Question I

GRATIAN. Part I. That no one can be condemned without judicial order is proved by many authorities. For concerning this Augustine says, [homily L, On the Usefulness of Penance]:

We cannot pronounce sentence against anyone unless he has either been convicted or voluntarily confessed.

Likewise Emperor Constantine. A judge examining a criminal shall not pronounce sentence before either the defendant himself confesses or he is convicted through irreproachable witnesses. GRATIAN. Augustine testifies to this same thing, and in the same words:

Likewise Gregory, [book VIII, letter 50]. Just as we do not wish anyone to be condemned without a judgment, so we do not permit things justly determined to be delayed by any excuse.

Likewise Bishop Eleutherius, [to the bishops of Gaul]. Let nothing be done against anyone accused without a lawful and suitable accuser. For our Lord Jesus Christ also knew Judas to be a thief; but because he was not accused, he was therefore not cast out.

Likewise Pope Felix, [letter I to Bishop Paternus]. Primates examining an accused bishop shall not pronounce a sentence of condemnation before either he himself confesses that he is guilty or he is convicted through irreproachable witnesses examined canonically and according to rule. Otherwise we judge the condemnation of bishops to be void and unjust, and therefore to be reconsidered by a synod, so that those oppressed may be aided by all in all cases. GRATIAN. Pope Zephyrinus decrees the same:

Likewise Augustine. “One of you is about to betray me.” He said well, “of you,” and not, “of us.” For he is of you, from whom he has not been excluded through judicial authority after confession or conviction. But from me, who need no proofs and know all things most certainly, he has been separated and divided. It is as if he said: Although through the sentence of hidden judgment I hold him condemned, nevertheless you are still to sustain him through tolerance.

Likewise Gregory to John the Defender, going to Spain, [book XI, letter 50]. First, inquiry must be made concerning the person of the priest of our most beloved brother and fellow bishop Januarius; and if the truth stands as that bishop's petition contains, let that priest be recalled in every way to his church and place. But if it should be said that some case was brought or proved against him, with him present and giving an account for himself, both the kind of case and the manner of proof must be investigated carefully, so that from this you may be able to gather whether he should still remain in exile or instead be recalled to his church and office.

§ 1. Concerning the bishop's person this is to be done: if no criminal case worthy of exile or deposition was brought or proved against him, that bishop who, while he was surviving, perversely and contrary to the canons presumed to be ordained in his church shall, deprived of the priesthood, be expelled from every ecclesiastical ministry. He shall also be handed over to that same most beloved Januarius, our brother and fellow bishop, so that either he may be held in custody by him or certainly be sent by him to us. The bishops who ordained him, or who were present consenting to his ordination, shall be deprived of communion in the Lord's body for six months and decreed to do penance in a monastery; and the aforesaid Januarius shall be restored in every way to his place and order. But if the danger of death should happen to threaten those deprived of communion, the blessing of viaticum shall not be denied them. If, however, the bishops should confess of their own accord that, to the prejudice of the condemnation or deposition of the remembered bishop, they consented through fear of the judge and did such things, the time is to be shortened for them and the manner of penance moderated. But if perhaps the man who invaded his place has departed from this life and another has been ordained, because he appears to be of lighter guilt, as having succeeded not that living man but a dead man, the office of the episcopate shall be forbidden him only in that church, so that, if elected, he may be bishop in another church which becomes vacant of a bishop, though he shall never return in any way to the church of Málaga.

§ 2. Moreover, the glorious count shall be condemned to restore to the aforesaid bishop whatever the bishop affirms by an oath that he expended or suffered as loss through the count's violence and persecution. But if perhaps it is reported that the matter was done otherwise than the aforesaid bishop's petition contains, it must be investigated carefully, and, once the truth is known, what the order of justice counsels must be judged with fear of God.

§ 3. Therefore, because Bishop Stephen asserts that certain things were fabricated out of hatred for him, that he was accused on false charges, that nothing was done in an orderly manner, and that he was condemned unjustly, inquiry must first be made diligently whether the judgment was conducted in an orderly manner; whether some persons were accusers and others witnesses; then into the quality of the charges, whether it was worthy of exile or deposition; whether testimony was spoken against him under oath and in his presence; whether the proceedings were in writing; and whether he himself had permission to answer and defend himself. Inquiry must also be made carefully into the persons accusing and testifying: of what status or reputation they are; whether they are needy; whether perhaps they had any enmities against the aforesaid pastor; whether they gave testimony from hearsay or testified that they knew specifically; whether judgment was given in writing; and whether the sentence was read with the parties present. But if perhaps these things were not done solemnly, nor was a case worthy of exile or deposition proved, let him be recalled in every way to his church. Those who condemned him contrary to the fear of God and the statutes of the canons are, after excommunication, to be sent to a monastery to do penance for six months, provided certainly that, if the danger of death should happen to threaten any of them, the blessing of viaticum shall not be denied him. The man who rashly sought his place while he was living shall, deprived of the priesthood, be expelled from every ecclesiastical ministry and handed over to that same most beloved brother and fellow bishop of ours, so that he may either send him to us or hold him in custody with himself. The bishops who presumed to ordain him or gave consent to his perverse ordination shall, deprived of communion, be assigned to a monastery to do penance for six months, etc., as above in the case of Bishop Januarius and below.

