, for there is an obligation if the innocent person is very joined to you, for example, if he is your father or your son, or if it would redound to common damage, or if the damager of himself ought to undergo that damage to free the innocent person." La-Croix l. 2, n. 2, n. 219.

3. If someone receives a stipend for this from the republic or from private masters, as do fiscals, or guards of houses or fields, superintendents of customs, etc.; and they are held even with grave inconvenience to themselves. For they are obliged from quasi-contract and from justice, not from mere charity.

Otherwise they are bound to restitution of the damages which come to the republic or masters because of the omission of accusation or denunciation. L. 236. Indeed more than this, these are often held even from office to seize the guilty and hand them over, once seized, to the magistrate to be punished. But whether these are also bound to restore the value of the penalty or fine, if they do not denounce, some from St. Alphonsus 237 "affirm very probably... because, by omitting denunciation, to which they were held by reason of office, they are the cause that the treasury or master does not exact the penalty to which he had a right. But others deny this sufficiently probably... because penal law does not intend that the treasury or masters be enriched by fines, but that they themselves be preserved unharmed, and that transgressors be punished. But indirectly and accidentally the law furnishes a right that fines be exacted from it, but after sentence; for before it neither the treasury nor masters have any right to the penalty. Hence, although fiscals by not denouncing sin against legal justice, nevertheless they do not sin against commutative justice with respect to the fine; and therefore they are bound only to repair the damage of revenues which merchants ought to have paid." Cf. 15.

4. "Someone is sometimes bound to denounce, indeed even to accuse, a delinquent, if this is necessary for avoiding or repairing the damage of his own family, which otherwise would remain dishonored, or destitute of support." L. 237. For this is owed not only from charity but from piety.

5. There is an obligation of denouncing from the precept or edicts of prelates and superiors. Not only ecclesiastical prelates, but also secular Princes can command under various penalties that those who know such and such a delict manifest it at once. And thus Pontifical Constitutions command denunciation of heretics, or of those suspected of heresy; of those soliciting in Confession, or asking the name of an accomplice, with absolution denied unless it is revealed; of hidden leaders of sects; of superiors of lay Institutes, or religious superioresses, daring to induce religious or nuns or sisters to the opening of their own conscience; of those violating the oath prescribed by the Motu Proprio Sacrorum Antistitum and unwilling to sign the formula of the same oath; of those injuring or terrifying those who denounce to the Holy Office; of Bishops absent from their dioceses; of impediments of marriages and sacred orders; of pernicious books. Yet where heresies rampage with impunity, this obligation of denouncing heretics is not very urgent, unless the destruction of others were feared and could be impeded by denunciation. L. 1. 6, n. 993; l. 7, n. 214-217; Lugo d. 38, n. 17 ff.; Lehmkuhl, 8th ed., v. 1, n. 812.

Without fraternal correction having been sent beforehand, namely unless perhaps someone firmly judged that by a secret admonition immediately he could impede evils of this kind. S. Th. 2. 2. q. 33. a. 7. Indeed, by the Lord's precept concerning admonition to be sent beforehand, the question is chiefly of a sin which harms only the delinquent, or has been committed against us, not of sins to the detriment of the community, or to be punished in judgment for preserving justice. S. Th. 4, d. 10, a. 3, q. 1 ad 4; Sanchez, Cons. Mor., l. 6, c. 2, dub. 14. But no admonition need be sent beforehand whenever it is prudently feared that the defendant, having been warned, may sin more secretly and with greater destruction of the civil or Christian republic. C. I. penal procedure 98, 101, 162, 172, 179, 286, 288; C. G. criminal procedure 29, 30, 317, 321.

When is someone not bound to accuse or denounce? - You are not bound, even with the precept of a superior posited, to accuse or denounce a crime: 1. If the delinquent has been amended, without danger of relapsing, and full satisfaction has been made to the injured party, nor is any danger imminent to others, nor is the crime notorious. The reason is that the infamy of the neighbor would follow without cause. L. 239, 244; Lugo d. 38, n. 23; S. Th. Quodl. 4, a. 12; Quodl. 11, a. 13.

2. If you know the crime under a natural secret committed to you, as counselor, advocate, physician, etc.; unless nevertheless he who committed the secret should unjustly vex an innocent person or the republic and be unwilling to desist. L. 239, 248; S. Th. 2. 2. q. 70. a. 1 ad 2; q. 68. a. ad 3; Quodl. 1, a. 15.

3. If from it grave danger to your life, honor, and goods is imminent, unless the crime redounds to common damage to be averted. The reason is that neither charity nor a positive precept obliges with so great an inconvenience. L. 236, 239, 248; Lugo d. 14, n. 117; d. 38, n. 36; Sanchez, Cons. Mor., l. 6, c. 2, d. 22, n. 2.

4. If you would also be compelled to prove and could not. "But if the sin has not been such that it redounds into the multitude, or even if he cannot adduce sufficient proof, he is not held to attempting accusation; because no one is held to that which he cannot complete in the due manner." S. Th. 2. 2. q. 68. a. 1 c.; L. 239.

5. If the delict is altogether hidden, and does not turn in any way to the common damage, or to the private damage of anyone, but harms only the delinquent; for his right to reputation would be injured. L. 248; S. Th. Quodl. 1, a. 16; Quodl. 4, a. 12. Likewise if the criminal action has been prescribed. Cf. Enchir. Mor., 4th ed., p. 172.

6. "It must be said that a man ought not proceed to accusation unless concerning a matter altogether certain to himself, in which ignorance of fact has no place." S. Th. q. 18, a. 3 ad 1.

7. Whenever the delinquents are sufficiently known to the superior and no fruit is hoped for from denunciation, denunciation can licitly be omitted. The reason is that no one is bound to do a useless thing. Likewise denunciation can be omitted when the delict is indeed against the common good, yet not so gravely harmful that it obliges to accusing; when an injury was brought upon you or your own, which you are not bound to prosecute. Lugo, de Iust. et Iur., d. 38, n. 5; Sanchez, Cons. Mor., l. 6, c. 2, d. 17, n. 2; S. Th. q. 3 de Virtute, a. 2 ad 7. But no one is bound to denounce himself, since this obligation is had by no law; nor the companions of his crime, since this would be the same as denouncing himself. But if someone is legitimately interrogated by the judge concerning a crime, he is bound to denounce both himself and his associates. L. 254, 238; C. I. penal procedure 288-290.

8. But someone can licitly accuse and denounce whenever some delict is public, although by reason of itself it brings damage neither to society nor to another private person, but harms only the delinquent. The reason is that in such a case no right of the delinquent to his own reputation is injured, and denunciation in itself is always useful for the common good by reason of the scandal which is present in that publicity of the delict. And, if "scandal of many arises, now the sin harms not only him, but many." Wherefore the superior can then command that that sin be manifested; and with a just precept of the superior intervening, someone not only can but also must disclose the crime and obey the superior. S. Th. Quodl. 4, a. 12. Someone can also denounce a hidden delict already committed, if it would probably be foreseen that the delinquent would bring damage to others, or that his crime would soon become public. And therefore it is lawful to denounce a thief, murderer, etc., even if his delict is hidden. S. Th. ibid. The same must be said if denunciation is necessary so that you may recover your thing, although you can yield your right. C. I. penal procedure 288-290; S. Th. 2. 2. q. 33. a. 7; Roncaglia tr. 6, q. 4 de Eleemos. spirit., rule in practice, observation III; L. 245; l. 6, n. 1000.

Whether, if someone knows the sin of the neighbor, he sins mortally by reporting it at once to his prelate? - The Angelic Doctor, Quodl. 11, a. 13, says: "I say that in these matters one must distinguish concerning the conditions of the subject and of the prelate. For if I know that a brother will be corrected by me, then I ought not denounce this to the prelate. But if it seems that this will be done better through the prelate, and the prelate nevertheless is pious, discreet, and spiritual, not having rancor or hatred against that subject, then this can licitly be denounced to him; and then he does not tell the Church, because he does not tell it to him as prelate, but as to a person profiting toward the correction and amendment of the neighbor. But because, on account of the diverse conditions of prelates and subjects, a general judgment cannot be given in this, because sometimes the prelate is moved to hatred against the subject, or the subject would not bear well the words of the prelate, therefore this must be held as a rule, that in all these things charity must always be preserved, and what seems better and more expedient; and if he intends this, namely the amendment of the neighbor, and preserves the good of charity as much as he can, then by denouncing he does not sin; but if he denounces this to any person from malice, and so that the neighbor may be confounded or oppressed, then the one denouncing or accusing sins mortally.... It must be said that if someone immediately reports to the prelate, applying due circumstances and considering that it is more expedient, he does not act against the precept of the Gospel, because he does not tell this to the Church, but to a person profiting, as was said, and therefore he does not sin mortally." Suarez, de Carit., d. 8, s. 6, n. 7; Lugo d. 14, n. 117 ff.

63 bis. Whether a subject is bound to reveal to a commanding prelate the hidden crime of a brother? - "It must be said that sin can be hidden in two ways. In one way simply; namely in such a way that it has in no way come to the knowledge of many; and such a hidden sin harms only the one doing it. And therefore he who knows such a hidden sin of a brother ought to intend only this, that he procure the salvation of the sinning brother; whence the order of fraternal correction was instituted by the Lord, Matt. 18: that first someone correct a brother sinning secretly between himself and him alone; afterward he should bring two or three witnesses; and then at last, if he is not corrected, tell the Church. If a prelate commands against this order, that the hidden sin of a brother be told to him, he is not to be obeyed, and he himself sins by commanding, because one must obey God rather than men, Acts 2. But if the sin of the brother is not so hidden that it does not come to the knowledge of the multitude through some suspicions, whence scandal of many arises, now the sin harms not only him but many. And because the good of the multitude is preferred to the good of one, therefore the prelate ought to investigate the truth concerning the fact, so that the scandal of the multitude may cease either through the punishment of the sinner or through his excuse. And therefore in such a case he can command one knowing the crime of a brother to manifest it; and he to whom it is commanded is bound to obey the prelate. For thus, since the crime is not altogether hidden, it pertains to the judgment of the prelate; and in this case the Decretal speaks, but not in the first." Quodl. 4, a. 12. Cf. C. Accepimus 16 De Purgatione Canonica.

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.

What is a defendant? - A defendant is so called from the thing owed: in civil matters, from the thing which is sought and owed, commonly called the one sued; in criminal matters, from the penalty to be paid, commonly called the accused, who has committed a crime. He, moreover, is the one who is summoned into court. As the plaintiff, by offering a petition, sets forth the matter which he seeks, so the defendant responds to him; and, once a negative response has been given by the defendant with the intention of litigating, the suit is said to be joined. If the defendant exhibits contumacy, the suit is held to be joined without any response from him. And then the judge hears the witnesses and proofs. The acts of the defendant by which he excludes the action are called exceptions.

Is the defendant bound to confess his crime? - The judge is bound to manifest to the defendant the state of the cause, and what the indications are, how the delict is proved, etc., so that it may be clear to the defendant whether he is legitimately interrogated, because otherwise the defendant is not bound to respond and to despoil himself of honor or other goods which he possesses in good faith. L. 273; S. Th. 2. 2. q. 69, a. 2; Quodl. 5, a. 16. The defendant, if he is not interrogated legitimately, is not bound to confess his crime, but can elude the judge either by ambiguous words, or even by denying, with some restriction and in a good sense, so that lying may be absent. The reason is that then the judge does not have the right of interrogating, or of imposing an obligation on the defendant. But otherwise, if he is interrogated legitimately, and therefore in an inquisitorial process under Roman Law, provided that the delict has been proved at least half-fully, and the accused knows this from the procedural records. L. 272; S. Th. 2. 2. q. 69, a. 1. Hence defendants ordinarily are not held at present to manifest their crime, because interrogations are made before juridical proof. Moreover according to modern Codes no one juridically can be compelled to bear testimony against himself in a matter of crime. Hence an oath is not tendered to the defendant. Moreover that certainly ought not be done in the accusatory process which is observed at present, with the public magistrate accusing. And although the crime has been sufficiently proved, as long as the jurors have not delivered sentence, the defendant can always hope that his denial of the crime will have force upon the mind of the jurors.

Nor is he bound if he doubts whether the judge legitimately interrogates; because he is not bound to obey with grave damage to himself, unless it is established that the superior can command. The reason is that the defendant possesses his life and reputation; whence in doubt he has a right to preserve it, until it is established concerning the legitimate interrogation. L. 273. Cf. 67; Decrees, de Confessis.

Note: That response, "I am not guilty," is not a lie; for by the consent of all it signifies that the defendant is unwilling to confess the crime. L. l. 3, n. 156.

Is the defendant bound to confess his crime to a judge legitimately interrogating, with fear of a great penalty? - S. Th. 2. 2. q. 69, a. 1 ad 2 affirms this, which opinion S. Alphonsus calls the more common and more probable. But the opinion is sufficiently probable which "denies that the defendant is bound to reveal his crime.... It is otherwise in causes in which there is question of an ecclesiastical penalty, which is medicinal." L. 274; l. 4, n. 156. Except also, provided grave public damage or another's private damage is not imminent from the silence. L. 274. Here it must be observed that damage of the republic, if there is question of danger of undergoing death, must be understood not as any sort whatever, but as the greatest. For, as Lugo says, "human law only very rarely and on account of the greatest damage of the republic can bind a subject with danger of life; but in the present case that danger is most certain."

The reason of this second opinion is that he is compelled to confess neither by natural law, nor can he be compelled by human law to betray himself and, as it were, hand a sword to the adversary by which he may be killed, since in the case he is not obligated to a heroic act, although from another source he may be legitimately interrogated. Nor in fact is such a law present today. The reason of the former opinion, on the contrary, is "because when someone according to the order of law is interrogated by a judge, he does not betray himself, but is betrayed by another, while the necessity of responding is imposed upon him by him whom he is bound to obey." S. Th. l. c. According to the order of law; whence it is clear that this opinion proceeds according to Roman Law, by which the defendant was interrogated after indications of the crime had been given which constituted half-full proof, and then he was bound to respond by confessing the crime. Cf. 67.

