Title XXI: On Witnesses Being Compelled or Not

Latin source headnote: In a civil cause witnesses are to be admonished and induced to testify, and, if they withdraw themselves because of hatred, favor, etc., they are to be compelled.

Alexander III, to the Bishop-elect of Pavia.

We have committed for termination by judges the matrimonial cause that is being conducted between the woman M. and the son of R. Cane, which was brought by appeal from your examination to our hearing. Therefore, by commanding through apostolic writings, we order your fraternity that you shall diligently admonish and induce the witnesses invoked by either of the parties in testimony of its assertion, lest they conceal the truth. But if you see that they withdraw themselves because of hatred, favor, or fear, lest the truth be concealed, you shall compel them by ecclesiastical coercion to give testimony before the aforesaid judges, or before their messenger whom they shall send for this purpose.

Latin source headnote: Where testimony is necessary, witnesses are to be compelled to give it, even by a sentence of suspension, excommunication, and deposition.

The same, to the Priests of Ponza.

Since your testimony is necessary concerning the cause that is being conducted between our venerable brother the Bishop of Palestrina and our beloved son the Abbot of Subiaco, lest anything contrary to truth should occur, by the authority of the present letters we command you that on the Wednesday of the immediately following week, in order to give testimony to the truth, you shall present yourselves before the apostolic presence, every occasion and excuse ceasing. But if then you do not come, know that by apostolic authority you are suspended from ecclesiastical office and benefice; and, if you do not come even thus, you will be able to fear a sentence of excommunication and deposition.

Latin source headnote: A witness who withdraws himself through fear of the adverse party is compelled to testify; add: even in a criminal cause, according to the common understanding, and thus something is added to chapter 1 above, under the same title, and to the chapter Dilectorum below, under the same title.

The same, to the Archbishop of Genoa.

Concerning that of which you desire to be made certain—whether, when someone is convened before a judge concerning some manifest deed, those who were present at the deed are to be compelled to give testimony to the truth— we respond to your consultation in this way: if the deed is notorious, it does not need to be made clear by the depositions of witnesses, since such matters, as your discretion is not unaware, do not require proof or judicial order. But if it is not notorious and the person who is convened has denied the deed, the witnesses who were present at the deed, according to the custom of the Roman Church, are to be admonished, not compelled, to give testimony to the truth—unless perhaps it has been established to the judge that they are recalled from giving testimony by fear of the adverse party—although perhaps they may generally be compelled to this according to the rigor of human law. [But if a priest, etc. (cf. c. 5, On the Competent Forum, II.2.)]

Latin source headnote: Even in a criminal cause, witnesses whom the accused maliciously withdrew from the accuser are compelled. This it says according to the true and common understanding. Abbas.

The same.

It has reached our hearing that, when I., Prior of Saint Lawrence, had been accused before you of the crime of simony and adultery, he induced and bound by oath a certain person who was to be led as a witness against him not to depose against him. Therefore you doubt in what manner one must proceed against the defendant, or whether the aforesaid witness is to be compelled to the assertion of the truth. We therefore, considering that no one ought to withdraw from an adversary instruments, under the appellation of which witnesses are contained, and that both he who steals instruments and he who withdraws from an adversary an equal opportunity for advocacy or defense shows that an inequitable suit is fostered by him, and ought to experience in himself the authority of the judge that he has mocked, by the authority of the present letters [thus] respond to you that the witness himself is deservedly to be compelled in order to uncover the contrivance of so great a fraud and cunning.

Latin source headnote: If the matter cannot be proved otherwise, witnesses are to be compelled even in a criminal cause. This it says according to the more notable reading.

Clement III, to the Bishop of Segovia.

It has reached us that, when in your episcopate it often happens that an enormous and intolerable injury is inflicted by laymen upon a cleric in the presence and sight of many, [or that, while the people are present in church, human blood is horribly shed at the instigation of diabolical fraud,] and on this account those inflicting the injury, when drawn into a cause, deny that they committed so great a crime. And when the injured person desires to prove this by the testimony of those who were present and saw it, they, although they know the truth, are unwilling to bear testimony to the truth. And thus it happens that ecclesiastical justice perishes and the clerical order becomes vile. [It also happens that, when several persons frequently lay violent hands rashly upon clerics, they are unable, because of very many obstacles, to labor their way to the Apostolic See. And] because your fraternity was led to consult us concerning these matters, we respond to your consultation in this way: those who refuse to testify concerning ecclesiastical affairs, if the truth cannot otherwise be elicited, are to be compelled to do so through ecclesiastical censure. But if clerics who have suffered injury are unable [perhaps] to prove the truth by the testimony of others, although according to the rigor of the canons one ought not to stand by the testimony of one, nevertheless, according to the custom of the Roman Church, on account of reverence for the clerical order, we will that faith be given to their oath. [But those, etc. (cf. c. 17, On the Sentence of Excommunication, V.39.)]