§ 4. But if perhaps some of the things alleged against the remembered Bishop Stephen have been proved, while others could not be demonstrated, it must be weighed with altogether cautious consideration whether the lighter charges or instead the graver ones have been proved, so that from them you may know how you ought to form your determination.

§ 5. But the glorious count, if the aforesaid bishop is shown to be innocent, shall restore to him without any delay whatever he took from his property or from that of his church, etc., as above in the case of Bishop Januarius. But if the bishop has such a fault, etc., and below in the first case of the monks. Concerning the person of the priest, etc., and below in the case: A cleric against a cleric. And below, [in the same letter 54 of the eleventh book].

§ 6. Concerning the person of Bishop Januarius, it must be known that it was done altogether gravely and contrary to the laws that he was violently dragged from the church; for if a bishop should suffer any injury from anyone in a church, the law strikes the person doing the injury with capital punishment and, as one guilty of maiestas, gives everyone permission to accuse him, as the sequence of this law speaks in book I of the Code, chapter III, constitution 11:

§ 7. “If anyone should rush into this kind of sacrilege, so that by breaking into a catholic church he inflicts any injury upon the priests and ministers, or upon the worship or place itself, etc.” And below:

§ 8. Concerning the person of Bishop Stephen, this is to be attended to: he ought neither to have been dragged to judgment against his will nor to have been judged by the bishops of another council.

§ 9. If it should be said against this that he had neither a metropolitan nor a patriarch, it must be said that this case ought to have been heard and settled by the Apostolic See—which is the head of all churches—just as the aforesaid bishop is known to have petitioned. Therefore, because the bishop had as judges men of another council who were altogether suspect, let the sentence spoken by one who was not his judge possess no firmness.

§ 10. As to what is said, that he was accused by his own servants, it must be known that they ought not in any way to have been heard.

§ 11. But if he is said to have been accused of the crime of maiestas, not even concerning that ought they to have been believed, if his life or reputation was not of such a kind beforehand.

§ 12. As to what that same bishop says, that in his absence certain witnesses of the vilest kind were produced: if this is true, it is of no weight.

§ 13. Many laws show what kind of witnesses, or witnesses of what reputation, are to be admitted to testimony; these are unknown to scarcely anyone, and they also decree that witnesses of the vilest kind ought not to be believed without bodily examination.

§ 14. As to what is said, that nothing was judged in writing, one must read under title XLIV of book VII of the Code, the final constitution, that judgment ought to have been given in writing. For there, among other things, it is commanded that a sentence which was spoken without writing should not deserve even to have the name of a sentence.

[PALEA.

Likewise book VII of the Code, under the title On Sentences to Be Recited from a Written Summary: the Emperors Valentinian, Valens, and Gratian, Augusti. We ordered by general statutes that all judges to whom we have permitted the capacity to render law in the provinces, once the cases have been heard, shall pronounce their final determinations by recitation from a writing. To this decree we add that a sentence which was spoken when it had not been written should not deserve even to have the name of a sentence, and that the solemnity of an appeal should not be required for the rescission of things wrongly decreed.]

[PALEA. Likewise, from the Council at Saint-Médard, Hincmar, Archbishop of Reims, said:

The custom and authority of ecclesiastical laws is such that in cases involving formal proceedings they always require a writing, to such a degree that one who approaches the sacred font is commanded to give his name. One who is advanced to the highest priesthood is elected by a decree confirmed by the hands of all. Once ordained, he is commanded to receive letters from those who ordained him. One who is also severed from ecclesiastical fellowship by any transgression is either received or cast out by the inscription of a written document. But one who is accused, excommunicated, or reconciled is also commanded to be accused or reconciled through a writing. And thus in the other things of this kind, a writing is required to such a degree that, as blessed Gregory writes in his memorandum to John the Defender, taking from the Roman laws: “A sentence which is pronounced without a writing should not deserve even to have the name of a sentence.”]

