Title XX: On Witnesses and Attestations

Latin source headnote: It is brief.

From the Council of Mainz.

It pleased the holy assembly that witnesses should not be hired for giving testimony at a price; that all persons who are suitable and faithful should be assumed as witnesses, so that the person against whom they ought to testify can impute no infamy to them; and that no one shall give testimony unless fasting.

Latin source headnote: A reception of witnesses made against a person not cited is invalid.

Gregory, to John the Defender, Going to Spain.

In the name of the Lord—(And below:) But what the same bishop says, that in his absence even persons of the vilest condition were produced as witnesses, is to be known as of no moment under the law of the Novel Constitution, which speaks concerning witnesses in these words: [“We have also rather often learned this: that certain persons enter either before the defenders of places, or before the most illustrious judges of provinces, or even, as is customary, here before the most illustrious master of the census, and complain as though they suffered something contrary to the laws from another, or were otherwise injured or damaged, wishing to produce witnesses. But”] “lest it afterward be objected against them that these things were conducted and completed by one party, it is necessary that the testimonies be given after that person has been admonished by the judge or defender to come and hear the witnesses. But if he is unwilling to come, and is unable to come not from some unavoidable necessity, we decree that testimonies of this kind shall be valid as though they had not been constituted by one party, but had been given in his presence.” Behold, the adversary must always be admonished to come to hear the witnesses; and because this was omitted here, it is necessary that what was done contrary to law possess no validity. [But what kind of witnesses, etc.]

Latin source headnote: A woman testifies against a cleric when proceedings concern a crime.

The same, to Sabinus, Defender of Sardinia.

Because certain crimes concerning the person of Epiphanius the priest have been reported to us, it is necessary that you investigate everything more diligently and hasten to bring here together either the women with whom he is said to have committed them or others whom you perceive to know something about the same cause, so that through ecclesiastical coercion the things which are true can clearly be disclosed. [These things, however, etc.]

Latin source headnote: Where proceedings are conducted for correction by preventing sin, the principal person is admitted as a witness.

Pope Paschal II.

In every business, the principal person, speaking the truth about a matter known to him, is most rightly to be held as a witness; when indeed one person is joined to him, two witnesses are produced, and when two are joined, three are produced. The Lord plainly shows this when he says: “If your brother sins against you, correct him between you and him alone; but if he does not hear you, take with you one or two witnesses, so that in the mouth of two or three witnesses every word may stand”; and elsewhere [the same] affirms, saying: “Let not one stand against another, but in the mouth of two or three witnesses let every word stand.” Likewise, elsewhere he affirms, saying: “I am he who bears testimony concerning myself, and the Father bears testimony concerning me; for in your law it is written that the testimony of two men is true.”

Latin source headnote: It states what sort of persons those who depose concerning consanguinity ought to be, and how they ought to swear.

Eugenius III.

Whenever persons are sought to be separated because of relationship by affinity or consanguinity, it ought to be affirmed by two or three witnesses who survive from the same family relationship, or it ought lawfully to be proved by the same number of older and better persons of the same place. The proof of the witnesses ought to be made by a twofold oath: they are to swear that they have not been induced to swear this through private hatred, friendship, or for any advantage which they have had, have, or will have; afterward they ought to swear that they received the truth of the matter from their ancestors, as they themselves say, and believe it to be so.

Latin source headnote: A prelate and clerics who do not conduct the cause of a church can testify in it.

The same, to the Prior and Brothers of Holy Trinity.

Furthermore, by our authority, we establish that it shall be lawful for you to give testimony in the causes of your church, provided that one or two of you are appointed to bring actions and answer them; their testimony ought not to be admitted in the causes in which they are appointed as plaintiffs or representatives.

Latin source headnote: If proof of an exception interposed against a produced witness is not admitted before the witness’s statement is received, in a case in which it ought to have been admitted, an appeal is lawfully made. This is what it says according to the reading which Panormitanus sets down.

The same, to R., Bishop of Hereford, and the Abbot of Sard.

A complaint was brought to us on behalf of the priest A. that, when he had canonically obtained the church of Clunoden and had possessed it peacefully for thirty years and more, a certain knight named H. provoked him from it with grave vexations and injuries and finally, suppressing the fact that he was a layman, obtained our letters to judges, directing that, if the said priest was the son of the person who had most recently ministered in that church and held it by hereditary right, or if he publicly kept a concubine, they should entirely remove him from the aforesaid church.

Finally, however, when the same knight, through an intermediary, drew him into a cause before the aforesaid judges, he is said to have produced certain infamous and notorious laymen to give testimony, namely that the aforesaid priest was the son of that priest who had most recently ministered in that church. Although the aforesaid priest A. asserted that those witnesses should not be received because certain of them were manifest thieves and robbers, while certain others had been convicted of perjury in another cause, and steadfastly said that he would prove this, the aforesaid judges nevertheless, after receiving such witnesses of the adverse party, even after the appeal which he proposes that he interposed concerning this, awarded the aforesaid church away from that priest in his absence. It is now held occupied by the son of the steward of the aforesaid knight.

Therefore, because we fully confide in you, we have considered that the cause itself should be committed to your discretion; by commanding you under the authority of the present letters, we order that, having summoned the parties before you, you shall diligently inquire into the truth of the matter concerning this; and if it is established to you that the aforesaid priest was not lawfully despoiled of the aforesaid church through suitable witnesses, you shall, after quashing the sentence of those judges and notwithstanding letters of confirmation, if any were obtained concerning the same church, restore that church to the same priest, delay, contradiction, and appeal ceasing, and shall not permit him henceforth to be troubled concerning it by the aforesaid knight or by the person who holds that church. But if the matter has itself otherwise, you shall nevertheless hear the cause and determine it with a due end. You shall take care to admonish and diligently induce, from consideration of God and love of justice, any witnesses whom the same A. invokes in testimony of his assertion to give testimony to the truth concerning these matters before you, and not to presume to conceal anything concerning this to the peril of their salvation.

Latin source headnote: A judge ought to send a discerning examiner to receive witnesses who cannot conveniently come to him.

The same, to the Bishops of Exeter and Worcester.

If any of the witnesses are sick, aged, consumed by weakness, or oppressed by poverty, so that they cannot be brought to your presence, you shall send suitable and discerning persons to receive them.

Latin source headnote: A sentence is to be reconsidered if it is established that it was rendered according to the statement of corrupted witnesses. This is what it says according to the reading which Panormitanus holds.

Alexander III, to the Bishop of Beauvais.

As was intimated to us on your behalf, certain of your parishioners, having received money, furnish oaths concerning a relationship between a man and wife, through which a sentence of separation is promulgated between them; but afterward, asserting privately that there is no line of consanguinity between them, they say that they were corrupted by gifts and gave testimony to falsehood. Concerning this we answer as follows: if the man and wife, or either of them, has passed to second vows, it appears that no other remedy remains except that penance be enjoined upon the witnesses for perjury and for the adultery of one or more persons to which they gave cause. But if the same man and wife have not migrated to second vows, diligent inquiry is to be made concerning those before whom the corruption took place; and, if such persons are produced through whom the truth of the aforesaid corruption can be proved, the sentence is to be revoked after their testimony has been received. For the testimony of the aforesaid persons, since they are perjurers, is not to be admitted in this case in any respect.

Latin source headnote: An associate in the crime and the gift does not testify even in the crime of simony. And the testimony of one person does not suffice for condemnation.

The same.

Coming to us with your letters, L., your priest, showed us by his report, and your letters contained the same thing, that when he had been instituted in the church of Oven, it was objected against him that he had not had a canonical entrance into the church of Oven, namely because he had previously promised to remit to each parishioner five barrels of wine which they had been accustomed to give as a benefice to the priest serving that church there for the time being. But when two persons appeared who deposed under oath that the aforesaid priest had made such a promise and [said] that that agreement had been improperly made with one of them, you judged concerning the priest as was fitting and as the order of reason requires. And we commend your sentence, as is worthy, because the person who was infected with the same crime could not testify against him concerning it, no one who has confessed concerning himself is to be believed against another in the same crime, and the testimony of one person does not suffice for anyone’s condemnation. [Indeed, what is in the letters, etc.]

Latin source headnote: Attestations received in one judgment create faith in the same cause and between the same persons before another judge.

The same, to the Abbot of Saint L. and the Prior of Saint C.

We commit to your experience for hearing, and for determination with a due end, appeal being removed, the cause which has for a rather long time been conducted between the monks N. and O. concerning the election of each made in the monastery. Therefore, by commanding through apostolic writings, we order your discretion that, having summoned the parties before your presence and having received the attestations of both parties which were received by other judges, admitting other witnesses if any suitable ones are produced, unless the attestations themselves have been published, and after the arguments on this side and that have been diligently heard and understood, you shall determine the cause itself with a due end, the remedy of appeal being removed.

Latin source headnote: Clerics are not to be repelled from giving testimony in the cause of their church without a reasonable cause.

The same, to the Archbishop of Canterbury and the Bishop of Worcester.

When the messenger of the canons of Plutin and the messenger of Joel, a knight, etc. (And below:) Furthermore, let it not escape your prudence that clerics are not to be repelled from giving testimony concerning the own business of their church unless another reasonable cause impedes.

Latin source headnote: A crime now proved repels a witness who has not otherwise been condemned for that crime.

The same, to the Archbishop of Canterbury.

