The Anglo-Norman Ordo iudiciarius: Pseudo-Ulpianus, De edendo

Anne Duggan has called attention to the 1164 Council of Northampton for the presence of technical terms from civilian procedure. The council marked a key moment in the controversy between Henry ii and Archbishop Thomas Becket. It provides compelling evidence that clerics then in royal service were familiar with at least some terms from Roman procedure?^[672] Summoned by royal writ, Becket had not responded.^[673] The author of the process against the absent archbishop correctly used both certi condictione and actio tutelae to charge him. Unlike the Roman curia described by Hariulf, it appears that at least some English clerics were ready for civil-law jurisprudence.^[674]

Another potential source for ascertaining clerical legal knowledge and practice is the acta.

Let us consider prescription. Despite the Marturi case, it would seem at first glance that this would trouble the ecclesiastical court. Indeed, one might expect the canon law to oppose any argument from it since, unlike custom, it went against the one who actually held, or claimed to hold, the right. To a canonist, prescription thus might seem to arise â€?out of a wrong.^,3⁴ Canon law, however, had accepted prescription long before Marturi.^[678] Attached to the property were rights, whose loss or acquisition were vital to both ecclesias­tical foundations and their patrons. A good example was the ius patronatus, advowson in the common law, which both churches and their noble patrons strove to remember and defend^[679] In short, whoever best, or perhaps better put, most persuasively, remembered the past, was best positioned to win his claim^[680] Given that the distinction between history and law was â€?at the best of times blurred,^,3^[681] prescription encompassed both. It was everywhere, even when not specifically invoked^[682]

Given pressures to hold or reclaim land, tithes, and rights, any number of canonistic authorities, from conciliar acta to papal decretals, had pronounced on prescription.^[683] Gathered into canonical collections,^{[684] [685] [686] these texts found their way into Gratian at C 16 q.}

We also find Pope Alexander Ill treating prescription from time to time. Alexander established a forty-year period for ecclesiastical rights and properties, thus distinguishing between canonistic and civilian prescription.^[687] He prohib­ited its application to various claims, for example obedience to prelates, rights of episcopal visitation, and tithes during an episcopal vacancy^[688]

There were various reasons why English litigants might claim prescription, or at least allude to it, in disputes over ecclesiastical property and rights ^[689] Perhaps the lengthy anarchy under Stephen II contributed to such disputes?^[690] Abbots were particularly pressed to regain lands seized or alienated during the anarchy^[691] While disputes over land itself were supposed to be heard by royal judges, tithes were a different matter, and conflict over these appears frequently in the acta. Another reason was the activity of the new religious orders, for example the Cistercians, whose foundations could disrupt longstanding rights claimed by older religious houses^{[692] [693] [694] Finally, if less dramatically, there was the accelerating transition to the parochial system, combined with the transfer of foundations to the new orders, for example the Augustinian canons?0}

While the earliest acta, both authentic and spurious, never use praescriptio, they do employ phrases such as quadraginta annis et amplius or triennalem possessionem atque etiam ampliorem quietam et inconcussam.51 These numbers unmistakably invoke prescription. Two early examples come from Hereford and Winchester. The first, from Bishop Robert of Bethune, announces a set­tlement in favor of Nicholas, the incumbent of Sutton, concerning moveable property pertaining to disputed land.^{[695] [696] [697] [698] [699] Nicholas won his claim on the basis of thirty years' uninterrupted possession.}

Other implicit references to prescription in authentic acta begin with the pontificate of Alexander Ill, the time of the De edendo’s composition and reception. In 1177, Archbishop Richard of Canterbury rejected the claims of the nuns of Elstow to the church of East Haltom because they had failed to possess the church for forty years without challenge.5⁴ Ruling in favor of the canons of Newhouse, the archbishop warned the nuns not to trouble the canons further. In 1164-1165, Bishop Nigel of Ely informs both Bishop Robert of Hereford and Bishop Roger of Worcester about the settlement concerning the church of Gamlingay. Robert and Roger were trying the claim of St. Botolph's of Colchester to the church. A challenge had been made that the thirty-year possession had been interrupted; testimony, however, then had been offered by older witnesses that St. Botoph's had possessed the church for more than 45 years.55 Perhaps this is prescription indirectly claimed. This act, part of a lengthy series on the disputed church, may reflect the turbulent and uncertain state of ecclesiastical properties and rights in the early years of Henry Il's reign.

The remaining allusions come from forged or spurious acta. There were ample reasons for ecclesiastical foundations to forged⁶ Some hoped to claim ecclesiastical jurisdiction, particularly in the north of England.^{[700] [701] Monasteries founded after 1100 were prone to this. Not surprisingly, forgers often hoped to back their claims with documents purportedly issued by the archbishop of Canterbury. 58 The majority concern tithes.5[702]}

Only one authentic act relatively contemporary with the De edendo specifi­cally refers to praescriptio.^[703] In 1181-1184, Archbishop Richard of Canterbury wrote to Martin, a priest of Colchester that he had ruled in his favor against a certain Walter. Walter had argued per prescriptionem longi temporis that he should be the rightful clerk at Barkway. After the archbishop had issued a peremptory edict, Martin had come to court; however, Walter had neither appeared nor provided a valid excuse. Martin therefore won and, along with receiving the mandate to take full possession of the church, gained the fruits of the church since the beginning of the trial, another sign of the court's familiar­ity with Romano-canonical process.

It is interesting that in this example the argument was used in a losing cause. Perhaps a good indication of general familiarity with learned law is when it is used in a failed suit, for it demonstrates some awareness (as opposed to specialist knowledge) of how an argument mightjustwork in your favor. One recalls here the �opportunistic' citation of Roman law by earlier bishops like Ivo of Chartres we noted in chapter one.^[704] Perhaps Walter viewed prescription in much the same way.