Note: "The rule that the defendant is not bound to confess a hidden truth to a judge interrogating without half-full proof runs only in criminal causes, not in civil causes." L. l. 3, n. 388; S. Th. 2. 2. q. 69, a. 2; Quodl. 5, a. 16. A defendant interrogated by a judge can manifest the companions of his crime; because this, speaking in itself, is always expedient for the public good. And when he himself is bound to confess his crime, he is also bound to manifest the companions of the crime. And the defendant is bound to denounce accomplices, even if he is not interrogated, when there is question of a delict which demands that denunciation, even with grave damage to himself. Cf. Frassinetti, Comp., ed. 6, n. 304.

Must the defendant confess a crime after sentence has been passed, which before he unjustly denied? - Reply: Negatively, because, once the judgment is ended, the obligation of the defendant is ended. Indeed it is probable that he is not bound to this even before sentence, even if he is still in the power of the judge, until he is again interrogated. The reason is that legal justice obliges only when the judge interrogates, unless the judge prescribes a time for responding, namely if he commands, for example, that the defendant tell the truth within a month, and the month is still lasting. L. 274.

Nor, after sentence has been passed, is the defendant compelled to offer himself for paying the penalties, nor to cooperate of his own accord in executing it. For it is alien to natural equity that the same one be both defendant and avenger. And this would be altogether harsh and useful only for ensnaring souls.

Does he sin gravely who, to avoid grave torments, lies by imposing on himself a false crime, through which he is to be punished with death? - Reply: Probably it is not mortal. The reason is that no one is bound to preserve life with so great a torture, which may seem harsher than death itself. L. 274, 275.

Note: "If from that confession of a false crime grave damage follows to others, for example the good of the republic, or the reputation of religion or of a family would be notably harmed, or some would for that reason fall into heresy, any torments whatsoever would rather have to be endured." Nevertheless, if from that false confession of crime there would follow only the infamy of another, after the fact he would not be held "to retract himself for repairing another's infamy, by exposing himself again to sustaining those grave torments, because no one is bound to restore reputation with so much greater damage to himself." L. 276, 275.

Is it lawful, either for the plaintiff or for the defendant, to disclose hidden crimes of witnesses in order to weaken their credibility? And does he sin gravely if he imposes false crimes on them? - Reply to the first: Negatively, if this is useless for defense. The reason is that this can be lawful only from the right of defense. Affirmatively, if this is necessary and useful for defense and they testify falsely. The reason is that the right of defending one's own reputation prevails over the right of another's reputation.

If this is necessary and useful for defense, but they testify truly, some affirm, others deny. The reason for affirming is that each person has the right to show that the witnesses acting against him are less suitable; and the defendant can always hope for success before jurors. No one, moreover, is bound to preserve the reputation of the neighbor with grave damage to himself. S. Th. 2. q. 73, a. 2. The reason for denying is that the defendant would not be using a just defense, since the witness must bear testimony unless he is voluntary. Cf. Lugo d. 40, n. 23; Lessius l. 2, d. 31, c. 1. S. Alphonsus 272 affirms that it is lawful, "provided this is absolutely necessary for the defense of his innocence; likewise provided that otherwise the defendant is going to suffer not slight but grave damage, even if greater damage comes to the accuser or witness."

Reply to the second: Affirmatively, and this is established from proposition 44 condemned by Innocent XI. The reason is that to tell such lies in judgment is against the common good, since it is to pervert the whole order of justice; and therefore everyone must prefer that common good to private good, even to his own life. L. ib.; S. Th. 2. 2. q. 69, a. 2; Lugo d. 40, n. 26.

Can an innocent person under inquiry defend himself against those who wish to apprehend him? - The practical case can exist especially in a time of anarchy or tyranny, and it is commonly answered affirmatively, since it is a just defense of oneself, if the mandate of arrest is truly unjust, and consequently there is no danger of hallucination, and danger of scandal or public disturbance is absent.

And the same is commonly affirmed also after sentence has been passed, if the sentence is unjust either formally or, more truly, only materially, provided again that the injustice is manifest and the danger of hallucination and scandal is absent. For if the sentence is formally unjust, it is not a judgment; if materially, it is not justice, for justice is in the thing, not in appearance. In the first case the judge does not pronounce the sentence as judge, because he exceeds the limits of the mandate. In the other, innocence itself protects the condemned man.

But, with the order of law preserved, in the external forum, speaking in itself, the sentence must be observed; for as far as it pertains to the judge it is just, nor is it violated without contempt of public power. S. Th. 2. 2. q. 69, a. 4; S. Alph. 279, 281; Kenrick tr. 3, n. 112; Frassinetti, Comp., etc., ed. 6, note 98; D'Annibale ed. 3, p. 2, n. 601; Lugo d. 40, n. 38 ff.; cf. 81-83.

Is it lawful to kill false accusers and witnesses, and also the judge from whom an iniquitous sentence threatens, if there is no other way of avoiding the damage? - Reply: Negatively. This is proposition 18 condemned by Alexander VII. The reason for this condemned proposition is that it is too general. In it there is question of any iniquitous sentence whatever, which does not always bring damage which can deservedly be compared with the death of a false accuser, witness, or judge. Nor is a distinction made between injustice and injustice: because the person is innocent; because the legitimate process was not observed; or because of both. There is question of any judgment whatever, whether legitimate or usurped, in a time of tyranny, anarchy, etc. There is question of a sentence to be given, not one already given. Moreover discretion is left to each person to judge that there is no other means, and each person would pronounce law for himself. Hence on account of the danger of hallucination and on account of scandal, or on account of either one, it is never lawful to kill the aforesaid persons. Nor in the case would bloody defense be against an actual aggressor, against whom alone it is lawful, since there is in no way question of the actual execution of an unjust sentence. L. 279.

Can a defendant who has truly committed a delict flee from prison? - Reply: Affirmatively, if the defendant has not yet been condemned by sentence to the penalty, because no one before sentence is bound to pay the penalty; and because then he himself is not commanded to remain in prison, but the ministers are commanded to detain him in prison. Reply: Affirmatively, even if the defendant has already been condemned by sentence to death or another grave penalty, provided that prison has not been assigned to him as penalty, but for custody. "The reason is that the sentence does not condemn the defendant to not fleeing, but only to not resisting the ministers when they execute the sentence." L. 280. If prison has already been assigned as a penalty by sentence, Busembaum and others affirm it; and certainly the defendant is not so much condemned to remain there of his own accord as to be detained. S. Th. 2. 2. q. 69, a. 4 ad 2. More commonly, however, they deny that it is lawful for the defendant to flee from prison, even perpetual prison, because in the execution of a just sentence the defendant is indeed bound to obey. Yet many except the case if the penalty were very harsh, because it seems above human powers for someone to be bound not to free himself when he can do so without any force and resistance against the ministers of justice. L. 279-282.

Certainly, although the defendant is bound to undergo a just penalty, which the judge has justly decreed on account of the crime committed, and cannot decline it without sin, nevertheless all penalties are so established by law and decreed by the judge that they are to be inflicted by the ministers of justice. Therefore, with no force applied to them, and public order in no way disturbed, it is lawful for the defendant without sin to withdraw himself from the penalty.

You will resolve: "Regularly it is lawful for a defendant to flee, even if the prison guard is going to suffer grave damage from this, because he uses his own right and does injury to no one; unless however charity suggests otherwise because of the preponderating damage of the guard. Much more is it lawful to flee lest he be captured, or also to shake himself free from the minister apprehending him; but not to inflict force on him by wounding, striking, etc. It is also lawful, at least in the forum of conscience, to deceive the guards, by giving, for example, food and drink so that they may be put to sleep, or by procuring that they be absent; likewise to break chains and prisons, because when the end is lawful, the means also are lawful. And although other captives may slip away at the same time through the broken wall, he will not be held for the damage, because he is only its cause per accidens, since he uses his own right." L. 281-282; l. 2, n. 380; Struggl tr. 3, q. 2, n. 45. Yet it is not lawful for the defendant to corrupt the guard with money, because he would cooperate in his sin, namely in the betrayal of his office. L. 282.

Is it lawful for others to advise flight to the defendant; to arrange it; to supply instruments by which the defendant himself may arrange it for himself, excepting guards, apparitors, etc.? - If this is going to be harmful to another, it is not lawful even to advise it; otherwise it is lawful to advise it, and to instruct the defendant with counsel, whenever it is lawful for him to take it up. To arrange it is altogether unlawful. Wherefore it is not lawful to break open a prison. For it is against the public order and quiet of things. There would be continual contention between citizens and the executors of public justice. To supply the things which are necessary so that the defendant himself may arrange it for himself is probable to S. Alphonsus 283, more probable to Lugo d. 40, n. 56. For that is licitly given by others which they licitly use. Struggl l. c. n. 46; Elbel de Legib. 311, 313; Kenrick tr. 8, n. 136; Frassinetti, Comp., ed. 6, n. 304. Cf. here 83.

Is a defendant justly condemned to death bound to flee from prison if he can? - The first opinion affirms it, because otherwise he seems to be a murderer of himself. The second opinion, far truer and to be held, denies it. The reason is that although the defendant cannot do an act immediately tending to death, and mutilate his own members, throw himself from the gallows, drink poison, etc., nevertheless mediate acts are lawful to him, such as to ascend the ladder of the gallows, to extend his neck to the gibbet, and thus to remain in prison, especially if he has a just end, that he may satisfy for the crime, that his punishment may serve others as an example. L. 281; Struggl l. c. n. 43.

What is an appeal; when must it be interposed; and is it always lawful to appeal to a superior judge? - Reply to the first: An appeal is a recourse from an inferior judge to a superior judge on account of a grievance inflicted or to be inflicted. It must be interposed within the time defined by the laws. Once an appeal has been interposed, the sentence that has been passed is suspended by the law itself.

Reply to the second: From C. I. civil procedure 585, C. G. civil procedure 443, the term of appeal is two months. If an appeal is not interposed within the established time, the sentence passes into a matter adjudged, nor can it any longer be impugned by appeals. A matter adjudged is accepted as truth. L. 207 D. de Reg. Iur.

From the proper Law of the S. R. Rota, Canon 33: "If a Rotal sentence is confirmatory of another sentence, whether Rotal or of another tribunal, it is held as a matter adjudged, against which no remedy is given except by a complaint of nullity, or by a petition for restitution in full, before the supreme tribunal of the Apostolic Signatura. If a double conforming sentence has not been had, from a Rotal sentence rendered by one turn, an appeal is given to the next following turn, according to canon 12, within the useful time of ten days from the notification of the sentence, according to the course of common law." A. A. S. v. 1, p. 29.

Reply to the third: Kenrick tr. 8, n. 135 affirms it, because the defendant can use every aid and support of the law by which he may escape, with truth preserved. But it is commonly denied if the defendant knows that the sentence is just and that the process has proceeded justly (it is lawful, however, to supplicate), because this would be to impose calumny on the judge. And how then will truth be able to be preserved? Hence one appealing unjustly is held for the damage. But if he thinks that the sentence is iniquitous, or that the process has proceeded unjustly, or if opinions are diverse, or new proofs are present, he can appeal. L. 285; S. Th. 2. 2. q. 69, a. 3. Cf. n. 14, 38; Lugo d. 37, n. 172 ff.; E. M. 8.

Note: It is expedient that the confessor not admit the defendant to sacramental Confession until after matters are clear in the profane forum; for he will scarcely be able to be compelled to confess all things because of the fear that he may either be denounced or be compelled to confess the same things to the judge. Beforehand, however, one must deal with contrition. L. 286.

Is a defendant absolved in judgment bound in conscience not only to restore the thing, but also to compensate the expenses of litigation? - Reply: Negatively as regards the expenses only, if apart from legitimate interrogation he is silent or denies, and therefore is absolved, although by being silent he sins against charity, and by denying against truth. The reason is that he is not absolved from his silence or denial, but from the defect of proofs. Affirmatively even as regards the expenses, if he is legitimately interrogated and is silent or denies, and therefore is absolved. The reason is that he uses an unjust means, to which he has no right, for his own defense. Negatively as regards the expenses only, if he acts altogether in good faith, and the judge according to what has been alleged and proved renders sentence in his favor. For he is not theologically a culpable cause of that damage. But by no means "will he be excused from the obligation of restoring (the thing), because the other party consented to the sentence and did not appeal; for all this is judged involuntary, nor is he presumed to have wished to renounce his right in the interior forum." Lugo d. 37, s. 15, n. 187. Cf. here 67, 72.

What is to be said about public sinners? Ecclesiastical burial is not to be denied to the guilty who are punished with death, if they have given signs of repentance; but they are to be buried without solemnity. The same must be said of prostitutes who die in a public brothel, and who have satisfied public scandal and have confessed their sins. Ecclesiastical burial can be given to them, with the pomps and solemnities of exequies nevertheless avoided, Holy Office, September 19, 1877. Nor is it to be denied to actors and comedians, provided they have not refused the sacraments; for this is prohibited by no law. Those who have not satisfied the precept of Easter Communion or annual confession today are not deprived of ecclesiastical burial, unless after an edict proposed, which is no longer customarily proposed, and after the Ordinary has been consulted.

Likewise it is not to be denied to impenitent sinners if the priest alone was witness of impenitence of this kind, in order to avoid scandals. Hence the priest, doubtful about the dispositions of the dying person, should speak to him without witnesses and induce him to confession, provided public scandal is not to be repaired. E.M.

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.

24. • An accuser is said to be one who in criminal causes brings a crime before the judge, and asks from him vindication on account of the common good, and at the same time undertakes the obligation of proving the crime charged; but in civil causes, one who, as the injured party, compels an adversary to the judge, is called not accuser but plaintiff.

An accuser differs from a denouncer ¹, who brings some crime before the superior or judge, and yet does not undergo the obligation of proving it. - St. Ligorius, n. 253.

¹ ** Understand denunciation here not indeed as fraternal denunciation, whose aim is not punishment but the amendment of one’s neighbor, with the paternal admonition of the superior intervening, from which, because of his authority, amendment is hoped for more certainly; but juridical denunciation, whose aim, no otherwise than that of accusation, is the same as the aim of the judge in punishing, namely the common good, which redounds from the punishments of the wicked. Wherefore juridical denunciation seems to pertain to the same virtue to which the vindication of the judge pertains, namely to legal justice. See note to n. 518, vol. I.

