The Ordo Bambergensis

We come now to the final treatise in this study. Surviving in three manuscripts, the anonymous Ordo Bambergensis was edited by von Schulte in 1872.^[1229] The title misleads, for it labels the manuscript’s current location, not its place of com­position, which was probably somewhere in the Anglo-Norman realm.

The Ordo Bambergensis resembles to some extent the De edendo. As noted by Fowler-Magerl, both are similarly organized in titles, something lacking in the Practica legum. There is further congruence, if not direct dependence, for example in their treatment of absences from trial.^[1234] It also periodically agrees with both Olim edebatur actio and Bassianus' procedural work, both texts discussed in chapter 3. A good example of agreement with Bassianus may be found in chapter 20, where the Ordo Bambergensis treats �free administration' in the swearing of oaths.

Despite these similarities, the Ordo Bambergensis differs sometimes mark­edly from the treatises considered in previous chapters. It ranges widely across both civil and canon law, so much so that some scholars have called it a �synthesis.'^[1235] There are various instances when the author compares the two laws, for example, on exemptions concerning the summons to court.

The Ordo cites both Digest and Codex, and in roughly equal numbers. The Authenticum appears as well from time to time. Like the previous ordines in this study, there is little connection with the Institutes. Among the early glos­sators, Placentinus' Summa on the Codex was clearly a source, something apparent even in the first sentence. His Quaestiones de iuris subtilitatibus may also be cited later in the treatise, when the Ordo defines justice as �the power granted to another, with permission to deliver the law, and the faculty of establishing equity.’^{[1238] [1239] [1240] [1241] [1242]}

One can also compare the Ordo with other civilian commentaries, for instance William of Cabriano’s Casus Codicis. A good example is their simi­lar treatment of the absolute necessity of the plaintiff’s proving the case, even when the defendant has said nothing. Another text to consult by way of comparison is the Bolognese Dissensiones dominorum on thejudge’s role in allegations.11

Canonistic sources are present to a far greater extent than in the ordines we have considered so far. The author often cites the Decretum, and directly refers to Gratiand² Such frequent reference to the canon law when com­pared, for example, with the De edendo, is striking, and a sign of how much the integration of civilian and canonistic procedure had progressed by 1190.

The author, however, does not merely echo his contemporaries. A good example of divergence is his treatment of the validity of varying testimonies concerning a single event. Among the decretists examined, a representative, if not exhaustive sample, none takes the position of the Ordo Bambergensis, which specifically mentions testimony concerning homicide.

The Ordo also turned to the ius novum. We find canons from Gratian paired with recent papal decretals.^{[1243] [1244] [1245] [1246] It has long been known that these came from a decretal collection associated with the �Bamberg Group' compiled in the 1180s.16 There is even reference to the Ill Lateran Council, can. 12, which states that no one under the age of 25 could receive any office concerning the care of souls.17 The author uses it to illustrate why a minor cannot be a proctor or appoint one without his tutor's approval.}

At various points, a citation from Gratian does not seem to pertain imme­diately to the exposition. To give one example, when commenting on the fail­ure to summon because of a â€?common interest,' for example the harvest, or due to a private matter, for example, a wedding, the author cites C 30 q. 5 c. 1. This canon from Gratian treats, however, clandestine marriages, whose validity greatly troubled contemporary canonists?⁸ This would not seem to be a very good example to support the argument in the text. Perhaps it was intended to provide a negative example, that only a valid marriage could provide an excep­tion to summons.

Often, it appears that the author used such citations to instruct, to lead his audience to consider analogies, broader, and even contradictory readings of his text. He periodically employs analogies.^[1247] When reflecting on the distinc­tion between ownership and possession, something that the earlier ordines have considered in some depth, the Ordo Bambergensis cites C 20 q. 2 c. 1 and 2. These canons treat, respectively, the tonsure of a minor and a girl under the age of twelve who willingly took the veil. In both instances, it seems that the author emphasizes by way of analogy that these actions, contrary to the canon law, may have conveyed possession but not lawful ownership.

The Ordo frequently refers to marriage. This reflects, no doubt, its increas­ing importance in both canonistic theory and practice during the late twelfth century.^{[1248] [1249] [1250] The subject would thus be familiar to the audience. Perhaps the author hoped that this would then serve to extend his point and the accompa­nying canonistic citation to a wider legal meaning.21 For example, the author treats those excluded from giving testimony in either a criminal or civil case, and mentions unnamed commentators whose views, he suggests, are under­mined by C 35 q. 6 c. 2, a canon noting the exception to barring of testimony when the case concerned a disputed marriage.}

Like the Practica legum, though to a somewhat greater degree, the Ordo Bambergensis cites the Bible. A good example is the judgment of Daniel concerning Susanna and the Elders, which it treats at some length.22 Unlike William of Longchamp, however, our author does more than merely cite the sacred text. He occasionally reflects on the Biblical context of the law, for example, by noting that �the oath was instituted on account of the sacrilege of the idolatrous.'