Concerning what indeed you asked us—whether those witnesses against whom crimes are objected by the adverse party are to be discredited in a criminal or civil cause—we answer your prudence that, even if they have not previously been convicted of or confessed those crimes, provided that they are convicted of them, they ought not to be admitted as witnesses.

Latin source headnote: A layman does not testify against a cleric in a criminal cause, but he accuses for an injury to himself or his people.

The same, to the Archbishop of Salerno.

For the rest, the censure of the sacred canons teaches more clearly that laymen are not to be admitted in any respect to accusation or testimony against a cleric in a criminal cause, unless perhaps they prosecute an injury to themselves or their people; and even then they can be admitted not to testimony but to accusation. But if, etc. (Cf. c. 4, On Judgments, II. 1.)

Latin source headnote: In ecclesiastical and civil causes, three productions of witnesses can be made; but a fourth is not admitted without legal solemnity. And after the statements of the witnesses have been published, they can be debated publicly. This is what it says according to the common reading, which agrees with the words of the text.

The same, to the same.

In ecclesiastical or civil causes, witnesses ought not to be produced beyond the third production unless a certain solemnity expressed in the laws is employed. And when the statements of the witnesses have been published, they can be debated publicly.

Latin source headnote: If someone proves that an act was performed after an appeal and the adversary proves that it was performed before, the first proof is preferred and the act is judged invalid unless the second proves that it occurred before every appeal.

The same, to the Provost and Canons of the Church of Embrun.

When you, son provost, with certain of your canons, and your venerable brother [our] archbishop, for the cause which was conducted between you and him, were established in our presence, the archbishop asserted that he had excommunicated you before the appeal and petitioned that his sentence be confirmed; but you proposed to the contrary that he had rendered the sentence of excommunication against you after the appeal, and for this reason you said that it was of no moment. Both you and the other party also objected that witnesses had been produced on each side and their attestations received. But we, having heard and understood the arguments and allegations of both parties and having diligently inspected the attestations, since it is established that your witnesses swore that he rendered the sentence of excommunication after the appeal and the archbishop’s witnesses similarly swore that it was before the appeal, wishing kindly to interpret the statements of the witnesses and to provide that they not be marked with the guilt of perjury, because both could have occurred—that the sentence was rendered after the first appeal and before the second—by the common counsel of our [brothers] we announce and decree that the same sentence is not valid. [But so that this our determination, etc.]

Latin source headnote: In an appellate cause, new and former witnesses are produced only concerning new articles, after an oath has first been received according to custom.

The same, to the Bishop of Piacenza.

Through the letters of your fraternity you wished to consult us whether new witnesses are to be received concerning an adjudicated question in which it is established that witnesses were renounced on each side, and whether, after witnesses have been received in the first cause, it is lawful to propose anything new concerning adjudicated questions on account of the appellate cause. Although, therefore, it did not become fully known to us from these things whether the parties desire witnesses to be introduced concerning the same or new articles, nevertheless, because you wished to consult us concerning this when you [do not] have an abundance of persons learned in law, we have considered that you should be answered that, in an appellate cause, if new articles should happen to arise concerning which one of the parties wishes to introduce new witnesses or to prove something through those already received, we believe that they can be received only concerning the new articles, after oaths according to the form for receiving witnesses have first been received from them.

Latin source headnote: One who swore not to give testimony is compelled to testify if the attestations have not been published.

The same, to the Bishop of Exeter.

The priest R. intimated to us that the cleric G. bound his chaplain and very many others of his witnesses by an oath that they would not furnish testimony, counsel, or aid to him against G. Therefore, by the authority of the present letters, we enjoin upon you that, if their testimony has not been published and witnesses have not been renounced, you shall not postpone receiving those who are bound by the oath and other suitable persons, if necessary, whom he produces as witnesses.

Latin source headnote: Publication or renunciation of witnesses concerning certain articles does not prejudice a person wishing to produce witnesses concerning others. This is what it says in relation to the title.

The same, to the Abbot and Brothers of Martura.

We formerly committed to our sons, the archpriest of Volterra and the Abbot of Spognia, as judges for determination with a due end, appeal being removed, the cause which is conducted between you and our beloved sons, the pleban and clerics of the parish church of Saint Mary of Martura. And when each party was for this reason established in their presence, and witnesses had been received on each side and renounced by both parties, and the attestations of both parties had also been published, you brought into the midst a certain privilege recently obtained from us, asserting that you had obtained from us certain other defenses which appeared to obscure and impede the arguments of the aforesaid parish church, wherefore the cause itself could not yet be determined. But because it lies upon our solicitude to preserve unimpaired the rights of each church and to impose an end upon lawsuits and contentions, by commanding the judges themselves we ordered that they should summon those parties before their presence; diligently hear the arguments on this side and that concerning other articles, if there were any other than those concerning which witnesses had been received and their attestations published; receive any suitable witnesses produced; and decide the cause by agreement or through justice, no articles recently obtained from us through your messengers—which are contained in your privilege or in other letters which we granted you after we committed the cause itself to those judges—furnishing an impediment to the aforesaid parish church in this cause.

But because our venerable brother I., the Bishop of Florence, intimated to us through his letters that certain articles were inserted into the same privilege which we recently granted to your monastery and appear contrary to reason, by commanding you through the present writings, we order that, as you hold dear the grace of blessed Peter and our own, you shall transmit that privilege to our presence with your messenger, who shall come safely to us with it, delay and occasion ceasing.

Latin source headnote: One laboring under a similar disease is repelled from testimony.

The same, to the Bishop of Noyon.

The persons of the churches—(And below: [Cf. c. 4, On Appeals, II. 28.]) But if businesses of this kind are ventilated before you or anyone else, we will that, if persons laboring under a similar disease are brought forward as witnesses by either party, they shall not be admitted to testimony if it is certain or they can lawfully be convicted concerning this.

Latin source headnote: A Christian is admitted as a witness against a Jew.

The same, in the Lateran Council.

Jews or Saracens—(And below: cf. c. 5, On the Jews, V. 5.) We judge also that the testimony of Christians against Jews is to be received in all causes, since the latter presume to use their witnesses against Christians; and we decree that whoever wishes to prefer Jews to Christians in this respect is to be struck with anathema, since they ought to be subject to Christians and to be supported by them for humanity alone. [If any, etc. Cf. c. 5, On the Jews, V. 5.]

Latin source headnote: The testimony of a mother is suspect where her daughter claims as husband a man superior to herself. And at the statement of the mother alone deposing concerning an impediment, a marriage is impeded, but a contracted marriage is not dissolved.

The same, to Cardinal Matthew.

Concerning what your devotion sought from us—whether, when a man denies that he betrothed a woman, the mother of the woman herself and another woman can be received as witnesses—we answer your consultation in this way: since a mother appears to love the advancement and honor of her daughter, where the man is superior in riches and nobility, power, or honor, her testimony appears to be altogether suspect, and therefore not to be admitted in any respect.

But concerning that question which you posed, whether a woman is not to be joined to a man because the mother alone of either one confesses that they are consanguineous, we answer your discretion in this way: if marriage has not been established between them, when the mother affirms that they are consanguineous, they ought not to be joined, because there is no slight presumption that they touch one another by a line of consanguinity, since the mother confesses it. But if the marriage has been established, it ought not to be dissolved without the oath of several persons.

Latin source headnote: For decision of a cause, especially on behalf of a Jew, the testimony of one person does not regularly suffice, but that of two persons of proved life and praiseworthy conduct does.

The same.

Although, by duty of the office committed to us, [we ought to assist with provision all the faithful of God, nevertheless we ought with vigilant care more attentively to defend ecclesiastical men from the harassment of depraved malignant persons, to whose governance we have, although of insufficient merits, more specially been appointed by the providence of God.] It has, however, been brought [to] our hearing that the Jews dwelling in your city have come to such pride and elation that, whenever a cause has arisen between them and any cleric, or between you and them, they draw you before a secular judge and litigate with you before any judge; through a simple charter without witnesses, or through one Christian or Jew of any sort, they intend to prove their cause contrary to every justice and reason, and they do not receive against themselves [even] the testimony of great and approved men.

But because it is not lawful for any Christian—and much less for an enemy of the cross of Christ—namely, to draw ecclesiastical men before a secular curia and to impose an end upon his cause by the purportedly lawful testimony of only one person, [by commanding] through apostolic writings we order your discretion that, if a question arises between you and any Christians or Jews, you shall not presume, at anyone’s summons, to approach a secular curia to treat the business or be judged there; but, as justice requires and the reason of equity demands, in any cause you shall admit the testimony of no fewer than two or three Christian men—and especially clerics—who are of proved life and faithful conduct, according to the Lord’s saying: “In the mouth of two or three witnesses every word stands.” For, although there are certain causes which require more than two witnesses, nevertheless no cause is reasonably determined by the testimony of only one person, however lawful. [In addition, etc. (Cf. c. 8, On the Jews, V. 5.)]

Latin source headnote: Witnesses whom the plaintiff produced from his household are not suitable.

The same, to the Bishop of Fermo.

In the letters—(And below:) A certain nobleman of your bishopric, having lawfully joined a certain woman to himself, after he had kept her in his house for almost seven years, asserted that before marrying her he had known carnally her father’s female cousin; to prove this he produced three witnesses from his household. We therefore answer that, if the matter is so, you shall for no reason permit him to be separated from his wife on account of their testimony, nor shall you hear any persons against them unless they are of proved life and reputation, concerning whom it would not be likely that they ought to perjure themselves for anyone.

