Question XI

GRATIAN. Part I. By the authority of many persons, it is prohibited that an accusation be turned by the accused against the accuser. For Pope Stephen says, [letter II, c. 7]:

The license to charge crimes is to be denied to accused persons before they have freed themselves from the crime by which they are pressed, because no credence is to be given against others to the confession of persons entangled in crimes unless they have first proved themselves innocent, since the profession of an accused person against anyone whatsoever is dangerous and ought not to be admitted.

In book IX of the Code, title I, [law 19]. The Emperors Valentinian, Valens, and Gratian. The license to charge crimes of an equal or lesser gravity is to be denied to accused persons—unless they are prosecuting injuries to themselves and their own people—before they have freed themselves from the crime by which they are pressed, yet in such a manner that they too can lodge a formal inscription against those persons even while the accusation is pending.

Likewise from a decree of Pope Hadrian, [c. 33]. No credence is to be given against others to the confession of persons entangled in crimes unless they have first proved themselves innocent, because the profession of an accused person against anyone whatsoever is dangerous and ought not to be admitted. GRATIAN. This is to be understood in a crime of equal or lesser gravity. But if he wishes to accuse him of a greater crime—for example, if one accused of fornication wishes to assail his accuser for perjury, homicide, simony, or any other crime of this sort—he is not prohibited by these authorities. § 1. For sometimes a criminal question takes precedence over a civil one, and sometimes over another criminal question. Hence it is read in book III of the Code, under the title On the Order of Judgments, [law 4]: “After a civil question has been set aside, it often happens that a crime is judged first, because, as the greater matter, it is deservedly preferred to the lesser.”

Likewise book IX, [Code, title On Those Who Cannot Accuse], law 1. “It is first necessary that you answer concerning the crimes of slaughter and wounds which are charged against you by your adversary as the graver matters; and then, from the outcome of the case, the judge will assess whether you are to be permitted to accuse the same person, even though you lodged the formal inscription first.” Part II. [GRATIAN.] Sometimes a civil question takes precedence over another civil question, and sometimes over a criminal one. For, as it is read in book VII of the Code, under the title On the Order of Cognitions: “If there is a controversy concerning an inheritance and freedom, the case concerning freedom ought to be conducted first.” Likewise: § 1. “If some crime is alleged against a person who is said to be freeborn, the proceeding concerning freedom ought first to be conducted in its order, with the governor providing his cognizance; for if the delict has been proved, it is necessary first to know whether punishment ought to be decreed against him as a free and freeborn person or as a slave.” Part III. Likewise: § 2. “One who confesses that he suffers a controversy concerning his status asks in vain that the power be given to him to accuse a person whom he acknowledges to be his own master. But when the proceeding concerning freedom has been concluded, if he has been pronounced a slave, he will not be able to accuse his master.” § 3. “For if anyone from the household or slaves of any house whatsoever has come forth as informer and accuser of any crime whatsoever, intending to assail the reputation, person, and fortunes of the one to whose household he adhered or whose dominion he was under, let him be struck with the avenging sword at the very exposition of the crimes and beginning of the accusation, before the production of witnesses and before the examination of the judgment. For a death-bearing voice ought to be cut off rather than heard. We except, however, the crime of treason.” Similarly: § 4. “If freedmen have presumed to be accusers of those who manumitted them or of their heirs, they will be held by the same punishment as slaves, to pay the penalties before the beginning of the prohibited information.”