In five places, the Ordo Bambergensis contrasts contemporary legal thought and practice with that of the past by using hodie (today).

The Ordo Bambergensis treats many topics either more thoroughly or even uniquely when compared to the ordines we have considered.^{[1251] [1252] [1253] [1254] Among these are the exclusion of Jews and domestics from testimony and the distinction between error of law and error of fact. The author's consideration of hearsay and how a false witness sins differs as well from the other ordines. Other exam­ples include distinguishing between the judge's office and merit and how the ordinary judge could be recused.}

Numerous passages were likely relevant to a contemporary reader. For example, we may note the treatment of when members of a household could be permitted to testify in civil disputes involving two churches. Equally useful in court was consideration of what to do when a witness was challenged for having himself committed a crime.

For the development of jurisprudence, nothing in the Ordo was more signif­icant than its consideration of presumption. The author appears to have been the first canonist to do so.2⁴ While presumption of proof has been latent in arguments we have already encountered, for example that the burden of proof lay on the plaintiff, not the defendant (Dig. 22.3.2), it is only here in our trea­tise that it now receives extended consideration?⁵ Given the importance of presumption, for example concerning innocence, in modern legal procedure?⁶ our treatise makes a profound contribution to the law.

Like the Practica legum, the Ordo Bambergensis probably did not reach a wide audience. It is also overshadowed by two works that would soon set the standard for ecclesiastical procedure: the treatises of Richardus Anglicus and Tancred of Bologna.^[1255] Nevertheless, the Ordo Bambergensis deserves con­sideration in its own right. It demonstrates the scope and sophistication of procedural theory in the Anglo-Norman world on the cusp of the thirteenth century. Equally, it indicates how far ecclesiastical procedure had progressed in the four decades since Bulgarus had answered Haimeric’s questions about how to try a case.

Concerning the Initial Charge (Cap. ι)

Since (some) things are preparatory tojudgments/^[1256] like a prelude (for example the initial charge before the summoning to court) let us first see about bringing the charge?^[1257] For, according to natural order, the charge comes before the summons.^{[1258] [1259] [1260] [1261] The charge ought to be made according to reason, specifically, not generally?1 It matters not whether one brings an invalid charge or makes it maliciously, that is in a perfunctory fashion or obscurely, since it is not called a charge because it either was made incor­rectly or deserves to be rendered void, as in C 1 q. 7 q. 24 and D 33 c. 14.32 Indeed, one says that nothing has happened, as in C 30 q. 5 c. 1. Thus, the charge must be brought �reasonably,^ that is to say with reasonable doc­uments, as in C 5 q. 2. c. 1. We have �reasonable documents’ so that all the chapters and articles concerning which the defendant must be tried may be brought, since bringing the charge must be in the open, lest it deceive through obscurity, as in D 4 c. 2. The charge ought to be similar to this legal constitution, that it be manifest, for otherwise it might lead the accused into the labyrinth, the snare of error, into damage and danger to his right if he were compelled by an incomplete charge to answer in court. That the charge ought to be reasonable and manifest is demon­strated by C 5 q. 2 c. 4, which states that the summons must not be made within a brief period nor before the defendant has been notified about it in writing,[1262] [1263] [1264] [1265] so that he may come to respond to this accusation of guilt.}

All accusations must be declared; all chapters of the law according to which they are being tried must be set forth. Therefore, the charge is nothing other than to declare the form of the future trial. A hearing held against this concession must be considered void, as in C 3 q. 3 d.p.c. 4.

The plaintiff ought to bring the charge so that the defendant may deliberate whether to yield or contest. If the accused should decide to concede, then let him yield. If, having been advised, he decides to contest the charge, let him come to oppose it, as in C 3 q. 3 d.p.c. 4. If anyone offers a written complaint,3≡ the judge ought not to accept it3θ unless the plaintiff first sets forth the surety established in the Aulhenlicum 3 which states: â€?let the judge make provision that the charge not be made to the defendant unless the plaintiff first offers surety, which ought to last to the conclusion of the trial. If the plaintiff is convicted as having unjustly moved to have a trial, then let him restore to the defendant the expenses of the trial and a tenth of the amount contained in the original bill^{[1266] [1267] [1268] If he cannot provide surety, then let him take an oath.,39 When surety has been given, the one accused who has not accepted the bill is summoned, unless the surety is tendered, as treated in C 3 q. 3 d.a.c. 4. This is found in the Authenticum at Cod. 3.9.4° it is permissible, however, to emend and change the specific charge: to emend it, that if less is first claimed then more may be claimed later, as found in the canon law at C 12 q. 1 c. 18.[1269] [1270] [1271] [1272] According to the civil law, he can change the charge as long as he claims coevals, the benefit of bringing a charge preserved for the defendant. He is equally instructed to respond to the second charge as he had been pre­pared for the first. Concerning the change of this charge, nothing is found in the canons?2 By the canon law, it is charged by a suit of this sort but not required, as stated in the Extrav. of Alexander, Dilecti,43 nor is it pro­nounced for some specific charge, save for ingratitude, by which an ungrateful freedman of the church is recalled into servitude, as in C 12 q. 2 cc. 62-63.44}