Latin source headnote: Until the attestations have been published and witnesses renounced, witnesses can be produced; afterward, however, they cannot be produced concerning the same article, but they can be concerning another. This is what it says in relation to the title.

Urban III.

When our beloved son Master M. came to the Apostolic See, he explained to us that Pope Lucius, our predecessor of happy memory, committed to judges for determination with a due end the cause conducted between him and our beloved son, the Abbot of Sicolan. (And below:) By commanding your discretion through apostolic writings, we order that, having summoned the parties, if you learn that their sentence was canonically promulgated, you shall confirm it by apostolic authority and cause it to be committed to execution. Nor shall the appeal which is said to have been interposed here on the occasion of our predecessor’s death impede it, since afterward he both brought an action and answered, and determined to produce witnesses.

You shall also determine by the mediation of justice, without the obstacle of appeal, the other questions concerning which witnesses were produced and their depositions published, or witnesses were renounced on this side and that, no others being received from either party concerning the same matter, according to the tenor of those depositions. But if there are any questions concerning which either witnesses were not produced or those witnesses were renounced, you shall hear whatever has been proposed on this side and that and impose upon them a due end, appeal ceasing.

Latin source headnote: A defendant can produce witnesses to prove the contrary of what the plaintiff proved if publication of the attestations has not been made, notwithstanding a contrary custom. This is what it says according to the more noteworthy reading.

Clement III.

The course of your rescript disclosed to us that, when a conjugal question was recently conducted between the sons and daughters of certain nobles of your city, because you were distracted by other more urgent business, you committed your functions in the ventilation of that question to certain prudent men, before whom that party which accused the marriage produced lawful witnesses who firmly asserted that consanguinity existed in the fifth degree between the aforesaid persons, placing two persons in the first degree, namely B. and I., and saying that they were brother and sister. But the opposite party said this was false—namely, that B. was the sister of I.—offering both witnesses and a public instrument to corroborate its assertion.

Hence, because the party of the accusers proposes that those witnesses are not to be received, and you affirm that it is not the custom of your church that, after witnesses have been received who compute consanguinity according to the form of the canons, others are admitted from the opposite side, concerning which you request to be instructed both in the present business and in similar ones, we answer by the present page that, if there is no other canonical matter which stands in the way, notwithstanding that custom as contrary to law, you shall not omit to receive the witnesses, appeal ceasing.

Latin source headnote: Carnal union is proved by consistent eyewitness testimony; the same applies to testimony from hearing, when supporting evidence and reputation assist it.

Celestine III.

Furthermore, you wished to consult us, among other matters, when someone is accused of having known a woman carnally, whether the witnesses are to be questioned concerning sight, whether the reputation of the neighborhood alone suffices, or whether credence is to be given to sworn witnesses who confess that they are aware of the carnal union but affirm nothing concerning sight. To these things, therefore, we answer that, if consistent testimony concerning sight is rendered, or even testimony concerning hearing, and agreeing reputation supplies a violent presumption, and other lawful supporting evidence assists it, the testimony of the sworn witnesses is to be upheld. For a circumspect and discerning judge, according to what is provided in the civil law, will confirm the movement of his mind from the arguments and testimonies which he finds more fitting to the matter.

Latin source headnote: Credence is not given to the word of one judge; his writings, however, can be disproved through witnesses. This rule fails in the case of the Pope. It is commonly summarized thus.

Innocent III, to the Consuls and People of Benevento.

When from us—(And below:) Following both canon and civil laws, we more strictly prohibit credence from being given in causes to the word of one judge, of however great authority he may be, whether a question is conducted concerning testaments, concerning any other contracts, or other matters. Nor shall his writing, unless supported by the aid of witnesses, obtain such force that the testimonies of two or three good witnesses cannot and ought not to prevail over it, saving in all matters the authority of the Apostolic See. [Therefore let no one, etc. Given at Rome at Saint Peter’s on the fourth day before the Ides of June. 1198.]

Latin source headnote: A witness introduced concerning a dilatory exception is not believed concerning the principal matter, nor is he compelled to depose; it is otherwise if he is introduced concerning a peremptory exception. For then he can be compelled to swear to depose concerning the whole matter.

The same, to the Bishop of Tyre.

Your fraternity was led to consult us concerning witnesses who are introduced by the parties to prove an exception: whether they are to be compelled to give testimony to the truth also concerning the principal business, and whether those who are introduced to purge someone’s infamy are to be strictly examined like the other witnesses. Therefore, greatly commending your fraternity [in the Lord] because it wishes to be made certain in doubtful matters by a rescript of the Apostolic See, we answer your consultation in this way: if the witnesses have already been introduced only to prove a dilatory exception, since they swore to speak the truth concerning it alone, they ought neither to be heard nor compelled to give testimony concerning the principal matter, since they have not sworn concerning that upon which they would depose.

But if, when they are introduced by either party to prove a peremptory exception, the other party should perhaps seek that they also depose concerning the principal business and petition that they be compelled to be bound by an oath to speak the truth concerning the whole business, they are without doubt to be compelled to this, unless perhaps a sufficient production of witnesses concerning the principal matter has already been made, or witnesses have been renounced, or the depositions of the witnesses have been published. [But those, etc. (Cf. c. 13, On Canonical Purgation, V. 34.) Given at the Lateran on the fourth day before the Nones of January. 1199.]

Latin source headnote: The statements of witnesses are not to be published at the petition of a third party. And one who produced witnesses before certain judges cannot produce them for the same effect before other judges, but ought to be content with their attestations.

The same, to the Bishops of Ely and Chichester and the Archdeacon of Norban.

Established in our presence, the beloved son Master Robert, proctor of Master R. of Saint Edmund, proposed that, when the beloved sons, the dean and chapter of York, had canonically conferred upon him the Archdeaconry of Richmond both by authority of the Lateran Council and by reason of their own privilege, assigning to him both a stall in the choir and a place in the chapter, and when, having obtained possession of the archdeaconry through them, he had received obedience and the customary oath from the clerics of the same archdeaconry, the beloved son Master H. of Kent, who is called Archdeacon of Richmond, despoiled him of it outside the order of law and after an appeal had been interposed to us. And when the aforesaid R. obtained letters of commission to judges concerning his restitution, the aforesaid Master H. appealed to the Apostolic See and, approaching our presence, obtained letters of revocation, which the same proctor asserted had been obtained through a suggestion of falsehood. (And below:)

And, among other things, the aforesaid H. petitioned that we cause the depositions of certain witnesses to be opened; but the aforesaid proctor said that they were not to be opened, since they had not been introduced in this cause, but rather in the one conducted between our venerable brother, the Archbishop of York, and the same R. (And below:) Although, however, the archdeacon, as stated above, sought that certain attestations be opened to create fuller faith for us concerning all matters, while the adversary asserted that they had been received in another cause, we were unwilling to open them, but, with the assent of those same persons, considered that the cause should be committed to your examination.

Therefore, through apostolic writings, we command your discretion that, having summoned the parties, you shall inquire more diligently into the truth concerning all the aforesaid matters, discern what is canonical, appeal being set aside, and cause what you decree to be firmly observed through ecclesiastical censure, yet in such a way that, if it is established to you that the aforesaid H. produced witnesses on his behalf before the Bishop of good memory and the beloved son, the Dean of Lincoln, before you, son archdeacon, and before our beloved son P., cardinal priest of the title of Saint Marcellus, then legate of the Apostolic See, as delegated judges, he shall be content with the attestations deposited with him. Otherwise, notwithstanding the fact that those witnesses were produced before those judges and you, son archdeacon, if they are produced on behalf of the said H., they shall be admitted to testimony.

Latin source headnote: After the attestations have been published, objection is not made against the persons of the witnesses; it excepts three cases and adds a determination concerning the second.

The same.

By the authority of the present letters we establish that, if anyone wishes after the depositions of the witnesses have been published to object against their persons, this shall then at last be lawful for him when he has confirmed by oath that he is not proceeding to this from malice, unless perhaps before publication he protested concerning this, or he can show that after publication he learned what he objects against their persons. Moreover, when someone has protested that he wishes after publication of the depositions to repel the persons of the witnesses, if they say anything on his behalf, credence shall not readily be given to it.

Latin source headnote: If the witnesses of the plaintiff and defendant depose contrary things, they do not derogate from one another’s credibility, but those who are worthier and depose more probable things prevail; and, if there is no disparity in the other matters, number is preferred.

The same, to the Bishops of London and Ely.