Evidence from both the Council of Northampton and the English episco­pal acta demonstrates that technical legal terms derived from the civil law, if not widespread in the third quarter of the twelfth century, were not entirely absent. In the case of the acta, we should of course remember that prescrip­tion was also found in the canons. Another caveat is that recourse to praescrip­tio itself apparently was not absolutely necessary to convey the force of the claim. As noted above, remembering and defending claims to lands and rights were essential in twelfth-century litigation, which may very well make pre­scription an unusual case, and thus not particularly indicative of how familiar the actors in the ecclesiastical court or, perhaps better put, those who drafted the acta, were with civil law.^[705] Equally, references to �thirty years' or the bare citation of the term do not shed much light on legal knowledge, and how pro­cess was developing.6^[706] Nevertheless, such references or even allusions must tell us something about the scope and sophistication of canonistic procedure. Behind them lay the political, religious, intellectual �pressure forces,'6^[707] creating increasing demand for advocates and judges both trained generally in the civil and canon law,6^{[708] [709] and skilled in procedure. An early response to this growing demand was Pseudo-Ulpianus' De edendo.66}

Sometime in the middle of the 1160s, a cleric in the Anglo-Norman king­dom composed an elaborate treatise on legal procedure. Perhaps he had studied at Bologna, as was increasingly common for English clerics. So impres­sive were its scope and detail that scribes attributed it to no less an author­ity than the famous Romanjurist Ulpian. Like Bulgarus' letter, it concerned itself with the civil law;6^[710] its single reference to Gratian (on which see below) is exceptional. However, the author of De edendo was even more ambitious than Bulgarus. The title itself reveals his intent to treat civilian procedure thoroughly. The author will start at the very beginning, the editio actionis, the plaintiff's declaration that he would sue^[711]

Scholars have known the De edendo for the better part of two centuries. It has, however, rarely received detailed examination^{[712] [713] Two editions exist, both consulted for this translation and analysis?0 Some have attempted to connect the treatise with Vacarius, the famous, early teacher of civil law in England or his students.[714] [715] [716] [717] [718] Noting Gilbert Foliot's reference to it, Charles Duggan argued that it been compiled in England sometime between 1140-1160 and must have had some connection to Vacarius?2 Peter Stein shared this view?3 Over the course of time, there has been less support for his authorship. Peter Landau initially located the treatise a bit later (1160-1168) on the basis of similarities with the Summa Parisiensis on Gratian's Decretum, though he later argued for an earlier dating of 1157-1159, possibly at Durham?4 Andre Gouron argued for dating after 1165 and composition by a cleric who had studied at Paris and later was somehow connected with the court of King David of Scotland?5}

In sum, it appears most likely that the De edendo comes from the Anglo- Norman realm, and dates to the first two decades of Henry It’s reign.^{[719] [720] [721] [722] If Vacarius himself did not compose the work, it nevertheless seems reasonable to suppose he had some effect, however indirect, on its author. Given his ful­some praise of advocates, one also gets a sense he had some experience as a litigator. His comment as well, in the section on appeals, that “many judges deliver bad judgments,”77 strengthens this. Our author gives every sign of hav­ing litigated, and not always successfully.}

Let us consider briefly the sources of the De edendo. The author drew from the Codex, Digest, and Authentlcum. Gouron suggested as well some connec­tion, perhaps indirect, with both Rogerius' Summa on the Codex,78 and the Anglo-Norman Brachylogus, the latter a commentary on the Institutes™ It is in the De edendo’s section on appeals that we also find the single mention of Gratian noted above:^[723]

Concerning these same chapters, it is prohibited by the law of the Justinianic Codex to appeal in the same case for a third time^[724] Whenever and how often anyone wishes to appeal, he shall be able to do so up to the tenth day through that which the Decretum sanctions^[725]

While this reference to canon law demonstrates the author's familiarity, how­ever limited, with Gratian, it is an exception that proves the rule. Like Bulgarus' letter, the De edendo concerns itself with civil procedure. Its citation of Gratian just adds to the weight of authorities^{[726] [727]}

Another important source is probably Placentinus' Summa on the Codex.8⁴ Andre Gouron called attention to how the De edendo’s treatment of proof echoes Placentinus on Cod. 4.19, though without his discussion of exceptions to the maxim factum negantis per rerum naturam nulla est probatio.^[728] (The act of denying does not constitute proof.) Further comparison, perhaps even con­gruence, occurs in the De edendo’s discussion of contumacious absence. Again, however, our ordo differs a bit from Placentinus, for it does not discussjust cause.^[729] Finally, the De edendo follows Placentinus when treating appeal.^{[730] [731]}

We can compare the De edendo’s treatment of prescription to its discus­sion by civilian commentaries. It may, in fact, echo Rogerius.88 On the other hand, both Rogerius and Placentinus assumed that good faith and the posses­sion of valid title were necessary in establishing a claim to prescription. The De edendo, siding with the Summa Trecensis, disagreed^[732] We also find other simi­larities with this summa, which served as a source for various twelfth-century civilian commentaries^{[733] [734]}

We should call attention to the De edendo’s treatment of exceptions. Even the briefest glance at procedural works, whether civilian or canonistic, com­posed during the second half of the twelfth century reveals how important exceptions were in litigation. Indeed, as Chris Wickham has observed for Italy, they were widespread after 1170,91 and took the forms we shall encounter not only in this ordo but in those to come, for example the exceptio rei iudicate. In considering exceptions, the De edendo fully engaged an increasingly vital component of legal procedure.

There were undoubtedly other sources used by the De edendo. For example, while aware of Placentinus when discussing privileges and pacts,^[735] the author also adds from an unnamed author a discussion of the reasons for these types of contracts. Andre Gouron suggested that this may have come from a treatise produced by a Parisianjurist^[736] We find occasional parallels with two other treatises. The first is the Casus Codicis of William of Cabriano. This was a report of Bulgarus' lectures composed during 1156-1157.9⁴ While its recent editor noted William's agreements and occasional disagreements with Placentinus' positions, as well as his views on other glossators derived from the Bolognese Dissensiones dominorum?⁵ there has been, to my knowledge, no compari­sons of it with the ordines iudiciorum. Given the date of William's Casus, it is interesting to see to what extent it corresponds with the De edendo when both works treat the same text from the Codex?⁶ These appear periodically in the notes below. One should also note the slightly later procedural treatise Olim edebatur actio.^[737] Given that Olim was composed in the Anglo-Norman world and shares formal similarities with the De edendo,^{[738] [739] notes to the translation will also refer to this treatise, as well as note agreements and divergences when compared to the ordines translated in the remaining chapters.}

Recently, Martin Brett has analyzed an addition to the De edendo. Preserved in two manuscripts,99 it appears before the section on proctors. He notes that this is a complicated combination of a section from the Authenticum in Codex 1.3.33^[740] and Nov. 83, the latter derived from the Epitome Juliani, 77.1.^[741] There is no obvious reason why this text, which is rather repetitive, appears at this point in the De edendo. How it extends the treatise, however, is obvious. The ecclesiastical forum was essentially latent in the De edendo. From the start, the ordo’s concern was the civil law. This addition directly treats the distinction between civil and ecclesiastical procedure, a subject of vital importance in the contentious age of Becket. It favors the king's position on criminous clerics.

