Palladium theologicum, Tomus quintus: De virtutibus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who can be WITNESSES in judgment.

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

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

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

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

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

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

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

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

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

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

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

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

NINTH, corrupted witnesses, who are proved in judgment to have accepted something for giving judgment, cap. 1. Si testes, de testibus, and Molina teaches disput. 83. §. de teste.

THEN they must be sworn witnesses, cap. nuper, de testibus, and cap. tuis quaestionibus, on the same title; for the divine testimonial is a bridle for us, lest we wander beyond the truth. This reason is adduced by all, by Lessius Lib. 2. cap. 30. disp. 4. num. 32. Sayro lib. 12. cap. 20., where from many laws he proves that a statement against a third party has no force unless confirmed by oath. Thus especially from Leg. Iurisiurandi, Cod. de testibus. St. Thom. 2. 2. quaest. 70. art. 3. ad 2. Couar. Lib. 2. var. cap. 13. num. 3. with St. Bonavent. in 3. dist. 39. dub. 5. and 5, letter, and art. 2. quaest. 1.

UNDERSTAND this, however, unless the adverse party remits the oath, cap. tuis quaestionibus, de testibus, except in a matrimonial cause, Sanchez Lib. 3. disp. 41. num. 5. Mascardus de probationibus, concl. 1024. number 13.

MOREOVER, to make the proof there must be several concurrent witnesses, that is, of the same fact; for single witnesses do not prove, and this occurs when one testifies to one crime, e. g. theft of a horse; another to another, e. g. theft of a purse, etc., all of whom prove their own statement, not another's. So Lessius num. 23. Sayrus Lib. 12. cap. 21. num. 15. St. Thom. 2. 2. quaest. 70. art. 2. Cajetanus, Salonius, Aragon. ibidem, Filliucius Tomo 2. tract. 40. on the eighth precept, cap. 8. num. 236. and it is found in cap. licet universis, de testam. and cap. Licet causam, de probationibus.

Concurrent witnesses are those who depose about the same number of the crime and the same circumstances. Hence, to be concurrent, they must agree in time, place, and the species and number of the crime.

ANOTHER condition is that they perceived the fact by some sense, Leg. folium, de testibus, where the Gloss, and Lessius num. 34. Fagundez Lib. 8. cap. 40. num. 14. they must have seen the fact, or, if the crime lies in speech, heard it; in which case it is their cunning custom to hear through a wall the voice of a confessor, provided it is very well known, so as to lead him to confession in judgment. See Sayrum lib. 12. cap. 21. num. 22. and our Father Eliseus in prax. crim. de Testibus.

The FOURTH condition is that the witnesses be exempt from every exception, so that nothing can be opposed to them in law, and they suffer no exceptions; Lessius lib. 2. c. 30. dub. 5. num. 25. Fagundez cap. 40. num. 16. This was said above, when we excluded the unsuitable.

Now TWO witnesses exempt from every exception suffice; both in a criminal cause, even for condemning to death, and in any other grave cause.

It is PROVED from Deuter. 17 and 19: By the mouth of two or three witnesses shall he perish who is to be slain, and 1 ad Timot. 5: Against a priest receive not an accusation, except under two or three witnesses. And And from cap. licet causam, de probat. and cap. cum esset, de testam. So the Doctors commonly teach; St. Thom. quaest. 70. art. 2. where Caiet. Aragon. Bannes, Salon. Lessius Lib. 2. cap. 30. dub. 4. num. 24. Sayrus Lib. 12. cap. 21. num. 15. Filliucius tract. 40. on the eighth precept of the decal. cap. 8. num. 243. Sanchez Lib. 2. de matrim. disp. 45. num. 30. Fagundez on the eighth precept. Lib. 8. cap. 39. num. 1. and it is supposed by St. Bonavent. 3. dist. 39. and on the eighth precept, at the beginning of the opusculum, and he indicates ad 9. Lucae.

By common civil law in closed testaments seven witnesses are required: males, free, or reckoned as free, pubescent, requested, who come together at the same time and are present, and hear, see, and understand the testator's will, whether written or established by voice alone. If the testament be made by voice alone without any writing, subscription or seal is not necessary, Leg. hac consultissima, §. per nuncupationem, Cod. de testamentis, and Institut. de testamentis, §. ult. and Leg. Haeres palam, ff. on the same title; nor is it enough that they be present and hear the testator's voice, but it is also required that they see him. In open testaments, five: In Codicils, five: In graver causes, except a cause of death, one witness of exceptional authority suffices, as a King, Pope, Cardinal, as Sayrus notes lib. 12. cap. 21. num. 15. Filliucius tom. 1. tract. 40. on the eighth precept, cap. 8. num. 236. Fagundez lib. 8. cap. 39. num. 9.