Established in our presence, the beloved son Master Walter, in the name of the beloved son, the Archdeacon of Canterbury, by whom he had been appointed proctor for this purpose, petitioned that possession of the church of Middleton, which the beloved sons, the abbot and monks of Saint Augustine of Canterbury, had unlawfully occupied, be restored to him together with the fruits received in the meantime, [especially since custody of vacant churches of the diocese of Canterbury pertained to the archdeacon himself both under the common law and by the general custom of the English Church; and, when two parsons died in the aforesaid church before the monks most recently occupied that custody, the Archdeacon of Canterbury had used this right in the same church, as he said had been sufficiently proved through twenty-five witnesses greater than every exception in the presence of the delegated judges, whose depositions we heard read before us. He added, furthermore, that after the death of the last parson who died in the same church, the same archdeacon possessed the keys of the church itself, as four priests, one deacon, and one cleric most clearly testified. Hence, since we decreed that the church of Faversham be restored to the aforesaid monks, by equal right the aforesaid church ought to be restored to the archdeacon. But the beloved son O., monk of Saint Augustine of Canterbury, proposed to the contrary that, since the said church of Middleton pertained to his monastery without intermediary and it had hitherto possessed its custody undisturbed, as had likewise been clearly proved on his behalf through sixteen witnesses greater than every exception, they did no injury to the aforesaid archdeacon by using their own right. It had also been sufficiently shown through two monks that it freely disposed of the church itself and its property.]

Therefore, since on one side more witnesses and on the other fewer in number were produced, and since it is established that in certain matters they rendered not only different but wholly adverse testimonies, because regard ought not to be had only to multitude but to the quality of the witnesses and their depositions—which the light of truth more fully assists—from which it is fitting that the judge inform the movement of his mind, through apostolic writings we command your discretion that, if the witnesses produced on each side are of the same integrity and reputation, since it is established that the witnesses of the monks are fewer in number than those of the archdeacon, you shall render sentence for the same archdeacon, the obstacle of any contradiction and appeal being removed. But if the witnesses produced on behalf of the monks are of such preeminence that their authority is deservedly to be preferred to the multitude of the others, you shall absolve the same abbot and monks from the archdeacon’s attack, contradiction and appeal likewise notwithstanding. [But if not all, etc. Given at Rome on the second day before the Ides of December. 1205.]

Latin source headnote: Laymen and women are admitted to prove impediments of a person elected. Add: witnesses from hearing and reputation do not prove sufficiently.

The same, to the Prior of Saint Fridianus of Lucca and Master G., Canon of Pisa.

Having diligently heard both your letters and the depositions of the witnesses, we clearly understood that nothing had been sufficiently shown against the beloved son, the Bishop-elect of Lucca, except concerning hearing alone and reputation, since concerning the other matters, if any perhaps appear to have been proved, the witnesses are either alone or of such a kind that they could not lawfully prove them. But because concerning the marriage which the same bishop-elect is said to have contracted with a widow, witnesses were not received because of the obstacle of appeal—namely, lest laymen or women be received against him in such a matter—as you intimated to us by your letters, although the messengers of the same bishop-elect endeavored to prove otherwise before us, we, so that the objection of so great an irregularity does not remain undiscussed, through apostolic writings command and enjoin your discretion that you shall lawfully receive and prudently examine witnesses, whether laymen or women, provided only that they are suitable, who are introduced within a month to prove this; solemnly excommunicating anyone who presumes to impede them from giving testimony to the truth.

Then, after the attestations have been published, if perhaps it is established that an irregularity of this kind has not been proved, you shall enjoin upon the same bishop-elect canonical purgation concerning the matters objected, to be furnished through seven canons of the greater church, or priest or deacon priors of the secular churches of the city of Lucca, of good reputation. When this has been received, you shall appoint for him a fitting term in which he is to present himself before us to be consecrated. But if either the impediment of irregularity has been proved or he has not furnished the enjoined purgation within the appointed term, you, supported by our authority and with the obstacle of any contradiction and appeal removed, shall entirely remove him from the prelacy of the Church of Lucca and command the chapter on our behalf that they shall not defer canonically to celebrate the election of another.

You shall announce that the Archpriest of Lucca and G. [Amsoff], the sacristan, who directed to us letters against the aforesaid bishop-elect in the name of the far greater part of the chapter, are suspended from office and benefice until they merit to obtain our indulgence, since it is established by the aforesaid attestations that by far the greater part of the chapter had not been aware of letters of this kind. You shall inquire, etc. [Given at Ferentino on the second day before the Ides of May. 1203.]

Latin source headnote: In a cause concerning liberty, witnesses can be received against a contumacious person even when issue has not been joined. This is what it says notably according to the common reading.

The same, to the Bishop of Durham and the Dean and Prior of Holy Trinity of York.

When formerly the beloved son, the Archdeacon of St Davids, proposed in the presence of us and our brothers a question against our venerable brother, the Archbishop of Canterbury, concerning the status of the Church of St Davids, we gave the archbishop himself a mandate through our letters that he should approach our presence concerning this, personally or through a suitable proctor, to answer. But when he neither came nor sent a suitable representative for this purpose, wishing with paternal solicitude to provide for the Church of St Davids, we considered that the cause concerning this should be committed under a certain form to our venerable brother, the Bishop of Ely, and the beloved sons, the Dean of London and the Archdeacon of Buckingham; they have not hitherto proceeded in that business according to our mandate. Therefore, lest the cause itself remain undecided, through apostolic writings we command your discretion that, unless the adverse party can repel the aforesaid archdeacon from bringing the action through a lawful exception, after the parties, if it can be done, or their proctors have been summoned through your messengers and letters to a safe and suitable place and issue has been lawfully joined, you shall take care to receive in England the witnesses whom the archbishop, and in Wales those whom the archdeacon, shall determine to produce against him.

But if the archbishop, although lawfully cited before you, is unwilling to appear either personally or through a suitable proctor, or even to join issue, you shall nevertheless admit the witnesses, especially the aged and sick, whom the archdeacon personally or through his proctor shall determine to produce, the obstacle of any contradiction and appeal being removed; and you shall take care to send their written depositions, enclosed under your seals, to the Apostolic See, appointing for the parties a fitting peremptory term at which, personally or through suitable representatives, they shall present themselves before us to receive sentence. [The witnesses, etc. Given at Ferentino on the fourteenth day before the Kalends of July, in the sixth year of our pontificate. 1203.]

Latin source headnote: After the attestations have been published, the adversary is admitted to prove the contrary if before publication he could not have been instructed concerning this contrary proof. This is what it says, and it is an exceptional case.

The same, to the Prior of Bolonic and I., Rector of the Church of Borellis.

We learned from the tenor of your letters that, when we committed to you and the beloved son, the Abbot of Furneia, for determination with a due end, the cause conducted between R., son of W. of Eston, a knight, and the woman M., sister of W. of Arches, when the aforesaid abbot reasonably excused himself because he could not attend cognizance of the same cause, you cited the parties to your presence. When they were established in your presence, the woman’s party proposed that the said knight first furnished a corporal oath that he would take her as his wife, and afterward, having known [her] carnally, conveyed her into his house and received offspring from her.

But the aforesaid knight denied this altogether, adding that, even if the things proposed by her were true, he nevertheless could not by law have her because he had previously taken another woman, then living, as his wife. Therefore, after witnesses had been received from each party and the attestations published, when it appeared to have been proved through the witnesses of the often-mentioned knight that before the feast of the Purification of the Blessed Virgin Mary he had solemnly taken the woman B. as his wife, while the witnesses of the woman M. of Arches said that during Easter week following the aforesaid feast he had furnished an oath to marry her, the aforesaid knight urgently petitioned to be absolved from her attack.

But it was replied on behalf of the often-mentioned woman that at that time, and also previously, at which the witnesses of the said knight had said that he contracted marriage with another, he had always dwelt in the province of York, while the witnesses themselves said that this had been done far outside the said province, specifying the time and place; and she was prepared to prove this through suitable witnesses. But it was answered to the contrary on the opposite side that, since the attestations had already been solemnly published on this side and that, there was no longer place for the production of witnesses. Therefore, because you doubt whether witnesses ought to be admitted after publication of the attestations concerning that article, by the authority of the present letters we answer your inquiry that the woman’s witnesses are to be admitted to prove that article. [Given on the eighth day before the Kalends of December. 1203.]

Latin source headnote: A fourth production of witnesses sought in a cause with legal solemnity is to be granted when no lawful cause opposes it; otherwise, an appeal is lawfully made.

The same, to the Prior of Saint Victor.

Our venerable brother, the Bishop of Senlis, and the beloved sons I., Abbot of Saint Victor of Paris, and F., Dean of Orléans, signified to us through their letters that, when the cause conducted between the abbot and monks of Saint Denis on the one side and the abbess and nuns of Forchelles on the other, concerning both ownership and possession of the priory of Argenteuil, had been committed to them as judges by us, and when the nuns, first entering the suit concerning ownership, had produced witnesses in it, they afterward instituted the possessory judgment, the petitory being suspended, which, after counsel from prudent men, those judges declared by interlocutory sentence was lawful for them by right.

Hence, when, in the cause concerning possession which the nuns sought—namely for the reason that those whom they had succeeded had been violently ejected from it—witnesses had been produced by each party, and proceedings had reached the point that publication ought now to be made, the aforesaid nuns petitioned that the depositions of the witnesses be published only in the cause concerning possession. But the monks contradicted them, alleging that, just as the cause concerning ownership had first been begun, so it ought first to receive an end, or at least the witnesses concerning both the petitory and the possessory ought to be published together. But those judges, after hearing what was proposed on each side, when they wished to pronounce an interlocutory judgment concerning this after taking the counsel of wise men, the monks added that the nuns had renounced the production of witnesses concerning the cause of ownership. When the adverse party denied this and it was conducted between the parties as though doubtful, they pronounced interlocutorily that they would publish the attestations in the possessory and hear the monks’ proofs concerning the nuns’ renunciation; but the monks appealed from this interlocutory judgment to our hearing. The judges, appointing another day for the parties so that they might deliberate whether they ought to defer to an appeal of this kind, summoned prudent men and, by their counsel, without reproving their sentence, granted the monks’ party a hearing if perhaps they might allege some reason for retracting the aforesaid ineffective sentence. They finally, after their appeals, strongly insisted upon the appeal previously made.