The extent of clerical knowledge of canon and civil law in England during the middle of the twelfth century will never be precisely known. However, even in the 1160s, one can be confident that there were readers ready to study and likely use the De edendo. Throughout the Anglo-Norman world clerics, with varying degrees of legal training,^[742] were turning to the Roman law.^{[743] [744] [745] [746] [747] [748] [749] [750] While dense with civilian terminology and citations, the De edendo was, as Andre Gouron noted, logical and precise.ω4 These qualities no doubt assisted its transmission, and prompted a body of glosses, all added before 1180.ω5 Perhaps these were connected to Lincoln, which Peter Landau has recently argued was a center of legal study.ω6}

There are other signs of the De edendo’s influence. Gilbert of Foliot used it in his correspondence^⁷ It was inserted into a summa in the 1180s.^ω8 We find it placed alongside older English legal texts, for example the Laws of Ine and the Quadripartitus, to form something like a reference book.^ω9

The De edendo is very much a specialist’s work. Like Bulgarus, the author made no concessions to his reader. Those not very familiar with the civil law were likely challenged.110 At the same time, he was undoubtedly a cleric and occasionally we have some sign that the treatise was not unaware of the liti­gation found in the ecclesiastical court. For example, when treating greater and lesser claims, the author illustrates the distinction with the example of whether one is suing for an entire church or only a part.

To conclude: if an exact date and location for the De edendo, remain uncer­tain, it numbers among the earliest ordines produced in the Anglo-Norman world. It furnished the reader with an encyclopedic coverage of civilian pro­cedure. Later ordines would add relatively little civil law; instead, they would furnish canons from Gratian, phrases and concepts from the decretists and, above all, papal decretals,^{[751] [752] [753] to make their treatment of procedure as current as possible. The De edendo helped with the harvest and assimilation of civilian procedure begun by Bulgarus, Placentinus, and Vacarius. Its author provided much for eager students, litigators, and judges to consider, and take to court, in the turbulent age of Becket.}

The Judicial Orderⁿ²

Since it is very useful to know what happens frequently in civil cases, shameful not to know anything at all, permissible to be ignorant of a few things,^{[756] [757] [758] [759] [760] [761] but even more deplorable not to know what one really should know, that is, matters which more often occur in litigation, we are hard- pressed to sum them all up in few words. However, since jurisprudence is so essential when we have to summon others into court or if we ourselves are compelled to come, let us first consider the entry into the trial. Here is an order for judgments.}

On Bringing the Chargeⁿ⁷

When anyone has the right to pursue a claim against another, he ought to bring the charge by which he wishes to proceed in court so that the defen­dant may have a minimum of twenty days to consider whether to yield without trial or contestⁿ⁸ To bring the charge is nothing other than to show the reason why one wishes to contest anotherⁿ⁹ The charge reveals the form of the future trial.1²⁰ It is brought either through denunciation before witnesses or in writing, that is, through written complaint to the magistrate.121 He appears to charge who brings his opponent to the official list and states before it that he shall declare something against him.^{[762] [763] [764] [765] In bringing the charge, he only should offer what suffices to instruct the opponent, that is, the arguments or pleas which the plaintiff shall employ before the judged3 It is not necessary to furnish documents, that is, char­ters, chirographs, etc. defined by the name of instruments, which he shall not use before thejudge.m If anyone be present before a judge when the charge has not first been brought and later set forth his complaint in the records and summon his adversary to trial the defendant, after hearing these allegations, he shall be able to request before thejudge, under the form of â€?a charge not brought,' that he be granted the stay cus­tomarily permitted the defendant and those summoned to court,125 the period in which to deliberate whether to yield or contest. If the judge denies this to the defendant, he leaves him with a just reason for appeal. At present, let this suffice concerning the bringing of the charge; but since after the charge is brought the defendant might decide to contest rather than yield, he must be called to court to litigate. We should thus say something about the summons to court.}

Concerning the Summons^{[766] [767] [768] [769] [770] [771] [772] [773]}

To summon is to call for the reason to claim a right.12⁷ One should do this before the one who shall declare the law. Someone is called to judg­ment by the first edict through the apparitores.™ These compel litigants to appear before the judge, and thus are called apparitores, because they cause people to appear in court.12⁹ However, if the one summoned shall not comply, he ought to be called a second and third time and, afterwards, by the peremptory edicd³⁰ or, most commonly, with this edict taking the place of all. However, that is given by the dispensation of the judge according to the examination of the case, the nature of the business, and individual circumstances.131 It is according to the type of case or matter if, for example, the case be urgent. It is according to the quality of the person, for example, if delay would be dangerous to the plaintiff and the defendant could easily come to judgment.132 If, however, the defen­dant solemnly called to judgment should refuse to come, the plaintiff ought to be placed in possession of his goods.133 If immoveable property is sought, he is placed in possession. If he claimed some debt, he ought to be placed in possession of the goods in the stated amount. However, the claimant is not placed in possession of the goods he seeks so that he may legally possess but, by possessing the property in order to preserve it, he may not convert anything to his own use.^{[774] [775] [776] The accused, vexed by this possession, may then come to respond.^5}

The defendant is granted one year in which, if he comes and gives surety to the presiding judge and pays the plaintiff the expenses of the trial,i3⁶ he shall be placed in possession so that he might immediately respond. Should he not come in that year, the plaintiff is ordered to pos­sess and, if the defendant comes later, let him be heard only about own­ership. If, however, the defendant, summoned by the peremptory edict, should come and the plaintiff were absent, and is asked whether he wishes to yield or the case is less urgent, one should say that he did not yield but only that the urgency of the case had passed.^⁷

On the Unexcused Absence^{[777] [778] [779] [780] [781] [782] [783] [784] [785] [786] [787] [788]}

Let us see what ought to be established by law if, on the contrary, both parties came to court, contested the charge and, subsequently, one aban­doned the trial. Neither is allowed to be absent with impunity.13⁹ It is in the interest of the judge that neither be absent. Each criminal case is concluded in two years, and a civil case, in three,1⁴⁰ so that the trial not be prolonged. If, however, it should be prolonged by fault of the judge or either of the litigants, a superior judge shall be condemned to a penalty of ten pounds of gold and, if a minor judge,i4i three pounds.^m2 There is no one so contumacious who could prolong the case if the judge were unwilling.i43 If either judge (superior or inferior) abandoned the trial, he should be penalized for negligent absence. This absence of either party shall be shown more clearly in what follows. If, however, the plaintiff is absent and the defendant, wearied by multiple delays, is present and blames the plaintiff’s absence, after almost three years have passed and only six months remain,i44 the plaintiff shall be summoned by a tri­ple edict to appear within ten days.^M5 If, so requested, he does not appear within that period, and nothing has happened, it shall be clear to the judge what must be done: the defendant must be freed from judgment.^⁶ If he has presented sureties or given pledges, these are also freed from obligation. The plaintiff shall be punished with the expenses of the trial,^⁷ their amount declared by the defendant under oath.i48 If, however, there is no imminent threat of the three-year period ending, and hope remains that the absent party shall return, a penalty shall be delivered by con­demnation to pay the expenses.^{[789] [790] [791] [792] [793] [794] [795] Let this, however, not be the end and final sentence of the trial as when the three-year deadline draws near?50 However, if something is charged which makes it clear to the judge about the reason (for the absence), and then the plaintiff is absent, then let him be summoned by a threefold citation by the apparitores, just as we said and, if he should not come, let the judge inquire. Should the judge find that there is a better reason for his absence, then he should not delay to declare on behalf of the absent party, nevertheless with the expenses of the trial excepted that the defendant vowed he had legitimately spent.151 These are, for example, producing witnesses or giving gifts or other things customarily paid in trials.^2 If the penalty seems insufficient to the plain­tiff and later, having returned, he wishes to renew the dormant trial, let him have no opportunity to escape this penalty imposed for his contuma­cious absence.153}

