Question V

GRATIAN. That witnesses are not to be produced from the household of accusers, and that the plea of enemies is not to be heard, is shown by many authorities. For Pope Callistus says, [letter II to the Bishops of Gaul]:

Blood relatives who are accusers shall not give testimony against strangers, nor shall familiars or persons coming from their household; but, if they wish and mutually consent, relatives may testify among themselves, and not against others.

Likewise Pope Anacletus, [letter III, c. 5]. Those who were enemies before yesterday or the day before yesterday cannot be accusers and witnesses, lest, being angry, they desire to harm, or, having been injured, wish to avenge themselves. Therefore, an unoffended and unsuspected disposition of accusers and witnesses is to be sought.

Likewise Pope Symmachus, [in the Fifth Roman Synod held under him]. Let no credence be given to accusers who are enemies, who come from the household of an enemy, who dwell with enemies, or who are suspect, lest, being angry, they desire to harm, or, having been injured, wish to avenge themselves. § 1. If anyone has attempted to infringe those things which have today been prohibited in this holy synod, or presumed voluntarily to transgress them, if he is a cleric, let him be entirely deprived of his own grade; but if he has been a monk or layman, let him be deprived of communion, and, if he has not amended the vice, let him be struck with anathema. But if anyone has brought to ecclesiastical notice secret or manifest ambushes laid by any persons against pontiffs, or the matters which the sentence of this holy synod embraces, let him obtain honor; and let those who devise adversities against them, as was long ago established by the holy Fathers and is today confirmed by synodal and apostolic authority, be entirely cast out and handed over to perpetual exile with all their things taken away.

Likewise Pontianus, Bishop of the holy and universal Church, [letter II to all Christians]. Our predecessors the Apostles prohibited suspect persons, enemies, persons readily engaging in litigation, those who are not of good manner of life, those whose life is open to accusation, and those who neither hold nor teach the right faith from being accusers and witnesses. We remove them by the Apostles' authority and exclude them for future times.

Likewise Eusebius to the Bishops of Gaul, [letter I]. Concerning accusations of clerics, about which you commanded, know that it has been observed in this holy City from the time of the Apostles that accusers and accusations which the laws of foreign customs do not adopt are removed from the accusation of clerics. And below: Therefore, following the footsteps of the Fathers for the salvation of God's servants, we also remove the license to assail another from all persons whom the public laws do not admit to an accusation, and let no accusations be heard by ecclesiastical judges which are prohibited by the laws of the world.

Likewise Pope Pelagius II, [to the Bishops of Italy]. Following and strengthening the canonical statutes of the holy Fathers, we entirely remove from every accusation of bishops all infamous persons, all suspect persons or enemies, those who are not of the same nation, those whose faith, life, and freedom are unknown, those who are not of good manner of life, and those whose life is open to accusation. We likewise judge that all whom the divine laws call dead are to be removed from the same accusation and subjected to public penance.

Likewise from the Roman Synod held under Pope Hadrian. We determine that accusations and accusers and their business which the secular laws do not adopt are to be entirely repelled from clerics by divine and synodal authority, because it is unworthy for superiors to suffer from inferiors things which inferiors disdain to suffer from them.

Likewise Stephen, Bishop of the Roman Church, to all Bishops, [letter II, On Accusations of Priests, c. 3]. Accusers and accusations which the laws of the world do not admit, and which our predecessors prohibited, we also remove. Let no foreigner become either their accuser or their judge. Hence it is written concerning Lot: “You entered as a stranger; surely not so that you may judge?” Let no slave or freedman be an accuser of our bishops, nor any suspect or infamous person.

Likewise Pope Eusebius, [letter III to the Bishops of Tuscany]. We establish, together with all the bishops who are with us, that homicides, thieves, practitioners of magic, sacrilegious persons, abductors, adulterers, incestuous persons, poisoners, suspect persons, criminals, members of the household, perjurers, those who committed abduction, those who gave false testimony, those who had recourse to sorcerers and diviners, and persons similar to them shall by no means be admitted to an accusation or testimony, because they are infamous and are justly to be repelled, since their voice is deadly.