[*But because they could scarcely find assessors at Paris without their being said to be suspect—although the nuns’ party finally said that they would in no way hold as suspect anyone whom the three judges together summoned—the judges nevertheless, considering the arduousness of the business, judged that these things should be intimated to us, enjoining upon the parties that on the feast of Saint Luke the Evangelist, then next to come, they should present themselves before us with letters of this kind. But when the aforesaid Abbot of Saint Victor and Dean of Orléans together affixed their seals to the letters containing this course of events, the said Bishop of Senlis deferred affixing his seal because the monks of Saint Denis complained that certain things which ought to have been included had been omitted. Hence, the parties having been recalled, they appointed the day after Saint Remigius. The monks steadfastly asserted that the nuns had had three productions of witnesses in the cause of ownership and conclusion had already been made in them, so that they were not going to be heard further in producing witnesses concerning the cause of ownership, and they offered lawful proofs concerning these things; but the adverse party denied all these things.

But when for this reason both the abbess on her own behalf and Master Thomas on behalf of the abbot and monks, around the octave of blessed Martin, which had been assigned as the term for the parties to present themselves before us, approached our presence, and when we had given them a full hearing in our consistory, the same master added that it had often been petitioned by the abbot and monks from the delegated judges that they grant them a fourth production in the cause of possession with legal solemnity. When the judges entirely denied it to them contrary to lawful sanctions, they, perceiving themselves to be unjustly aggrieved, appealed immediately to our hearing after the interlocutory judgment concerning publication of the witnesses in the possessory had been promulgated. They endeavored to show this from the testimony of certain special letters of the aforesaid Bishop of Senlis, who wrote, among many things, that in the addition which, upon recall of the parties, was made to the first letters, the monks petitioned that this clause be included: namely, that there still remained to them in the possessory judgment a fourth production, the solemnity of law having been employed, and they offered necessary proofs concerning this. The same master promised that he would prove his assertion by lawful witnesses. But the abbess, relying upon the report of the three delegates and upon certain of their letters containing that they had assigned the third day after the Purification of the Blessed Mary for publication of the witnesses produced by each party concerning possession, asserted that what had been added by the same master was entirely false.*]

We therefore, having diligently heard these and the other things proposed on this side and that, by the common counsel of our brothers, through apostolic writings command your discretion that, coming together at Paris, if it is established to you through lawful proofs that the abbot and monks sought a fourth production of witnesses in the possessory with the solemnity of law, and that for this reason they appealed within ten days after the interlocutory sentence—unless perhaps the judges denied the fourth production because they wished to restrain an unbridled multitude of witnesses—you shall admit the aforesaid abbot and monks to the fourth production of witnesses, legal solemnity having been employed, condemning them in lawful expenses if they fail in proof. And unless proceedings in the petitory have already advanced so far that ownership can be fully clear, you shall first determine the cause of possession, to which the abbess and nuns had recourse by benefit of law, and afterward proceed lawfully in the cause of ownership; otherwise, you shall determine both questions together. [But those, etc. Given on the Kalends of February, in the eighth year [of our pontificate]. 1206.]

Latin source headnote: Witnesses are to be diligently examined, those who impede them are to be punished, and the multitude of the witnesses themselves is to be restrained by the judge.

The same, to the Bishop of Piacenza.

When the cause known to be conducted between our venerable brother, the Archbishop of Ravenna, and the beloved sons, the commune of Faenza, concerning the village of Luci and Saint Potitus, the castle of Aureolo, and their district, honor, and jurisdiction, had been [committed by us to various judges, because it could not be determined with a due end by certain of them, we, wishing to impose an end upon the suit, finally commanded our venerable brother, the Bishop of Montefeltro, and the beloved son, the Abbot of Galeata, through our letters that, notwithstanding the commissions hitherto obtained and every occasion and exception ceasing, they should assign the parties a period of three months within which they were to produce all the witnesses whom they should determine to produce concerning this cause; and, after diligently examining them and faithfully reducing the attestations to writing, if it proceeded from the will of the parties, they should determine the cause itself through the mediation of justice; otherwise, remitting the attestations with the instruments and other arguments to our presence, they should appoint a fitting term for the parties at which they should present themselves before us to receive sentence. Therefore, when the aforesaid delegates had by no means proceeded, etc. (Cf. c. 6, On the Oath against Calumny, II. 7.)]

But because it would be exceedingly burdensome for each party to produce witnesses before us, [by commanding] your fraternity, in whom we place full confidence, through apostolic writings, we order that within three months after receipt of the present letters you shall receive, appeal being removed, the witnesses whom each party should determine to produce both concerning the principal business and against the persons of the witnesses. You shall take care to examine them diligently and, prudently inquiring into the individual circumstances—namely, concerning causes, persons, place, time, sight, hearing, knowledge, belief, reputation, and certainty—shall write down everything fully and carefully, and shall faithfully transmit these things to us under your seal, enjoining upon the parties that they come to our presence thus instructed, so that, after the attestations have been published and the instruments produced, and after sufficient argument has been made, with the Lord as author they may receive from us a just sentence.

The witnesses, however, etc. But if perhaps the people of Faenza or others presume to impede those whom the said archbishop should determine to produce to give testimony to the truth, after admonition has first been made you shall compel them by ecclesiastical censure, appeal being removed, to cease from presumption of this kind. Wishing, moreover, that an unbridled multitude of witnesses be restrained, we will that you shall not permit the number of witnesses on each side to exceed forty, in such a way that, if the people of Faenza wish to hold ratified the depositions of the witnesses which were received by our venerable brother, the Bishop of Ferrara, and the Abbot of Pomposa, those witnesses shall be counted within the aforesaid number; otherwise, since the attestations themselves are closed, the same witnesses, if necessary, shall be produced again. [Given at Ferentino on the tenth day before the Kalends of July, in the ninth year [of our pontificate]. 1206.]

Latin source headnote: Attestations received in a summary judgment do not create faith in a plenary judgment. And, notwithstanding their publication, the same or other witnesses can be received concerning the same articles.

The same, to the Abbots of New Fountain and La Chaise-Dieu.

Coming to the Apostolic See, the beloved son G. de Cros, Archdeacon of Clermont, humbly supplicated us that we cause the sentence reasonably rendered for him by our venerable brother, the Bishop of Limoges, concerning the deanery of the Church of Clermont, which had already in part been committed to execution, to be committed to execution in its entirety. But when the beloved sons, the abbot and G. Dalmas, [a canon] of Clermont, proctors of the beloved sons, the chapter of Clermont, being established in our presence, proposed to us that that sentence had been promulgated contrary to justice and after an appeal had been lawfully interposed to us, [and that therefore the same archdeacon was by no means to be heard in his petition, the same archdeacon proposed to the contrary that the said abbot and canon ought not to be received as proctors, since both they and those on whose behalf they had come were bound by the bond of excommunication. For the aforesaid bishop had bound with the bond of excommunication all those who determined to oppose the sentence rendered by him for the aforesaid archdeacon; and, when litigation concerning this had been conducted for some time, we finally caused the aforesaid proctors to be absolved as a precaution. But afterward, when the same abbot and canon wished to proceed against him, the archdeacon was unwilling even thus to admit them as proctors because they conducted themselves as proctors of those who were still bound by the bond of excommunication, and therefore could not proceed at law on their behalf,] and when the same archdeacon was unwilling to admit them as proctors or to answer their statements in any respect, the beloved son P., our subdeacon, a canon of the basilica of the Prince of the Apostles, opposed him on the other side, asserting that he had been canonically elected Dean of Clermont. For this reason, the said archdeacon was by no means to be heard in his petition, because the deanery itself pertained not to him but rather to P.

[To this the aforesaid archdeacon replied that, until the sentence rendered for him had been committed to full execution, the aforesaid P. ought not to be heard to impede execution of the sentence. To this the said P. answered that the sentence rendered for the archdeacon by the aforesaid bishop generated no prejudice against him, since according to lawful sanctions a matter conducted between others does not prejudice others.]

Therefore, when they had debated concerning these matters for some time, we pronounced interlocutorily that the said P., if he could, should establish his contention immediately. When he to establish his contention produced witnesses and instruments concerning this, and when debate had been conducted on each side concerning them for some time, we pronounced by interlocutory judgment, because it was established by the things which had been shown, that it concerned his interest, so that the same P. could oppose the aforesaid archdeacon.

Therefore, when issue had been lawfully joined between them concerning both the election and the sentence, the archdeacon himself was asked before us whether he wished to admit in this judgment the attestations previously produced concerning the aforesaid point. After prior deliberation, he answered that he wished this, provided that he could object both against the persons of the witnesses and against their statements. Upon hearing this, the adverse party answered that it was unwilling to use those attestations in this judgment, since they had been received, when issue had not been joined, not concerning the principal business but concerning an incidental point. Hence it wished to produce other witnesses concerning the whole business, or the same witnesses.