On the contrary, if the defendant contesting the trial should be absent, and a similar summons came for him (just as we said about the plaintiff) let the judge not delay to bring a charge of negligent absence. If the judge should determine that the plaintiff’s case is stronger, let him not hesitate to bring a sentence on his behalf against the absent defendant. Whoever is executing the decision, either himself or a superior judge, also should not omit the expenses of the trial. If the defendant should later return and wish to give surety, let legal recourse be closed to him and he shall not be heard even if he appealed.

However, when negligent absence is discussed, let the judge not fear the obstacle of appeal, but let him declare the sentence without fearing it. For contumacy excludes the aid of appeal. Absence suffices (to demon­strate) contumacy unless the absent party prove the contrary.^

There are many exceptions with which one can excuse his absence.^ He must be helped if prevented from coming because of involvement in a major case, detained by bad health, hindered by a family funeral, storms, or by the force of a river, for example if the bridge were destroyed, or (if he were) appointed to a testament, or detained without any decep­tion on his part or held in chains by a magistrate without any crime.^{[796] [797] [798] [799] [800]} However, if he did not come on the prescribed day but afterwards, on the third, fourth or, finally, even up to the tenth day, were prepared to come to court, with the plaintiff’s case not worsened by the delay, he ought to be aided by exception.^⁷

On Providing Surety

Following the preparatory matters concerning trials, let us now see about the judgments themselves. But since sureties are necessary in these, let us consider them fιrstJ5-^s Let us see what it is to provide a surety, who ought to give it, and when. Giving surety is to furnish a fixed bond from those standing surety or by means of a pledge.^⁹ One providing surety to the judge for the sake of bringing another to court ought to be trust­worthy not only in his means but also in his ability to come to courtd*’⁰ If it is necessary that one should have to give surety and cannot easily provide it where he is being sued, he can be heard if prepared to offer

surety in another city of the same province.^{[801] [802] [803] [804] [805] Whenever anyone is sued, he ought to give surety to the judge. A plaintiff who sues on his own behalf ought to pledge nothing. If, however, he sues on behalf of another, then he ought to pledge that his principal would consider the suit (legally) cor­rect and give surety concerning the defense to be made.w2}

On Proctorsi6³

The penalty of the proctor not defending his principal is the denial of the suit.i6⁴ The surety of ratification is required from the proctor when there is doubt about the mandate of the principal.^⁵ The defendant ought to provide surety that he shall remain under judgment until the conclusion of the trial and, if he should sue on another's behalf,^{[806] [807] [808] [809] [810] [811] [812] [813] [814] ought also give surety that the judgment shall be paid unless the principal provided surety for it on his behalf. One has to give surety where he is being judged. Let the plaintiff follow the court of the defendant, not the defendant that of the plaintiff.i67 One must be sued where he has his residence at the time of the contract.^8 He must not be sued before a judge who has no jurisdiction over him, unless he has specifically renounced his privilege of court.i69 Whoever should subsequently be sued, either a soldier or someone under the jurisdiction of another court is, as it were, prevented from having the right to revoke the court.™ Whoever possesses immove­able property in the city is not burdened with giving surety.™ If anyone promised another that he would appear in court, he ought to be present, so that the suit may not become more difficult in location or condition.}

After surety given by both parties, the oath concerning calumnia must be made first.™ The plaintiff ought to swear that he did not bring the charge from a spirit of calumny. The plaintiff is understood as the one who sues in his own name. The defendant ought to swear that he consid­ers he has good reason to come to court to oppose the charge.™ Each shall also vow that in the course of the trial he shall only argue what the truth requires and neither give something to the judge nor to the witnesses nor seek, either himself or through others, to delay the trial through deception.™

What they did not declare to (their) advocates, they are not compelled to swear in court.^{[815] [816] [817] [818] [819] [820] [821] Advocates are allowed to sell a just defense in court but neither witnesses their testimony nor the judge, justice.™ Certainly, it was divinely established that he should lose the case who, mistrusting a just sentence, placed the hope of his suit in bribery.177 This oath ought not to be remitted either to reluctant or consenting parties. If the plaintiff should not want to take this oath, let him lose as a dishonest litigant.™ If the defendant does not wish to vow, he should be considered as having confessed.™ If the rank or sex of the person does not permit them to appear before the judge, that is, to swear in public, then let the oath be given in their home in the presence of the opposing party or his proctor.™}

Concerning the Judicial Orderi8i

With these things done, the trial begins and is contested. The judge lis­tens to the statements of both parties. In exercising and establishing judgment, he preserves the order of questions.^{[822] [823] [824] [825] [826] [827] [828] [829] [830] If both parties wish to plead, let the one who sued go first,183 if the case for both parties is civil or neither is prejudicial.^4 If one is criminal, then that is prejudicial;^5 if, however, both are criminal, then the greater charge is prejudicial.^6 If both are civil, and one charge is lesser, the greater is prejudicial. If the charge should contain both a greater and lesser part, then the greater should be prejudicial,^7 for example, if someone claims a part of a church from you and you claim, instead, the whole church. These charges are called prejudicial which prejudice others.188}

On Compensation^⁹

Certain charges are customarily either reduced or settled by mutual com­pensation, for example, if I should ask from you 10 and you from me 10 or I from you 10, and you, from me, 20. But this is so if both parties owed without fixed terms.^no Indeed, if these are owed unconditionally for a definite period, there is no compensation. Whoever owes uncondition­ally owes more; whoever owes for a definite period is understood to owe less and, for this reason, whoever claims prematurely is understood as claiming too much.

On Overclaims^{[831] [832] [833] [834] [835] [836] [837]}

An overclaim takes place in four ways:i9² amount, time, property, location. It occurs by reason of amount when one demands 20 for 10. It happens by reason of time if one should demand before a set day or condition.^³ It happens by reason of location if one should demand here what ought to be paid at Parish⁴ It is by reason of cause if, for example, I promised you one of two slaves and, though the choice was mine, you demanded the other.19⁵ In all these, a legal penalty for excessive claim was established. If it were excessively claimed about property and one did not punish him claiming too much before it were argued concerning a false amount, then he shall be defrauded of the entire debt. If he claims too much by reason of place,19⁶ the nature of the thing, or time, the plaintiff shall be liable to the defendant for threefold what he spent due to the wrongful charge.^⁷ Much can be said about these questions. However, since charges are accustomed to be interrupted by exceptions, let us consider them.