By Canon law, however, that testament is valid which the parishioners make before their Priest, or Pastor, and three, or two other suitable persons, cap. cum esses, de testamentis.

For marriage two witnesses are required, and the Parish Priest; otherwise it is null, as the Holy Council of Trent decrees, sess. 24. cap. 1. And Sanchez notes it, lib. 3. de matrim. cap. 41.

If a Witness, whether knowingly and observantly, or out of crass ignorance, has given false testimony by which he unjustly injured another, that he is bound to restitution of the damage in full — Lessius asserts it lib. 2. cap. 30. disp. 7. num. 52. and they prove it from cap. si sua culpa, de iniuriando, and damn. dat. and from cap. Paroch. de sententia excom. Bartol. in Leg. Nunquam plura, ff. de privat. delict. Bald. in Leg. Quicumque, Cod. de serv. fuga, and in Leg. cum ancillam, Cod. de incest. nupt. Anan. in cap. 1. de crim. falsi. Farinac. part. 2. praxis quaest. 62. num. 5. Fagundez Lib. 8. cap. 42. num. 1. and not only in the forum of conscience is he bound to make good all damages, but even in the external forum the damaged party can bring a civil action against this false witness, for the damage done to him and the interest. So Abbas in dict. cap. 1. de crim. falsi. Anchar. there, Butrieus in the same place, num. 4. and Socinus num. 109. Castrens. in Leg. Presbyteri, num. 3. Cod. de Episcopis, et Clericis, Iason in Leg. Praescriptione, num. 8. Cod. si contra ius, vel utilitatem publicam; Tindar. de testimoniis, part. 1. cap. 9. num. 6. Angelus de Perus. in addit. circa materiam testium, num. 15. Iulius Clarus, §. falsum, Suarez in sua collecta com. opin. Littera T. number 155. Simanch. de Cathol. instit. tit. 64. Rubr. de testam. num. 85. Moncada ad Crot. de testibus, part. 9. num. 379. Bossius tit. de test. falsis, num. 149. and others in Bassaeus.

But Fagundez wonders num. 2. at Farinacius num. 6. Julius Clarus, §. falsum, at the verse poena autem, after Vincentius and Corsetus and the others he alleges, for having said that they are bound only in the Contentious Forum, not in the forum of conscience.

But if he has testified out of ignorance, or non-culpable inadvertence, or oblivion — at least not mortal — whereby someone is condemned, then he says, num. 5., with Diana P. 3. Tract. 5. resol. 105., that he is not bound to restitution: he alleges Cajetan 2. 2. quaest. 70. art. 4. Peter Navarrus lib. 2. cap. 2. num. 253., with whom, he says, Lessius does not entirely disagree lib. 2. cap. 7. dub. 6. He adds part. 4. Tract. 4. resol. 99. Becanus Quaesito 70. quaest. 5. concl. 2. against Strauesdorf. concl. 3. who asserts it. Add Bassaeus V. testis, num. 10.

If, however, he had been convicted as guilty by other witnesses; then, since the concurring testimony accomplishes nothing, they believe he is not bound to restitution. So Pitigian. in praxi. crim. can. de test. cap. 6. fol. 193. Diana loco cit. and others.

Diana adds part. 4. Tract. 4. resol. 79. and deservedly, that he is bound to retract the falsehood if he sees that it would be of profit, even though he should fear for himself the danger of a similar penalty. So also Lessius Lib. 2. cap. 30. dub. 7. num. 53. Peter Navar. lib. 2. cap. 3. num. 251. against Vulterus Strouesdorff, who teaches too rigidly that he is bound even if he doubts whether the retraction would be of profit.

What St. Bonaventure thinks of all these, I shall say: In the Mirror of the Soul, cap. 2, past the middle §. This he also teaches from St. Jerome Lib. 1. on Jeremiah cap. 4, and it is related, dist. 22. quaest. 2. cap. animadvertendo, that an Ought ought to have three companions: Truth, Judgment, and Justice. An oath lacks Judgment, when made without discretion and deliberation. An unlawful Oath, which is to the detriment of eternal salvation, lacks Justice. But it lacks Truth, when what is false is sworn: next, §. Item, as has been said, he places false testimony under injustice, obliging to restitution; but a false Oath, he says, §. circa iuramentum, is an oath "ancisorium", when what is false, or believed false, is sworn, which of its genus is mortal; this, however, seems to be so understood, when one sins with deliberation and is aware that he is sinning.

WHEREFORE an oath made out of ignorance — at least inculpable — does not oblige to restitution.

They doubt, however, besides: whether witnesses, or the Judge, or the notary may accept some remuneration for a just satisfaction, sentence, and writing.

FIRST, indeed, that for a just deposition or sentence they cannot accept a certain fee; and if they accept anything, they are bound to restore everything before the sentence.