Likewise Pope Nicholas to Airard, Archbishop of Tours. Let it be known to your fraternal charity that this poor priest, named Christopher, has tearfully complained to our clemency concerning his distress, saying that he was assailed by false crimes and, neither convicted nor confessed, was unreasonably cast out from his church. For, as he reports, after your diligence made inquiry three times, no guilt could be found in him, either concerning the crime of fornication or concerning consent to homicide, except that, on account of his poverty, he either was unwilling to agree to the things demanded or was unable to fulfill them. Yet his voluntary rival did this, who unjustly seized his church beforehand. Therefore we greatly admonish Your Reverence that the things which, perhaps without your knowledge, appear to have been done from Gehazi-like cupidity be corrected by the censure of Your Fraternity with speedy amendment: namely, by restoring the already-mentioned priest to his own church and, through your piety, returning to him the former honor which he lost; and you shall by no means permit canonical institutes to be contemned by anyone's rashness, because an equal penalty binds the one who does and the one who consents.

Likewise from the Book of Constitutions. Let no bishop, no priest, excommunicate anyone before the cause for which the ecclesiastical canons command this to be done has been proved. But if anyone should excommunicate another contrary to this, let the one who was excommunicated return to the grace of holy communion by the authority of a higher priest; but let the one who excommunicated unlawfully abstain for as much time as shall seem good to the authority of the higher priest, so that he may justly suffer himself what he did unjustly.

Likewise Augustine, in letter [CXXXVII] to the clergy and the whole people of Hippo. For this reason I have not dared either to suppress or erase the name of the priest from the number of his colleagues, lest I seem to do an injury to divine power, under whose examination the case still hangs, if I wished to anticipate his judgment by my judgment. Not even judges in secular affairs do this when a doubt is referred to a higher power: that, while the report is pending, they should dare to change anything. It has also been established in a council of bishops that no cleric who has not yet been convicted ought to be suspended from communion, unless he has not presented himself for the examination of his case.

Likewise Pope Melchiades, [to the bishops of Spain]. First, always investigate all things diligently, so that you may determine them with justice and charity. Condemn no one before a just and true judgment. Judge no one by the judgment of suspicion; but first prove, and afterward pronounce a charitable sentence; and what you do not wish to be done to you, do not do to another.

From book XLVIII of the Digest, under the title On Accusations and Formal Charges, [law Who May Accuse]. Some are prohibited from accusing on account of sex or age, such as a woman and a ward. Others on account of an oath, such as those who earn military pay. Others on account of the magistracy and power in which, while serving, they cannot be summoned to court with impunity. Others on account of their own offense, such as infamous persons. Others on account of base gain, such as those who have signed two prosecutions against two defendants, or who have accepted money for accusing or not accusing. Others on account of their status, such as freedmen against patrons. Others on account of suspicion of calumny, such as those who, having been suborned, gave false testimony. Some on account of poverty, such as those who possess less than fifty gold pieces. Nevertheless, none of all these are excluded from accusation if they pursue their own injury or defend the death of their relatives. Freeborn persons and freedmen are not to be prohibited, for the sake of defending their own property, from complaining of an act of their parents or patrons, as, for example, if they say that they were driven by force from a possession by them—certainly not so that they may prosecute them for the crime of violence, but so that they may recover the possession. For a son is likewise not prohibited from complaining of an act of his mother if he says that a child was falsely substituted by her so that he would have an additional coheir; but it is not permitted him to make her a defendant under the Cornelian Law.

§ 1. One person cannot denounce a man who has been denounced by another; but one is not prohibited from denouncing a man who was removed from among the defendants by the intervention of a public or private abolition, or because the accuser desisted.

§ 2. The deified Severus and Antoninus prescribed that a woman denouncing a matter pertaining to the public utility of the grain supply is to be heard by the prefect of the grain supply. Persons of ill fame who make accusations are also admitted without any doubt. Soldiers too are to be admitted to this accusation. Slaves who denounce are also heard. Part II. GRATIAN. By all these authorities it is given to be understood that no one is to be condemned unless, after judgment has been conducted in an orderly manner, he is either convicted or himself confesses that he is guilty. But these things are to be understood of those whose crimes are hidden; manifest crimes, by contrast, do not require judicial order. Hence Ambrose:

Manifest things do not need an accusation.