According to Roman Law, all who are not specially prohibited by law can be accusers. But wards, the prepubescent, women, magistrates, the infamous, those closely joined, namely children with respect to parents and vice versa, brothers with respect to brothers, a wife with respect to her husband, and conversely, are prohibited. But by Canon Law there are excluded from the office of accuser 1º clerics in a secular judgment, especially in a cause of blood; 2º laymen with respect to clerics, unless the crime is monstrous, or tends to great harm of the Church; 3º heretics not tolerated, and excommunicated persons, with respect to the faithful. - St. Ligorius, n. 238.

Accusers according to the same Roman Law, if they are convicted of calumny, incur the penalty of retaliation, namely the penalty which they were seeking for the accused they themselves must undergo.

But by French law it is lawful for no private person to institute an accusation, but the whole office of accusing and of proving the crime is reserved only to the magistrate constituted for this, or to the general procurator of the Government. Hence it happens that it is also called the public ministry, because it undertakes and protects the interests of the community and of good morals against the accused.

The accused is said to be he who is accused in a trial, whether criminal or civil, whether he is guilty or innocent. Concerning the accused various doubts occur, especially about confession of the crime and flight. Hence:

25. Questions. - QUESTION 1º. Is the accused, when questioned by the judge, bound to confess the truth?

Resp. 1º No, if he is not legitimately questioned; which happens when the judge is not legitimate, or when he does not observe judicial form, as if he questions without a previous accusation, etc.; they also add, when there is not at least half-full proof of the crime. Thus commonly. - St. Ligorius, n. 272.

Resp. 2º Yes, if the accused is legitimately questioned, because he must obey the just precept of the judge. Except, sufficiently probably, if there is question of undergoing a great penalty; because the law is not judged to impose upon the accused so arduous an obligation, which seems to exceed human strength, namely that he, by confession of the crime, should spontaneously commit himself to the certain risk of a very grave penalty, provided however that grave public damage is not imminent from his silence ². St. Ligorius, n. 274, also says this opinion is sufficiently probable even intrinsically, although he calls the contrary more probable.

² St. Alphonsus expresses this exception thus, after other doctors (Bk. 4, n. 274): “Unless common damage is imminent from the withholding of confession of the crime, for example of heresy, treason, etc.; for then the accused is bound to betray himself, or at least his associates, as much as is necessary to avert the common damage, even if death is imminent to him from the revelation of the associates, from whom he will become convicted in court.” Moreover, two things occur that must be noted. For 1º damage to the republic must be understood not as just any kind, but as very great. For as Lugo says (On Justice, disp. 40, n. 15), human law can oblige a subject with danger of life only very rarely and on account of very great damage to the republic; but in the present case that danger is most certain. 2º Since the reason of averting this damage equally obliges all who are conscious of the crime, even if they have not been called into court, and since a precept which brings certain danger of life presents the greatest difficulty, hence it is plain that some impunity is fittingly granted from time to time to the accused, so that from a fuller knowledge of crimes and delinquents provision can be made more suitably for the public good.

Add also the warning from St. Alphonsus (l.c.): “All agree, as is fitting, in saying that if the accused is in good faith, and it is known that he will be induced with difficulty to confess the crime when questioned by the judge, the confessor must leave him in his good faith.”

QUESTION 2º. Can an innocent accused person reveal the hidden crimes of the witnesses or of the accuser for his own defense?

Resp. Yes, provided 1º the crime is true; 2º the revelation is absolutely necessary for the defense of his innocence; 3º and he himself otherwise would suffer grave damage. - St. Ligorius, n. 277.

26. • QUESTION 3º. Is it lawful for an innocent accused person to flee or resist?

Resp. It is indeed lawful for him to flee and to snatch himself from the hands of the officers; but it is not lawful to repel force by force, by killing or wounding, because he would violate the rights of public power. - St. Ligorius, n. 279.

QUESTION 4º. Is it also lawful for an accused person who has truly committed a crime to flee?

Resp. Yes, if he has not yet been condemned by juridical sentence to the penalty; because no one is bound to pay the penalty before the sentence. Likewise if he has already been condemned to a very grave penalty, and prison has been assigned to him for custody until he is punished with the established penalty. - Thus commonly. - St. Ligorius, n. 280.

They more commonly deny, however, if prison has already been assigned by the sentence of the judge as the penalty. The reason is that the accused is bound to obey in the execution of a just sentence. Nevertheless several except the case if necessary things are not given to him, or if the prison is very hard, because the obligation of not freeing oneself from a very grave penalty seems to exceed human strength, when someone can accomplish this without force and resistance. - Thus St. Ligorius, ibid. ³.

³ ** St. Alphonsus adds in the same place: “Probably by Lugo, Sanchez, and Navarrus with the Salmanticenses, against Sayrus, those condemned to the galleys are excused if they flee from prison, and even from the galleys themselves, as Sanchez, Lugo, Lessius, etc., hold as the more probable.”

QUESTION 5º. Is it lawful for the accused to flee, even if from this the guard will suffer damage?

Resp. Yes, because he uses his own right and does injury to no one, unless charity nevertheless should counsel otherwise because of much graver damage to the guard. Yet it is not lawful for the accused to corrupt the guard with money, because since the obligation lies upon the guard not to let the accused go, he would cooperate in his sin.

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.

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.

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.

2309. • A DEFENDANT (called from the thing or from guilt) is he who is called into law and against whom action is taken in judgment. - In a civil judgment he is also called the defender, and in criminal matters the accused. - But for discerning what is lawful for the defendant, and what is not lawful, whether in confession of the crime, or in defense of his cause, or finally in declining the penalty inflicted upon him, the following things are valid:

Principles. I. The defendant is held TO CONFESS THE TRUTH and TO REVEAL the associates of the crime TO THE JUDGE ALONE, when he legitimately and juridically interrogates. - Thus commonly with St. Alphonsus.¹²

We say 1. when legitimately and juridically interrogating; otherwise, according to St. Thomas,¹³ the accused is not held to respond; "but he can elude the judge, either by ambiguous words, or even by denying with some restriction, and in a good sense, so that a lie be absent." The reason is, because the judge does not have authority, except when he interrogates legitimately and juridically (cf. n. 1182). But now: - 1) he does not interrogate legitimately unless he has jurisdiction over the matter or over the person; - 2) he does not interrogate juridically, unless half-full proof has preceded, or unless infamy exists, or another manifest indication of the crime. - Indeed, in a criminal cause, if the defendant reasonably doubts whether he is interrogated legitimately, he is not held to respond. "The reason is, because he himself possesses life and reputation; whence, in doubt, he has the right of preserving it, until the legitimate interrogation is established."¹⁴ Yet someone could be held from charity, namely on account of the utility of the neighbor, to respond.

We say 2. he is held to confess the truth; for the judge legitimately interrogating has the right of demanding the truth from the defendant: therefore it is repugnant that there should be at the same time in the defendant a right of denying it. - Hence, Benedict XIV in the Constitution Paterna charitas issued in the year 1749 teaches that absolution is generally to be denied to defendants who keep back the truth; because it pertains to the common good that guilty persons be known and punished; especially if the penalty which is feared is ecclesiastical, because this is medicinal. - But whether the defendant is held to confess his offense with fear of death, or of another most grave penalty? It is sharply DISPUTED. Suarez, Lugo, and others deny; because the law would then be too hard, and as if impossible for human weakness, unless it is necessary for averting common damage, e.g. by revelation of the associates of rebellion. St. Alphonsus indeed does not reprove this opinion; but he considers the opposite opinion more probable, at least because of the authority of St. Thomas, Sanchez, Lessius, the Salmanticenses, etc., and because the judge has the right of knowing the truth whenever he interrogates legitimately. In practice, if the defendant does not believe himself obligated, and no fruit can prudently be hoped from admonition, he is to be left in his good faith.¹⁵

We say 3. he is held to reveal associates; namely, if there would be against them indications, or testimonies, or infamy. Otherwise, he is not held nor can he reveal them, because in occult matters they retain the right to their own reputation. But if the offense is of the excepted ones, as heresy, conspiracy, etc., he is held, even when not interrogated, to reveal them, as is clear from what was said concerning denouncement (n. 2306).¹⁶

It is helpful TO NOTE: - 1) After sentence has been passed, the defendant is not held to confess the crime which before he unjustly denied; because once the judgment is finished, the precept of the judge no longer urges. Except if the defendant by his denial has inflicted damage on the judge, which he ought to repair. - 2) Before sentence it is not necessary that he be interrogated again; because the precept of the judge perseveres, which he is still held to obey.¹⁷

2310. • II. It is never lawful for a defendant or accused man, even if innocent, FOR HIS OWN DEFENSE, to impose a false crime upon another. This is clear from the 44th proposition condemned by Innocent XI (cf. n. 1196). - Yet he can licitly, for his own defense, set against the accuser or witnesses a true but occult crime, provided that this is absolutely necessary, and that otherwise he himself would suffer grave damage, although through the revelation greater damage may come to the accuser or witness; for no one is held, with his own grave damage, to preserve the reputation of his neighbor (cf. n. 1198). - Likewise, if the defendant had indeed committed the crime, but so occultly that it cannot be proved, he can licitly set calumny against the accuser; because by law he is presumed to calumniate who accuses a defendant of a completely occult crime.¹⁸

2311. • III. It is not lawful for the defendant, even if unjustly condemned, TO REPEL FORCE BY FORCE, e.g. by killing, wounding, etc.; as is clear from the 18th proposition condemned by Alexander VII. - Nor can he licitly corrupt the keeper of the prison with money, since this is intrinsically evil (cf. n. 518). - But one unjustly condemned can positively resist, so that he may snatch himself from the hands of the attendants, provided that from this there does not arise public scandal and grave disturbance. He can similarly, by breaking doors, lawfully flee, even if the keeper of the prison is going to suffer damage from this; for he uses his own right, and consequently the damage which he does not directly intend is not imputed to him.¹⁹

But for him not yet condemned, or already justly condemned to death, or to the galleys, it is not lawful to resist. He can indeed flee from prison, where he is detained in custody; but he is by no means held to this. - But if prison (not very hard) has already been assigned to him as punishment, he can no longer flee; because the sentence justly passed against him obliges in conscience. Thus commonly.¹

On these things LET IT BE NOTED: - 1. When it is lawful for the defendant to flee, others also (ministers of justice, however, excepted) can supply those things which help or hasten flight, e.g. files, ropes, or other instruments, provided that no damage will come to the republic from this, for example, if the defendant were the head of robbers. - But it is lawful for no one to break into prisons in order to free the condemned: for this is conceded to the defendant from the right of preserving life; but for others it is ruled by the common good, namely lest all security of the prison perish (cf. n. 519).

2. Let the confessor prudently ADMONISH the defendant that he can neither benefit him nor harm him; for, this admonition being omitted, the defendant, led by hope or fear, will try to prove himself innocent. And although his innocence becomes known from confession, nevertheless let the confessor not commit himself to intercede for him before the judge; both because his testimony would not make faith, and because the seal of confession would be broken indirectly, in relation to those for whom the same intercession would not be made, and also because of many other inconveniences² (cf. n. 2300, and n. 1546, qu. 2, concerning Communion).

2312. • Questions. QUAER. 1. What is lawful for the defendant in a CIVIL cause?

Resp. The defendant, or defender, has the civil action brought against him by the petitioner, either as certainly just, or as certainly unjust, or as doubtful. - In the first case, he ought without delay to satisfy the petitioner, nor can he begin a lawsuit without being held concerning all damages that will come about. In the second case, he can defend his cause by all means and arts not illicit, as a defendant in criminal matters (n. 2310). - In the third case, he can, as long as the doubt persists, licitly contend; unless charity toward himself and the neighbor, and the counsel of the prudent, advise a transaction, namely lest expenses be multiplied beyond measure (cf. n. 944-947 and n. 1160).

QUAER. 2. Whether it is lawful to interpose an APPEAL?

Resp. 1. Neg., in a civil cause certainly unjust, or certainly less probable; because if a new judge judged for the defendant according to the less probable opinion, he would certainly act unjustly (from n. 2301, rule 4). - "But what if it is doubtful whether the superior judge will justly pass sentence for the defendant? In such a case, it is probable that the defendant can appeal, even in a civil cause; because, since the minds of men are diverse, perhaps the opinion which appeared less probable to the lower judge will appear more probable to the superior; and the defendant, since he already has a probable right for himself, can licitly try this, not without a just cause. And this seems to be the practice of all who appeal." Thus St. Alphonsus.³

Resp. 2. If there is question of a criminal and capital cause, the defendant can appeal, even if he has a less probable right, as is clear from what was said n. 2300. He will also be able to do this, although the first sentence has been just according to the things alleged, in the case in which he has found new reasons for himself, so that the opposite can still be proved.⁴

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

I. On the accuser.

1071. • He is called an accuser who in criminal causes brings a crime to the judge, and asks vindication from him on account of the common good, and at the same time undertakes the obligation of proving the objected crime: but in civil causes he who, as the injured party, compels the adversary to the judge, is not called accuser, but actor (plaintiff).

The accuser differs from the denouncer, who brings some crime to the Superior or judge for vindication, and nevertheless does not undergo the obligation of proving it. - Therefore denunciation is not understood here as fraternal, whose scope is not punishment but the amendment of the neighbor, with the paternal admonition of the Superior intervening, from which amendment is hoped more certainly on account of his authority, - but juridical. L. V. 235.

By our law the obligation of proving a denounced crime is incumbent only on the magistrate constituted for this, or the procurator of the State. But private persons also are held to denunciation from charity, and indeed under grave obligation and even with grave inconvenience, when it is a question of avoiding common and grave damage, or even, but not with grave inconvenience, if it is a question of averting grave damage from an innocent person.¹

II. On the accused.

An accused person (accused in a criminal cause, defendant in a civil) is called he who is accused in judgment either criminal or civil, whether he is guilty or innocent.

1072. Questions. - Query 1° Whether the accused, questioned by the judge, is held to confess the truth?

Resp. 1° Negatively by our positive law. "Nor shall" (any person) "be compelled in any criminal case to be a witness against himself."²

Resp. 2° Affirmatively by natural law, if this is necessary to avert common damage. Yet he must be left in good faith if fruit is scarcely hoped from the warning.