Concerning Exceptions^{[838] [839]}

It is not only the one who proposes the charge who sues. It also appears that whoever raises an exception also sues, for the defendant in arguing an exception is a plaintiff with the burden of proofs The exception is nothing other than breaking the charge.^{[840] [841] [842] [843] [844] [845] Exceptions are perpetual and peremptory, dilatory and temporary.201 Perpetual and peremptory excep­tions are those always are available in the course of the proceedings and end the trial,202 for example fraud, an obligation taken under fear∕03 a final judgment already given, a transaction, denying debt under oath, or one based on an additional agreement between creditor and debtor that modifies the original, where now the debt could not be claimed in a trial.204 Temporary exceptions are dilatory. These delay the trial, not end it. Examples are the exception of an agreement that the plaintiff would not sue during a set period of time,205 prescription of court, and similar ones.[846] [847] [848] [849] [850] [851] [852] [853] Any charge annulled by a pact can be revived; however no charge can be revived that was offered by virtue of the law itself.207 All exceptions granted the principal defendant aid those giving surety and the rest obligated on his behalf, unless they are closely related, as a part­ner, parent, or patron.208 Such close relations are liable to the amount they are able to pay.209 With these persons, one must see to it that they are not destitute.}

Generally, all dilatory exceptions ought to be offered at the beginning of the trial. If they are omitted then, they cannot subsequently be entered in opposition to the charge.210 The dilatory exception is offered at the beginning of the trial. It is proven when he who offered it, the claim­ant, has demonstrated his assertion?¹¹ Perpetual exceptions omitted in the beginning of the case are able to be offered up to the final decision.212 Afterwards, one cannot oppose them save through the remedy of appeal,21³ since what was not declared to the judge from whom it is appealed can be supplied before the appellate judge. However, if the defendant questions the argument of the plaintiff and does not hesitate to be strengthened by peremptory exception, he is able to place on him the burden of proof and, if he proves his intent, can obtain his exception.

Concerning Prescriptions

Since among the remaining exceptions the prescription of �longest time' is customarily opposed,^{[854] [855] [856] [857] [858] a prescription whose silence lays all charges to rest, it shall not be foreign to our purpose to discuss it. Any prescription of �longest time' is either for thirty or forty years.215 Prescription of �longest time' has no place in ecclesiastical matters unless for forty years.216 The prescription of thirty years, which obtains in private matters, cannot be opposed to the church.217 In prescriptions of �longest time' neither good faith nor just title is required^8 These prescriptions were not entered on behalf of those in possession but resulted from the impatience of those seeking the property whose claims were being extinguished by the possessor’s continual silence.[859] Only one thing is required: the proper­ties must have been continually possessed without disturbance so that no interruption occurred^0 Prescription, however, is interrupted in these ways. If by means of a trial called the civil interruption, the pre­scription shall not be ended until after a period of forty years.221 The con­ditions of a party remaining silent and the one contesting are not equal. It is also interrupted by detention of the property, which is called natural possession.222 It is also interrupted by payment of a rent, for example when one pays a rent one time for a property during those thirty years.[860] It is also interrupted by a charge made through an executor,[861] [862] [863] [864] [865] [866] so that that if something like this should intervene, the prescription of �longest time' could not be opposed. Thus, it suffices to have discussed prescrip­tions as they apply to modern usage.225}

Concerning Advocates

Since we have come to the trial's beginning and litigation, we should con­sider advocates, who provide assistance and are necessary for the par- ties.22⁶ It shall be necessary in the following to discuss them. Advocates argue on behalf of others. They either argue their own claim, set forth that of their friend before a judge, or contradict another's claim.22⁷ Advocates who destroy the ambiguous facts of cases and, striving with the force of their defense in both public and private affairs, restore the weary, raise up the fallen, and provide for the human race no less than if they saved their country and parents from wounds and battles.22⁸ Those with shields, swords, and amour are not the only ones who fight, for patrons of cases do so as well. Relying upon the defense of glorious peace, they defend the hope of the suffering, their lives, and posterity.22⁹ When offering assistance to the litigants, let advocates, no more than the utility of the case requires,^[867] not be rash when arguing,^{[868] [869] [870] plead what the case demands, and refrain from injury. If they neglect their charge, they must not be given license to become involved either openly or, by deception, in the conflicts between adversaries.232 Whoever wishes to be a causidicus233 may not be both advocate and judge in the same case.23[871]}

The duty of the judge is to furnish advocates to those who do not have them.23^[872] Thejudge ought to show this humanity to him who, due to certain reasons, either from the ambition of his adversary or fear of him, did not find a defender.^[873] If in a trial,^{[874] [875] one advocate, having a bet­ter reputation, supports one party while the another advocate, untrained and less skilled, the other, it shall be the duty of the judge to provide aid to each party so that there may be an equal distribution of advocates^8 If one of the parties should be discovered to have treated separately with several advocates and thus had taken from his adversary’s equal defense, let him know that he has contributed to an iniquitous trial and deceived the authority of the judge.[876] [877] [878] [879] [880] [881] [882]}

If any one should judge that his patron has colluded with others, let him prove the accusation, and (if proven) a sentence against the patron shall not be lacking due to the temerity of the case. The patron shall be questioned again about the reason?⁴⁰ What advocates argue on behalf of those whose case is being tried must be considered as if offered by the parties themselves,241 unless challenged within the next three days.242 The errors of those arguing for others cannot prejudice the truth.243

Concerning Forms of Proof 244

Since litigants must be now be instructed concerning the forms of proof, and we are considering the trial to be prosecuted, it is necessary to treat them here.245 Some delay must be provided in order, mainly, to search for evidence. Nevertheless, the decision to give this delay is not granted to judges until a most urgent reason is pressing or because the necessity of the litigants’ instruction requires it.^{[883] [884] [885] [886] [887] [888] [889] [890] When granted, proper cause is given. Therefore, if proof is requested from the same province where the case is being tried, a delay of three months ought to be granted; (if it is requested) from a neighboring province, six months and, if overseas, nine months.247 This delay is not easily given more than once in pecuni­ary cases. Nevertheless, should something unforeseen arise, one grants it a second time. In capital cases, however, three delays are granted the defendant, and two to the accuser. In both, just cause must be examined?4*}