Likewise Pope Nicholas to King Charles, [in the letter which begins Syllabarum]. The things which King Lothair, your nephew, has done do not need an accusation. For his works are manifest. GRATIAN. In manifest matters the defendant is not oppressed by the craftiness of accusers, nor is the crime concealed by his own tergiversation, since his guilt of its own accord forces itself upon the eyes of all. And therefore judicial order is not required in such matters; it was instituted only so that neither innocence would lie open to the snares of adversaries nor the guilt of the offender escape the sentence of a just examination. Hence Pope Stephen [V] to Leo, Bishop of Teano:

In a case manifest and known to many, witnesses are not to be sought, as Saint Ambrose says in the letter to the Corinthians, expounding the Apostle's judgment concerning fornication: “It is not,” I say, “for a judge to condemn without an accuser, because the Lord did not cast out Judas, although he was a thief, since he was not accused. But once this deed was known, the Apostle judged that the man was to be driven from the assembly of the brotherhood. For all knew his crime and did not bring a charge. He publicly had his stepmother in the place of a wife; in this matter neither was there need of witnesses nor could the crime be covered by any tergiversation.” And a little later: “Absent in face, but present by the authority of the Spirit, who is nowhere absent, I have already judged as though present that the one who committed this be handed over to Satan for the destruction of the flesh.” Part III. GRATIAN. But it must be known that, of those things which are manifest, some are known to the judge and unknown to others; others are hidden from the judge and manifest to others; while certain things are known to the judge and to others. Things known only to the judge cannot be punished without examination, because, when the person of an accuser is assumed, judicial power is lost. For in one and the same case no one can be at the same time accuser and judge. Hence Augustine, in the homily On Penance, [which is L, c. 12]:

Many are corrected, as Peter; many are tolerated, as Judas; many are unknown, “until the Lord comes, who will illuminate the hidden things of darkness.” And below: § 1. But we cannot prohibit anyone from communion—although this prohibition is not yet mortal but medicinal—unless he has either confessed voluntarily or been formally named and convicted in some secular or ecclesiastical judgment. For who dares to assume both things for himself, so that he himself is both accuser and judge of someone? It is understood that the Apostle Paul also briefly intimated a rule of this kind in the letter to the Corinthians when, after recalling certain crimes, he gave from certain ones a form for all similar ecclesiastical matters. For he says: “I wrote to you in the letter not to associate with fornicators—not, certainly, the fornicators of this world, or the covetous, or robbers, or servants of idols; otherwise you would have had to go out of this world.” For people remaining in this world cannot live except with such persons, nor can they win them for Christ if they avoid their conversation and living together. Hence the Lord also, eating with publicans and sinners, says: “A physician is not necessary for the healthy, but for those who are ill. For I came not to call the just, but sinners.” And therefore the Apostle continues and adds: “But now I have written to you not to associate: if any brother is formally named as either a fornicator, or a servant of idols, or covetous, or a reviler, or a drunkard, or rapacious, with such a person not even to take food. For what is it to me to judge those who are outside? Do you not judge those who are inside? But God will judge those who are outside. Remove the evil from among yourselves.” By these words he shows sufficiently that evil persons are to be removed from the communion of the Church not rashly or in just any manner, but through a judgment, so that, if they cannot be removed through a judgment, they should rather be tolerated, lest, by perversely avoiding the evil, the one himself departing from the Church bind to hell those whom he appears to flee. For examples have also been proposed to us for this in the Scriptures: that, as chaff in the harvest, it be endured until the final winnowing fan; or that, within those nets where good fish are with bad, they be tolerated with an even mind until the separation which will occur on the shore, that is, at the end of the age.

§ 2. For that which the Apostle says is not contrary to this passage: “Who are you, who judge another's servant? He stands or falls to his own lord.” For he did not wish a man to be judged by a man according to the judgment of suspicion or even by an extraordinary usurped judgment, but rather according to God's law and the order of the Church, whether he confessed of his own accord or was accused and convicted. Otherwise, why did he say, “If any brother is formally named as either a fornicator, or a servant of idols, etc.,” unless because he wishes that naming to be understood which is made against someone when a sentence is pronounced with judicial order and integrity? For if mere naming suffices, many innocent persons are to be condemned, because crimes are often falsely named against someone.

§ 3. Therefore, let those whom we admonish to do penance not seek companions for themselves in punishments, nor rejoice because they find many like themselves. For they will not burn less because they will burn with many.

The same in the same work. “If your brother has sinned against you, correct him between you and him alone.” Why? Because he sinned against you. What does “he sinned against you” mean? You know that he sinned. Because it was secret when he sinned against you, seek secrecy when you correct what he sinned. For if you alone know that he sinned against you and you wish to rebuke him before all, you will not be a corrector but a betrayer. Attend to how the just Joseph spared with so great a kindness so great a disgrace which he had suspected concerning his wife, before he knew from where she had conceived, whom he perceived to be pregnant and knew that he had not approached her. There remained, therefore, a certain suspicion of adultery; and yet, because he himself did not know, what does the Gospel say? “But Joseph, since he was just and did not wish to expose her publicly, wished to dismiss her secretly.”