But the adverse party answered that, since those witnesses had spoken concerning both the sentence and the election, and their attestations had been published in judgment, it was not lawful for P., after he had learned the things testified, to produce other witnesses concerning the same articles, especially since the aforesaid subdeacon had used those attestations in this same judgment. We therefore, having heard what was proposed on this side and that, pronounced, as justice required, that witnesses whom each party should determine to produce were to be received concerning the whole business.

Wherefore, through apostolic writings, we command your discretion that, after the witnesses have been received and the arguments of the parties understood, you shall determine the cause itself with a canonical end concerning both the principal and the incidental matter, the obstacle of every contradiction and appeal being removed, causing [what you decree to be firmly observed.] But because the things done in a chapter can hardly be proved except through the canons themselves, we will and command that as a precaution you absolve them, so that, when called to testimony, they may be able freely to testify for each party. [The witnesses, etc. Given at the Lateran on the fourth day before the Ides of July, in the seventh year [of our pontificate]. 1204.]

Latin source headnote: Even religious persons are not admitted to testify without an oath, unless it is remitted by the parties.

The same, to the Archbishop of Besançon.

To your questions—(And below: [Cf. c. 23, On Prebends, III. 5.]) Monks cannot produce their brothers and lay brothers as witnesses in their own causes without the furnishing of an oath, unless perhaps it is remitted by the adverse party. [Religious persons also, etc. Given at the Lateran on the eleventh day before the Kalends of April, in the eleventh year [of our pontificate]. 1208.]

Latin source headnote: A delegated judge necessary as a witness is removed from judging, and another is substituted.

The same, to the Bishop of Arras and the Abbots of Dedimenen and Ourscamp.

It became known to us from the explanation of the beloved son, the Provost of Aire, that, when we considered that the cause conducted between him and the noblewoman, the Countess of Flanders, concerning the donation of six priestly prebends, should be committed to you, brother bishop and son Abbot of Dedimenen, and also to the beloved son, the Dean of Arras, the same provost proposed before you, before joinder of issue, that the testimony of that dean was necessary to him in the aforesaid cause, since he could not create faith concerning his right except through him and only one other witness. Hence he urgently petitioned that proceedings be conducted in the cause itself after the dean was excluded, or that the business be suspended until we substituted another in his place. But you refused to admit his petition in this respect; indeed, rather, after the appeal which he interposed to us for this and other reasons, you suspended him from the donation of those prebends.

Therefore, lest his justice perish because of the want of such a witness, we have considered that you, son Abbot of Ourscamp, should be substituted in his place, commanding through apostolic writings that, if it is so, after the aforesaid suspension of the provost has been relaxed, you shall proceed in the same cause according to the tenor of the former mandate, reason going before. [But if not all, etc. Given at the Lateran on the fourteenth day before the Kalends of March, in the eleventh year [of our pontificate]. 1209.]

Latin source headnote: Lest an abundance of proof perish, after the adversary has been cited, witnesses whom the defendant introduced are received and published.

The same, to the Judge of Sabina.

The beloved son [B.], priest of Saint N. in the diocese of Sabina, signified to us that the founders of the same church, wishing it to be free, said at the time of foundation that they retained absolutely no right in it for themselves. Hence, fearing that with the course of time an abundance of proof might perish, the same priest petitioned that provision be made for him concerning this. Wherefore, by the authority of the present letters, we command you that you shall diligently examine the suitable witnesses whom he should determine to produce to you concerning this and shall cause their statements to be reduced to public records, notifying the aforesaid founders or their heirs that they may attend the reception of the witnesses if they wish, and shall cause a public instrument to be made concerning notification thus made. [Given at the Lateran on the Ides of April, in the twelfth year [of our pontificate]. 1209.]

Latin source headnote: If the subject matter of an old article is repeated with something added which is subjected to the necessity of proof, even former witnesses can be produced after the attestations have been published.

The same, to the Bishop and Archdeacon of Benevento.

When the cause conducted between the steward of the monastery of Saint Martin of Monte—(And below: cf. c. 6, On Sale, III. 17.) Therefore, since the abbot and brothers of that place intend through witnesses to prove how great the price of the aforesaid possessions was at the time of sale, by the authority of the present letters we command you that within the space of three months you shall receive, appeal being removed, the witnesses whom either party should determine to produce concerning this, hear the cause and, remitting it to us sufficiently instructed, appoint a fitting term for the parties at which they shall present themselves before us to receive sentence. But if the monastery’s party produces, to prove this article, the same witnesses whom it produced to prove another, you shall nevertheless take care to receive them, because it is one thing to have proved the excess of the deception and another to prove the quantity of the value.

Latin source headnote: Witnesses who were present at a sentence are received and published where the sentence does not appear from a writing.

The same.

The knight Alberic took care to intimate to us that, when formerly a matrimonial question was conducted between him and C., a woman of Ravenna, before the chapter of Ravenna, finally, as justice required, a sentence of separation was rendered between them. But afterward the said knight lawfully joined two wives to himself at different times and received sons from them, and, fearing that prejudice could be generated against himself and the sons whom he received from a lawful wife from the fact that the aforesaid sentence was not reduced to writing, humbly supplicated us that, taking paternal care for him concerning this, we cause the witnesses who were present at the aforesaid sentence to be received. Therefore, because it becomes us to impart benevolent favor to those seeking just things, we command that you shall take care to receive the aforesaid witnesses, causing their depositions to be reduced to a public writing.

Latin source headnote: After the attestations have been published, witnesses who were previously produced in a summary judgment or outside judgment can be produced concerning the same article or one directly contrary to it. This is what it says according to the more noteworthy understanding, without positing any special rule in a matrimonial cause. And then explain the text at the end, where it says “in this case”; namely, when witnesses produced elsewhere are produced again. Panormitanus.

The same, to the Bishop of Beauvais.

When in your diocese—(And below: [Cf. c. 30, On Tithes, III. 30.]) But whether, if a suitable accuser appears and relationship between persons already joined is proved through three or four witnesses, the depositions of those later witnesses derogate from the credibility of eleven or twelve relatives—earlier in time and more excellent in merits—who, before the marriage was contracted, swore the contrary while distinguishing the persons and degrees from whom those whose union is at issue directly descended, or whether the former witnesses are preferred to the later ones, could not undeservedly be asked. Although both those and these swore for another matter and for another reason, nevertheless, if in the second judgment the persons first sworn deposed those same things which they said in the first, without doubt their testimonies would prevail, nor could they be repelled under the pretext that the parties had learned the things testified, since such an exception has no place in this case. [Given at the Lateran on the fourth day before the Kalends of November, in the fifteenth year of our pontificate. 1212.]

Latin source headnote: Those who impede a party in producing witnesses can be excommunicated, and witnesses are to be declared not bound by an oath not to tell the truth. And if relatives impede the plaintiff’s witnesses from telling the truth, the defendant is punished, since this is presumed to be done by his will.

The same.

When our venerable brother [Alferius], Archbishop of Sorrento, and the beloved son M., canon of Sorrento, were established in our presence, while M., [after a libellus of accusation had been framed], denounced him for the crime of simony, [*asserting nevertheless that he was liable for the crime of injured majesty because, as he said, by the machination of the same archbishop the city of Sorrento withdrew from royal fidelity and swore to the reprobate Otto; and that the archbishop himself, while excommunicated, celebrated divine services, since after such a machination—through which persons who machinate things of this kind incur the sentence of excommunication rendered by the Apostolic See—he presumed to celebrate divine services, the archbishop, before he petitioned that the faculty of copying the libellus be granted to him, excepted against the person of the accuser that he was an enemy and conspirator, alleging that access to accusation should be interdicted to him, since according to canonical institutes enemies and conspirators ought to be admitted to the accusation of no one.

To this the adverse party answered that, since the stain of simoniacal depravity is so great that slaves are admitted against masters and any criminals whatever are admitted, and since, in betraying the crime of injured majesty, even an associate in the faction entered into is not only heard but indeed endowed with reward and honor, exceptions of this kind could not defeat the accusation concerning the aforesaid matters, especially since it concerns public liberty that crimes not remain unpunished. To these things, however, it was answered to the contrary that, since in the decree of Pope Anacletus it is expressly provided that persons who were enemies before yesterday or the day before yesterday cannot be accusers, lest in anger they desire to harm or, having been injured, to avenge themselves, and since an unoffending and not a suspect disposition of accusers is sought, and the constitution of Pope Callistus generally forbids conspirators to be admitted to anyone’s accusation, while it is not expressed in any canon that an enemy and conspirator is heard in excepted crimes, lest what has not been established by the teaching of the holy Fathers be attempted through superstitious inventions, the general prohibition is to be upheld concerning the aforesaid matters, especially according to canonical equity, which ought not to open a way to acts of malice.

Amid these things, when the archbishop was questioned concerning the causes of enmity and conspiracy, he answered that the aforesaid M. had opposed himself to the bishop as a manifest adversary both when he was assumed as archdeacon and when he was assumed as archbishop. Furthermore, when a certain Neapolitan had machinated the death of the archbishop’s brother and was ejected from his own city by the latter’s friends, certain magnates whom the said Neapolitan touched by a line of consanguinity, regarding his ejection as an injury, induced the same Matthew to conspire with certain others for the condemnation of the archbishop himself. We did not consider that the former ground should be admitted, especially since reconciliation had followed, as was noted from the narration of the archbishop himself. But concerning the other, which M. denied, it was proposed on his behalf that every conspiracy by subjects against a prelate is not prohibited. For, since according to the decree of Pope Gelasius no cleric ought to trust that he is immune from apostolic offense if he sees a bishop transgressing in those things which apostolic authority has declared are to be followed salubriously and does not immediately take care to bring this to the ears of the Roman Pontiff, subjects can not undeservedly conspire against a pestilential prelate, after the example of the forty bishops of Illyricum and Greece who, coming together through a profession made in writing, withdrew from Timothy, who through fear of the Emperor Anastasius had been assumed as Bishop of Constantinople.

