Question IV

GRATIAN. Part I. Concerning the fourth question, Pope Fabian established, [letter II to the Eastern Bishops], saying:

Let no one ever presume to be accuser and judge or witness at the same time, because in every judgment it is always necessary that there be four persons: namely, chosen judges, suitable accusers, fitting defenders, and lawful witnesses. Judges, however, ought to use equity; witnesses, truth; accusers, intention toward enlarging the case; defenders, mitigation toward diminishing the case.

Likewise Pope Damasus, [letter IV, c. 7]. Let no one be introduced personally into a case, but let accusers and accused persons be heard with equal reason, according to what order requires. But let accusers and judges not be the same persons; rather, let accusers be separate, judges separate, witnesses separate, and accused persons separate, each one in his own order. Part II. § 1. Let a formal inscription always be made so that the calumniator may receive retaliation, because before an inscription no one ought to be judged or condemned, since even the laws of the world maintain these same things. GRATIAN. In book IX of the Code, under the title On Accusations, [law 7]; in the book of the Code On Adulteries, [law 6]; under the title On Cattle Thieves, [sole law]. § 1. Sometimes an accusation can also be made without a formal inscription. “For it is not unknown that those things which are reported to governors by officials can be weighed even without the formalities of accusations.” § 2. Likewise, [Code, On Adulteries, law 6]. If a husband wishes to accuse his wife of adultery by a husband's right, that is, within sixty available days, he can make her a defendant from suspicion alone and is not held by the bond of a formal inscription. § 3. Likewise, [Code, On Cattle Thieves, sole law]. An accusation concerning a driven-away animal is presented not only with formal inscriptions but also without that observance. § 4. Likewise, [Code, On Accusations, law 8]. If anyone thinks that he has suffered an injury from another and wishes to bring a complaint, let him not run to the stationarii, but approach the authority of the governor, either offering written petitions or lodging his complaints in the official records. § 5. But in other criminal cases it is fitting that formal inscriptions be set forth first, which designate, namely, the magnitude of the crime and the time, so that the fitting authority of the laws may terrify either party. Part III. GRATIAN. An accuser or witness ought not to be produced from the household of the judge either, lest the judge fall into a cause of suspicion. Hence Pope Nicholas, [to Emperor Michael, in the letter which begins, “We had proposed”]:

Contrary to ecclesiastical custom and the venerable laws, an accuser is produced from the imperial household, and one who can be commanded to give false testimony is employed. The judges become suspect, and wolves become guardians.