It is PROVED from what was said in disp. de Iudice, quaest. 6. For whatever is given for a just testimony or just sentence is reckoned involuntary, given out of fear of an unjust attestation or sentence, as Lessius teaches lib. 2. cap. 14. dub. 8. num. 55. Fagundez lib. 8. cap. 42. num. 18.

SECOND, because there is nothing there saleable for which they could accept a price, for each is bound to testify justly or to decree justly: Therefore they act against justice by accepting something. So Navarrus cap. 25. num. 45. and cap. 17. num. 33. in summa Latina, and cap. Inter verba, 11. quaest. 3. concl. 6. corol. 63. Molina tract. 1. de iust. disp. 83. Fagundez num. 18., where he says that all those are bound to assert it who assert that a Witness, juridically interrogated, is bound by justice to confess the truth; and that he does an injury to the party, the judge, and the Commonwealth by not testifying to the truth; among whom is also St. Bonavent. cited in quaest. 1. He has the same thing in Diaeta, title 3. cap. 7. and it is plain from cap. cum ab omni specie, de vita, et honestate clericorum, where it is said: Since neither may a just judgment be sold by a judge, and venal sentences are reproved even by the secular laws themselves, which the Holy Doctor has almost word for word in the Mirror of the Soul, c. 2. §. Quartus fructus rapinae, around the middle.

The GREATER doubt is: whether the witness, Judge, and Notary are bound to restore what they accept for an unjust testimony, sentence, or instrument.

But there is NO doubt that they are bound to restore the damage inflicted on the party, as Fagundez notes num. 19. with St. Bonaventure in the places adduced, and cap. 1. speculi, §. Item damnificatio. But the whole question is: whether, besides restitution of the damage, they are bound also to restore the whole sum accepted for that injustice.

The FIRST opinion denies it. So Lessius tract. 1. cap. 14. dub. 8. from num. 52. Molina Tom. 1. disp. 89. Navar. sum. Lat. cap. 17. num. 30. and cap. 25. num. 45. Toletus Lib. 5. of the summa, cap. 21. and cap. 59. Peter Navar. lib. 4. de restit. cap. 2. after doubt 11. num. 132. Rodriquez summa, part. 2. cap. 40. concl. 2. St. Thom. 2. 2. q. 32. art. 1. and quaest. 67. art. 5. and others adduced in the disput. de Iudice.

The SECOND opinion asserts that all these are bound to restitution: Sayrus Lib. 10. cap. 2. n. 12. Cajetanus 2. 2. quaest. 32. ¶ 4. Fagundez on the eighth precept, Lib. 4. cap. 42.

Such is the opinion of St. Augustine, epist. 54. to Macedonius, where he says: More justly it is said to the Advocate: Restore what you have received, when you stood against the truth, you favored iniquity, you deceived the judge, you won by falsehood. What is another's must be restored, which is obtained in that very forum where sins are punished, while the laws forbid it; more wickedly is money accepted for an unjust sentence than for a just one, and for false testimony than for true.

From Sermon 19 on the words of the Lord, in St. Bonav. Lib. one of the Pharetra, cap. 26: So deeply has the evil of cupidity grown, that now by custom Judges are sold, laws are corrupted, and the very sentence is venal, and no cause can now be without a "cause".

With this second opinion St. Bonaventure thinks, cap. 1. of the Mirror of the Soul, §. Quartus fructus rapinae; where he cries out that gifts accepted for rendering an unjust sentence, or for violating justice in any way whatever, are mortal sin and robbery.

It is PROVED by the reason drawn from St. Bonaventure in the place adduced, which Fagundez uses, num. 25.

To the same virtue of justice belongs commanding works of justice and forbidding works of injustice; but that unjust acceptance is a work of injustice: Therefore it is forbidden by the virtue of justice: Therefore the one who accepts is bound to restore what he accepted unjustly; since he accepted it against justice.

To WHOM, however, it must be restored, the Holy Doctor admonishes in the Mirror of the Soul, cap. 2, at the end: that these are things which have not passed into the dominion of the receiver, since it is robbery; therefore they stand as an invalid contract, which must be rescinded, and restored to the giver; and it proceeds pari passu also with what is given and accepted through simony, to be rendered back to him who gave, as many Doctors note in Fagundez num. 30.

The assertion is PROVED next by the reason of St. Bonaventure loco cit. §. Quartus fructus rapinae. That price which is accepted against justice is liable to restitution by the law of nature, and therefore before every sentence: Such are gifts for rendering an unjust sentence: Therefore. The minor is proved, for the Witness, Judge, and Notary are bound to bear true testimony, a just sentence, to write a truthful instrument, and accordingly not an unjust one. Therefore they accept against justice, so as to damage their neighbor and act unjustly; and it certainly seems clear that it is against the law of nature, from which results the obligation of restoring damages inflicted on another.