If anyone possessing immoveable property on another’s behalf should be sued, he ought to name the principal of the charge immediately before the court so that, whether he lives in the same city or far off in another province, word may be sent within a set number of days determined by the judge,24⁹ so that either the principal himself or his proctor may come to counter the plaintiff’s charge?⁵⁰ If, however, after the time granted in this fashion he fails to appear, the judge should not hesitate to place the plaintiff in possession, with all allegation concerning the principal ques­tion reserved to the absent party?⁴¹ These delays were adopted for the sake of utility. Indeed, there is no serious damage in a moderate delay.252 Yet, the shortest time is not appropriate; rather, it is a period of mod­erate duration, so that documents may be examined through which the good faith of the truth may be elicited and the veracity of the questions investigated.25³

Accordingly, let all know that they ought to bring that case to public notice, strengthened by chargeable witnesses, proved by valid documents or revealed to be true, with manifest proofs clearer than light itself.^[891] It is a most certain rule of law that merely offering testimony, unsupported by other, valid evidence, has no effect.255 The burden of proof falls on him who sues, not on the one who denies?⁵⁶ One fears in vain that proof be required from the defendant.?⁵⁷ Follow the legal order when claim­ing what is yours. The necessity of proving that these possessions belong to him does not fall to the possessor, since ownership shall remain with him if you fail to prove your claim?5⁸ The possessor is not compelled to produce the title of his possession to one requesting it.25⁹ By declaring he cannot prove what he had asserted, the plaintiff does not oblige the defendant to prove or demonstrate the contrary, since by the nature of things he who denies cannot provide a proof?⁶⁰ Personal documents or private testimony alone do not suffice without other legitimate proofs.26¹ In civil, as well as criminal cases, witnesses are able to be summoned.262

Concerning Witnesses^[892]

Recourse to witnesses is both necessary and common and one should seek especially a witness whose good faith is not suspect.26⁴ One must examine his good faith, seriousness, character, and dignity^⁵ also, one must investigate his circumstances and fortune, for example whether he is noble or common, of honest and proven life, or guilty and dishonest, of good reputation or infamous,266 wealthy or poor, whether he would easily testify for the sake of profit, or is friends with the person for whom he is testifying or, conversely, his enemy.26⁷ It is difficult to relate all the things one must examine concerning witnesses. Sometimes one must consider their dignity∕6⁸ at other times, their authority. Sometimes the public reputation of the witness confirms the validity of the reason why he is being questioned^⁹

No one can legally be a witness in his own case.27° One cannot pro­duce a witness who has testified already against the defendant.?⁷¹ It is not fitting that witnesses be interrogated whom the accuser produced from his own household.272 It is unquestionably the law that he who, having produced witnesses, obtained from them once or twice testimo­nies or initiated a dispute, cannot subsequently produce new witnesses.^{[893] [894] [895] [896] [897] [898] [899] [900] [901]} Though witnesses may be compelled to testify, they nevertheless ought not be called inconsiderately to undertake a lengthy Journey?⁷⁴ Whether in major cities or in the provinces Judges, if they deem it fitting when wit­nesses reside elsewhere, ought to send the litigants or their proctors there where the trial may more easily be conducted and, if required in other places to show good faith by means of proven evidence^⁵ they may be permitted to testify by these means, if requested?⁷⁶ Let not orphans, widows, those burdened by lengthy illness, the elderly and weak be com­pelled to cross the boundaries of their provinces; rather, they should have the opportunity to litigate in the province where their witnesses reside and their documents are located.277 Witnesses who can be commanded to testify are not suitable?7⁸ It is established that witnesses ought to be bound by taking an oath before they offer testimony,27⁹ so that their good faith may be considered by the more powerful and respectable?8° Where there are not many witnesses, two suffice.28¹ It is obvious that the response of a single witness may not be heard,^{[902] [903] [904] [905] [906] [907] [908] though he might glitter with some special honor.283}

Concerning Privileges

Since privileges also support the parties, it is thus appropriate to speak about them and, on their account, rescripts^⁴ All rescripts proceeding from any judge ought to be offered, provided that the requests shine with the truth.28⁵ Otherwise, they are not validi⁶ If two should request a rescript in a common case, though it be directed to one person, neverthe­less it is intended for both.28⁷ Original requests and authentic rescripts/88 not copies, should be placed first before the judges.^{[909] [910] [911] [912] All rescripts found without a date or consul shall lack authority. 290 It is unquestionably the law that rescripts elicited illegally are invalid. 291 Rescripts containing privileges, though requested against the law for the sake of public utility, shall be preserved.292 However, those things granted in certain chapters (rescripts), save in individual cases, do not stand firmly against the law.29[913]}

On Swearing Oaths

Since often lack of proof troubles the litigants, one discovered a legal aid common to nearly all cases: swearing oaths.29^[914] Thus, let us now discuss it here. The rule of swearing oaths was found to be the greatest remedy for trying disputes.^{[915] [916] [917] Therefore, let us see how it should take place and what its force and power should be. An oath is sworn either willingly by the parties or by the authority of thejudge.29β If willingly taken by the parties, it is called a voluntary oath.297 If taken by the authority of the judge, is called a judicial or necessary oath.[918] [919] The voluntary oath differs from the necessary in both force and power.299 If delivered by a judge, it cannot be rescinded, since he declared the sentence to himself and one shall not be allowed to question him about perjury in this.[920] [921] [922] [923] [924] [925] [926] [927] It is enough that he awaits God's punishment301 If anyone vowed with neither the judge nor his opponent tendering,302 it has no benefit for, indeed, he only swore to himself.303}

One must define the quality of the oath given for the judge's consid­eration. An oath tendered can be revoked; whoever revokes it shall not be able to have recourse to tendering the oath³0⁴ Whoever tendered the oath shall not be able to appeal if he vowed to whom it was tendered, not even if he recused the oath retendered to him, unless it was a vener­able person who tendered and a common person who retendered.305 It is necessary to assume or retender an oath having been tendered. It is manifestly disgraceful and a sign of guilt neither to assume nor retender the tendered oath. 306 For swearing the oath is both the disputing and settling of all trials³0⁷ This is what may be said about litigants, their advo­cates, and their evidence. Next we consider the duty of the judge. Yet, since agreements in many forms precede judgment, these ought gener­ally to be treated first.