Latin source headnote: Witnesses are to be compelled concerning the proof of consanguinity. Thus it is commonly summarized. But Panormitanus is not pleased by this summary and therefore summarizes it as chapter 1 above, under the same title.

The same.

Moreover, it is not doubted by us that a witness is to be compelled to bear testimony to the truth concerning consanguinity, since both written law approves this and custom approved by the acts of those employing it, so that, if it has been established that he suppresses the truth through hatred or favor, or fear, he is to be compelled to confess completely what is true.

Latin source headnote: A synodal witness who has deposed concerning a marriage before the ordinary is not compelled to swear concerning it before a delegate; this is the first point. Because of supervening infamy he is repelled from testimony; this is the second. He can nevertheless, if he has erred, correct his statement immediately, but not after an interval. This is the third.

Celestine III.

Furthermore, if public witnesses whom your city calls synodal have once rendered testimony concerning a matrimonial cause before you or your chapter, they ought not to be compelled to furnish an oath again concerning the same cause in the presence of any delegated judge, provided that faith is otherwise made for the delegated judge, unless perhaps the article of a new question should arise. Witnesses of this kind, however, can by public law be removed from giving testimony because of infamy, if it should happen that they have publicly contracted it after they were received in common. Their testimonies, if at any time they have erred—not, however, deliberately, but in the very act of uttering them—and have corrected themselves immediately, ought not to be disqualified; but it will be otherwise if they have interposed an interval before their correction.

Latin source headnote: When inquiry is made concerning reputation or the vice of falsity, witnesses are to be compelled. This it says according to Johannes Andreae, but according to Panormitanus it restricts the text too greatly.

Innocent III, to the Prior of Saint Fridianus and Master P., Canon of Pisa.

Concerning these matters—(And below: [cf. c. 16, On Accusations, V.1.]) Moreover, we will and by the authority of the present letters command you that, concerning the articles of the inquiry, both concerning the reputation of the bishop-elect and concerning the letters sent against him in the name of by far the greater and sounder part of the chapter, you shall compel the witnesses who shall have been named to bear testimony to the truth. [Given at the Lateran, on the third day before the Ides of February, in the fifth year of our pontificate, 1203.]

Latin source headnote: Witnesses who withdraw themselves are to be compelled even in a criminal cause.

The same, to the Archdeacon of Milan.

When we directed our writings to you against Master R. of Arca Mariana in the Diocese of Novara concerning the fact that he is said to have brought back false letters from the Apostolic See and to have used them by himself or through a proctor, you petitioned to be instructed by the oracle of the Apostolic See whether you ought to compel the witnesses named concerning the aforesaid vice of falsity. We therefore briefly respond to your fraternity that, if the aforesaid witnesses withdraw themselves because of favor, hatred, or fear, you ought, appeal removed, to compel them through ecclesiastical censure to bear testimony to the truth.

Latin source headnote: It is not summarized because of the variety of readings, nor is it divided.

Honorius III, to the Abbot of Saint Eugenius and Master G., Canon of Siena.

When the proctors of the beloved sons, the chapter of Volterra, on one side, and of our venerable brother, the Bishop of Volterra, on the other, were established in our presence, we granted our beloved son, the cardinal deacon of the title of Saints Cosmas and Damian, as auditor; before him, when through complaint and countercomplaint issue had lawfully been joined concerning the several chapters that we transmit to you enclosed under our bull, etc. (And below:) Moreover, as to the witnesses who shall have been named, except concerning crimes, if they withdraw themselves because of favor, hatred, or fear, you shall, appeal ceasing, compel them through ecclesiastical censure to bear testimony to the truth.

Latin source headnote: To uncover the truth of a conspiracy, the associates are compelled, even though bound by oath.

The same, to the Bishop of Bologna and Master B.

Our venerable brother the Archbishop of Ravenna proposed before us that the citizens of Cervia, together with M. and I., former clerics of the church of Ravenna, presumed to make a certain conspiracy against him, likewise giving them a certain quantity of money to his detriment and binding themselves by the bond of an oath to conceal these matters. Hence the same archbishop humbly supplicated us that, since we determined to commit the cause concerning these matters and certain articles to you for his sake, and he cannot prove his intention except by the testimony of the aforesaid citizens, we should deign to provide for him concerning this, lest his justice perish for lack of witnesses. Therefore we command your discretion that, admonition having been given beforehand, you shall, through ecclesiastical censure and with appeal removed, compel those whom you see ought to be compelled to absolve those whom the same archbishop shall lead to be produced as witnesses from an oath of this kind; likewise compelling them, if they withdraw themselves because of favor, hatred, or fear, by similar coercion to bear testimony to the truth.