Fagundez nevertheless notes, num. 32., with Sayro num. 16., that absolution must not be denied to the penitent who, having followed the former opinion, is unwilling to restore.

What penalties are established for false Witnesses.

A false witness offends God, the Judges, and the litigating party, and commits in one sin a threefold deformity, which must be expounded in confession: perjury against God, injustice against men, against whom he gives false testimony; and a lie against the Judge, by which he perverts the forensic judgment. On this account heavy penalties are established for them in the law, as Fagundez teaches, cap. 43, after D. Bonaventura in the places cited, especially in the Diaeta, tit. 3, cap. 7. The same is found in the Canon law, cap. 1, de crimine falsi, where he says so threefold a penalty is to be inflicted on the false witness.

FIRST, because he offends God by his perjury, a fast on bread and water for forty days is imposed on him, and for seven years other penance besides, as appears from C. Quicumque, quaest. 1, and the Gloss there, and D. Bonaventura reports it in the confessionali, cap. 3, particula 18.

SECOND, because he mocked the Judge and perverted the public order of law, he is marked with infamy, C. si quis convictus, 2, quaest. 5.

THIRD, because he injured his neighbor, he is punished according to the manner and measure of the injury, that is, by as much penalty as is established by law. So Farinacius, quaest. 67, part. 309, and others whom he cites. The same author, num. 9, notes that a false witness must be condemned far more heavily, both in a case of death and in a civil or criminal case, than the Defendant is to be condemned; which Ananias also teaches on cap. 1, de crim. falsi, and there Butrius num. 6; Iason on the Leg. Et si legibus, at the end of the Cod. si contra ius, vel utilitatem publicam; Gomez on the law Tauri, 87; Penna in direct. Inquisit., part. 3, quaest. 73, com. 122, fol. 675.

MOREOVER, the penalty of a false witness is that he is no longer believed in the judicial forum, even in true matters. Hence, although credit is given to other criminals, it is never given to liars. The Saintly Doctor proves this from the place recently adduced, from C. Quicumque, which is a decree of Pope Fabian, who decrees that such a one should never be without penance and never be received in testimony. So also Bartolus on the Leg. transigere, de transact., and commonly the Canonists on the cap. fraternitatis, de crimine falsi, where Innocent, Ioan. Andreas, Zabarella, and Ananias attest this.

A FOURTH penalty is deposition, if he is a cleric; some derive it from the c. Cum non ab homine, de iudiciis. This, however, is not observed, as I gather from D. Bonaventura in the confessionali, where, though recounting the other penalties, he does not append this one; and so Ananias notes at the place cited, and Fagundez num. 9, who at num. 26, with Ananias, notes that one must be punished for the crime of falsity who conceals the truth when he has sworn to speak it. It is gathered from the cap. Cum dilecti, de accusat.

By the civil law, formerly, by Leg. 12 Tabularum, false witnesses were hurled headlong from the Tarpeian rock, as Aulus Gellius testifies, Lib. 20 of his Attic Nights, cap. 1; Simanca de Cathol. Instit., titulo 64, num. 83; Tiraquellus de poenis, caus. 31, num. 29.

AFTERWARD this penalty seemed too harsh, and in its place succeeded the penalty of deportation with publication of all goods, if the man were free; but if a slave, he is afflicted with the ultimate punishment, by the common Imperial law, Leg. 1 in princip. ff. ad Legem Corneliam de falsis, joined with the §. finalis, and Leg. si divino, ff. de poenis; and Angelus Perusinus notes it in addit. circa materiam de restam. post numerum 15, Abbas in cap. 1. de crim. falsi, num. 6, Simanchus de Cathol. Instit. tit. 64 num. 89, Marianus Socinus in cap. 1. de crimine falsi, num. 109. But one who compels another to testify falsely is punished with the same penalty, as Ananias teaches loco cit., and Fagundez cap. 43. num. 3, D. Bonaventura speculo animae, cap. 2, ad finem.

SIMILARLY also a wavering and contradictory witness is punished with the penalty of the false witness, Leg. qui falso, and there the Gloss, ff. de testibus, and Leg. eas, ff. de falsis. So hold Abbas, Aretinus, and Butrius in cap. Cum in tua, de rest.; Baldus, Bossius, Clarus, Foller, and Farinacius, who cites others, quaest. 66, num. 56; and Bictus, quaest. 47, numero 21.

NOTE, however, that a witness who contradicts himself must be reconciled as far as possible. See the ways of accomplishing this in Farinacius a num. 369.

IN the Venetian state a paper cap, painted with little devils, is placed on false witnesses, and sitting in a high place of the Piazza they are mocked; soon the tip of the tongue is cut off by the executioner, and he is driven into exile.

Matters pertaining to the essence of the oath and of perjury, insofar as it is against God, are treated quite differently in the Tract. de religione, disput. de iuramento; for now we have dealt with it insofar as it is against justice.