Concerning the Summons to Court (Cap. ii)

Although each man is permitted by proper order and legal rule to sum­mon someone to appear in court, nevertheless this summons ceases for certain reasons: sometimes because of the persons involved,^[1273] some­times because of the matter at dispute^[1274] It may cease by reason of the persons involved for the sake of divine law, and sometimes because of human law?^[1275] An example of the former is when the priest celebrates mass,4^[1276] for then it ceases out of reverence for the person involved and for the sake of religion, as found in C 7 q. 1 c. 16 and De Con. D 1 c. 57. In secu­lar law this happens, for example, with a freedman, and a son who shall not summon, respectively, the patron or father unless by means of a requested privilege^{[1277] [1278] [1279] [1280] [1281] The persons of father and patron ought to be con­sidered sacred and venerated?0 as found in C 12 q. 2 c. 58, C 12 q. 2 d.p.c. 57, C 12 q. 2 cc. 64-65, since the sons of freedmen manumitted by the group or body neither summon the patron church, as in the aforementioned canon, nor do they call the community, yet they are able to summon indi­viduals to court, as in C 12 q. 2 d.p.c. 57?1}

Summons to court ceases by reason of business at hand for the sake of public utility?² as in war?³ as found in C 23 q. 8 c. 15. Indeed, at any time, even during Lent, preparation for wars to defend the country and laws must not be avoided, and thus it is evident that in this instance there is no legal summons. Sometimes there is no summons due to the common interest, for example the harvest,^[1282] according to the secular laws;^{[1283] [1284] at other times, it is due to a private matter, as attending to a funeral,56 as found in C 13 q. 2 c. 28, or having married, as in C 30 q. 5 c. 1.5[1285] If for three days, as it states, he ought to persevere in prayer there with his wife, and it is proven the wife is staying (with him), he cannot be summoned to court. The summons to court cannot take place by reason of time, as in C 15 q. 4 c. 2. It also is not in effect by reason of illness, as in C 3 q. 6 c. 8 and D 18 c. 1.5[1286] Another reason is plunder, since the one who has been deprived of his goods is not summoned until that time when he can enjoy their restitution as much as he had suffered from their loss,5[1287] as found in C 3 q. 2 c. 1-3.[1288] Another reason is a necessary journey, as in C 34 q. 1 c. 4,[1289] provided that some understand that these stays, called â€?restitutory,’ may be no shorter than six months and no longer than one year, as in C 3 q. 2 c. 5. Others say that shorter and longer stays can be granted when the case has been judicially examined, as in C 3 q. 2 c. 8.[1290] [1291] [1292] [1293] [1294] [1295] [1296] [1297]}

Concerning Stays and Delays6³ (Cap. Ill)

With charge and summons made, stays are then offered. Some are restitu­tory, others deliberative^⁴ We spoke above about the latter. Some relate to the summons, as in anticipation, others are necessary, for preparation, and still others arejudicial.6⁵ Whether the charge is contested or not, delays concerning the summons are not permitted when the judge cites the absent party with three edicts or a single peremptory edict in their place,66 with a period of thirty days assigned for each party to appear in court,6⁷ as in C 24 q. 3 c. 6θ⁸ Others call these delays anticipatory⁸⁹ These are given variously according to the variety of persons to whom the stay is granted. They are granted in one way to persons in sacred orders, that is bishops, priests, and deacons, in another to lesser clergy and lay­men under them. Bishops, priests, and deacons are granted delays of one month or, if just cause should intervene, then two months or more. This is evident concerning bishops from C 4 q. 5 cc. 1-2,^{[1298] [1299] [1300] [1301] [1302] and C 5 q. 3 c. 1. That the same delay might be given to priests and deacons is evident from that decree, because they are connected in C 15 q. 7 c. 5. Concerning other clerics, these delays are guided by C 5 q. 2 c. 2. Nevertheless, you should understand these delays obtain when the parties live in the same diocese. If they live at a distance, then let them be granted more flexible periods of time so that synodical or metropolitan examination may be requested?1}

When the suit is contested, the judge grants, in order, necessary delays so that the party may find documents or witnesses, as in C 3 q. 3 d.p.c. 4. The judge ought not to do this unless, having heard the case once or twice, a most urgent and pressing reason demanded it, as found in the same dictum of Gratian. No trick of prolonging the proceedings must grant a delay. If the delay has been requested so that documents and wit­nesses may be obtained in the same province where the trial is being held, it is limited to three months; in adjoining provinces, the period is six months. Nine months are assigned for overseas provinces, as found in the same canon.

