Procedure and Evidence in Sex Cases
Gratian had little to say about specific procedures in sex cases. He opposed the use of ordeals in ecclesiastical courts and sought to explain away conciliar canons that prescribed them.[1025] [1026] Gratian was grudgingly prepared to accept the evidence of compurgation, if more positive evidence was unavailable, but he preferred that Church courts rely upon proof through the testimony of witnesses and he included in his work several canons relating to the evaluation of their evidence.14β Certain classes of persons were barred from giving testimony, notably those who had been found guilty of rape, adultery, and other heinous crimes and, in general, all persons tainted with infamia.[1027] Although he believed that women were inherently incapable Ofexercisingjurisdiction, Gratian was willing to allow them to testify, particularly in adultery cases.[1028] The testimony of all witnesses, he believed, should be critically examined, and judges ought to be skeptical of the evidence supplied by witnesses who might be swayed by emotional attachment, affection, family ties, or by less genial sentiments, such as self-interest, fear, or greed.[1029] Both with respect to the law of evidence and with respect to judgments, Gratian appears to have believed that ecclesiastical courts ought to strive to achieve equity, “the mother of justice,” as he called it, rather than be bound by a narrow legalism.[1030] In marriage law, particularly, achieving equitable solutions to human problems might require generous use of the power of dispensation, through which the pope and other ecclesiastical authorities had the power to derogate the law in special cases in order to achieve a fair and just resolution of the problem.[1031]