Question III

GRATIAN. Third, it is asked whether this man is to be condemned from the confession of the woman. In this it must first be seen whether a woman is able to accuse a priest. This appears to be altogether prohibited by the sacred canons. For it is established generally from the decrees of Pope Fabian that those who are not and cannot be of their order shall not accuse the priests of the Lord or testify against them. But women can be advanced not only not to the priesthood but not even to the diaconate; hence they can neither accuse priests nor testify against them. Provision is also made by the laws that, on account of the modesty of her sex, a woman may not intercede before the praetor for another, unless perhaps she prefers to prosecute injuries to herself or her own. But this woman, who prosecutes neither injuries to herself nor to her own, ought not to be admitted to this accusation. § 1. To the contrary, one who is able to bear the person of a judge is not removed from the office of an accuser. But whoever has read the Book of Judges cannot be ignorant that women judged the people in the Old Testament. Therefore those who are established frequently to have borne even the person of a judge cannot be removed from accusation, nor are they prohibited from accusation by any sequence of the divine Scriptures. § 2. To these matters reply is thus made: In the Old Law many things were permitted which today have been abolished by the perfection of grace. For when it was permitted to women to judge the people, today, on account of the sin which woman introduced, they are enjoined by the Apostle to show modesty, to be subject to a man, and to have a veiled head as a sign of subjection. Therefore she who by all these things is shown to be subject to a man and who is not permitted to petition for another does not appear to be admitted to accusation.

§ 3. To the contrary, although a woman is not admitted to accusation generally and indiscriminately, nevertheless there are certain crimes whose accusation a woman is not prohibited from undertaking. Hence in book IX, title 1, law 12 of the Code, Emperor Diocletian writes, saying:

“A woman is not permitted to accuse concerning a crime which belongs to public judgments, except for certain causes, that is, if she prosecutes an injury to herself and her own, according only to the statutes of ancient law concerning those matters which have been specially conceded to them, without the subscription being exacted. Hence the provincial governor who is approached will first examine whether the crime is such that a woman is not prohibited from undertaking its accusation.”

Likewise in the book of the Digest, Paul in book II On Adulteries, [title On Witnesses, law 18]. “From the fact that the Julian law on adulteries prohibits a condemned woman from giving testimony, it is gathered that women also have the right of giving testimony in judgment.” Likewise from the title On Accusations and Inscriptions, law 1: § 1. “It is not permitted for a woman to make anyone a defendant in a public judgment unless, namely, she prosecutes the death of parents and children, patron or patroness, their son or daughter, grandson or granddaughter.”

Paul in book I On Adulteries. “For certain causes a public accusation has been conceded to women, as if they prosecute the death of those men and women against whom under the law they do not give public testimony unwillingly.” § 1. The senate established the same thing also in the Cornelian testamentary law; but women are also permitted to speak in a public judgment concerning the testament of a paternal or maternal freedman. § 2. “It has been conceded by the testamentary law to male wards, with the counsel of their guardians, to prosecute the death of their father, and likewise to a female ward to prosecute the death of her grandfather. For the divine Vespasian permitted male wards to bring an action concerning their father’s testament. But even if the tablets are not produced, they can proceed by interdict.” From the Code, title Who Can Accuse or Not, the same Augustus to Dionysius: “If your wife thinks that the killing of her cousin is to be avenged, let her approach the governor of the province.” From the Digest, at the Julian Law of Majesty, [law 8], Papinian in book XII of Responses: § 3. “In investigations of injured majesty, women also are heard. § 4. A woman named Julia disclosed the conspiracy of Sergius Catiline and instructed Marcus Tullius the consul concerning his trial.” [GRATIAN.] But whatever person is admitted to an accusation in public judgments or of injured majesty is not prohibited from undertaking an accusation of simony. Hence in the first book of the Code, Emperor Leo Augustus to Armasius, Praetorian Prefect:

Indeed, whoever is discovered to have attained this holy and venerable episcopal see through the intervention of money, or if anyone is discovered to have accepted something so that he might ordain or elect another, when an accusation has been proposed after the pattern of a public crime and of injured majesty, let him be withdrawn from the priestly rank. We decree that he shall not only henceforth be deprived of honor but also condemned to perpetual infamy, so that a similar punishment may accompany both whom an equal crime stains and makes equal. GRATIAN. But when accusations which the laws of the world do not admit are altogether removed by the sacred canons, conversely those which are not prohibited by the laws of the world appear to be admissible. Yet this does not follow. For those clerics whom the sacred canons prohibit from contracting marriages are also prohibited by the laws of emperors. But it does not consequently follow that the laws admit the union of all those whose union the sacred canons do not prohibit; for by the laws only cantors and readers can take wives, but by the canons even acolytes can. Therefore, although accusations which the laws of the world do not admit are removed by the sacred canons, whatever accusations the laws of princes admit are not therefore consequently received. § 1. But, as was premised near the beginning of this work, the laws of emperors are to be used in ecclesiastical affairs as often as they are not found to oppose the sacred canons. Hence either let the woman be shown to be specially prohibited by the sacred canons from an accusation of injured majesty and simony, or by the foregoing reasons she is proved to be admissible to an accusation of this kind. § 2. Nor let anyone seek to distinguish that in this case of simony women are to be admitted to the accusation of others but not of priests. For since this is found to be permitted to them generally by the laws, unless someone shows it to be specially prohibited by some law, his distinction will have no place. Yet, because against the general rules certain crimes are specially excepted in which a woman is permitted to accuse, among which fornication is not numbered, it is evident that her accusation is weakened in two ways: both because she alleges the crime of fornication and because, while she confesses concerning herself, she ought not to be believed concerning the crime of another. Hence Pope Julius writes, [in the decrees, c. 18], saying:

It is fitting that no one who has confessed concerning himself—except concerning the crime of majesty—be believed concerning the crime of another, because the confession of him and of every guilty person is dangerous and ought not to be admitted against anyone. GRATIAN. Therefore, because this woman confesses concerning herself, she cannot be believed concerning the crime of another, but her confession is to be interpreted against her.