Other stays are called preparatory which, in canon law, because of greater piety, are twice as long as those granted by the civil laws. The civil laws grant a period of only nine months, whereas the canons give a year and a half?² Where the civil laws give six months, the canons a year, and when three months, the canons grant six, as in C 3 q. 3 c. 2?³ One asks, however, how these delays may be offered after the beginning of the trial, when they may be enjoined, as in C 5 q. 2 c. 4:7⁴ qf primates are charged then, after the bishops have been summoned, they should be informed, so that, thus prepared, they may come to respond.' To this we say that delays of this kind are reserved to the judgment of the one hearing the case so that, if it seems to him more suitable, he may have them pre­sented before the beginning of the trial, as stated in the preceding decree: â€?preparatory' delays may be joined to anticipatory delays without any alteration.^[1303] However, if he judged it better that they be given after the trial has begun, then let him do what he considered with prudent counsel.

As I said above, you should know that anticipatory delays in neighbor­ing provinces are two months long, as in C 4 q. 5 c. 1, and in distant prov­inces, three or more, as in C 5 q. 3 c. (1). Today, however, anticipatory delays are regulated according to the health and age of the persons, as well as considerations of distance, time, as in C 3 q. 3 c. 1 and in (Comp. I.)/^{[1304] [1305]} and in Dig. 2.12.1pr. Some say these delays must be considered by those accused in criminal cases.77 Concerning judicial delays lasting four months/^[1306] let three things be considered. The defendant enjoys the four- month period if granted by the judge. Even if not granted, however, it is understood as tacitly given by the law/^[1307] However, because of the type of case, the magnitude or severity of judgment, contumacy, respect for the person accused or, instead, by whom or how the judgment was made, the judge can shorten or lengthen the time for the defendant^[1308] This is according to the civil laws. Concerning these delays, however, we read nothing in the canons. 8^[1309]

Concerning Punishment of Those Contumaciously Absent (Cap. iv)

It happens sometimes that the defendant is absent by reason of neces­sity, and at other times through negligence, choice, or from contumacy^[1310] When absent by necessity, he ought to send a representative to the synod who must not only state the reason but also prove it,^[1311] as in C 5 q. 3 c. 1 and C 4 q. 5 c. 1. If legally injured in some way during the period of absence, he is to be restored to all things as they stood before,8^[1312] as in C 7 q. 1 c. 3, C 16 q. 3 c. 13, and C 33 q. 1 c. 1^{[1313] [1314] [1315] [1316] One condemned due to neg­ligent or willful absence is able to appeal within ten days;86 should he come later he will be heard only with difficulty, as in Extrav. (i Comp. 4.19.3), to the bishop of Exeter^7 �If some appeared who wished to chal­lenge a legitimate marriage, and could, it should be asked whether at the time when the couple married these accusers had been silent and had recognized the man and woman should be united. For, if at the time of the marriage, it happened that they had known the couple and had been silent, it would be burdensome to hear them further on the matter.' Furthermore, when someone frequently admonished about negligence or temerity neglects to correct himself,88 he deserves first to be reproached, then suspended; if admonished a third time, he should be excommunicated and, finally, removed from orders, as in C 27 q. 1 c. 18, D 74 c. 8, D 50 c. 21, D 84 c. 1, and C 7 q. 1 c. 24. However, after this humili­ation, a man cast out of orders by such an offense is easily restored, as in the aforementioned D 50 c. 21, unless there be some suspicion that his contumacy is connected to a greater crime, as the aforementioned canon indicates. One imposes a penalty of this kind as much on an individual as on many, as in D 100 c. 1,[1317] [1318] [1319] [1320] [1321] [1322] [1323] [1324] [1325] [1326] [1327] if there is no danger threatened by his contu­macy. When his contumacy grows so great that he cannot be disciplined by the church, the secular powers may coerce him, as in C 11 q. 1 cc. 18-19,’° C 3 q. 4 c. 8.}

