Jurisdiction, Evidence, and Procedures
Alexander III, who was a major innovator in these areas, strongly encouraged judges to base their decisions on the testimony of witnesses, rather than on the unexamined statements of oath-helpers or the outcome of ordeals.[1347] This policy attests the influence of Roman law ideas on the formation of Alexander’s attiÂtudes; it probably reflects, as well, his consciousness of the changes in society during his pontificate.[1348]
While he preferred to base judgments upon sworn testimony, Alexander III insisted that the evidence of more than one witness was necessary, particularly when marital separation or nullity was at issue.
Marriages were not to be disÂsolved on the testimony of a single witness unless that evidence was corroboÂrated by public notoriety or further proof.[1349] Where two or more witnesses agreed, however, even if they were interested parties, Alexander was prepared to rule that their testimony established a presumption of fact, a presumption that could be rebutted only by the opposing evidence of a greater number of credible persons.[1350]In Veniens ad nos, Alexander III defined the standard of proof required to warrant a finding that marital consent had been invalidated by force and fear— he required that the force or threats involved must be sufficient “to move a constant man,” a fictional creature who became almost as ubiquitous in canon law as his younger cousin, “the reasonable man,” in the common law of torts.[1351]
Other basic procedural rules that date from the pontificate of Alexander III dealt with the hitherto cloudy status of parties whose marriages were sub juÂdice. Alexander declared that where the validity of a marriage was contested on grounds of consanguinity, the parties must separate and remain separated until a final judgment had been pronounced.[1352] In cases that involved an alleged clan-
destine marriage and in which the parties disagreed as to whether they had consented to marriage or not, Alexander held that the couple might be perÂmitted to separate, lite pendente, although they were not required to do so.[1353] Neither party to a contested marriage, no matter what the grounds, might conÂtract a new marriage while judgment on the previous one was still pending or during an appeal from a first instance nullity decision.[1354]