Question IX

GRATIAN. Part I. Concerning accusers or witnesses, it is clear from the authorities of many persons that they cannot present the voice of accusation or testimony against one who is absent. For Pope Telesphorus says, [sole letter]:

We decree that no credence at all is to be given to an accuser who presents a case when his adversary is absent, before a just examination of both parties.

Likewise Pope Eleutherius, [in the letter to the Bishops of Gaul]. Let the judges of the Church take care not to render a sentence when the person whose case is being argued is absent, because it will be void; indeed, they will also give an account in a synod for what they have done. Neither the calumny nor the voice of a traitor shall be heard.

Likewise Pope Callistus, [letter II to the Bishops of Gaul]. When the person whom he wishes to accuse is absent, no credence shall be given to an accuser in anything. He shall be received with difficulty without a writing, but never by means of a writing, because no one can be accused through a writing; rather, let each person pursue his accusation in his own voice and with the person whom he wishes to accuse present.

Likewise Pope Cornelius, [to Rufus, letter II, c. 2]. Let all things which in any business or place are done or adjudged against absent persons be made entirely void, because no one condemns an absent person and no law condemns him.

Likewise Pope Marcellus, [to Maxentius, letter II]. No one ought to be judged or condemned before he has lawful accusers present and receives a place for defending himself in order to clear away the crimes.

Likewise Pope Damasus, [to Archbishop Stephen, letter III, c. 8]. It is also held to have been sanctioned in the decrees of the holy Fathers that it is not canonical to judge or condemn any priest before he has present accusers canonically examined and receives a place for defending himself, that is, ecclesiastical delays for clearing away the crimes, etc.

[PALEA.

Nor, without an apostolic precept, shall the accusation at the first examination be conducted outside the person's own province; reverence must be preserved toward the apostolic see in all cases, because the ancient rule of the Fathers also teaches this, and the imperial statutes accord with it. “The examination of crimes,” they say, “must be conducted where the crime was committed. For elsewhere one accused of crimes is prohibited from being heard.” And elsewhere it is commanded in the canons: “All business is to be concluded in its own place, where it arose,” and other such things similar to these, with apostolic authority nevertheless preserved in all matters, so that nothing concerning them is determined before it is known to please the apostolic see, by which it is fitting that all be supported.]

The same, [to the Bishops of Italy, letter VI]. Let one who has chosen to accuse another accuse in person by himself and not through another, with a formal inscription first made. Nor shall anyone ever be judged before he has lawful accusers present and receives a place for defending himself in order to clear away the crimes.

Likewise from the Sixth Council of Toledo, [c. 11]. It is fitting that the life of an innocent person be stained by no destruction wrought by an accuser. Therefore, whoever is charged with a crime by anyone shall not, after being accused, be given over to punishment before the accuser is presented and the sentence of the laws and canons is sought. But if the person is found unworthy to accuse, let no judgment be made upon his accusation.

Likewise Pope Boniface to the Gauls, [letter II]. We have decreed that your judgment ought to take place within the province and that a synod is to be assembled before the kalends of November, so that, if he wishes to be present, he may, being present, answer the charges if he has confidence; but if he has neglected to be present, let him gain no delay of sentence from his absence. For it is manifest that one who does not use the opportunity of clearing himself in a judgment granted and appointed so many times confesses concerning the crime. For it makes no difference that, in the present examination, all the things which have been said are not proved, since the acknowledgment itself is established by the absence procured so many times.

Likewise Pope Felix, [to the Bishops of Gaul, letter II]. When the adversary is absent, the accuser shall not be heard, nor will a sentence spoken by a judge when the other party is absent obtain any firmness.

Likewise Pope Nicholas to Gallino, Archbishop of Siena. Truly, one is not a just mediator who does not fear to decide the disputes arising between both litigants when one is present and the other absent. These things having been premised, we will and admonish by apostolic authority that, if the priest concerning whom the matter is conducted has wished after his excommunication to approach the apostolic see, no one shall presume to impede his journey.

Likewise Pope Zephyrinus, [to the Bishops of Sicily, letter I]. Let no one who is absent be judged, because both divine and human laws prohibit this. GRATIAN. Unless he is absent through contumacy. For contumacy causes him to be regarded as present.

Likewise Pope Nicholas to Gallino, Archbishop of Siena. You indicate that Bishop Hermann has frequently been accused concerning certain things, for which, because the person on his side is absent, we undoubtedly cannot believe one party to the detriment of the other, although up to this point you have not said what those transgressions were, nor have you plainly shown whether that prelate was of sound mind or not when he perpetrated those transgressions. We judge it more satisfactory in the meantime to regard any infirmity whatsoever as belonging to the punishment of sin rather than to sin itself, and a person so afflicted ought rather to be cared for and treated with compassion than punished or struck in any way.

Likewise Callistus, [Pope, to the Bishops of Gaul, letter II]. Let witnesses not give testimony through any writing whatsoever, but, being present, let them give true testimony concerning the things which they saw and knew. Nor shall they give testimony concerning other cases or business except those which are known to have been transacted in their presence. Part II. GRATIAN. Concerning things which they heard, however, they can give testimony in a civil case if they were summoned for this purpose. Hence it is read in Collation VII, under the title On Witnesses: § 1. “If a debt has been put in writing and proof of payment is offered by the litigants through witnesses without a writing, then we will that it be receivable before the judge, provided that the witnesses were assumed for this very purpose: that they should offer testimony for a payment to be made, or for the remembrance of a payment already made to someone, and for the confession of the person who received the money. But these empty testimonies, given incidentally—either by a person who, coming for another business, heard someone say that he received gold from someone or owed it to someone—we judge to have no force for any reason.” Part III. § 2. It is also necessary that they see at the same time. But if one saw at one time and another at another, the diversity of the times does not admit their testimony. Hence Pope Leo:

Witnesses who testify to something for purposes of calumny are likewise to be punished, nor are their voices admitted as those of several persons when the diversity of the times has prevented them from being present together.

Likewise Ambrose in the book On Paradise, [c. 12]. A pure and simple sequence of the testimony is to be disclosed. Very often, when a witness adds something of his own to the sequence of deeds, he discolors the credibility of the whole testimony by the falsehood of a part. Therefore, nothing which seems good is to be added.

Likewise Pope Felix, [to the Bishops of Gaul, letter II]. An absent person cannot accuse or be accused through another, nor shall a relative by marriage be admitted as a witness. Part IV. GRATIAN. Unless it is in a crime of injuries, in which an illustrious person can prosecute and defend even through a procurator, with the remaining formalities observed, as in the Code, under the title On Injuries, final law.

Likewise Pope Pelagius to Sindua, Master of the Soldiers. The documents which Lucidius gave us would have been valid if his adversary had been present there at that time. But because the acts which he recounted to us are read to have been done while the adversary was absent, the laws do not receive such things.

The same to Decoratus the Patrician. We exhort you, while preserving under fear of the Lord the accustomed sincerity of your conscience in this business also, to cause all fear to be cut away from the persons who can know the truth of this case; and, after they have been presented before you, touched the most holy Gospels, and also lawfully offered an oath, let them disclose the things which they know in the truth of the matters by the profession of their testimony, so that, after all things have been laid open, you may recognize what things are to be adjudged according to the laws and justice, and may give a conclusion consonant with the laws and the truth.

Likewise Pope Nicholas to Hincmar, Archbishop of Reims. According to the teachings of the sacred Scriptures and the balance of justice, it is necessary for both the accused and the accuser to be present together, and for one party, endowed with however much authority and of whatever kind, to be heard in such a manner that no prejudice at all is inflicted upon the other party.