Question VI

GRATIAN. Part I. A defendant, however, is by no means to be produced outside the province. Hence Pope Fabian writes to Bishop Hilary, [letter III, c. 4]:

Let a case always be conducted where the crime is committed, and let one who has not proved what he charges suffer the penalty which he sought to impose.

The same, [in the same letter, c. 2]. If any one of the bishops is accused concerning certain crimes, let him be heard by all the bishops who are in his province, because an accused person ought not to be heard anywhere other than in his own forum. GRATIAN. An exception concerning forum is dilatory, and therefore it ought to be pleaded and proved at the beginning of the suit. It is sufficient, however, that peremptory exceptions—as are prescriptions of long time—be formally pleaded at the beginning of the suit.

The same, [Fabian in the same place]. Let one who is impleaded plead his case before his own judge; one impleaded before a judge who is not his own may, if he wishes, remain silent. But whenever those impleaded have appealed, let delays be granted them. GRATIAN. What has been said concerning place is to be understood when the truth of the case can be discovered only in the place where the crime was committed, or unless either party has invoked the judgment of a greater person, whether by declining the judgment or by seeking relief from the sentence. Hence Stephen, Bishop of the holy, apostolic, and universal Roman Church, writes to all Bishops, [letter II, c. 7]:

Let the license to accuse not extend beyond the boundaries of the provinces, but let every accusation be heard within the province and concluded by the coprovincials, unless an appeal has been made to the apostolic see.

Likewise Pope Sixtus, [letter I to Bishop Gratus]. A bishop accused or judged by the coprovincials in any case may freely appeal and approach the Pontiff of the apostolic see, who shall take care to review his business either personally or through his vicars. And while the Pontiff conducts his case in a repeated judgment, another bishop shall not be placed or ordained in his place, because, although the coprovincial bishops are permitted to investigate the case of an accused bishop, they are nevertheless not permitted to determine it without consulting the Roman Pontiff.

[PALEA.

Likewise Pope Damasus to Archbishop Stephen, letter II, c. 2. A metropolitan, together with all his coprovincials, so that none of them is absent and all agree in the business of each one, is permitted to examine bishops and the highest causes of ecclesiastical business; but he is by no means permitted to determine their chief complaints and those of ecclesiastical causes, or to condemn bishops, without the authority of this holy see, to which all ought to appeal if necessary and by whose aid they ought to be supported.]

Likewise Pope Eleutherius, [writing to the provinces of Gaul, c. 2]. Although accusations or criminal charges against bishops may be argued before provincials, metropolitans, and primates, they nevertheless may not be determined without the authority of this holy see, as has already been determined by the Apostles and their successors with the consent of many bishops. Nor shall others be set over or ordained in their churches before their business is justly concluded here. But the cases of the remaining clerics may both be argued and justly concluded before coprovincials, metropolitans, and primates.

Likewise Leo, Bishop of the city of Rome, to Anastasius, Bishop of Thessalonica, [letter LXXXII, otherwise LXXXIV, c. 1]. I am greatly astonished, dearest brother, but grieve much more, that you could have been moved so atrociously and so violently against one concerning whom you had judged nothing more than that, after being summoned, he delayed appearing and offered sickness as an excuse, especially since, even if he deserved something of this sort, you ought to have awaited what we would write back in response to your consultations. But even if he committed something grave and intolerable, our censure was to be awaited, so that you yourself would determine nothing before you learned what pleased us. For we entrusted our place to your charity in such a manner that you were called into a share of the solicitude, not into the fullness of the power. Hence, just as the things which have been piously attended to by you greatly gladden us, so the things which have been wrongly done grieve us exceedingly.

Likewise Pope Julius to the Eastern Bishops, [letter I]. It was decreed long ago by the holy Apostles and their successors in the ancient statutes—which the holy and universal apostolic Church has maintained until now—that councils ought not to be celebrated or a bishop condemned without the sentence of the Roman Pontiff, because they willed the holy Roman Church to be the primate of all the churches; and just as blessed Peter the Apostle was the first of all the Apostles, so also, by the Lord's institution, let this Church consecrated in his name be the first and the head of the others, and let all the greater ecclesiastical cases and judgments of bishops recur to it as to a mother and summit, and take their end according to its sentence; nor ought anything concerning these matters to be decreed apart from the Roman Pontiff. Part II. GRATIAN. Sometimes many bishops are found to have been condemned without the Roman Pontiff being consulted and others substituted in their place, whose condemnation and substitution the Church is read to have tolerated by dispensation for the good of peace. Hence Pope Nicholas to Solomon, King of the Bretons:

For this is the ordinance of God your Father, and this is the law of the Church your mother: namely, that you do not refuse to send all the bishops of your kingdom to the Archbishop of Tours or disdain to seek his judgment. For he is the metropolitan, and all the bishops of your kingdom are his suffragans, as the writings of my predecessors manifestly show. Those predecessors endeavored to rebuke your predecessors with a forceful invective because they had withdrawn those bishops from his care, although our own writings sent concerning this matter also do not appear to be lacking. And when a council has been celebrated before the designated prelate of the Church of Tours and the full number of colleagues, that is, twelve bishops, and the expelled bishops have been examined according to rule, and it has appeared that they were canonically expelled, then, while they remain in their deposition, those who were consecrated in their places will certainly be able to possess the honor of the episcopate. But if the expelled bishops have been declared innocent, let those who were substituted for them be removed, and let the former receive their churches. For my predecessors, the prelates, neither admitted nor approved the expulsions of those bishops who were driven from their churches, nor, while the former were alive, did they call those substituted for them legitimate bishops. If, however, you perhaps disdain to send the aforesaid bishops to the Archbishop of Tours, take care to transmit two of the expelled bishops and two of those substituted, together with a legate of your church, to the apostolic see of blessed Peter, where, after a fitting examination has first been made, it may appear who are the legitimate bishops, so that they do not irregularly lose their churches. For I am able to determine nothing else in the present business. But because there is great contention among the Bretons about who is the metropolitan, although no one's memory holds that you have had any metropolitan church in your region, nevertheless, if you wish, after almighty God establishes peace between you and our beloved son, the glorious King Charles, you will easily be able to attend to this. But if you believe that you must proceed more contentiously, endeavor to send to our apostolate, so that by our weighing it may become clearer than light which church among you was anciently the archiepiscopal one, and thereafter, all ambiguity having been cut away, your bishops may know without hesitation whom they ought to follow. For it is not necessary that the churches of the Lord suffer any losses of division through the discords of kings, since, insofar as it lies with them, they strive to preserve among themselves and toward all the peace which they preach. Part III. GRATIAN. Otherwise, however, the sentence of the bishops will be void and is to be reviewed by a synod. Hence Pope Felix, [letter I to Paternus]:

We judge a condemnation by bishops that is unjust to be void and for that reason to be reviewed by a synod, so that those oppressed may be aided by all in every case. GRATIAN. But Pope Sixtus III attests, [in the letter to the Eastern Bishops, c. 3], that no one is permitted to contemn his metropolitan and seek the judgment of others, saying:

With apostolic authority preserved in all matters, we prohibit foreign judgments by a general sanction, because it is unworthy that those who ought to have coprovincials and judges chosen by themselves should be judged by outsiders.

Likewise Anacletus, [Pope, letter I, c. 3]. We confirm the laws of the Church by apostolic authority and remove foreign judgments. Hence also the Lord, making mention of Lot, speaks through Moses, saying: “You entered indeed as a stranger; surely not so that you might judge?”

Likewise Innocent, [Pope, to Victricius, Bishop of Rouen, letter II, c. 3]. Without prejudice, however, to the Roman Church, to which reverence is owed in all cases, let no one be permitted, after abandoning those priests who by divine direction govern the churches of God in the same province, to fly to other provinces, or to seek or submit to the judgments of the bishops of other provinces. But if anyone has presumed to do so, let him be removed from clerical office and judged by all to be guilty of injury. GRATIAN. The reverence which is owed to the apostolic Church and its authority are to be understood when either an appeal has been made to it or judges chosen by it are granted. Hence Pope Sixtus, after saying, “They ought to have coprovincials and judges chosen by themselves,” immediately adds, “unless an appeal has been made.”

Likewise Anacletus, [Pope, letter I, c. 3]. Every province, according both to ecclesiastical laws and to the laws of the world, ought to have its own just and not unjust judges, and not outsiders, unless the authority of this apostolic see has decreed it.

Likewise from the Roman Synod. No one ought to be produced from province to province or from county to county except upon the report of the judge, so that the plaintiff follows the defendant's forum. And below: § 1. Let the synod of that province administer those matters which arise throughout each province, as is established to have been decreed in the Council of Nicaea. § 2. Let the license to accuse not extend beyond the boundaries of a province. Let every accusation be heard within the province and concluded by the coprovincials.

Likewise. If any cleric has been accused concerning any crimes, let him prosecute his actions in the province in which the person who is impleaded resides, and let his accuser not think that he is to be drawn to judgment elsewhere or farther away.

Likewise from a decree of Pope Hadrian. Let one who charges a crime know that he must prove it. Let the case indeed be conducted where the crime is committed.