When the defendant is contumaciously absent before the trial is con­tested, he is deprived of possession, (as in) D 81 c. 16, and his opponent placed in it,’i (as in) D 74 c. 9, so that the defendant, so bound, at least may then come within a year to appear before thejudge, offer surety, receive possession, and undergojudicial contest^² as in the aforemen­tioned canon (D 74 c. 9), and C 11 q. 3 c. 36. After one year,9³ his voice may not be heard, as in the same canon, C 11 q. 3 c. 36. Here I do not speak about ownership, but about possession since, after a year, his opponent, as it were from the second edict, becomes the possessor, as in C 20 q. 2 cc. 1-2.9⁴’ 95 However, as the decretists say,9⁶ whether the trial is contested or not, if the one cited as contumaciously absent did not come, he is excommunicated⁴’⁷ if he should then hold the excommunication in con­tempt, etc., he shall be condemned not only for contumacy but also con­cerning the property.98 That he ought to be excommunicated is held in C 4 q. 5 c. 1 and C 5 q. 2 c. 2; his condemnation also concerning the prin­ciple case or crime is shown from C 3 q. 9 c. 10 and in the aforementioned C 4 q. 5 c. 1 and C 24 q. 3 c. 6, the latter also denying the remedy of appeal.’’ However, if in either a civil or criminal case he was condemned by false documents or witnesses and should desire to come within a year of his excommunication to prove his innocence under oath, then let him be heard concerning the principal case. Yet he shall still be held condemned concerning his contumacy. If he should delay longer than a year, how­ever, he is condemned with all possibility of remedy removed, as in C 11 q. 3 c. 36 and C 11 q. 3 c. 12. This text also obtains when the person condemned did not comply and thus was excommunicated. He is then allowed up to one year to prove he was convicted falsely and to assert his innocence. If, however, the convicted man complied with the sentence, then he is received in court for up to twenty years, as in Cod. 9.22.12. However, if he complied with neither the excommunication nor the sen­tence of judgment,^{[1328] [1329] [1330] [1331] [1332] [1333] let him not be heard further, and especially, if he is a cleric and, while excommunicated, presumed to celebrate divine services,101 as in D 63 c. 24 and C 11 q. 3 c. 6, unless dispensation be applied,102 as in C 2 q. 5 c. 9 and C 11 q. 3 c. 109.}

If one asks by what penalty the defendant must be punished when it appears to thejudge that the plaintiff should be placed in possession because of the defendant’s contumacy, we say that concerning clerics and their affairs rigor and severity are neither required nor enforced but, when this does not threaten justice, the defendant ought to be admitted to court and patiently endured when, having returned, he binds himself with surety before thejudge.^ω3 In the civil law, when the defendant is contumaciously absent from the initial hearing, and the reason is unclear to the judge, the plaintiff is placed in possession and is made possessor.^ω4 If the reason is evident then, with the illegal absence made public, let a sentence be declared not only for the plaintiff but also for the defendant, since the presence of God fills the place of the absent defendant and the remedy of appeal in both cases is denied to both parties.^ω5 When the plaintiff has been absent in order to weary the defendant with multiple delays and the three-year limit is coming to an end,^{[1334] [1335] [1336] [1337] [1338] [1339] if there has not been sufficient effort to determine the reason, the judge absolves the defendant from the sentence,ω7 provided he is also denied the opportu­nity to pursue the case further, as in C 4 q. 5 c. 1. If the plaintiff proved, however, that on the appointed day he had not been unwilling to appear but unable then, with the judge condemning the defendant, the expenses are charged to the defendant under oath. If, however, the reason for the absence is clear, the judge not only absolves the defendant who is present but also condemns the absent plaintiff (even if he has a better case), with the expenses incurred by the defendant concerning the sentence to be opposed as a counter-claim to the plaintiff,ω8 in both cases with benefit removed (as stated) by the Authenticum^09 However, if someone is sued concerning immovable property which he possesses on behalf of another, he can immediately be summoned to court and the judge should set a definite time when he can notify the owner so that he either comes to the place where the property is located, or sending a proctor on his behalf, may oppose the plaintiff’s accusation; however, if he neither comes nor sends someone as a representative, from that day when the defendant was first sued the prescription is interrupted.110}

When the case has been summarily examined and the defendant has not appeared as required by law, the plaintiff is placed in possession, with all charges reserved to him concerning the principle question.^m They say the same concerning moveable property, namely that he can name the owner before the judge with, however, the property first placed in deposit or after suitable surety has been offered, especially when the person naming the owner is himself suspected of having committed a crime. Others say that he is not permitted to name the owner but ought to restore the property to the plaintiff, especially when the properties could be sold by all who hold them and have the ability to restore, though they do not possess.^{[1340] [1341] [1342] [1343] [1344] [1345] [1346] [1347] [1348] When, however, from personal debt he is sued and has moveable property, or property that �moves itself,'n3 let him take care of the debt and stay on the path of equity.u4 If he does not have or cannot dispose of moveable property, the plaintiff is placed in possession of immoveable property according to the amount declaredn5 and, though the defendant should return later, nevertheless he may not be heard, unless all damages be restored to the plaintiff and he offer a suitable suretor to the presiding judge.n6}

Concerning Property Sequestered in a Pending Disputeⁿ⁷ (Cap. v)