§ 1. Therefore, the very things which are sinned before all are to be corrected before all. The very things which are sinned more secretly are to be corrected more secretly. Distinguish the occasions, and Scripture is in accord. Thus let us act, and thus it must be done, not only when a sin is committed against us, but also when a sin is committed against someone in such a way that it is unknown by another.

§ 2. A bishop has come to know some murderer, and no one else knows him. I wish to correct him publicly, and do you seek to make a formal accusation? By no means do I betray or neglect him: I correct him in secret, I place God's judgment before his eyes, I terrify his bloodstained conscience, I persuade him to penance. We ought to be endowed with this charity. Hence sometimes people reprehend us because, as it were, we do not reprehend; either they think that we know what we do not know, or they think that we are silent if we know. Perhaps you know what I also know: I do not correct him before you because I wish to cure, not to accuse.

§ 3. There are men who are adulterers in their own homes; they sin in secret; sometimes they are disclosed to us by their wives, most often through jealousy, sometimes seeking their husbands' salvation. We do not disclose them, but rebuke them in secret. Where the evil occurs, there let it die. Yet we do not neglect that wound, showing before all things to the man established in such sin and bearing a wounded conscience that the wound is mortal. Part IV. GRATIAN. But when a crime is known to others and not to the judge, even then it is not to be punished without examination, since a judge ought not to pronounce sentence upon a crime hidden from himself. Hence Pope Evaristus says, [letter II]:

Almighty God, in order to restrain us from the pronouncement of a precipitate sentence, although all things are naked and open to his eyes, nevertheless did not wish to judge the evils of Sodom from hearsay before he manifestly knew the things which were being said. Hence he himself says: “I will descend and see whether they have fulfilled in deed the outcry which has come to me, or whether it is not so, that I may know.” Almighty God, from whom nothing is hidden but to whom all things are manifest before they occur, deigned to investigate these and many other things by himself—which we have not inserted in the chapter because of their length—not because he did not know them, but so that he might give us an example, lest we be precipitate in examining and judging affairs, and lest anyone presume to believe the evils of his neighbors before proving them. By his example we are admonished never to be precipitate in pronouncing sentence, or rashly and carelessly to judge in any way matters not examined, as the voice of Truth says: “Do not judge, that you may not be judged; for with what judgment you have judged, you will be judged,” and the rest. Let evil things heard move no one, nor let anyone ever believe things said indiscriminately without certain proof; but let him first investigate carefully what has been heard, and let no one do anything precipitately. For if God, the knower of all things, although knowing beforehand all the evils of the Sodomites, whose outcry had reached even to heaven, wished neither to believe nor to judge until he himself, carefully investigating them with faithful witnesses, proved in deed what he had heard, we, who are human beings and sinners, to whom the hidden judgments of God are unknown, must guard against these things and judge or condemn no one before true and just proof, as the Apostle Paul manifestly says: “Who are you, who judge another's servant? For he stands or falls to his own lord.” Part V. GRATIAN. But when a crime is known to the judge and to others, sometimes the defendant denies the deed, as if someone should deny that he killed the man whom he had killed before the judge's eyes and in the sight of many. Here, because he denies that he is guilty, he cannot be punished without examination. Sometimes the very evidence of the deed bears witness that the man is guilty, when by a public deed he confesses his crime; then, after a second and third correction, he is to be condemned without examination if he has proved incorrigible. Therefore, in this final case that authority of Ambrose and Nicholas is to be understood: “Manifest things do not need an accusation.” For that fornicator against whom the apostolic sentence proceeded without examination publicly had his stepmother as a wife before all. Lothair also, concerning whom Nicholas writes, had similarly put away his wife publicly and brought in another. Hence the same Nicholas writes to the archbishops and bishops established throughout Gaul, Italy, and Germany:

The crime which King Lothair committed—if indeed he can truthfully be called a king, who restrains the appetites of the body by no salutary governance, but through slippery enervation yields rather to its illicit impulses—in two women, namely Theutberga and Waldrada, is manifest to all. But nearly the whole world, flowing from all sides to the threshold or Apostolic See, also reported that the bishops Theutgaud and Gunthar had long been his guardians and supporters in such a deed. Therefore, by decree of the holy synod together with us, they exist without doubt as deposed in its presence, excommunicated from priestly office, and removed from the governance of the episcopate.