But when the archbishop asserted that Matthew conspired against him from the foment of malice and that he would lawfully prove this, finally, with the parties consenting, we considered that provision should be made as follows: that the archbishop, receiving the libellus presented, should answer concerning the crimes objected, the faculty of proving that the same M. had conspired against him from malice being reserved to him. The framing of the libellus was as follows:

“In the name of the Lord, Amen. In the year of the Lord one thousand two hundred and thirteen, in the sixteenth year of the pontificate of the lord Innocent III, Supreme Pontiff, in the month of October, on the seventh day before its Ides. Before you, lord Innocent, by the grace of God Supreme Pontiff, I, Matthew, canon of Sorrento, denounce the lord Alferius, Archbishop of Sorrento, as guilty under canonical law of simony, because I say that in the city of Sorrento, in the chamber beside the dining room of the episcopal residence, in the time of the lord Celestine III, Supreme Pontiff, in the month of January, he promised the Archdeaconry of Sorrento to John Ciroleon, formerly canon of Sorrento, so that he would consent to his election. Likewise, I denounce him as guilty of the crime of injured majesty because, in the city of Sorrento, in his palace, in the month of May, in the time of the lord Innocent III, Supreme Pontiff, through his procurement the city of Sorrento, withdrawing from royal fidelity, swore to Otto. And I denounce that afterward he celebrated divine services many times in the Church of Sorrento, although I believe that on this account he incurred the bond of excommunication through your sentence. I, the said M., profess that I have given this libellus of inscription.”

When the libellus was finally offered, the archbishop’s party alleged that in a certain part it had been framed less than lawfully because it did not contain the year in which the objected crimes had been committed. For since the framing of a libellus ought to contain the month and consuls under whom the crime is said to have been committed, and consuls were appointed annually in antiquity, it appears that the year of the admitted crime ought to be expressed in the libellus. The month would also be ordered to be included in vain if there were no certainty concerning the year to which the month belongs.

To this the accuser’s party answered that, since the year is not found expressed in the form of framing a libellus, just as the day is not to be included, so neither is the year of the admitted crime to be included, lest an occasion for suborning witnesses be furnished. Nor, from the fact that consuls ought to be expressed in the civil forum, although consuls were formerly annual, does it follow that a certain year is to be expressed, since the same consul could have held the office of consul at different times and in several years; hence a certain year could not be established by expression of his name. And since in the naming of the month it is not established to which year the month belongs, an occasion for suborning witnesses could not be taken through expression of the month as it could through expression of the year.

But after these and other things had been proposed on this side and that, when finally the accuser expressed that the archbishop committed the objected crime of simony in the year in which he obtained the archbishopric, by promising the Archdeaconry of the Church of Sorrento to I. Ciroleon, formerly canon of Sorrento, if he would consent to him; and since the time when the aforesaid city swore to Otto was sufficiently manifestly established, proceedings advanced to joinder of issue, the archbishop denying the crimes alleged against him. He confessed, nevertheless, that after the city swore to Otto, he celebrated many times.

But after certain witnesses had been produced on behalf of the archbishop to prove the exception objected, with a protestation of this kind by M.—namely, that after publication of their depositions he might, if he wished, object against their persons, because the archbishop was unwilling to be content with them—without publishing their depositions, with the consent of the parties we considered that the reception of witnesses concerning both the principal matter and the aforesaid exception should be committed to your fraternity. Through apostolic writings we command you that you shall diligently examine the witnesses whom each party should determine to produce and shall faithfully transmit their written statements to us enclosed under your seal, appointing for the parties a fitting term at which they shall present themselves before us.*]

Moreover, because from the beginning the aforesaid M. protested that the nobleman Simon of Sorrento, the full brother of the aforesaid archbishop, and certain other relatives of the archbishop himself had through their power furnished many impediments whereby he could not have with him an abundance of proofs in our presence—since they induced certain persons to swear that they would say nothing against the archbishop and endeavor by threats and terrors to keep others from giving testimony—we, wishing by our office to provide concerning this, command that you shall render a general sentence of excommunication against all who presume to furnish any impediment to M. himself in producing witnesses. But you shall announce that those who, as has been said, are established to have sworn that they would say nothing against the archbishop are not bound by an oath of this kind, [whereby they may freely give testimony to the truth in this cause.]

But if any of the said archbishop’s relatives presumes to impede any of the witnesses, because it does not appear likely that such things would be done against his will, and for this reason he is not free from the scruple of concealed complicity, because, if he had wished, he could have prohibited it—since according to lawful sanctions persons who withdraw the opportunity of defense from an adversary show that they favor an iniquitous cause and ought to experience the authority of the judge as mocked—you shall suspend the same archbishop from pontifical office and cause him, the obstacle of appeal being removed, to remain suspended until he causes that person to cease from such presumption. [You, finally, etc. Given at the Lateran on the eighth day before the Ides of November, in the sixteenth year of our pontificate. 1213.]

Latin source headnote: One who has not learned the things testified and has not renounced the production of witnesses can produce, concerning old articles or chapters, even witnesses produced elsewhere.

The same, to the Archbishop of Magdeburg and the Provost of Seeburg.

When the proctor of the beloved daughter in Christ A., sister of the nobleman, the Margrave of Meissen, and the messenger of the illustrious Prince of Bohemia were established in our presence, we granted as auditor our beloved son P., cardinal priest of Saint Marcellus. Before him the proctor of the aforesaid noblewoman proposed that, when it had formerly reached our hearing upon her report that the aforesaid prince had lawfully taken her as his wife, had treated her as a lawful spouse for fourteen years and more, and had received sons and daughters from her, the Bishop of Prague, at the petition and command of the same prince, promulgated a sentence of separation after an appeal had been interposed to us, while she wished to approach him in order to propose her actions before him but was prohibited by the attendants of the same prince, who twice or three times prohibited her entrance; from that sentence she through her chaplain, within ten days, caused an appeal to be made to our presence. (And below:)

We therefore, having understood through the aforesaid cardinal what was proposed on this side and that, considered that the attestations received for the aforesaid noblewoman should neither be approved nor disapproved, but decreed that they be reserved for the time of discussion, so that the parties might then allege for or against them; by more strictly commanding you through apostolic writings, we order that, after the parties have been summoned to a suitable place, every excuse and contradiction ceasing, you shall receive the witnesses whom either the noblewoman herself on her own behalf or the prince on his behalf should determine to produce concerning the proceeding of the Bishop of Prague or of the later judges, since they have not yet learned the things testified. Nor shall the noblewoman herself be prohibited from introducing on her own behalf either the witnesses whom she previously introduced or others, if she wishes, since she did not renounce the production of witnesses. [And the acts, etc.]

Latin source headnote: The council lays down twelve requirements, without which testimony from hearsay is not valid for proving consanguinity in a matrimonial cause. This it says, summing generally.

The same, in the general council.

Although, from a certain necessity, it was formerly established, beyond the common form, that testimony from hearsay should be valid in calculating the degrees of consanguinity and affinity, since, because of the brevity of human life, witnesses were unable to depose from sight when calculating as far as the seventh degree; nevertheless, because we have learned by many examples and sure experiences that from this many dangers have arisen against lawful marriages, we establish that henceforth witnesses from hearsay shall not be received concerning this, since now the prohibition does not extend beyond the fourth degree, unless perhaps they are persons of weight to whom faith may deservedly be given, and, before litigation was initiated, they learned the matters testified from their elders—not, indeed, from one, since he would not suffice if he were living, but from two at least; and not from infamous and suspect persons, but from persons worthy of faith and superior to every exception, since it would appear sufficiently absurd that those should be admitted whose authorities would be repelled. Nor yet, if one person has received from several persons, or infamous persons from persons of good reputation, what they testify, ought they to be admitted as several suitable witnesses, since even according to the accustomed order of judgments the assertion of one witness does not suffice, even if he shines with the dignity of a governor, and lawful acts are forbidden to infamous persons. Moreover, witnesses of this kind, confirming by their own oath that they do not proceed to give testimony in the cause itself from hatred, love, fear, or advantage, shall designate the persons by their express names, or by a demonstration or sufficient circumlocution, and shall distinguish the individual degrees on either side by a clear computation, and shall likewise conclude in their oath that they received from their elders what they depose and believe it to be so. But not even such persons shall suffice unless, under oath, they depose that they saw persons situated at least in one of the aforesaid degrees hold themselves to be blood relatives. For it is more tolerable to leave some persons joined contrary to human statutes than to separate persons lawfully joined contrary to the statutes of the Lord.

Latin source headnote: After publication, at the petition of the producing party, witnesses ought not to be interrogated unless, through the fraud or negligence of the examiners, they were not interrogated upon all the chapters.

Honorius III, to the Provost of Mogliano in the Diocese of Fermo.