It is â€?property in a pending dispute' when a question between the pos­sessor and claimant is brought before the judge concerning ownership and owner. When the case is being tried concerning ownership, not pos­session, the property ought in no way pass to any person until the case is heard, as in C 11 q. 1 c. 50. Nevertheless, that canon is to be so understood that the property in the pending dispute only then ought to be seques­tered from the possessor when he is considered suspect of a crime, as in C 3 q. 3 c. 9.118 It can then be understood when neither was in possession; or you might also say no one, namely, no claimant, ought to receive pos­session of a property in a pending dispute. I do not say â€?possessor,' as in C 16 q. 5 volumus.119 You might thus say: â€?I granted my property to my colonus or tenant for cultivation, yet a case concerning its ownership is moved before thejudge.'12⁰ The canon says that the property is in the same state it was when the trial was moved, namely with the colonus. Its fruits ought to be sequestered until the case is heard, as in C 2 q. 6 c. 26. From the aforementioned chapter (C 11 q. 1 c. 50), one can gather that a bishop should not grant another (cleric) a benefice that is under pending litigation. If anyone also sought from the supreme pontiff the confirma­tion of a property in a pending dispute,^[1349] this shall be void, as in Extrav. In litteris.122 In civil law, anyone who knowingly accepts a property in a pending dispute because of a gift, a sale, or some sort of contract, is com­pelled not only to restore the property but also is deprived of its price, not that he who alienated it may lose its profits but rather that an equivalent sum might legally be obtained by the treasury. If he acquired it ignorantly by some title, then he ought not to be fined but, since he was he deceived, ought to benefit. With the alienation voided, he shall receive an equiva­lent price. Indeed, it is right that the seller on account of his own fraud be under the penalty of a â€?litigious contract and pay the third part of the price, since he did not declare the property to the buyer.12³ Otherwise, property alienated in a pending dispute stands because of a dowry, the nuptial gifts, but both the agreement^⁴ and division of the object among co-heirs succeeding to its possessor, as in Cod. 8.36.4,12⁵ nor does one view such a division as alienation, as in Nov. 112. cap. 1.12⁶

Concerning Proctors^m (Cap. vi)

Since in their own cases men are either unwilling or unable to preside, it was handed down that they could administer, sue, or be sued by others, as in C 5 q. 3 c. 3.^[1350] There one understands the office of the proctor as being through the advocate,^⁹ who conducts both the offices of advocate and proctor. The proctor undertakes the management of another's affairs at the command of either the owner or principal in the cased³⁰ The case can be civil or criminal.^ Sometimes bishops and priests sue; at other times, clerics or laymen. If the case is a criminal one, no one save himself can sue or defend. An exception is the crime where only the injured party could sue,132 where an â€?Illustrious Person' is able to sue in court or raise an exception, as in C 3 q. 9 d.p.c. 18.133 In a civil case, each is permitted by common law to sue or defend a case through a proctor.13⁴ However, bish­ops and priests are not only allowed but also commanded to do so, as in C 5 q. 3 c. 3.

These are the necessary (qualifications) for a proctor:^⁵ (he must be) a free man, the head of the family,^⁶ possessing reason, of sound mind, the owner of the property or the principal of the case. When, however, an association is sued,ⁿ⁷ let either one or two from it be appointed to litigate or defend, and the rest of the group admitted to testimony, as in the Extrav.138

It must be noted that a bishop should have three persons appointed to administer secular duties: the vicedominus, oeconomus,139 and the advocate. The vicedominus takes care of the revenues of the bishop and provides for strangers,^{[1351] [1352] [1353] [1354] [1355] [1356] as in D 89 c. 2 and 3. The advocate litigates the cases for the bishop, save for public crime, as in C 5 q. 3 c. 3.141 The oeco­nomus dispenses the property of the church, namely of the clergy, for it is the oeconomus to whom the maintenance of this properties is mandated, as in C 16 q. 7 c. 21m and D 89 c. 4.m3}

It also must also be noted that, indeed, it is simony to sell those admin­istrations, since they have some spirituality attached to them. In some churches, benefices are canonically conferred on persons because of the duties they perform. These benefices cannot be taken away from them unless they commit some offense. C 1 q. 1 c. 8 speaks about this case. However, it is otherwise when they have no office attached. We see that leaders of cities and vills sell the office of a proctor,144 and yet believe they do not sin. Nevertheless, some say imprecisely that to sell or pur­chase administration of this sort is simony, as in C 1 c. ult.14≡ These offices indeed are connected to spiritualties, which can only be fulfilled by cler­ics, as in C 16 q. 7 c. 22^{[1357] [1358] [1359] and C 1 q. 3 c. 8. A minor is neither made a proc­tor nor can he appoint one without authority (given) from his own defender,147 as in Con. Lat. Ill c. 16, which states that no one may receive a deanery, archdeaconry and other ministries having care of souls unless he has attained the age of 25.^8 Let the case to be litigated be delegated to the proctor, provided the suit is honest and legally appropriate, since the delegation of a base matter is invalid, as in D 50 c. 27, C 11 q. 3 c. 92 and following. A civil, pecuniary case is not lawfully delegated, as we say above in C 3 q. 8.[1360] [1361] [1362] [1363] [1364] [1365] [1366] The proctor ought to fulfill the mandate just as it was enjoined to him.150 He ought neither to exceed the limits of the mandate nor do less than what they require, as in C 25 q. 2 c. 6.151 and C 2 q. 7 c. 16.152 If he was mandated to sell the estate, he ought not sell the horsed53}

