Question III

GRATIAN. Part I. With what penalty those who fail in an accusation are to be struck is determined by the censure of the canons. For they shall receive the penalty of the crime charged, together with loss of reputation. Hence Pope Gaius:

If anyone should bring against persons of this kind allegations not to be proved, let him understand by the authority of this decree that he sustains the loss of infamy, so that by damage to his honor and loss of reputation he may learn that, at least thereafter, he is not permitted to lie in wait for another's honor with impunity.

Likewise Pope Damasus, [to Archbishop Stephen, letter III]. If a calumniator fails in his accusation, let him receive retaliation.

Likewise from a decree of Pope Hadrian, [in the capitularies collected by him, c. 52, in the middle]. One who has not proved what he alleged shall suffer the penalty which he himself sought to inflict.

Likewise. If anyone should assail a bishop, priest, or deacon with false crimes and has not been able to prove them, we judge that communion is not to be given to him even at the end. Part II. GRATIAN. It is one thing not to complete an accusation and another not to prove a verbal reproach. The former is permitted to no one without abolition; the latter is permitted to all. Hence Pope Fabian, [to Bishop Hilary, letter III]:

If anyone in anger should rashly allege a crime against someone, a verbal reproach is not to be held as an accusation; rather, after a period for deliberating has been allowed, let him declare that he will prove in writing what he said in anger, so that, if perhaps, coming to his senses, he is unwilling to repeat or write the things he said through anger, he may not be held as guilty of the crime. Part III. GRATIAN. But it is one thing not to be able to prove a crime charged, and another to abandon an accusation because of some promise. For pardon is given to one who, deceived by a promise, abandons an accusation; but infamy is imposed upon one who was unable to prove the crime charged. Hence blessed Gregory writes to John, Bishop of Corinth, [book IV, letter 50]:

Therefore, although his own guilt gravely confounds Deacon Paul, because, deceived by a promise, he desisted from the accusation of his bishop, nevertheless we forgive him this guilt.

[PALEA. Therefore, everyone who alleges a crime shall write that he will prove it. In truth, a case is always conducted there where an accusation is admitted; and one who has not proved what he alleged shall himself suffer the penalty which he sought to inflict.]

The same. Euphemius and Thomas, who received sacred orders in return for abandoning the accusation of their bishop, have been deprived of those same orders, and we will that they remain as they were deposed. GRATIAN. From this it is gathered that the infamy of clerics can be abolished by the Roman pontiff, contrary to that statement of Gelasius: “Although we can save souls through penance, nevertheless we cannot abolish infamy,” and that statement of Stephen, after he had enumerated the causes from which infamy is imposed: “All these,” he says, “we receive to penance under the mark of perpetual infamy.” Or, not all those whom the secular laws declare infamous are made infamous by the law of the canons, since Deacon Paul, who desisted from an accusation without obtaining abolition, recovered the dignity of his office by this authority, although the Turpillian senatus consultum declares him infamous. We are compelled to acknowledge the same also concerning a woman who marries within the period of mourning, since marriages today are governed by the law of heaven, not the law of the forum; and by the law of heaven, when her husband is dead, a woman is released from the law of her husband: let her marry whom she wishes.

§ 1. But the same Stephen writes to the contrary, saying: “We call infamous whomever the secular laws declare infamous.” But that statement of Gelasius and Stephen, “Although we can save souls,” etc., and, “Under the mark of perpetual infamy,” etc., is understood of those upon whom infamy is imposed by a civil judge; just as their examination and chastisement, so also their restoration in full, pertains only to the civil judge. Concerning the woman who marries within the period of mourning, however, this is not contrary to what Stephen says, “We call infamous,” etc. For since the secular laws do not disdain to follow the sacred canons especially in marriages, they do not seem to declare infamous a woman who marries not illicitly by apostolic and canonical authority. Part IV. § 2. It must also be noted that it is one thing when a person has repented of making a criminal accusation and of making a formal inscription, if he has been absolved by an innocent defendant; another, if he accepted money from a guilty person in order to desist from proving what he had alleged. Hence in the Book of Capitularies, [c. 175, it is read]:

If someone has repented of making a criminal accusation and of making a formal inscription concerning something which he was unable to prove, if he has come to an agreement with the innocent accused person, let them absolve one another. But if the judge has recognized that the accused person is criminal, and an agreement concerning collusion has been reached by subreption between the defendant and the accuser, let him receive the penalty established by the laws. Part V. GRATIAN. It must also be noted that, as is read in the Digest, book XLVIII, under the title On the Abolition of Crimes, [law I]: “The rashness of accusers is disclosed in three ways. For they either calumniate, prevaricate, or tergiversate. To calumniate is to press false crimes; to prevaricate is to conceal true crimes; to tergiversate is to desist altogether from an accusation.

§ 1. But certainly one who does not prove what he presses is not immediately seen to calumniate. For inquiry into that matter is committed to the judgment of the cognizant official, who, after the defendant has been absolved, begins to inquire into the accuser's intention: with what mind he was led to proceed to accusation. And if indeed he finds his error just, he absolves him; but if he detects him in evident calumny, he imposes upon him the lawful penalty. Either of these is manifested by the very words of the pronouncement. For if he has pronounced thus, ‘You have not proved it,’ he has spared him; but if he has pronounced, ‘You have calumniated,’ he has condemned him. And although he has added nothing concerning the penalty, nevertheless the force of the law will be exercised against him. For the question of fact is indeed in the judgment of the one adjudicating; but pursuit of the penalty is not entrusted to his will, but reserved to the authority of the law.” But if, in an interlocutory ruling, he said, “Titius appears to have accused rashly,” he did not pronounce him a calumniator. For rashness contains pardon for facility, and unconsidered heat lacks the vice of calumny; for this reason no penalty ought to be imposed upon him. Above, book XLVII, under the title On Prevaricators, [law 1]:

§ 2. “A prevaricator is, as it were, a straddler, who assists the opposing party after betraying his own case. Labeo says that this name is drawn from variable contention. For one who prevaricates stands on both sides—or rather on the other. But one is properly called a prevaricator who has accused in a public judgment. Otherwise, an advocate is not properly called a prevaricator. What, then, shall be done concerning him? Whether he has prevaricated in a private judgment or a public one—that is, has betrayed the case—he is customarily punished outside the ordinary procedure.

§ 3. It must be known that today an extraordinary penalty is imposed upon those who have prevaricated.” And below: § 4. “An accuser convicted of prevarication shall not afterward make an accusation by law.” And below: § 5. “In all cases—except a capital case—one who corrupts an informer is held by the senatus consultum as having lost the case.” And below, book XLVIII, under the title On the Abolition of Crimes: § 6. “We show that person to be a prevaricator who colludes with the defendant, because he concealed his own proofs but admitted false accusations.

§ 7. But if anyone desists from an accusation without abolition, he is punished. Abolition is customarily petitioned and obtained privately from governors; likewise before the tribunal, not informally; nor can the governor delegate this cognizance to another. If the same man brought several crimes against the same man, he ought to seek abolition of each; otherwise, in respect of whatever he has omitted, he will suffer the penalty of the senatus consultum.” And below, under the same title: “We understand that person to have desisted who has laid aside his whole intention of proceeding, not one who delayed the accusation; but one who desisted from accusation with the emperor's permission is unpunished.”

§ 8. Abolition, however, remits the penalty; it does not remove infamy. Hence the Emperors Valens, Valentinian, and Gratian are read to have said in book IX of the Code, under the same title On General Abolition: “Indulgence, conscript fathers, marks those whom it frees; it does not remove the infamy of the crime, but grants remission of the penalty.” But if the prince should say, “I restore you in full,” he removes infamy. Hence in the same book, under the title On Those Who Have Suffered Sentence and Those Restored, Emperor Antoninus is read to have said to a certain man deported to an island: “I restore you in full to your province,” and added: “But so that you may know what it is to restore in full: to your honors, your order, and all other things.”