Palladium theologicum, Tomus quintus: De virtutibus

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.