Likewise Pope Julius, [in the rescript to the Easterners, c. 33]. It was similarly decreed in the aforesaid synod that suspect, infamous, criminal, favored, calumniating, related, wicked, or readily litigious persons shall not be received as accusers, but only such as are free from every suspicion.

Likewise Pope Felix II, [letter I, c. 14]. Let no slave, freedman, unfaithful person, person entangled in crimes, calumniator, one who devotes himself to enmities, one who frequently litigates and is ready to accuse or detract, or infamous person—and, indeed, let none of all those whom the public laws do not admit to accuse public crimes—be permitted to accuse bishops.

Likewise Pope Callistus, [letter II to the Bishops of Gaul]. Suspect accusers or witnesses shall not be received, nor members of the household or those coming from the household; nor shall blood relatives of the accuser give testimony against strangers, because the affection arising from kinship, familiarity, and lordship is accustomed to impede the truth. Carnal love, fear, and avarice very often dull human senses and pervert judgments, so that people think gain to be piety, and money to be, as it were, the reward of prudence.

Likewise Gelasius, [Pope II, letter VIII, c. 4]. We judge all who take up arms against the Fathers to be infamous as assailants of the Fathers. Therefore, the authors or perpetrators of these vices are not to be received in the accusation of pontiffs, but are to be entirely repelled, because the canonical decrees of the Fathers command that the accusation or testimony of those who pursue any persons with hatred, or who are regarded as enemies or suspect, shall in no way be received.

[PALEA.

Likewise Pope Paschal: Let none of the bishops be permitted to repel from an accusation against himself those whom, before he was assailed by them, he neglected to separate from his common familiarity.] GRATIAN. But enemies are prohibited from an accusation because innocence is frequently oppressed by their cunning.

But when Athanasius is commanded to be restored to his see because he complained of the enmity of his patriarch toward him, it is evident that, even if someone's crimes are manifest, he is nevertheless not to be condemned upon an enemy's accusation. Hence Nicholas writes to Emperor Michael, [in the letter which begins, “We had proposed”]:

Both reason itself dictates and very many examples prove that suspect persons and enemies ought not to be judges. § 1. For what more welcome and pleasing thing can anyone give to an enemy than if he entrusts to him for assailing a person whom perhaps he has wished to harm? The Synod of Constantinople is known providently to prohibit this in the sixth chapter of its canons. § 2. Let us also come to the holy Synod of Chalcedon and hear what it relates to us concerning Athanasius, bishop of Perrha. For that prelate, having been summoned a third time and not appearing, had been canonically condemned by his patriarch; but solely because, when he was summoned to the synod, he cried out that the very person who was judging was his enemy, he was reserved by the holy Synod of Chalcedon for an examination of the charges brought against him, and it was adjudged that he should receive his own church unless he were convicted anew. If Athanasius, deposed by his patriarch, because he complained of the latter's enmity, is sent back for the judgment to be renewed and, even if manifest crimes weigh against him, is commanded to be restored to his church, how much more ought Ignatius—who was deposed not by a patriarch but was himself the patriarch—not to have been deprived of his own church and despoiled by the decisions of hostile and suspect judges? § 3. Let our most eloquent Pope Gelasius also come, the most valiant vanquisher of heretics, and let him explain to us now as well what he said concerning the bishops of Constantinople who were then ailing in their customary manner. “I ask,” he says, “where can the judgment which they put forward be conducted? Is it before those very persons, so that the same men are enemies, witnesses, and judges? But not even human affairs ought to be entrusted to such a judgment.” But if even human judgments ought not to be entrusted to a judgment in which the same enemies are the judges, how much less divine affairs, that is, ecclesiastical ones? Let one who is wise understand. § 4. And truly, for this reason the pious Emperor Justinian is known to have promulgated in his laws, saying: “Let one who thinks a judge suspect to him be permitted, before the suit is begun, to challenge him, so that recourse may be had to another.” For it is in a certain manner natural to avoid the snares of suspect judges and to wish to flee the judgment of enemies. § 5. For this reason Saint John Chrysostom refused to enter the assembly of the council gathered against him. GRATIAN. It is evident that, even if someone's crimes are manifest, he is nevertheless not to be condemned upon an enemy's accusation.