However, now and then someone exceeds the laws of the mandate or does not fulfill them. For example, if it were necessary for the one to whom the case was delegated to exceed the mandate, he ought to appeal and state his reason for doing so, as in the Extrav.⁵⁴ since he is exceeding what was mandated him. Concerning these things known to pertain to his proctorship, the proctor receives full power.155 He fails to fulfill the mandate when, for example, he was mandated to sell the estate for 100 and sold it for 50.^{[1367] [1368] [1369] [1370] [1371] [1372] [1373] Indeed, it is understood that he was tacitly ordered to sell it for a lesser price if he could, as in C 22 q. 2 c. 14, where it is said â€?if anyone takes the sword from a thief, and, by chance, the thief then claims it, it ought not be returned lest he kill himself or another.’^7 Indeed, what was mandated is tacitly understood not to be restored to the thief, as in Cod. 2.13.12.158}

The proctor of the defendant/’’⁹ even when it happens that the man­date ceases, ought to be admitted to defend; nevertheless he ought to pro­vide surety about paying the judgment. The proctor of the plaintiff ought to give surety concerning defending if it stands that he has the mandate. The penalty for the proctor who does not defend is that he is denied the suit.i6° When it happens that the mandate ceases, he is rejected who desires to claim a right, even if fully prepared to give surety,161 unless he be related by blood or affinity to the plaintiff. Even if the mandate ceases, this one is admitted, as long as it is not clear that he is claiming against the mandate. Let him then give surety de rato et defendendo^² Where there is doubt concerning the mandate, the proctor is rejected unless he either proves the mandate or gives surety that the principal would con­sider it correct, or the defendant judges that he does not wish to compel the proctor to provide surety or prove the mandate.^{[1374] [1375] [1376] [1377] [1378] [1379] [1380] [1381] However, if he does give the surety de rato, and his adversary proves that he did not have the mandate, the dispute is declared void. No one is compelled against his will to undertake the proctorshipJ64 He is (considered) unwilling, not only who contradicts the mandate but also who is not proved to have consented. If he who undertook the mandate does not give surety for defense, he is compelled to defend, even though rejected as a proctor.165 If he gives surety for defense, he must always defend, unless removed by just cause, or with the case heard, he recused himself from suing or, in the course of time, the property would be ruined with the owner not absent. Otherwise, he is forced to join issue.}

The mandatory’s revocation ends the delegated proctorship. It ceases with the timely revocation by the mandator, however, with the matter unchanged, that is, not yet contested.^κ,>^, After it is contested, it is not legally dissolved, as in the Extrav. of Lucius III to the Archbishop of Gran.i6⁷ The proctor’s execution is thisd>⁸ if anyone contracted from the mandate, the modified action (actio utilis) is acquired by the principal,^⁹ and it prejudices the original suit from the mandate (actio directα)i7° judged to the proctor unless he is proctor on his own behalf.^{[1382] [1383] [1384] [1385] [1386] [1387] [1388] [1389] [1390] [1391] [1392] The proc­tor is also condemned, unless he was made proctor in his own affair; oth­erwise, if the proctor won or lost his suit, the principal alone is effectively sued. Again, if anyone provides two proctors at different times, it seems that the second obviated the IirsLm With several proctors given and all similarly bound in equal liability,^3 the holder's condition is better.m Note again that the proctor is able to be constituted for a fixed term, under condition, in perpetuity, through a messenger, and by letter.^5}

Concerning the Excuse of an Absent Party^u6 (Cap. vιι)

Many exceptions can excuse an absence,^m for example due to involve­ment in a major case, as in C 22 q. 2 c. 5, being detained by poor health, as D 18 c. 1,17⁸ impeded by a family funeral, as C 13 q. 2 c. 28, detained by a magistrate by no fault of one's own, as D 18 c. 13,^u9 having to be rescued from violence and chains, as D 50 c. 32,18° or prevented by storm or flood, for example when a bridge is destroyed.181

Concerning Advocates (Cap. vιιι)

Advocates are all in some way occupied in litigating suits. Yet these are not only �called’ (to court) but also clad in the toga; (they are) patrons and soldiers of lawsuits,^{[1393] [1394] a militia fighting with letters. For patrons of suits fight like soldiers, etc.i83 Advocates ought to plead what the suit requires and to refrain from injuring their client’s case.i84 Let them not by their own efforts prolong matters nor consider it a slight to their honor if they do not have the right to sit in court and, instead, have to standi5 They ought not to collude with the other party,i86 nor should they demand an excessive fee,i87 that is, one exceeding 100 aurea.i88 Let advocates also beware that they not collude for,i89 if the crime is proven, let them receive an extraordinary punishment,^0 and if the reason for this is sought pos­sibly after the sentence and the payment of the fine (in the original case), one should follow the procedure concerning false and corrupt documents.i9i}