Resp. 3° Affirmatively also, if it is a question of an ecclesiastical punishment, which namely is medicinal, provided he is legitimately questioned, i.e. by a legitimate judge, with the judicial form observed and the offense half-fully proved.⁴

Query 2° Whether the accused, although not legitimately questioned, if it is a question of an ecclesiastical punishment, at least from this cause must confess the crime, because otherwise he by whom he was accused or denounced could be held as a calumniator?

Resp. This certainly and altogether must be denied. The reason is that no sane person will hold the accused as falsely accused because the crime has not been confessed, and the accused not confessing who, other proofs failing, is absolved, is held not as innocent, but simply as not convicted. L. V. 277.

Query 3° Whether it is licit for the accused to appeal?

Resp. Distinguish. For either it is a question of a civil cause, or of a criminal. If of a civil, and this either certainly unjust or less probable, it is not licit, as is clear from the things said n. 60. II. 3°; otherwise, if it is doubtful whether the superior judge is justly going to render sentence for the accused, because since the minds of men are diverse, perhaps the opinion which the inferior judge judged less probable will appear more probable to the superior, and the accused can licitly try this.⁵ - If of a criminal cause, generally and practically speaking, among us it will almost always be licit; for 1° the right of an appeal properly so called in a criminal cause is not given here to the accused except by decree of the judge, which it is surely licit for the accused to ask by legitimate means. 2° St. Alphonsus teaches with the common opinion that the accused is not held to abstain from an appeal from a sentence, even an altogether just one, except in the case in which it is certain that the opposite cannot be proved; but in practice that certitude, when a new judgment has been granted, will scarcely ever be present, especially among us, since jurors are very easy in absolving. (q) p. 483.

Query 4° Whether an innocent accused person can reveal occult crimes of witnesses or of the accuser for his own defense?

Resp. Affirmatively, provided 1° the crime is true; 2° the revelation is absolutely necessary for his own defense; 3° otherwise he himself is going to suffer grave damage² (n. 517. III. IV.).

1073. • Query 5° Whether it is licit for an innocent accused person to flee or resist?

Resp. It is indeed licit for him to flee and to snatch himself from the hands of attendants; but it is not licit to repel force by force, by killing or wounding, because he would violate the rights of public power.³

Query 6° Whether it is licit also for an accused person who truly committed an offense to flee?

Resp. Affirmatively, if he has not yet been condemned by juridical sentence to the punishment; because no one is held to pay the punishment before sentence. Likewise if he has already been condemned to a most grave punishment, and prison has been assigned to him for custody until he is struck by the established punishment. - Thus commonly.⁴

But they more commonly deny if prison has already been assigned as punishment by the sentence of the judge. The reason is that the accused is held to obey in the execution of a just sentence. Yet many except if necessary things are not given to him, or if the prison is most harsh: because the obligation of not freeing oneself from a most grave punishment seems to exceed human strength when one can accomplish this without force and resistance.⁵

Query 7° Whether it is licit for the accused to flee, even if the guard is going to suffer damage from it?

Resp. Affirmatively, because he uses his right and does injury to no one, unless nevertheless charity suggests otherwise on account of damage to the guard much graver. Yet it is not licit for the accused to corrupt the guard with money, because, since an obligation is incumbent on the guard of not dismissing the accused, he would cooperate with this man's sin. L. V. 282.

Query 8° Whether it is licit for those who are not ministers of justice to help the accused, so that he can escape from prison?

Resp. Affirmatively, in the case in which this is licit for the accused, and provided 1° the flight of the accused, because, e.g., he is a highway robber or similar, is not pernicious to the Republic, and 2° from this, for example from a break-in, the security of the prison does not perish. The reason is that to help another toward an end licit to him cannot be illicit.²

Query 9° Whether it is licit for the accused to decline a MILDER punishment, for example a fine or a not long prison, to which he was justly condemned, BUT WHICH HAS NOT YET BEEN INFLICTED UPON HIM?

Resp. Kenrick:³ "I think all punishments are so established by law and decreed by the judge that they are to be inflicted by the ministers of justice; and therefore I do not dare to condemn him who, another's right being uninjured, withdraws himself" from punishment of this kind, "provided however he does not apply force and does not disturb public order."

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

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.

159. Notions. In a civil cause he who presses before the judge against another is called the actor (Kläger), but in a criminal cause the accuser (Ankläger). In the strict sense the accuser is distinguished from the denouncer, and accusation from denunciation. For accusation is usually defined: the delation of a defendant concerning a crime for public vindication, made by one who pledges that he will prove the crime. Therefore the end of accusation is the public vindication of crime for preserving the common good. The accuser is held strictly to prove the existence of the crime; otherwise the accused must be freed. In ancient Roman law, in modern laws, and in ecclesiastical law there are several requisites for legitimate formal accusation.²⁴³ Denunciation is the delation of a crime to a legitimate superior, so that he can investigate and punish; but it does not induce a strict obligation of proving. This denunciation indeed is either judicial, if it tends toward a delict to be punished, or evangelical, if a crime is denounced to the superior not as to a judge, but as to a father, for correcting the delinquent. - Therefore these are not to be confused: plaintiff, accuser, denouncer, or action, accusation, denunciation.

1. In more recent laws formal accusation is scarcely admitted except by persons destined for this from their office,²⁴⁴ e.g., by a procurator of public causes (commonly Staatsanwalt, procureur général), by guardians of forests, of customs, etc. But these persons are held to accuse, or at least judicially denounce, crimes found, unless there is question of certain matters of lighter moment. The reason is that they have been constituted for this end by legitimate superiors. Therefore officials of this kind sin if they neglect their offices; indeed they are held to reparation of damage if from the neglected accusation real damage has occurred either to the republic or to private men.

2. A private man is held to denounce crimes a) if this is prescribed by positive law, e.g., denunciation of one soliciting to shameful things on the occasion of confession; b) if the common good demands this, e.g., denunciation of counterfeiters of money; c) if there is question of grave damages to be averted from a private neighbor. - In other cases denunciation can indeed sometimes be done laudably, but it is not necessary. But a man is never held to denounce or defame himself.²⁴⁵

3. Judicial denunciation can be made from a reasonable cause, even if fraternal correction has not preceded, because this denunciation chiefly intends the punishment of the delinquent for preserving the common good. Evangelical denunciation also can often be made without fraternal correction having been previously given, namely, if the amendment of the delinquent is thus obtained more efficaciously, or if fraternal correction appears too difficult, as was said above, I, n. 602.

²⁴³ Cf. ibid. diss. 13, a. 1.

²⁴⁴ Code of Canon Law c. 1934.

²⁴⁵ Cf. below, on the defendant.

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.

For the sake of clarity we distinguish the obligations of the accused before and after the sentence of the judge. Before the sentence of the judge the defendant a) is not held to confess the crime committed by himself; b) can defend himself by all just means.

163. 1. Confession of the defendant.²⁷⁴ The opinions of older authors in this matter are not always applicable today, since the judicial order of the Middle Ages differs very greatly from the discipline now in force, both ecclesiastical and civil. For in ancient times an accused person whose crime had been half-fully proved was held to confess the truth, and if he refused this, he was subjected to torture for extorting confession. This way of acting indeed is not repugnant to natural law and sometimes produced good effects. Nevertheless it must be confessed that not a few abuses also crept in from it. Today this torture has become antiquated among cultivated nations. It is never strictly exacted by modern civil laws that an accused defendant confess his crime. But in ecclesiastical law Benedict XIII already gravely commanded that an oath by no means be exacted from defendants, except however that they be examined as witnesses concerning others. "Otherwise an examination so constituted and all the acts are by that very fact null and void and lack every effect against the defendants."²⁷⁵ But if it is not lawful to impose an oath on defendants, it is a sign that the Church does not wish to compel the defendant that he himself confess the crime committed. Since these things are so, the principle placed by all the older theologians, "A defendant legitimately interrogated by the judge and with the order of law observed is held to confess the truth," is indeed true even today, but according to modern common law the judge now cannot under grave obligation oblige the defendant to confess his own delict.

Lehmkuhl²⁷⁶ writes on this matter: "I judge that there is never a grave obligation of confessing; nevertheless, that there is a venial sin of lying in persisting in denying a crime when no broad mental restriction can any longer be conceived." Noldin²⁷⁷ speaks still more absolutely: "The defendant is not held to confess the crime committed by himself; wherefore he must indeed abstain from lies, but to the interrogations of the judge he can respond with mental restriction; indeed the very denial of the crime in this case is not a lie, but a broad mental restriction, since he denies that he committed a crime which he is held to confess." This doctrine indeed is not contrary to St. Thomas teaching: "If [the defendant] is unwilling to confess the truth which he is held to say, or if he denies it mendaciously, he sins mortally."²⁷⁸ For the Angelic Doctor proves this opinion of his from the fact that the defendant in that case gravely wounds the obedience due to the legitimate superior commanding. This indeed was true at that time, both according to Roman law and according to ecclesiastical law. But today this is no longer true, neither according to civil laws nor according to ecclesiastical law (at least common law, and ordinarily speaking). For the Code of Canon Law c. 1743, § 1 establishes: "Parties are held to respond to the judge legitimately interrogating and to confess the truth, unless there is question of a delict committed by themselves."

But what if particular law, e.g., in some religious Institutes, still after the Code prescribes confession of a crime? A distinction must be made: If in such an Institute all statutes oblige not under fault, but under penalty only (which is more common), then even this confession of crime does not oblige under fault; but if in such an Institute certain statutes oblige under sin, then perhaps confession of crime can also be imposed under sin. In practice, however, ecclesiastical superiors can indeed admonish the accused person to confess freely the fault committed, because this confession is usually an act of virtue; but let them wholly beware lest they impose upon the accused person a grave precept of confessing his delicts. - A confessor accused on account of solicitation to shameful things, according to the Instruction of the Holy Office of Feb. 20, 1866,²⁷⁹ is held to confess the truth. For thus it is contained in that Instruction, n. 11: "These diligences having been completed, the defendant is brought into judgment, and before the judge... concerning the individual circumstances of each denunciation and examination, bound by the oath of telling the truth, he must respond." But since this Instruction does not have preceptive force but only directive force (because at its end the indicated norms are not commanded but recommended), it does not yet clearly appear that the confessor sins mortally if he refuses confession of the crime; and this all the more because the Code of Ecclesiastical Law c. 1744 simply and without limitation establishes: "The judge cannot tender to the accused an oath concerning the truth to be told in criminal causes."²⁸⁰ Thus, saving a better opinion.

2. Defense of the defendant. An accused defendant can defend himself by all just means. The reason is that the accused defendant, before the condemnatory sentence of the judge, is still considered innocent. Hence, necessity demanding, the accused can, e.g., narrate the hidden crimes of witnesses, if this is necessary for breaking their false testimony; he can interpose an appeal from the lower judge to the superior.²⁸¹ But it is by no means lawful to use unjust means, e.g., calumniously to impose false crimes upon others. This is plain from proposition 44 condemned by Innocent XI: "It is probable that he does not sin mortally who imposes a false crime on someone in order to defend his own justice and honor. And if this is not probable, scarcely any opinion will be probable in theology."²⁸² - He who is unjustly captured or condemned can defend himself, e.g., by taking flight even with breaking out of prison, by resisting guards, etc. The reason is that natural right permits each person to defend himself against unjust aggressors with the moderation of blameless defense. Nevertheless, in today's times positive resistance is often illicit, because it is not only useless but also harmful both to the accused himself and to the common good.²⁸³

²⁷⁴ Defendant in general is called he from whom a thing is sought in judgment, whether civil or criminal (cf. c. 10, X 5, 40). We are speaking of that defendant who is accused in criminal judgment; but the thing which is sought is the punishment of the accused.

²⁷⁵ Roman Council, a. 1725. The Code of Canon Law c. 1744 establishes the same.

²⁷⁶ Cas. consc. I, n. 502.

²⁷⁷ De praeceptis n. 732.

²⁷⁸ S. theol. 2, 2, q. 69, a. 1. Cajetan, the best interpreter of St. Thomas, notes on this place that there are three cases in which alone the defendant is held to confess the truth: 1. when infamy concerning some crime has preceded; 2. when manifest indications of the crime have appeared; 3. when half-full proof has preceded. But he limits these cases in such a way that a grave obligation of confessing the crime committed is rarely present. In today's practice the defendant can indeed sometimes be admonished by the confessor, but not compelled under penalty of absolution to be denied, to confession of the truth. You may see very many diverse opinions of authors on this question in Piat, Prael. iur. regul. II, 406 sqq.

²⁷⁹ Collect. de Prop. Fide n. 1282 (11).

²⁸⁰ Cf. ibid. c. 1830, § 3.

²⁸¹ In a criminal cause the defendant can almost always lawfully use the means of appeal; but in civil causes appeal requires solidly probable reasons. Cf. St. Alphonsus, Theol. mor. l. 4, n. 285; Banez, Comm. in 2, 2, q. 69, a. 3, concl. 3.

²⁸² Denz. n. 1194; cf. also S. theol. 2, 2, q. 69, a. 2.

²⁸³ The proposition 18 condemned by Alexander VII is to be noted: "It is lawful to kill a false accuser, false witnesses, and also the judge from whom an iniquitous sentence certainly threatens, if by another way the innocent person cannot avoid damage" (Denz. n. 1118). - This proposition indeed seems to have been condemned because by a killing of this kind the moderation of blameless defense is wounded.

164. 3. Penalties to be sustained by the defendant. After the sentence of the judge, a defendant justly condemned cannot positively resist custodians or guards. The reason is that then he would resist legitimate power and therefore, the Apostle bearing witness, he would acquire damnation for himself.²⁸⁴ Yet theologians commonly teach that even one justly condemned can flee from prison, or even break prison by force.²⁸⁵ But the reason is that the imposition of prison is a penal precept, which does not oblige with great inconvenience, and especially not to a heroic act, such as spontaneously remaining in prison, notwithstanding that there is a founded hope of escaping. - But is the defendant thus fleeing or breaking prison held to repair the damages which he has caused either to the treasury or to the custodians? Although certain authors deny it, the affirmative opinion seems truer, if nevertheless the fugitive truly brought notable damage, which rarely happens in our times. The reason is that although the fugitive did not commit theological fault by fleeing, nevertheless, with liberty recovered, he has become, as it were, richer, and therefore he is fittingly held to make good the damages which he caused by fleeing. But if the flight was vain, namely, because the fugitive was captured again, then he does not seem to be obliged to make good any damage, because then he will be punished more gravely and for a longer time in prison, and this penalty can be regarded as compensation of the damage caused.