On Pacts^{[928] [929] [930] [931] [932] [933] [934] [935]}

One calls it a pact because it is like an act of peace³0⁹ It is legally estab­lished that pacts made against the laws and good customs are invalid³¹0 Pacts containing a base reason must not be observed, for example, if I agreed that I would not sue for theft or injury, for it is truly fitting to fear the penalty for theft and injuries ³ⁿ Though it may give rise to an exception, a simple pact does not produce a legal charge.'⁰² However, a simple agreement relies on the support of no one.3i3 â€?Clothed’ pacts are clad six ways: cause, orally, writing, form, content, continuance³^ They are clad by cause when something is promised for cause; orally, as in a stipulation,3i⁵ in writing, for example if I wrote down that I owed some­thing; by form, when a contract was made, as in buying and selling; in content, when the law confirms the agreement, as in a pact of donation and a promise to promise to pay an established debt;^{[936] [937] [938] [939] [940] [941] [942] continuance, when a pact precedes or follows a contract without interruption.}

Concerning Transactions31⁷

A transaction is a type of pact containing something particular, and thus it must be treated specially. A transaction is transition (from a) charge.31⁸ Whoever settles, passes from the dispute: that is to say, he withdraws. Therefore, a transaction is particular agreement concern­ing a doubtful dispute and an uncertain matter when something has been given, promised, or retained. A transaction does not obtain when nothing has been given, promised, or retained ³1⁹ In every civil ques­tion, one is commonly permitted to settle. It is permissible to settle in criminal cases which demand the capital penalty,3²⁰ save the crime of adultery.321 In those crimes which do not carry the penalty of blood, one is not permitted to settle by means of a transaction, save in the crime of falsification.322 Transaction does not obtain lesser legal authority than a decision rendered in court.^{[943] [944] [945] [946] [947] [948] [949] [950] It is an untrustworthy and fickle man who sues against his own pacts324}

If a man older than twenty-five attempts to sue against pacts and settlements which, having invoked the name of Omnipotent God and compelled by no power, he previously affirmed by solemn vow, (but now) pressing judges, petitioning powerful men, or not fulfilling promises^⁵ he is not only marked by infamy but also prevented from suing. With the penalty restored which is entered in pacts, let him forfeit the property which was the matter of the trial and be deprived of the profit which resulted from the pact. All these pass to him who preserved the rights of the pact without defilement³2⁶ If settlements by means of transac­tion had been extorted by means of false documents, though a legal oath subsequently intervened, they must be retracted when the false­hood is revealed.32⁷ The contract must not stand when it resulted from deception.32⁸

Concerning the Office of Judge32⁹

Since we were to speak above about the office of the judge unless some suitable subject needed consideration first, thus now this question should be treated here³3° The duty of the judge is therefore to announce a legal judgment after the merits of the arguments have been heard and the truth diligently investigated. It is fitting that judges first fully exam­ine the nature of the case and then frequently question both parties as to whether they wish to add something new, change something, or even correct errors prior to the sentence. It is an indiscrete judge who deliv­ers a rash judgment. Indeed, judges ought not to declare a doubtful deci­sion but, instead, one considered after weighty deliberation. Neither by the imperial rescript,^{[951] [952] [953] [954] [955] [956] [957] [958] [959] [960] [961] which the litigant has requested and obtained nor by the preliminary decision of the judge can the status of possessor be appealed when the one holding the property is absent..3''*2 The merits of the case are set forth by the mutual assertion of both parties3** The constitutions declare that when an absent party is convicted under the peremptory edict, which either had not been published or he had not noticed, this sentence is invalid.3'34 When the peremptory edict ceases against those who, admonished by the judge, refuse to be present, it is certain that the judge is able to declare the judgment..3'35}

Those things decreed against parties either not contumaciously absent or sued by unaccustomed summons do not obtain the certainty of a judi­cial decision.³'^3g If the judge established one location for trying the case and then elsewhere delivered the sentence against the absent party, it is usefully established that this is not valid.337 When thejudge has given a sentence in a secret place, with his attendant not present, it shall not harm anyone.338 The general law sanctions that thejudge is permitted to convict the plaintiff with the prescription of court not opposed as an exception though the plaintiff is not under his jurisdiction.³'³⁹ Let him not refuse to have the judge rule against him whose judgment he accepted during the same trial.'^wι In private matters, this form is preserved:34i a sentence declared by a judge lacking jurisdiction does not bind any of the litigants.^{[962] [963] [964] [965] [966] [967] [968] [969] [970] The judge delegated to this so that he may declare con­cerning possession does not legally rule if he should pronounce concern­ing ownership.343 Let all judges declaring final judgment know that the losing party ought to be condemned to pay the victorious party the costs of the trial.344 If, however, the judges should overlook this, they them­selves shall have to pay this penalty from their own means345}

After the trial, the losing party proven to have possessed another's property is not only required to restore it, but also to turn over the profits he himself obtained, as well as those he could have acquired, and he must pay them from the time that he knew that he was a possessor in bad faith, as established by the charge brought in court. This rule must also apply to an heir whose property is held by the same defective titled⁶ If a judge should sell goods adjudicated by his own authority, he shall be liable both to the charge of theft and robbery with violence.'^⁷ No one may be execu­tor in his own affair^⁸

Let ordinary judges carry out their own sentences and those of the judges they delegated³4⁹ Two out of three judges cannot judge with the third absent;'⁵⁰ if, however, the third is present, but disagrees, the judgment of the two stands.^{[971] [972] [973] [974] [975] [976] [977] [978] [979] Let those who contumaciously refuse to submit to the one declaring judgment be punished with the costs of the trial.352 After judgment, ajudge cannot change his sentence. Whether done well or badly, he has performed his duty.353 It has been most fre­quently established that decisions rendered concerning some do not harm the rights of others354}

Concerning False Documents355

If judgment were given on the basis of false documents and the decep­tion subsequently revealed, the sentence is rescinded, since the docu­ments concerning that crime provided information that had convicted.356 If one had evaded the judge's conscientiousness by using corrupted witnesses and,35⁷ following their testimony, he gave judgment, let the case be restored fully from the beginning^⁸ Execution of judgment is accustomed to be suspended and reclaiming of damages paid given if it is said that one evaded thejudge's scrupulousness by means of false instruments, as long as it proved false, and the principal cause may be sought anew.359 The sentence is rescinded, provided that falsehood was made in its delay. However, if falsehood were charged, but not proved, the judgment shall remain valid. Those having confessed before the mag­istrate are Consideredjudged.^{[980] [981] [982] [983] [984] [985] [986] [987] [988] Nevertheless, if anyone has confessed while his adversary was absent, he is not considered judged361 A four- month period is granted to those who have confessed so that they may pay what was adjudged362}

Concerning Arbiters363

The decision of an arbiter, to whom parties have submitted their dis­pute, is not legally binding. Agreement among private persons does not establish a judge, nor does an arbiter's decision possess the authority of a legal judgment^⁴ Rescripts have often declared that there can be no appeal from the judgment of an arbiter, since a legal charge cannot be obtained from this³6⁵ If the decision were submitted to three arbiters,366 agreement of two suffices, even if the third, also present^⁷ disagrees. However, if he is absent, the decision does not obtain, since the submis­sion to arbitration was made to several peopled⁸