You have intimated to us by your letters that, when the cause that is being conducted concerning certain lands between the canons of Old Saint Peter on one side and G. of Saint Simon of Guido of Fermo on the other had been committed to you by the Apostolic See, the said G., after three months had elapsed following the publication of the witnesses, petitions that his witnesses be interrogated again, concerning which you desire to be instructed by an apostolic response as to what you ought to do. We therefore briefly respond to your discretion that he is not henceforth to be heard concerning this, unless perhaps from the beginning he had petitioned that they be interrogated concerning certain chapters and this had been omitted maliciously or negligently.

Latin source headnote: It is permitted to disqualify witnesses of proof and witnesses disqualifying those of proof; but it is not permitted to disqualify witnesses disqualifying those disqualifying witnesses.

The same, to the Abbots of Valladolid and Sacramenia in the Dioceses of Palencia and Segovia.

Although our beloved son L., cardinal priest of the title of the Holy Cross, whom we appointed as auditor for the proctors of our venerable brother the Bishop of Burgos and of the clerics of Saint Mary of Castro Soret, diligently heard the matters that the proctors themselves wished to propose, nevertheless, because the proctor of the said bishop proposed that he still wished to speak against the persons of the witnesses produced in the principal cause, likewise protesting that, for certain reasons, the attestations of the other party, which are said to have been received while the see of Burgos was vacant, were of no moment, since the question itself could not be terminated by you, although the other party urgently sought a sentence. Therefore, remitting it to you with the consent of the parties, we command your discretion to receive the witnesses whom the parties should determine to produce against the persons of those produced concerning the principal matter. If the other party or both parties should wish in turn to disqualify them, you shall take care to admit proofs against them in such a way that thereafter the parties shall not be permitted to aspire to the disqualification of witnesses, lest, if permission be granted to the parties to produce fourth witnesses against the third, and so forth, it should happen that the matter, already long protracted, be protracted still longer.

Latin source headnote: Attestations received by an arbiter create faith in a judgment if the witnesses are dead; if they are alive, it is at the option of the person against whom the witnesses were produced whether he wishes to receive the attestations or to have the witnesses depose anew. And add: even if the attestations have been published. And this last point is not in the final law of the Code, under the same title, where the case of this decretal is set forth.

The same, to the Provost and Masters G. and R., Canons of Laon.

The petition presented to us by Garaud, Archdeacon of Soissons, contained that, when a question was being conducted between R., his late predecessor, on one side, and the chapter of Saint Peter of Soissons on the other, concerning the jurisdiction that the same archdeacon proposed that he had in the said church by reason of the archdeaconry, at length by the counsel of good men they elected Bernard, Chancellor of Paris, and Masters R. of Reims and P. the Breton, canons, as arbiters concerning this. When, after assuming the arbitration, they had proceeded so far in the aforesaid matter that, the witnesses having been produced and their depositions published, the allegations of both parties having been received, and all the acts having been reduced to writing and marked by the impression of their seals, they ought to pronounce the award, while they were deferring it at the pleasure of their own will, one of them entered upon the way of all flesh, and another was appointed Archbishop of Embrun, who is distant from them by twelve days' journeys and more. Hence, since the arbitration appears to have expired because the aforesaid R. alone was wholly unable to arbitrate, he humbly supplicated us that we should deign to write to discreet men who ought to proceed to the decision of the cause according to the aforesaid acts. Therefore we command your discretion that, if it is so, you shall terminate the cause itself with its due end according to acts of this kind, the obstacle of appeal removed; nevertheless reserving to the same chapter according to the laws the option either to receive the depositions of those of the witnesses produced against them who survive, or, rejecting them, to consent that the same witnesses be admitted again, yet saving the right that in either case belongs to the same chapter, both against the persons of the witnesses and against their statements.

Latin source headnote: Faith is not given to a witness, even a religious, who deposes without an oath.

The same, to the Bishop of Penne.

Recently it became known to us upon the supplication of the priest A. that, since he had entered the Order of Friars Minor for the purpose of trial and thereafter, no profession having been made, had left within a year, we should deign mercifully to provide concerning this; we commanded you that, if the matter stood thus, you should declare that he was not bound to regular observance. Therefore, when the said priest and Brother John, custos of the Friars Minor in your parts, together with certain others, were established in your presence on this account, the said custos, in order to prove that the same priest had made profession, introduced certain witnesses of his order, who deposed concerning this, without being sworn, while the said priest contradicted. Hence the aforesaid priest asserted that their testimony was null, while the aforesaid custos replied that according to the rule of his order they could not and ought not to swear, but that in matters of this kind one was to stand by their simple words; wherefore you humbly supplicated us that through our letters we should render you certain of what ought to be done. We therefore briefly respond to your fraternity that the testimony of no one, however religious he may be, ought to be believed to the prejudice of another unless he has deposed under oath. [Given at the Lateran, on the Kalends of March, 1225.]

Latin source headnote: Witnesses are to be examined diligently and separately. Supply: even if the matter concerns the life and miracles of someone to be canonized. Abbas.

The same, to the Bishops of Quimper and Tréguier.

When our venerable brother the Bishop and our beloved sons the chapter of Quimper, and all the abbots assembled at Cîteaux in general chapter, and many other bishops and religious, together with the abbot and convent of the Monastery of Saint Maurice of the Cistercian Order in the Diocese of Quimper, formerly intimated to us that, by divine gift, Maurice, of pious memory, abbot of the aforesaid monastery, was resplendent with illustrious miracles, so much so that the monastery itself, by a certain usurpation of usage, or rather by a certain anticipation of what was to come, has taken its designation from his name, and humbly supplicated that we should cause him to be numbered in the catalogue of the saints, so that what the people now usurp by devout presumption, as we have said, or even anticipate by divine prompting—calling him a saint and venerating him without the authority of the Apostolic See—they may at length do duly by apostolic command, to the glory of Christ and of the Christian name, we, assenting to their devout prayers insofar as was fitting, commanded through our letters our venerable brother the Bishop of Saint-Pol-de-Léon and our beloved son the Abbot of Saint Leo in the Diocese of Quimper that they should most diligently inquire into the truth concerning the life and miracles of the aforesaid man and faithfully intimate it to us, so that, when it had been fully ascertained, we might more fully be able to assent to the pious desire of the supplicants. The same bishop and abbot transmitted to us a certain document secured by the appending of their own seals, in which indeed many and great miracles are contained, performed, as is said, by the Lord through the merits of the said man; although they are found to have been proved through witnesses sworn and named in the document itself, nevertheless it does not appear from the often-mentioned document that they examined the witnesses themselves separately, or that they interrogated them concerning those things about which they testified and the circumstances thereof with that diligence which is customarily and ought to be employed in the reception of witnesses. Hence, although human devotion ought with ready affection to honor those whom the condescension of divine goodness honors, nevertheless we have judged it safer to defer this matter than to pronounce a sentence in it with insufficient consideration. Yet, unwilling to fail the gift of heavenly grace, but wishing to assist it, we command your discretion that you shall take care to examine separately, with that diligence which is customarily and ought to be employed in the reception of witnesses, the witnesses whom the abbot and monks of Saint Martin of the Cistercian Order shall determine to produce concerning the life and miracles of M., of pious memory, abbot of the aforesaid monastery. [Given on the Kalends of September, 1225.]

Latin source headnote: A witness who has deposed obscurely is to be examined again. You supply: by the office of the judge.

Gregory IX.

When a strong outcry had ascended against the Bishop of Acerenza concerning simony and other crimes, we commanded the Bishops of Melfi and Ruvo that they should inquire diligently into the truth concerning them. (And below:) But because, after the attestations were opened, L. and G. deposed concerning simony so confusedly that the truth cannot be made clear from their statements, we command that you shall diligently examine them again, and faithfully report to us under your seals the matters testified by them and by the others whom you shall receive.

Latin source headnote: One persisting in a crime is repelled from testimony even in a civil cause; but one reformed, if not infamous, is admitted in a civil cause, and even in a criminal cause pursued civilly. It is otherwise in the case of a perjurer, who is repelled in a criminal cause.

The same.

The testimony of one against whom a crime is objected by the adverse party is deservedly disqualified in a criminal cause, or in a civil cause if he persists in the crime itself. But if he is both reformed from the crime and is not accompanied by infamy, he is not to be repelled in a civil cause, or even when a crime is pursued civilly, except on account of the guilt of perjury. In a criminal cause, however, if, upon an accusation instituted against him in another judgment, he has been convicted of or confessed the crime, or if he is now convicted of it by way of exception, or if his reputation has been burdened because at some time he was repelled in such a manner, although in this case he would not be excluded in a civil cause, he can be removed from testimony even if he has done penance.

Latin source headnote: A fourth production is not to be granted without the legal solemnity described here.

The same.

After a third production, witnesses ought not to be produced further in a cause unless an oath has been furnished by the person who petitions this, that neither by himself nor through another has he withdrawn matters testified or made inquiry into them, nor does he seek a fourth production through any fraud or artifice, but because he was previously unable to have those whom he desires to produce anew.

Latin source headnote: A person criminally accused is not admitted as a witness against another in a criminal cause while his own accusation is pending, except in excepted crimes.

The same.

No one ought to be admitted to give testimony in criminal matters, except perhaps in excepted crimes, while an accusation of crime against him is pending, since accused persons also are repelled from accusation and from the reception of orders unless they first prove themselves innocent.