Special prohibition being excluded, it is lawful for other private men not only to advise flight and prison-breaking to the defendant, but also to furnish him the necessary instruments. For this seems to be material cooperation in an act which is not intrinsically evil. But it would not be lawful directly to help one imprisoned to break prison, because this would be an unjust damaging of another's good, and besides because then public security would be endangered too greatly.²⁸⁶ A defendant detained in prison can also deceive the custodians so that flight becomes possible. Thus he can give them little gifts, administer intoxicating drink, etc., but he cannot directly corrupt them or induce them to other sins of neglected office.

Note. The doctrine explained above concerning penalties to be declined by the defendant, which is commonly proposed by older authors, today seems to have to be tempered somewhat on account of circumstances wholly changed. For in ancient times prisons were very harsh, and a captive who once escaped prison was with difficulty captured again. But today prisons are not usually so harsh, while escape is not only very difficult, but also sometimes joined with imminent danger of death or of another most grave inconvenience. Hence today flight from prison often is against right and necessary love of oneself, and therefore illicit.

²⁸⁴ Cf. Rom. 13, 2.

²⁸⁵ Cf. S. theol. 2, 2, q. 69, a. 4 ad 2.

²⁸⁶ Cf. St. Alphonsus, Theol. mor. l. 4, n. 283.

Those are called accused persons who are accused in judgment, whether criminal or civil, whether they are guilty or innocent. Various doubts occur concerning them, especially concerning confession of a crime and flight. Hence:

Question 1. Are accused persons questioned by a judge bound to confess the truth?

Resp. Negatively, if they are not legitimately questioned; namely when the judge is not legitimate, or when he does not observe the judicial form, as if he were to question without prior accusation, etc.; they also add, when there is not at least half-full proof of the crime. Whence it follows that accused persons among us ordinarily are not bound to manifest their crime, because the interrogations are made before juridical proof. Besides, according to the Constitution itself by which we are governed, no one can be compelled to give testimony against himself in a criminal case. Yet note that this is not the same as lying, for those words, "I am not guilty," signify by the consent of all that the accused does not wish to confess the crime. Cf. St. Alphonsus, n. 272 et seq. - Kenrick, tract. 8, n. 133. - Constit. of U. S. Amend., Art. V.

Question 2. Is it licit for an innocent accused person to flee or resist?

Resp. It is certainly licit for him to flee and to snatch himself from the hands of the officers; but it is not licit to repel force by force, by killing or wounding, because he would violate the rights of public power. - Cf. St. Alphonsus, n. 279.

Question 3. Is it licit even for an accused person who has truly committed a crime to flee?

Resp. Affirmatively, if he has not yet been condemned to punishment by juridical sentence, because no one before sentence is bound to pay the penalty. Likewise if he has already been condemned to a most grave penalty and prison has been assigned to him for custody until the established penalty is inflicted. But the Doctors more commonly deny, if prison has already been assigned for punishment by the sentence of the judge; because the accused is bound to obey in the execution of a just sentence. Nevertheless several except the case in which necessary things are not given to him, or if the prison is most harsh; because the obligation of not freeing oneself from a most grave penalty seems to exceed human powers when someone can accomplish this without force and resistance. - Cf. St. Alphonsus, nn. 280 et seq.

After setting forth this common doctrine, thus, so far as pertains to us, Kenrick continues: "I judge that all penalties are established by law and decreed by the judge in such a way that they are to be inflicted by the ministers of justice; and therefore I do not dare to condemn him who, without injury to another's right, withdraws himself, provided nevertheless that he does not employ force and does not disturb the public order." - Cf. Kenrick, n. 138.

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.

At the close of this book on justice and right it pleases me to touch upon certain things which regard men of the courts. In the Christian Theology I passed over this matter untouched, because there was not then time for adorning this province. At present I shall briefly illustrate the chief points. To the matter.

I. QUESTION I. What are the duties of a judge, that he may judge rightly? ANSWER. First of all, knowledge is necessary to a judge of those things concerning which he must pass judgment. Terrible are the oracles by which the Holy Ghost, Wisdom 6, inveighs against sluggish and ignorant judges. Wisdom is better than strength. … Hear therefore, ye kings, and understand … you that are judges of the ends of the earth … for a most severe judgment shall be for them that bear rule. … To you therefore, O kings, are these my words, that you may learn wisdom, and not fall away. God addresses not only inferior judges, but kings themselves. Upon these he threatens a most terrible judgment if they have not learned the knowledge by which they may govern and detect the errors of inferior judges. They are held in a fatal blindness if they believe themselves free from learning the wisdom necessary to government; if they flatter themselves that it is enough to choose good judges and ministers, to whom they commit the whole burden. These are helpers and auxiliary forces. But for the rest, kings and princes themselves will have to render God an account, and indeed a most severe one, both of the judges and of the people. It is a most enormous error by which they believe they have fulfilled their part as often as they have chosen the best ministers. This is one thing which they ought to furnish; but the chief thing is assiduous vigilance and study, by which they ought to assist the people committed to them and to transact the affairs of their princedom. He who wills the splendour of dignity and its revenues must needs will the most grave burdens which follow upon dignity.

II. To all judges, besides knowledge, there is necessary for the forming of a right judgment fortitude and constancy, by which they may make little of the powerful and fear no person. God says, Ecclesiasticus 7: Seek not to be made a judge, unless thou have strength enough to extirpate iniquities: lest thou fear the person of the powerful, and lay a stumblingblock for thy integrity.

III. Hence they gravely sin who, destitute of knowledge, fortitude, and the other necessary endowments, undertake the office of judge: these cannot be absolved unless they abdicate the magistracy. For they are engaged with the greatest peril of eternal salvation: for if a judge, reckoning that he judges rightly, from mere unskilfulness bring forth a false sentence, he is stained with a grave sin of ignorance, as failing in those things which by his office he is bound to know, and is bound to the restitution of all the losses which come to the litigants.

IV. Besides the endowments recounted, a judge must be furnished with authority of judging, either ordinary, or delegated, or from the consent of the parties. He ought also to have moral certainty of the cause which he decides. This moral certainty ought to be formed to the norm of the laws, and according to what is alleged and proved. For he cannot condemn him whom by private knowledge he knows to be guilty, if he be not juridically proved guilty. Since he judges not as a private person, but as a public person.

V. QUESTION II. How ought a judge to bear himself when the rights are doubtful? ANSWER. Note the proposition which Innocent XI condemned, no. 2: He probably judges that a judge can judge according to the less probable opinion. A judge is therefore bound to judge according to the truly more probable opinion in questions whether of right or of fact, every respect of persons being excluded, as God commands, Deuteronomy 1: Judge that which is just, whether he be one of your own country or a stranger. There shall be no difference of persons: you shall hear the little as well as the great: neither shall you respect any man's person, because it is the judgment of God. Nor ought a judge to attend to what the vulgar or the multitude say, but he himself ought to search the laws, and according to them to pass sentence, as God commands, Exodus 23: Neither shalt thou yield in judgment to the opinion of the most part, to stray from the truth. If on both sides equally probable reasons press, then the thing, such as it stands, is to be divided between the parties, if it be possessed by no one. In criminal causes nevertheless, when the rights are equal, the judge ought to favour the accused.

VI. Judges ought to despatch causes or suits quickly. If they be negligent in this, they sin against justice, and are bound to compensate the injured party. If they know advocates who craftily protract suits, let them busy themselves to expel them at once from the court.

VII. Authors keenly dispute whether a judge ought to punish with death one whom he certainly knows to be innocent, when according to what is alleged and proved he evidently appears guilty. All affirm that the judge is bound to enter upon all ways and to use all arts, both by deferring judgment and by remitting the cause to a superior, and by acting rightly with him that he may free the innocent man. What if all these be useless? If I must bring forth what I think, I judge that it can scarcely happen that a judge cannot bring it about that the innocent man should appear such. For if this man is innocent, the witnesses are false. But falsehood can with the greatest difficulty pass hidden through a third examination, if the judge be awake. A judge indeed is bound as a public person to judge according to what is alleged and proved; but in a most rare case care must be taken that the innocent do not perish. And because I judge that the case can scarcely happen in practice — namely that the accused be innocent, that this innocence be evidently known to the judge alone, and that no way is at hand of catching the false witnesses in their speech — therefore I abstain from a longer discussion.

VIII. A judge sins who condemns an accused man upon a confession unjustly extorted. Since a confession unjustly extorted affords no right, nor can a judge use it, since it is not lawful to use an unjust means. But a judge unjustly extorts a confession if he attempt it without congruous indications, or preceding infamy, or half-full proof; if by guile or by promise of impunity he allure the accused; if against the order of law he torture him.

IX. QUESTION III. Can a judge accept gifts from the parties? ANSWER. A judge cannot accept gifts for a sentence to be brought forth, whether just or unjust. Hence Alexander VII proscribed the following thesis: When litigants have on their side opinions equally probable, the judge may accept money for handing down sentence in favour of the one rather than the other. Severely does God disapprove and detest so great a depravity in several places of holy Scripture. Deuteronomy 16 says: Thou shalt not accept person nor gifts: for gifts blind the eyes of the wise, and change the words of the just. Thou shalt justly pursue that which is just. Here both great and small gifts are excluded. That light little gifts are accepted for the avoiding of the mark of discourtesy is an inept excuse. The peoples venerate judges when they see them reject such things, and receive them not as discourteous, but as strong men and upright administrators of justice.

X. QUESTION IV. How ought inquisition to be made by a judge? ANSWER. Inquisition is threefold. General, which inquires in general whether the laws are observed. Another peculiar, by which inquiry is made concerning a certain crime and a determinate person. The third mixed, by which inquiry is made in general concerning the person and singularly concerning the crime, or the contrary. General inquisition ought to be made by a judge with no occasion given. If the crime be public and the guilty man hidden, the judge ought to inquire in general. He cannot inquire against a determinate person unless there have gone before either infamy, or half-full proof, or grave indications. These same things are required for torturing an accused man. Torture was instituted for constituting by the accused's own confession a full proof, when most grave indications urge but do not suffice for pronouncing sentence. Once tortured, if he has confessed nothing, he cannot be tortured again for the same crime. If an accused man who confessed under torture retract the crime before the judge, he can be tortured again; if, having confessed a third time, he a third time retract before the judge, he is to be absolved, unless the indications be most vehement. But tribunals have their own prescribed rules as regards this.

XI. QUESTION V. Does a judge's just sentence oblige in conscience? ANSWER. All affirm it, because a lawful superior's precept is to be obeyed out of conscience. On the contrary, an evidently unjust sentence does not bind. Wherefore he who by force of an unjust sentence receives another's goods is bound to restore the same, when he recognizes the injustice of the sentence. If he receives the same in good faith, and before the time of lawful prescription detects the sentence to be unjust, he becomes a possessor of bad faith and liable to restitution. An unjust sentence nevertheless is to be observed by the injured litigant, for the avoiding of scandal and disturbance; nor is it lawful to act by force against the judge and his ministers; but for the public good a private evil is to be tolerated, and only, the order of law being observed, can an appeal be made or a review of the sentence be implored.

XII. A judge is bound to impose the penalties prescribed by law. Not rarely do judges at their discretion either remit or temper these penalties. When this can be done without detriment to the public good, I praise the kindness. But often judges, that they may be merciful toward the guilty, become savage and inhuman toward the innocent. Penalties of this kind are imposed not only for the punishment of offenders, but also for the terror of others. When wicked men see criminals unpunished, they snatch a handle for vexing the innocent. Therefore kindness toward the guilty opens a way to the oppression of the innocent.

I. QUESTION I. Is anyone bound to accuse or to denounce? ANSWER. This distinction between an accuser and a denouncer St. Thomas constitutes, II-II, q. 68, art. 1: that a denouncer intends a brother's amendment, an accuser the punishment of a crime. Those who by office are deputed to this duty, and who receive a stipend from the commonwealth, are bound in justice to accuse offenders inflicting public losses, such as are fiscal officers, watchmen, keepers of fields and woods, and so forth. If a crime turn to public loss, whether temporal or spiritual, even private persons are bound either to accuse or to denounce. Crimes which tend to public loss are the betrayal of one's country, the adulteration of coins, poisonings, heresy, and so forth. Wherefore Alexander VII proscribed the following thesis: Although it be evidently established that Peter is a heretic, one is not bound to denounce him, if one cannot prove it. A denouncer is not bound to prove, but only an accuser. For those who cannot prove a crime are not bound to accuse.

II. QUESTION II. If an offence be hidden and can be proved, ought an accusation to be made? ANSWER. If hope of amendment be given, fraternal correction is to be preferred: because a neighbour's reputation stands, and amendment is obtained, when, as I have said, the offender's amendment is prudently hoped for. If nevertheless the crimes are against the public good, whether temporal or spiritual, amendment can with difficulty be presumed. And therefore, speaking of these crimes, St. Thomas teaches, in Book 4, distinction 18, question 2, article 3, reply 4, that such offenders can be accused without a secret admonition first sent. An accuser ought to abstain from accusation as often as he perceives the crime to be doubtful, or that he cannot prove it.

I. QUESTION I. Is an accused man bound to confess the truth? ANSWER. An accused man is bound under grave fault to confess the truth to a judge juridically questioning him, as St. Thomas teaches, II-II, q. 69, art. 1, to whom theologians commonly subscribe. Since a judge in this case has a right of questioning and of exacting the truth for the public good of society. Therefore there is a debt in the accused of manifesting the truth. For the first cannot stand without the other. Besides, the accused cannot deny the truth without a lie, which is always unlawful. But to lie in judgment is a mortal sin, since it is in a grave matter, against justice, says St. Thomas, II-II, q. 69, art. 1, reply 3. He who lies in judgment, excusing himself, acts against the love of God and against the love of his neighbour: both on the part of the judgment, to which he denies its debt, and on the part of the accuser, who is punished if he fail in the proof. Moreover an oath is exacted from the accused concerning the truth to be manifested. Therefore he is a perjurer if he hide the truth. And thus the graver theologians commonly teach.