On Appointing the Judge

He to whom jurisdiction has been delegated has nothing proper to him­self but only performs the jurisdiction of the one who ordered him.^[989] If there were an appeal, it shall return to the delegating judge ^[990] The cus­tom of the ancients established that he can delegate jurisdiction who holds it by his own right and not by gift from another.37i He is able to appoint the judge to whom permission is given by law or constitution. He to whom jurisdiction has been transferred from a magistrate having jurisdiction is able to able to appoint a judge, for example the legate of the proconsul.37² One must observe that a judge ought not be appointed whom the other party requests by name.^{[991] [992] [993] [994] [995] [996] [997] This is a bad precedent, unless it be specially permitted out of respect to the judge requested374 General law has decreed that no one can be his own judge. It is indeed very wrong that one judges in his own case375 No one assumes simultaneously the persons of both plaintiff and judged6 When he assumes the person of the accuser, judicial power is lost.377 Whoever has jurisdiction should not declare a legal judgment for himself, his wife, his children, or any of his dependents.378 In private matters, the father has the power of judge over the son and the son over the father379 We order all judges, whether in provinces or cities, that if an absent person who has been cited should subsequently appear, they not reveal to him the condition of the case but, instead, keep all knowledge of thejudgments from him unless he first makes restitution for damages his absence inflicted on his opponents. Let the judges know that if they neglect anything they shall be compelled to restore from their own property the damages to the injured parties, which ought to be observed even if the person was not cited but had been absent from a guilty conscience.[998] [999] [1000] [1001] [1002] [1003] [1004] Even though a judge is assigned by the imperial sublimity nevertheless, since it is just to try cases without any suspicion, one who considers a judge suspect should be permitted to recuse him before the trial begins,381 so that the trial may be transferred to another judged2 The ordinary judge will require the parties to choose another judge to whom they should submit their arguments as if he him­self were chosen by the imperial majesty.383 A judge who judges badly makes himself liable to a charge 384}

Thus, some judgments are said to be final, others interlocutory ³8⁵ The interlocutory judgment is where the judge interrupts the trial and declares something, for example for producing witnesses or tendering the oath.386 A final sentence is one which ends the trial and contains either a set penalty or absolution.^{[1005] [1006] [1007] [1008] [1009] [1010] [1011] [1012] Many judges are accustomed to hesitate in pronouncing a decision and, instead, refer the case to a superior judge if something unexpected should arise.388 If they have done this, then they are said to have made a consultation or a referral, which is a type of appeal.389}

Concerning Appeals3⁹⁰

Since many judges deliver bad judgments, it is necessary to appeal from them.39¹ Thus, having finished our treatment of judgments, we shall speak next about appeals. No one should ignore how necessary the use of appeal is, since it corrects the impertinence and iniquity of judges.39² To appeal is nothing other than to prove the judge's iniquitous judgment and to transfer the trial from him to another. One must appeal either at that place by â€?living voice' or within ten days in writing, that is through bills of appeal.393 Bills of appeal must be composed so that they contain who is appealing, against whom, from whom, and by whose judgment^⁴ The appeal must be made from the judge, not from the one executing the judgment. One must take care not to appeal from the executor, unless by chance he exceeds the sentence declared by the judge.^[1013] If appealed from the executor, the execution of the judgment having been suspended^^{[1014] [1015]} and the property be moveable, which the executor was supposed to restore, let it be taken from the possessor and placed in the hands of an appropriate third party and restored to him for whom the sacred judge shall judge.397 If (it is) immoveable property, for example a piece of land, and an appeal suspends the execution, let the fruits gained from it during the time of appeal subsequently be placed in deposit, with the property itself constituted in the hands of him who appealed^^{[1016] [1017] It is prohibited by the law of Justinian’s Codex concerning these same chapters to appeal in the same case for a third time.399 Up to the tenth day, he shall be able to appeal whenever and as often as he wishes, through that text which obtains the sanction of the Decretum.[1018] [1019] [1020] [1021] If anyone renounced all appeal prior to the sentence, he has lost the aid of appeal completely.4*11 A sen­tence given must not be assigned to execution for ten days so that during that time the one sentenced may consider whether or not he wishes to appeal. Every sentence then must be assigned to execution when it has been strengthened by ten days of silence4*2 One has often established that, although an appeal subsequently may have been repudiated by the judge, nothing ought to be done to prejudice the deliberation. Instead, all matters should be in the state they had been at the time of the appeal.4*3 If anyone, on account of fear, did not appeal,[1022] then let him be heard by a competent judge as if he had appealed. If someone offered bills of appeal to the judge and they did not express the reason well, let him know he has permission to change them, lest he be deprived of the human feeling of just penance.405 Likewise, it is fitting that he who appealed be defended in his remaining cases even though the reason for the appeal changes[1023]0[1024] Whoever has argued his case for appeal poorly before the judge from whom he is appealing is not prevented from making another before the one to whom it was appealed40[1025] [1026] [1027] [1028]}

After the appeal has been made, the judge from whom it was appealed must give a report to the appellate judge. We call this report â€?dismissive’ or apostolos.408 Its sense is such: â€?Lucius Titus, for example, appealed from the sentence of the proconsul delivered in the dispute between himself and Sempronius.'409 Allegations from both parties must be inserted in the report. It suffices that the one who appeals ask for this report within thirty days, provided he consistently requests it. However, if the judge does not give the report, the appellant’s appeal does not cease^4ω It is fitting that the judge appoint the apostolos without delay after the appeal has been made, even when the appellant has not asked for it, and no surety for the appeal ought to be offered^{[1029] [1030] A pious remedy has been provided that, although the authority of an imperial rescript might intervene, no one is denied the ability to appeal412 If one of the litigants has appealed to a}

lesser court, and the other to a superior, the appeal made to the greater tribunal shall prevail.

Addition

If it is an ecclesiastical case, the civil judge has no involvement in it. It is the bishop who decides the final judgment. However, if (it concerns a cleric involved in) a civil case its examination will be by a civil judge if first it was in the presence of the bishop^{[1031] [1032] [1033] [1034] and, after his (the cleric's) deg­radation by him, then there will be his punishment.414 Constitution. N. A cleric is sued before the bishop in a pecuniary case; if the bishop defers from judging between (the litigants), the plaintiff has the license to go before the civil judge, provided that before that judge the cleric not offer a surety or unless the case is a civil one. However, if it be an ecclesiastical case, the civil judge has no legal involvement in it,4i≡ but let the bishop impose the final judgment. If, however, the crime is civil, examination will be by the civil judge if first the bishop is present; afterwards, with the (cleric's) degradation having been done by the bishop, there will be also be his (the cleric's) punishment. If, however, first the case is heard before the bishop, there will be his examination and, afterwards, deprived of his honor and graded6 the civil judge shall impose the punishment on him. However, if the crime were ecclesiastical, examination and punishment will be by (his) bishop.}