Question II

GRATIAN. But concerning what is asked, whether they can produce witnesses from their own brothers, it appears to be prohibited by many authorities. For the laws both of the sacred canons and of secular princes prohibit a witness from one’s own household from being produced against another. For each person can testify against himself, but by no means for himself. Therefore, because these persons are produced so that they may bear testimony for themselves—for they do not think that they will be wholly exempt from the utility of their church—it is evident that their voice in such matters is not to be heard. But this distinction and examination of witnesses is to be observed in criminal causes; in civil causes, however, not in every respect. For in a criminal cause it is not permitted for a witness from one’s own household to be produced, but in a civil cause it is permitted to prelates of the church. Hence Paschal II writes to Guy, Archbishop of Vienne and legate of the apostolic see, saying:

We wonder greatly at your prudence because in the matter of blessed Stephen you were unwilling to accept the testimony of those clerics themselves. For the kinds of causes are diverse, nor are crimes treated in all causes. In crimes, indeed, that strictness concerning accusers and witnesses which is contained in the canons is to be observed, lest members of the household be assumed for proof. But in matters of possessions or affairs of this kind, those especially are to be assumed who conducted those same affairs, concerning whose hearing and sight there ought to be no hesitation. Therefore, if those same clerics are suitable for the assertion of that cause, let them in no way be removed, but, as was determined by other letters, let that dispute between the canons of Saint John and Saint Stephen be decided more fully. GRATIAN. It can also be understood otherwise. Let members of a household not be admitted for proof, namely so that they bear testimony for those whose household members they are. But let these persons, just as was said above concerning plaintiffs, give testimony not for members of their household but for the church, which is the mother of all the poor. But in the making of instruments of secular transactions, let priests not be called as witnesses; but if by chance it should happen that they were present at a contract, let them give testimony at the command of the bishop. Hence it was established in the synod held at Rome by Pope Eugene [II, c. 13]:

Although the testimony of priests is held credible, nevertheless they are not to be asked as witnesses in secular transactions themselves for the making of instruments, because it is not fitting for them to be involved in such matters. But if by some event they have been involved in a cause and have seen or heard something, where no suitable secular persons are found, lest the truth be concealed and an evil man be esteemed as good, let it be within the providence of their own bishop that they testify honorably to the truth either before him and competent judges or in another manner.