II. Authors dispute whether an accused man is bound to confess the truth after a capital sentence has been passed. Navarrus, Córdoba, Cabassutius, and others affirm it: because, says Navarrus, this is required for establishing the judge's reputation. You will reply that it is already well enough known that offenders are wont to deny the crimes committed by them. But it appears to me difficult that a Christian accused man is disposed for holily undergoing death who perseveres in the denial of the truth. Assuredly it is a lie: but as he publicly denied the truth, so publicly, as it seems to me, he ought to manifest it. All confess nevertheless that the accused is bound to confess the truth for the taking away of scandal, or of a neighbour's loss, or of the detriment of the public good which would threaten from the concealment of the truth.

III. An accused man is bound also to confess the truth when he is questioned by a judge concerning accomplices, because a superior lawfully commanding is to be obeyed. An accused man not juridically questioned is not bound to answer, yet he can never tell a lie. Mental reservations are inept for hindering a lie.

IV. An accused man who lays a false crime upon himself, for which he is to be punished with death, that he may decline torments, sins mortally: because he directly and positively flows into his own death, and is a defamer of himself. Wherefore he cannot be absolved unless he reveal the calumny laid upon himself, since he is not lord of his own life. It is lawful for the accused to appeal to a superior judge, when he is persuaded of the injustice of the sentence, either because the order was not observed, or because the sentence is severer than is equitable. But the appeal is iniquitous when he knows the sentence to be just.

V. QUESTION II. Is it lawful for an accused man to flee, that he may avoid the penalty? ANSWER. An accused man condemned to death can go to the place of execution and submit his neck and fit his hands, when he cannot take to flight. And yet it is not lawful to inflict death upon himself, to take poison, to cast himself from a ladder, to pierce himself with a sword, or to hang himself with a noose: because these things must be done by the executioner.

VI. It is lawful for a guilty accused man to flee, that he may decline death, both before and after the judge's sentence, unless by a peculiar promise or oath he has bound himself to remain, as St. Thomas teaches, II-II, q. 69, art. 4, reply 2. If nevertheless the judge should command that he not flee, since the precept is absolutely just, the accused would have to obey. But since the observance of such a precept is difficult, since the preservation of life is innate from nature, therefore judges commonly abstain from such a precept: nor, as it seems to me, are they to be persuaded to impose it, on account of the difficulty of observance: since moreover flight can be hindered by a severer custody added.

VII. Hence authors commonly infer that it is lawful for an accused man, for the sake of avoiding death, to break his prison and the walls, that he may open a way of flight for himself. For if flight is lawful for him, it will also be lawful to carry out those things which are necessary for flight. But they dispute whether it be lawful for others to hold out to the accused instruments by which he may break the prison. Many deny it — Toletus, Navarrus, and others. But Cajetan, Salón, and others affirm it. Since, they say, if flight is lawful for him, why is it not lawful to afford the instruments by which the lawful end may be obtained? This matter is not of so great moment as to deserve severer discussion. All affirm that this is not lawful for keepers and ministers. Similarly all authors deny that it is lawful for others to help the accused by breaking the doors or walls of the prison. Because although this were lawful for the accused on account of the innate right of preserving life, it is not therefore permitted to others, who are not in the case of consulting their own life. If this were lawful, nothing would be firm and safe, and the supreme power would lack the means for preserving the public good.

VIII. To an accused man against whom a sentence of death has been passed it is not lawful to defend himself and to resist the judge, or the ministers and executors of the death. Similarly an innocent man condemned by a just sentence according to what is alleged and proved, but destitute of truth, is bound to bear with Christian patience the penalty inflicted, when by a lawful way and without public scandal he cannot avoid it; and he is bound to pay a pecuniary fine imposed by a lawful judge. Many contend that it is lawful to flee from the galleys, unless one's word has been given of remaining there, since the accused is condemned to be detained there, not to remain of his own accord. And indeed it seems difficult enough to determine that an accused man is bound in conscience to remain of his own accord in so exceedingly troublesome a prison.

I. For the confirming of some fact and the constituting of a full proof in judgment, two witnesses are required, as St. Matthew, chapter 18, testifies: That in the mouth of two or three witnesses every word may stand. This same St. Thomas teaches, II-II, q. 70, art. 2. In facts of lighter moment one witness suffices, as the testimony of a public keeper is enough for punishing thieves of wood in the forests or of fruits in the vineyards. One witness suffices for hindering a marriage. In testaments, as has been said, two witnesses absolutely do not suffice. It is required that the witnesses be of full age without any exception. By law some are excluded: first, women in criminal cases are excluded, in civil cases admitted; second, slaves; third, minors under twenty years are rejected in criminal cases, in civil cases the under-age; fourth, enemies; fifth, blood-relations and members of the household; sixth, the infamous; seventh, perjurers; eighth, accomplices in the crime; ninth, crimes of difficult proof excepted; tenth, the raving and the foolish.

II. QUESTION I. When are men bound to bear witness? ANSWER. St. Thomas turns over this question, II-II, q. 70, art. 1. When a grave evil, whether temporal or spiritual, whether public or private, threatens an innocent man, everyone is bound to bear witness, even if he be not required by a judge. For the charity of Christ urges us to free the innocent from unjust loss and from monstrous oppressions, as the Psalmist says: Rescue the poor; and deliver the needy out of the hand of the sinner. But in other matters no one is bound, unless required by a judge.

III. A witness is bound to bear witness to a judge lawfully questioning him. That a judge may lawfully question in respect of a witness, it is enough that an accusation, or a denunciation, or a complaint interposed have gone before. But these do not suffice that a judge may juridically question an accused man; but in respect of him it is necessary that there go before either infamy, or grave indications, or half-full proof, as has been said. More therefore is required that a man be bound to bear witness against himself than against a stranger.

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.

I. QUESTION I. What are the obligations of advocates? ANSWER. First of all it is necessary that advocates have the knowledge and skill by which they may be able to exercise their profession. A precise rule of that knowledge cannot be designated. Advocates must be awake, of keen talent, and endowed with force of eloquence. Those who are slow of talent and barren of tongue expose themselves to a most grave danger, no otherwise than those who, by nature weak, fearful, and timorous, undertake a war.

II. The client's cause being heard, the advocate ought to manifest its equity or its injustice, no regard being had to his own gain. Would that those who undertake the profession of advocate had whereon to live without the profession, lest, compelled by money, they should accept any causes whatsoever that they may procure food and sustenance. Often not a few recognize the injustice of a cause, but if they lay it open and dismiss their clients, they have not whereon to live. Hence, bound by want, they easily paint for themselves as probable a cause which is openly unjust.

III. An advocate ought to apply study and diligence according to the quality of the cause, that he may obtain the victory of the cause before the judge; and this he is bound to carry out by his office, since he is hired at a stipend.

IV. Advocates must be sincere and ingenuous: strangers to frauds, to revilings, to protractions, to false proofs, to injuries against the adverse party. They ought not to accept save a just stipend fixed either by law or by just custom. It is forbidden to an advocate to bargain with his client concerning some part of the thing in controversy if he win. For hence he would snatch a handle of obtaining victory by fair means or foul, every respect for justice being taken away.

V. QUESTION II. Is it lawful for an advocate to defend a less probable cause? ANSWER. Some affirm it. In few words I shall settle the matter. An advocate sins: first, if he defend a cause known to be unjust; second, if he defend a less probable cause. If the civil cause be equally probable, he can treat it before the judge; but he ought sincerely to warn his client of the danger of losing the suit. For when the rights appear equal, then each party has a right of proposing its own reasons. This nevertheless is true when the client is the possessor. For if the adversary be the possessor, an advocate cannot defend his client against the possessor. Since when the rights are equal, and consequently the cause doubtful, the condition of the possessor is the better. That an advocate may lawfully defend his client against a possessor, he must judge his own cause to be certainly and evidently the more probable, and such as will appear to the judge. But while it appears doubtful, he cannot judge it the more probable, and indeed evidently. Advocates must beware lest greed and cupidity of gaining clothe an opinion which is to be defended with a degree of greater probability which it does not have.

VI. Hence advocates sin, and are held to restitution: first, if, unskilled and not sufficiently fit, they exercise such a profession; second, when they defend a cause known to be unjust; third, if they undertake causes indiscriminately to be defended, and without considering severely and maturely their justice; fourth, if in the progress of the suit, the injustice being known, they do not warn the client to desist from the suit; fifth, if they reveal the client's secret to the adverse party; sixth, if through their unskilfulness, negligence, or malice the client lose the cause, or make superfluous expenses; seventh, if they defer the despatch of the cause beyond what is just; eighth, if they do not clearly and plainly manifest to the client the danger of losing the suit, and much worse if they allure him by vain promises to bring the suit; ninth, if in defending the suit they use falsehood, fraud, false witnesses, or apocryphal or adulterated writings; tenth, if they undertake more causes than they can rightly despatch, and give to each the due study; eleventh, if they extend their writings beyond what is just, that they may receive a greater price; twelfth, if they lay false crimes upon the adverse party, or reveal true but hidden ones, or vex them with unjust cavils. Lastly they sin against charity if they do not defend gratis the causes of the poor labouring under grave or extreme necessity.

VII. The other procurators, scribes, notaries, and secretaries are all bound in justice to exercise their office diligently, since they receive a stipend. These also sin, according to the diversity of their office, if they persuade an unjust suit; if they multiply writings without necessity; if they violate the secrets of the parties; if they present false writings, or adulterate true ones.

VIII. I shall add a few things which regard physicians, apothecaries, and surgeons. Physicians and surgeons sin: first, if without opportune knowledge they exercise the art of healing; second, if they be negligent in curing diseases; third, if they undertake more sick persons to be cured than they are able opportunely to attend to; fourth, if they neglect to apply the safer, or at least the more probable, remedies; fifth, if they protract the care of a sick man, that they may multiply their fees; sixth, if they omit to cure the diseases of the poor; seventh, if they pass over warning those who lie gravely ill to receive the sacraments, since St. Pius V ordained that physicians should not visit a sick man after the third day unless it be established to them of his sacramental confession; eighth, if they publish the shameful and hidden diseases of the sick.

IX. What has been said of the professions recounted is to be applied to other craftsmen, proportion being preserved. For all apothecaries and the other craftsmen sin if, destitute of the necessary knowledge of their art, they exercise such an art; if they use frauds or guiles. For every art has its own peculiar frauds. Wherefore it will be the part of a skilled confessor severely to examine his penitents upon the right administration of their own art.

A criminal DENUNCIATION is the manifestation and revelation of a crime, without any action, or accusation, by which the Denunciator denounces the crime of his neighbor to the superior Judge, or Prelate, as to a Judge, so that he may do ex officio what seems right to him according to law.

ACCUSATION, however, is the bringing of a charge with an action, in which it is asked of the Judge, and he is himself compelled to punish the guilty party. But denunciation differs from accusation in many ways.

FIRST, because a judicial Denunciator does not intend chiefly public vengeance and the punishment of the offense, but only his own interest, in which he was injured by the wrong: whereas the Accuser intends, first and per se, the public punishment of the offense for the public good.

It DIFFERS secondly, because the Denunciator is not bound to prove the crime by witnesses, whereas the Accuser is bound to prove it, according to Arret. §. fin. quaest. 7. et alios; but I think even the denunciant is bound to prove it by one witness, as others teach, excepting the cases of the Holy Inquisition.

It DIFFERS thirdly, in that on account of a denunciation the whole penalty of the law is not to be inflicted: on account of an accusation, however, the whole penalty is to be inflicted, if the crime be proved. So the Doctors commonly teach, in Fagundez lib. 8. cap. 45. et Saytum lib. 12. cap. 10. and this last difference is gathered from the cap. Inquisitionis, de accusat. see on these tom. 4. disp. 27. de conscient. quaest. 10. sect. 5.

THEREFORE, once the denunciation is presented, the Judge proceeds ex officio against the denounced, and so it is commonly observed in practice, as Pract. Papien. Boss. testifies tit. de denunc. Clato §. fin. quaest. 7. Philip of Bictis of Camerino in Praxi crimin. tract. 2. All of which (says Clarus,) must be understood both of the denunciation made by necessity of office, and of that made by anyone else whatsoever who can lawfully denounce.

But I PREMISE that some crimes are private, which tend to private harm: others public, which rush into public harm. Of the former kind are sins of gluttony, pride, private theft, and the like; of the latter kind are those that are against God, such as heresy, blasphemy, the overthrow of temples, or their burnings; or against the Church, such as violation of immunity, the injury of the majesty of a Prince, rebellions, treasons, public banditry, and the like.

Among Religious there are some things which can tend to scandal and contagion, such as notorious fornication, and the like. And these are counted among public crimes, which are also called "excepted", as Rodriguez numbers in ordine iudic. cap. 13. num. 6. Valerius de differ. utriusque fori, 2. inquisitio, diff. ultim. Miranda in ordin. iudic. quaest. 11. art. 2. Ximenez in declar. reg. cap. 10. quaest. 2. concl. 3. num. 17. Camerinensis num. 5. loco citato.

To these give their assent Suarez de Fide, Spe, et Charitate disp. 8. sect. 6. Sanchez Tom. 2. lib. 6. cap. 56. num. 50. Bonet. ibi, cap. 12.

In general, however, all crimes which the law declares are held as public, according to Bictus, such as homicide, are homicide, adultery, the crime of falsity, as appears in Lib. I. ff. de publ. iud. It is the common opinion of many Doctors, especially the Gloss on Rubr. 6. quaest. 1. Farinac. quaest. 49. Sotus on concealing a secret, memb. 2. quaest. 4. Rodriguez tom. 2. quaest. 5. art. 2. Miranda in ord. iud. quaest. 1. art. 2. The holy Doctor recalls many crimes of this kind in confessionali, cap. 9. and brings forward Canons imposing public penalties, plainly when they have been proclaimed.

Some assert that crimes of this kind can be denounced without previous fraternal correction.

