Question III

GRATIAN. Part I. That periods of delay are not to be denied after summons to one coming to judgment is attested by the same Pope Felix II, [in the letter to the brothers of Egypt, c. 8], who says:

When the accused has come to judgment, if he wishes, the periods of delay established by the Fathers shall be granted without impediment to him when he requests them, and judges chosen by him shall be assigned to him.

Likewise from the letter of Felix II to the brothers of Egypt, [c. 20]. Concerning periods of delay for bishops, about which you consulted us, we find diverse rules instituted by the Fathers. For certain Fathers commanded that a year and six months be granted for repelling the devices of assailants, preparing their responses, confirming witnesses, and seeking the counsel of bishops and friends. Others commanded a year, in which very many agree. But I have not found less than six months, because these have been granted even to laymen; how much more to the Lord's priests? And below: § 1. Periods of delay are to be granted not under a narrow time but over a long space, so that the accused may be able to prepare themselves, meet all communicants situated in the provinces, prepare witnesses, and arm themselves fully against ambushers.

Likewise Pope Eleutherius, [in the letter to the provinces of Gaul]. Periods of delay that are not small are to be given for making inquiry, lest anything appear to be done prematurely by either party, because many things happen through surreption.

[PALEA.

Likewise Pope Damasus, letter III to Archbishop Stephen. Periods of delay of six months, or longer if necessary, are to be granted to accused persons in criminal cases.]

GRATIAN. Part II. But the span of delays, as is found in book III of the Code under title 11, On Delays, is to be moderated on this basis: if either a person or instruments are requested from the same province in which the litigation is conducted, not more than three months shall be granted. But if they are requested from adjoining provinces, justice requires six months to be observed. In a transmarine delay, however, nine months will have to be computed. Judges, however, shall understand that by this rule there has not been granted to them a discretion for giving delay. Rather, they shall know that the same delay—if a most urgent basis in the matters has demanded it and the necessity of the desired instruction has required it—is not easily to be granted more than once, nor by any artifice for protraction.

§ 1. But a delay is to be entirely denied to one who has brought back a rescript to an extraordinary judge. It is to be given, however, to the person summoned to judgment for proving falsehoods in the petitions or producing some instruments or witnesses, because one who is drawn contrary to expectation before an alien judgment could not have been prepared. § 2. But when a rescript has been made by the prince concerning an appeal or consultation, whether a delay was requested in the first judgment and not granted or was not even requested, it will not be lawful to give it to anyone, on the same basis by which delay is not customarily granted in judgments of imperial cognizance. It is not proper to request a delay from a judge while he is proceeding, even if it be granted with both parties present, since it can be granted only after the cause has been heard, and the hearing of the cause is lawfully assembled not by a full formal challenge but rather while the judge is sitting, so that, if perhaps the petition for delay has been rejected, the question undertaken may be decided by the judge's sentence.

From the seventh Novel Constitution, in collation VIII. § 4. But the plaintiff shall direct the petition only after he first furnishes security, both to the person whom he says is bound and to the executor of the business, that he will either join issue within two months or restore every loss befalling the person who is brought to trial. In collation V: GRATIAN. Part III. § 5. Let the petition be offered to the person summoned to judgment, and thereafter, after the sportulae have been furnished and surety given, let him enjoy a delay of twenty days, in which he may deliberate whether to yield or contend, to request that another be joined to the judge, or to reject that judge, unless the latter is the judge whom he himself requested after already rejecting another. Finally, let him be asked in person whether this time has passed. This shall be made manifest not only by his own response but also by his subscription of the petition, which he ought to make at the beginning. Therefore, joinder of issue conducted contrary to this grant is held as nothing.

From Novel Constitution VI, in collation VI. § 6. This ought not to be done unless the plaintiff has given sufficient security, promising that he will give a fixed amount if he does not pursue the case, or, pursuing it, does not win the case. Therefore, if after the prescribed time he does not appear within ten days while the defendant is present, let the defendant be dismissed after exacting what was promised and whatever more he swears, subject to the judge's assessment, that he spent concerning the litigation. [§ 7. An exception concerning the forum is dilatory and therefore ought to be opposed and proved at the beginning of the litigation. But it is sufficient that peremptory exceptions, such as prescriptions of a long period, be pleaded at the beginning of the litigation.]