D. Thom. 1. 2. quaest. 33. art. 7. is brought forward, and others whom Bouer. in Direct. part. 1. cap. 13. cites; Bisctus quaest. 15. The reason is, because the common good ought to be preferred to the particular good of the delinquent, and a public sin is not to be left without public punishment, as Rodriguez notes part. 2. quaest. 6. art. 4. after D. Bonavent. loco cit. Among these place Fornication, at least if it be not secret. See Diana part. 2. tract. 2. resol. 69.

And they say the same must be asserted of crimes which are to another's harm pending in the future, according to almost all the Doctors, in Bouerius ibidem, cap. 14.

Similarly they say the same of crimes public, or notorious, in another sense, in a city, college, etc. of which D. Bonavent. 4. dist. 13. quaest. 4. For secrets of this kind do not need correction. So teach Sotus de teg. secret. mem. 2. quaest. 5. Bannes 2. 2. quaest. 33. art. 8. dub. 6. Valentia 2. 2. disp. 3. quaest. 10. puncto 5. Miranda in ordine iud. quaest. 11. art 1. and others commonly, to whom Camerinus subscribes.

He extends these even to private crimes, that although hidden they can be denounced judicially, without previous correction, and he cites Sayrus lib. 12. cap. 10. Navar. in manu. cap. 18. num. 30. Adrianus in 4. de correp. fraterna, col. 17. Tranc. Aretinus in praxi, part. 2. cap. 9. art. 2.

Their reason is, because in such a denunciation, as also in an accusation, the amendment of the delinquent alone is not intended, but that the penalty due be imposed upon him, or the satisfaction due be shown to the injured party, as Reginaldus also notes tract. 2. lib. 25. cap. 32. Bonacina Tract. de Legibus, disp. 10. quaest. 2. puncto 5. and he refers to Diana p. p. tract. 4. resol. 2. where he cites many: Sanctarellus Tract. de haeres. cap. 9. Sanatius in select. disp. 11. num. 56. Bonac. tract. variar. disp. 6. part. 3. num. 9. Sylvius 2. 2. quaest. 33. art. 7. concl. 2. Villalob. sum. part. 2. tract. 4. diffic. 11. Suarez tract. de fide, disp. 20. sect. 4. num. 11. Azor. part. 1. l. 6. cap. 19. quaesito 9. Turtrianus 2. 2. tract. 1. disp. 58. dub. 3. Henriquez lib. 2. cap. 24. num. 10. in Glossa littera C. Simanca in Cathol. instit. titulo 19. numero 11.

Therefore they infer that no sin has fraternal correction to be premised to it, since they say all sins are public.

Yet the opposite opinion is true, which the holy Doctor defends in the places I cited, in the disputation on Charity, sect. 3. on Fraternal Correction. D. Thom. 2. 2. quaest. 35. art. 7. with all his disciples.

Sotus de Iust. lib. 5. quaest. 5. art. 1. Canus de locis Theol. lib. 12. cap. 9. Sylvester V. correptio, quaest. 5. Lopez Instruct. part. 4. cap. 54. Ledesma sum. tom. 1. tract. 4. cap. 4. concl. 24. diffic. 2. fol. mihi 134. Ioan. de Cruz in direct. part. 1. prac. 5. quaest. 2. dub. 5. concl. 2. who speaks of the one solicited in confession, which orders the solicitor to be denounced to the Lords Inquisitors. Zanardus in direct. confess. part. 2. prac. 1. c. 23. quaest. 13. and others. So taught Castrus de haeret punic. lib. 2. cap. 25. Tolet. Lib. 5. cap. 57. Lazarus Tract. de blasphemia, quaest. 12. num. 31. Homobon. tract. de cas. reser. part. 2. cap. 1. and de exam. Ecclesiae part. 2. tract. 9. cap. 13. quaest. 39. Angelus V. denunc. quaest. 2. Rosella V. Inquisitio, num 1.

Indeed Portel. in dubiis regul. v. correclio fraterna, num. 1. extends it even to the crime of heresy. Likewise Reginaldus in prax. tract. 2. lib. 24. cap. 3. sect. 6. numero 51. provided, however, it be firmly judged that he ought to be amended.

The Repertorium Inquisitorum adds, V. denunciator, Gundissalvus de haeret. quaest. 10. num. 10. Decianus tract. 1. lib. 5. cap. 30. And on the case of solicitation in confession Fagundez teaches it, de praec. Eccl. tract. 2. lib. 4. cap. 2. num. 31. where he says: Before the denunciation is made by the woman solicited in confession, fraternal correction must be premised, if there be hope of amendment, because the precept of correction is of natural and divine law; but the precept of this denunciation is human; hence it cannot prevail against the precept of natural law. But for fraternal correction to be judged profitable, it is not enough that it be done once and not profit; but it must be applied again and again, so long as amendment is hoped for on the judgment of a prudent man. So Fagundez, and recently Peirinus in Privil. Minim. tract. 2. constit. 4. of Gregory XV. §. 9. num. 26. and the constitut. of Paul V. §. 2. num. 26. Fagundez requires the same in 6. praec. Lib. 6. cap. 12. from D. Thom. 2. 2. quaest. 33. art. 3.

I add others who grant indeed that in the crime of formal heresy correction need not be premised; but in others, in those savoring of heresy, it must be premised. So Fagundez Tract. 2. lib. 6. cap. 4. num. 11. Mollesius in sum. tom. 1. tract. 7. cap. 24. num. 25. Ortiz. sum. cap. 21. num. 17. Homobon. de exam. Eccl. part. 1. tract. 7. cap. 6. quaest. 19. and from the Doctors cited in the second opinion.

On this matter, besides those cited, treat Aldreta de relig. discip. tuenda, lib. 1. cap. 5. §. 4. numero 28. Onuphrius opusc. de sigillo, serm. 2. quaest. 2. dubio 4. P. Eliz. tract. 1. quaest. 14.

Finally some, in Delrio tract. 3. disq. lib. 5. sect. 4. num. 6. say correction must be premised even if it be doubtful whether it would profit; which opinion he judges very equitable, though he himself, and deservedly, thinks the contrary.

You have very many authors in me loco citato de corrept. and in Bouerius in direct. part. 1. cap. 14.

Philip Biscetus num. 5. says these are to be understood thus: that the Gospel requires correction to be made prior to evangelical denunciation, but not to judicial.

Or if anyone intends him to speak even of the judicial, it is not to be followed, he says; and he wants what was said to proceed, attention being given to Canon law, according to which all crimes are public, as the Gloss delivers in cap. infames, verse Fures, 6. quaest. 1. and so he says the Canonists teach, as Baldus testifies, and of the common opinion Hostiensis is witness, whom Ananias follows cap. statuimus, after number 19. de maledict. and Julius Clarus subscribes to all these lib. 5. §. 1. v. hac tamen. But since correction is not to be premised to public crimes, it follows that it is now to be premised to none.

But Camer. num. 6. adds that correction is not required by justice, but can be made, so that it be required by Charity, if the delinquent be hidden and of good fame, and amendment be hoped for, and he cites Aretinus after D. Thom. 2. 2. quaest. 68. art. 1.

He observes also that although he be amended by correction, yet he could lawfully be denounced, or accused according to Gregory of Valencia disput. 5. quaest. 12. puncto 1. verse dico tertio, and he says this to be the mind of D. Thomas. For, the good of the corrected man being had, the denunciator or accuser can still lawfully propose to himself the aim of punitive justice, that is, the common good, that others may abstain from crimes through fear of the penalty; and therefore denounce, or accuse, the man already amended. But these things are false even with regard to Religious, as they commonly teach with Diana part. 2. tract. 2. resol. 57.

AS TO solicitors indeed in confession, he teaches absolutely quaest. 122. quaest. 42. that correction is by no means to be premised, and he cites Henriquez, Paramus, Rodericus, Acugna, and Navar. in the places related, by Rodericus in compend. quaest. resol. resol. 13. and recalls very many others in Diana p. p. tract. 4. resol. 21. and part. 4. tract. 5. resol. 24.

HE EXTENDS IT, even if he be amended, and refers to Suarez de Fide disp. 40. sect. 6. num. 13. Sancius in select. disp. 11. num. 52. and others in Diana tract. 4. resol. 3. Indeed, even if the Priest repent immediately after the solicitation, he is to be denounced. He asserts Bonacina tract. var. disp. 6. punct. 3. num. 4. Sanctarellus de haeresi, cap. 9. and 44. dubio unico.

I CONFESS that I mingle tears, while I put forward my opinion.

FIRST indeed I do not refuse that sins looking to public ruin be warded off as contagious, most of all heresy, which is the worst pest, like a creeping cancer. Therefore very recently the decree of the most holy Lord Alexander VII rightly came forth, gravely enjoining the denunciation of those suspected of heresy, with no previous correction. And this is to be observed; as we saw tom. 4. disp. 17. de conscientia, quaest. 10. sect. 5. ad propositionem 5.

AS TO the sin of solicitation, I see it to be dangerous, as showing a cauterized conscience, while it abuses the holy Sacrament of salvation, to the damnation of himself, and of others, even penitents; and therefore I do not dare to defend those saying that correction is to be premised absolutely, or that amendment is easily to be believed.

IF, however, the solicitor be truly amended, I do not condemn the opinion of those saying he is not to be denounced, which Sotus lib. 3. quaest. 5. art. 5. teaches, Molfesius in summa, tom. 1. tract. 7. cap. 24. num. 21. Genuensis in praxi, cap. 18. num. 6. Naldus in summa, verbo Accusator. Victorellus in notis ad manuale, Navar. cap. 25. num. 33. Filliucius de casib. reservat. casu 2. num. 8. Zanardus in Direct. confess. part. 3. cap. 31. Rodericus Acugna Tract. de confessoribus sollicitantibus, quaest. 3. num. 15. and there Freitas num. 34. Megala p. p. lib. 1. cap. 5. num. 26. Portell. in his additions to the dub. regular. sollicitare fam. num. 18. Peirinus in Privil. Minimorum, tract. 2. constitut. 4. of Gregory XV. § 6. num. 31. But the decree of the Holy Inquisition is to be set before the opinion of these men.

There is certainly DIFFICULTY in knowing: Whether he be amended. Felinus in cap. testimonium de testibus asserts that sacramental Confession proves someone to be amended. Genuensis in praxi, cap. 18. num. 6. thinks amendment can be presumed, if such a one has obtained the Jubilee. Homobonus de exam. Eccl. part. 1. tract. 7. cap. 7. quaest. 33. Freitas in addit. ad tract. de confessor. sollicitantibus, quaest. 8. num. 32. Riccius part. 2. decis. 159. mem. 14. and others say that he who has lived well for three years is presumed amended.

But SOME teach that this is left to the judgment of a good man, who, the quality of the persons having been considered, will judge the whole matter with prudence and maturity, because it is arduous to know the correction of such persons; and so speaking, Freitas noted it even of heretics quaest. 18. num. 139.

Yet Fagundez tract. 2. lib. 6. cap. 4. num. 17. LIMITS this opinion, and others, with regard to the formal heretic, about whom we can always doubt whether he is truly amended. For heretics are very crafty, and like a contagion they spread their virus. Therefore suitably provision was made against these by Alexand. VII.

FOR THE REST I could never perceive those little subtleties of Camerinus, and Caspensis, keenly devised with Cydonian zeal, while they decree all sins to be public and free them from correction.

ASSUREDLY the Gospel ought to be of greater weight to any Christian than the little reasonings of these men: If thy brother sin against thee, etc. which is the order from Christ the Lord, precepted by divine law, as D. Bonaventure notes, D. Thomas, and innumerable others in Diana part. 3. Tractat. 2. resolut. 37. But among them the Gospel of correction is wholly banished.

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.

In a certain parish, where it is difficult to enforce the civil law, the illegal sale of intoxicating liquors was causing much trouble, and in particular it had a baneful effect on the morals of the young peo-- ple. The parish priest, in order to put a stop to this illegal liquor traffic, asked the civil authorities to take action in the matter, and caused B and other witnesses to be subpoenaed to give their evidence in court, on a certain day, against A, an illegal liquor dealer. On the day appointed for the court none of the witnesses appeared. Some of the witnesses were willing to appear, but both A and B persuaded all the witnesses not to appear at the court. This caused some trouble and expense to the civil authorities. Warrants were issued for the arrest of all the witnesses. Some of them were arrested and fined, but B and others escaped. Evidence enough was obtained to convict A.

Now B comes to Confession, but the priest refuses him absolution until he would consent to make some settlement with the civil authorities. B refuses to do this. Then the priest offers B that he will intercede with the civil authorities in his behalf so that they would be as lenient with him as possible, but B refuses to submit under any consideration, and says that he is satisfied if the civil authorities will take him by force.

Did the priest act right or wrong in refusing him absolution?

Answer.—Strictly speaking, we think the priest exceeded his powers when he refused absolution to B because B refused to make restitution to the civil authorities for the expense his refusal to testify caused them. B was subpoenaed by lawful authority to appear in court and give evidence against an illegal liquor dealer.

The cause was a just cause, the public good. Therefore, B was bound in conscience to obey the summons. In fact, objectively speaking, he was bound sub gravi to obey the mandate of the court or of the grand jury and to appear in court and to tell what he knew. Of this there is no doubt. In a grave matter we are obliged to obey sub gravi legitimately constituted authority, when there is no sufficient reason for refusing to obey. In the present instance we suppose that B had no good and sufficient reason for refusing to give his evidence against the liquor dealer. He might have had what seemed to him a good reason for not appearing, but we suppose that he did not have any such reason. He was bound, therefore, in conscience, sub gravi, to obey the subpoena, and to go into court and to testify. He was bound by the virtue of obedience to do so. The civil authorities had a right to subpoena him. He, on his part, had a corresponding obligation to obey, and that obligation was binding in conscience. B was also bound to obey the summons of the magistrate by reason of the obligation laid on him by the virtue of legal justice. Every citizen is bound to render to the State his just share of service in order to promote the public good. Among these services is the duty of serving on juries and appearing as a witness, when commanded by the civil authorities to do so. All this, of course, is known and admitted by all. B was guilty, theoretically or objectively, of a grave sin of disobedience to lawful authority in refusing to obey the court in a grave matter. But obedience and legal justice do not impose an obligation of restitution, if they are violated. B was guilty of a sin of disobedience and of neglect of his civil duties, but to hold him bound to make restitution, one would have to show that B in refusing to testify, violated also the virtue of strict commutative justice. For only those who violate commutative justice are bound to restitution.

The question, therefore, arises: Did B, by refusing to testify when he was summoned by lawful authority to do so, violate the virtue of commutative justice, and make himself responsible thereby for the expenses his refusal to testify caused the court in securing the liquor dealer’s conviction? St. Liguori, De Lugo, Lessius, etc., etc., maintain that B in refusing to obey the summons of the court sinned against charity, or against obedience, or against legal justice, but not against commutative justice, and that, therefore, he incurred no obligation to make restitution for any expense caused to others. B would not be bound to make any restitution, even though through his refusal to obey the court’s summons and to testify, an innocent defendant might lose his suit and incur heavy damage. According to these theologians the mandate of the court or the subpoena imposes an obligation of obedience, but not of justice, and whoever disobeys it commits a sin of disobedience, but not of injustice. The words of St. Liguori are:

“Is a witness who flees after being summoned bound to restitution?

“Sotus, Sanchez, and others affirm that he is, because by the very fact that a witness has been summoned, he is bound in justice to give testimony; just as, if a judge orders someone to produce a document pertaining to a case, he is bound in justice to exhibit it, otherwise he must restore the loss to the party. But Lugo and Molina more commonly and more probably deny it, and Bonacina and Lessius with Sylvius consider the denial probable. The reason is that the summons imposes not an obligation of justice but only of obedience. Nor does the comparison with producing a document stand in the way; for Lessius rightly answers that the document must without doubt be produced in justice, since it is an external thing which the commonwealth can justly dispose of, as it can of the other goods of citizens when this is necessary to protect their rights; it is not so with the obligation of testifying” (lib. 5, c. 3, 270).

De Lugo admits that if a witness gives false evidence in civil or criminal suits and thereby injures another, he sins against justice and is bound to make restitution. But when a witness acts merely in a negative manner, that is to say, when he refuses to testify or conceals the truth and thereby injures another, does such a witness sin not only against obedience and charity, but also against justice, and is he bound in conscience to make restitution? “The more common opinion,” says De Lugo, “teaches that he sins against justice and with the burden of restitution; so Sotus, Navarrus, and others. Hence many infer that the same applies to a witness whom a judge wishes to summon, but who deliberately hides himself so that the judge’s order cannot be served upon him; or at least, after he has been summoned, fraudulently evades the summons so that he does not appear, or after he has appeared, so that he is not questioned; so Sanchez. Others teach that this is not a sin against commutative justice, but against charity, against obedience, or against legal justice, or against the sanctity of the oath; and therefore it does not entail a debt of restitution. Lessius says that this opinion is probable, and he himself seems to incline toward it, yet does not venture to decide. Molina expressly teaches the same,” etc. This latter opinion De Lugo calls verior, because although a witness has been subpoenaed to testify, still the law does not bind him or constrain him as yet; indeed, Malderus admits this very thing in the case of one upon whom the judge’s summons has already been lawfully served and who put forward a false pretext as an impediment in order to excuse himself. Even if the witness should appear in court and were examined or questioned by the judge, De Lugo holds that he would be bound to testify to the truth only by reason of his oath or on account of the command of the court, he is not otherwise bound to testify to the truth, except either from the sanctity of his oath or from the command of the judge; therefore, by keeping silent about the truth he does not sin against another virtue. It can not be affirmed of the witness, as it can of the judge, that his office of witness obliges him to testify to the truth. The judge has a quasi-contract binding in justice to investigate the truth, once he accepts the office of judge. The witness, on the contrary, refuses to accept the office of witness in our case, and sins by disobedience in thus refusing, but does not sin against justice, since he refuses the office of witness.

Now some will say that, although a witness refuses to testify, even though subpoenaed, still the State may supply for him the consent which he refuses, and thus he does in reality assume the office and duties of a witness, even against his will, because the State supplies his consent. The State can do this in the transfer of property and why not in imposing on him the duty of giving evidence? This, says Lugo, would be quite harsh and novel, that the commonwealth or magistrate should impose upon subjects an obligation in justice concerning personal acts.... Therefore it does not seem that it should be said that the judge can bind witnesses in justice to give testimony, but only in obedience.

The conclusion that De Lugo arrives at, after much discussion, is this:

“We therefore hold that a witness who does not testify sins indeed against obedience, not against justice, and therefore is not bound to restitution unless, by positively testifying falsely, he was the cause of the harm inflicted” (De Lugo, de justitia et jure, disp. 39, sect. 1).

B is not answerable for the damage or expense that his refusal to testify may have caused the town authorities or private individuals. The priest, therefore, could not lawfully condition the absolution upon the restitution of the penitent. B refused to accept the office of witness which the magistrate sought to impose on him by sub-poenaing him; therefore, B had no quasi-contract, binding in justice and entailing restitution, to give evidence against the liquor dealer. In refusing to accept such office, he may have sinned against obedience and legal justice or the duties of a good citizen, but he did not sin against commutative justice; and the violation of commutative justice alone entails the obligation of making restitution. If B were duly sorry for his sin of disobedience, if he looked on it as a sin, and were otherwise disposed, he had a right to receive absolution.

In a criminal trial Caius was called as witness against Titus, and gave false evidence on oath. This evidence, in conjunction with a good deal of circumstantial evidence, caused Titus to be sentenced to six years' imprisonment and to the loss of his civil rights for a similar period. After Titus had served over a third of his time, Caius attended a mission, and his conscience was awakened, and he went to confession. What obligations ought his confessor to impose upon him?

1. Is Caius bound to make restitution?

2. Is he bound to give information against himself, so as to effect the release of Titus?

I. We have here a case of injusta damnificatio, unjust injury of a fellow man. For the duty of restitution to follow any injurious action, it is necessary (a) that the injury be unjust, that it is a violation of some real right, not merely of love or some other virtue; (b) that the action be really causa efficax damni per se; i. e., α that the injury actually followed, and was not merely intended or attempted, β, that the injury can be referred to the action as its obvious cause; and (c) that it be theologically sinful.

The first two conditions are plainly fulfilled. Titus was condemned though he was innocent, and he suffered injury;—the loss of his liberty, honor, means of livelihood, etc.

If Caius intentionally or through criminal negligence gave false witness, he is manifestly responsible for the whole injury and therefore is bound to repair it. If he made false statements in invincible error, he is under no such obligation. The same may probabilius be asserted, if his false testimony was due to some venial sin of carelessness or want of thought. Lehmkuhl is right in pointing out (Casus II, n. 692) that an action involving a venial sin approaches an innocent action more closely than one involving mortal sin. It should, however, be borne in mind, that the duty of care and attention, and therefore the sinfulness of neglect, increases in proportion to the importance of the matter; so that carelessness might be in one case a mortal, and in another only a venial sin. In either case, however, whether Caius has committed a venial sin or no sin at all, justice requires him to correct his mistake, as soon as he becomes aware of it, if there is reason to hope that such a correction will avail to secure the release of Titus, and the restoration of his honor, and to prevent his suffering further harm. We are bound in justice not only to refrain from wilfully injuring our neighbor, but to take care that no bad result shall come to him in consequence of our action.

If it is in Caius' power to correct his false testimony, if such a correction would do good to Titus, and if nevertheless Caius does not make it, he at once becomes bound to make reparation for all the harm resulting from his false evidence. We are assuming, however, that the witness sinned venially or not at all, so he can not be required to effect the correction at the cost of inflicting a comparatively greater injury upon himself. That people should regard him as a rather reckless person would not, as Lehmkuhl remarks, do him any serious harm; but if there were reason to fear that he might be condemned in a court of law for giving careless evidence he need not retract his evidence.

2. How do matters stand if a witness has given false evidence either purposely or through criminal negligence?

In the first place, he would certainly be responsible for all the harm inflicted on the accused man himself and his family. Would it be the duty of the witness to give information against himself and to expose himself to serious penalties, such as loss of liberty, honor, and property, in order to obtain the release of the innocent man and to save his honor? Lehmkuhl (77t. m., II, 820, IV) says that three things must be kept in view in judging the question: the guilt of the false witness, the injury to the innocent man, and the penalty on the guilty person.

If it were physically or morally possible, he might go to some place where he would be safe from arrest, and there make his retractation in legal form before a commissioner, and then send it, or have it sent, to a court competent to deal with the matter. If this retractation seems credible, and circumstances and facts are mentioned which bear it out, so that the proceedings can be re-opened, and the accused man set at liberty, this course will suffice.

It is not always, perhaps it is not often practicable, however, because people are apt not to believe a retractation sent from a distance, and it might easily be misused.

If therefore the case is merely one of carelessness, it would be the witness's duty to surrender himself to justice, even at the risk of prosecution for carelessly making false statements on oath, since the punishment he would have to undergo is trifling in comparison with the penalty imposed upon the innocent person. If, however, the sentence had been less severe, or if the innocent prisoner had served the greater part of it, and his loss otherwise was not very great,—whereas the witness, if sentenced to imprisonment, would lose some official position,—under such circumstances the false witness need not retract his evidence.

The obligation to do so is more binding if the witness wilfully committed perjury. If such a witness acknowledges later that his evidence was false, he is subject to a heavy penalty. Schwane (Die Gerechtigkeit, § 80, 5) says that no one can force a man to denounce himself and to expose himself to such a penalty. The communis of most writers is, however, opposed to this view, and requires the malum nocentis not to be taken into consideration in comparison with the malum innocentis, and regards it as his duty to repair the injury to the innocent man, at the cost of at least equal suffering to himself. Lehmkuhl thinks that he ought to expose himself to a much more severe penalty, because of the lasting slur cast on the innocent person's character.

It depends entirely upon the circumstances of each individual case whether we ought to take into consideration any differences of rank in the persons concerned. It is possible that the innocent man, if of low rank, might suffer no serious consequences beyond the actual loss of his liberty for a time, but that the witness would be absolutely ruined.

If the verdict was certain without his evidence, because the charge was sufficiently proved by the testimony of others, and if what he said did not cause the penalty to be made more severe, the witness need not be called upon to make reparation and to expose himself to such serious injury. Practically he is often not required to make a retraction, because it would do no good to the innocent man (Génicot).

Some authors go much further and say that if a man has been condemned to death on false evidence, and the witness would endanger his own life, he must still acknowledge himself to bea murderer and confess his own crime, if no other way is open to him; for the life of the innocent is preferable to that of the guilty. It is only where the sentence pronounced was comparatively light, and the term of punishment perhaps at an end, and the loss of reputation inconsiderable, that a witness might be released from the obligation of giving himself up to justice, although the duty of making full compensation for the material loss suffered by the innocent man would remain.

It might occur that a witness, although he sinned grievously by giving false evidence, did not realize the severity of the sentence that he was bringing down upon the accused. Such a thing might happen among the lower classes.

Now that I have examined the question again, this is the sense in which I prefer to answer it, although hitherto, and even in the sixth edition of my Moral Theology, I have left it undecided. St. Alph., 1. IV. n. 269 (Busemb.); Lehmkuhl, Th. m., I. 820, IV.; Cas consc, I. 693; Aertnys, I. 1. V. Tr. III. 1. III. n. 361 d; Schindler, II. 225; Gousset, II. 1050; Konings, I. 1074; Haine, L. 2 p. 2537, cf. pp. 142, 143; Génicot, II. Tr. X. n. 14.—Prof. Dr. Goepfert.

Case.—Titus is charged with arson. As a matter of fact he has destroyed by fire the house of Louis, who had refused to be blackmailed and was in consequence made to suffer the loss of his property. Mary, to whom Titus is engaged to be married, has certain knowledge of the crime. Titus told it to her in a spirit of boasting. On the witness stand, and under oath, Mary is questioned as to her knowledge, and she stoutly claims ignorance of the event under investigation. This she does because of a well grounded fear that, Titus would take revenge for betrayal by an act of physical violence. Moreover, should he be sent to prison, her marriage would be abandoned.

Question.—Is she justified in her denial?

Solution.—In a public court the common good demands that every witness shall speak the truth. The obligation of obedience to legitimate authority calls for such an avowal. More than this, the oath which those in the witness box must take, invests all testimony thus given with a religious value, and hence any infraction of the truth would be a sin against the virtue of religion. Finally, commutative justice renders the truth imperative, and as a result a lying witness would be obliged to restitution, should he inflict any loss by reason of his mendacious testimony. But all theologians hold that a witness, even when bound by oath in open court, may be excused from telling the truth outright under certain well defined conditions. Also the civil law, for instance, allows a witness to hide the truth when direct avowal would tend to incriminate himself. In some cases it even refuses to accept a confession of guilt, though affirmed by oath. Again, the law allows particular, confidential communications, those for instance between physician and patient, between priest and penitent, to be withheld from knowledge, on the ground of public expediency. So in Canon Law a witness may be excused from telling all he knows, if what he knows comes to him as a secretum commissum, or if, from testimony demanded from | him under oath, he has reason to fear more than ordinary harm to his reputation, to his goods, or violent, physical harm to his person.

The amount of such harm must be weighed against the harm coming to the community, or to a third party, by reason of the refusal to divulge what one knows to be true. In the case before us we do not deem that Titus could do such grave harm, because his conviction would mean a very long residence in jail, and hence the probability of vengeance would be slight.

Should he escape conviction, or receive only a short sentence, then, undoubtedly, Mary would have grave reason to fear for her personal safety. In this circumstance she would be justified in refusing to divulge her knowledge, for to do so would be to risk her own life.

Her concealing the facts does no positive harm to a third party, or to the state, while it does protect her from any serious bodily and mental evil. On the other hand, mere friendship, however close, would by no means free her from the necessity of telling the truth, and the whole truth, at the judicial investigation. We are of the opinion that her marriage engagement would excuse her from giving the sought after testimony. We hold this for two reasons: First, because under such circumstances her knowledge was gained sub secreto commissio, and, secondly, to divulge what she knows would work a more serious harm to her than the refusal to testify would work to the state or to the individual. Hence she is not guilty of perjury, at least canonically, and consequently she is not bound to restitution in any sense or to any one, for by her just refusal she has not violated commutative justice.