Some are completely rejected from advocating or pleading one’s own claim or another’s; others are permitted only to plead for themselves;i92 still others both for themselves and certain other persons.^{[1395] [1396] [1397] [1398] [1399] [1400] [1401] [1402] [1403] [1404] [1405] [1406] The deaf and minors younger than seventeen are completely barred.w4 The prae­tor stated that at seventeen he was old enough to take part in public affairs. It is related that when he was that age or a little older Nerva Silvius responded concerning the law.i9≡ Nevertheless both the blind and pimps are permitted to testify for themselves in person;^[1407] also those who gained at one time the worst possible reputation at another plead for themselves and certain others.^[1408] [1409] [1410] These are made infamous by vile cause.w8 You shall find all these things in C 3 q. 7 c. 2.199}

One must know that in a civil case clerics are not allowed to plead before a secular judge unless they are pursuing their own affairs, a case for their own church, or on behalf of â€?wretched persons' unable to man­age their own affairs.^{[1411] [1412] [1413] [1414] [1415] I call those (persons) clerics who are subdeacons and above, or those in minor orders, if they are maintained by ecclesiasti­cal stipends, as (stated) in the Lateran Council.201 Priests are especially prohibited, as in C 14 q. 5 c. 10.202 In a civil case, any cleric is able to defend before an ecclesiastical judge, as in C 15 q. 2 c. 1. However, in a criminal case, they are able to plead before a civil judge on behalf of the defendant but not for the plaintiff, as C 14 q. 6 c. p03 and C 23 q. 5 c. 7204 and C 23 q. 5 cc. 1-3. We believe, however, they are able to be advocates on his behalf before the ecclesiastical judge. However, if in speaking on behalf of those whose cases are being litigated the advocates erred by denying the claim,[1416] [1417] [1418] [1419] [1420] [1421] [1422] [1423] then they are impaired as if they themselves, plaintiff or defendant, were speaking. Nevertheless, they are able to correct their error of fact up to the sentence, as in D 33 c. 6∕06 but not error of law.207 They can correct the error of the advocate within three days, if he erred and the principal did not understand, perhaps because he was illiterate^8 as in C 35 q. 9 d.p.c. 2, C 34 q. 1 and 2 c. 6. In turn, if the advocates shall not have spoken about law or fact, the judge ought to supply and assign an excused absence to the absent party,209 which the judge must also supply on behalf of the deceased, if he is accused. The judge ought to make alle­gations and supply their parts,210 since God's presence fills their absence/11 as C 2 q. 7 c. 18∕12 If the defendant or the advocate was unskilled in the law[1424] [1425] [1426] [1427] and did not know the case and omitted the allega­tion, then the judge ought to supply what was missing.}

Concerning the Calumny Oath21⁴ (Cap. ix)

Concerning the calumny oath it is asked whether in some cases it must be taken by clerics. Concerning this point, various canonical constitu­tions have arisen. Indeed, Pope Honorius declares in an Extrav.-215

We decreed and defined with unbreakable apostolic authority, that neither a bishop, a priest, a cleric of any order, nor an abbot or some monk or religious woman be compelled to submit for any reason an oath in any controversy whatsoever, whether civil or criminal, but may, instead, be allowed to delegate the duty to other suitable persons, if he knows that it benefits his church.

However, Eugenius Ill, to Arduin, subdeacon of the Roman Church and Master Omnibono, writes^⁶

We received your gracious letter in which you asked whether in the case you are trying between our venerable brother G. of Bologna and our beloved son Abbot Aldric of Pavia it is appropriate to offer the cal­umny oath. Clearly, in these cases where the suit only concerns churches, tithes, and spiritualities, it is the custom of the Roman church neither to give nor to receive the oath concerning calumny. For such cases are appropriately settled not by the severity of the laws but from the equity of the canons, and the canons do not assign the cal­umny oath to cases of this sort. Thus, having dismissed (any) contention about offering the oath of calumny, let Your Discretion proceed to fur­ther matters.

Therefore, the constitution of these canons speaks about clerics, because in spiritual cases an ecclesiastical person is not compelled to give cal­umny oaths; Eugenius speaks similarly in the Extrav., but in pecuniary or criminal cases the oath is offered through the oeconomos or defenders,^[1428] to whom this duty can be delegated. These shall also vow in the spirit of the principal, on which the canon Inhaerentes speaks.21^[1429] Nevertheless, Pope Lucius iii decreed in many rescripts that this oath may be offered.21^{[1430] [1431] [1432]}

Concerning Sureties22° (Cap. x)

The plaintiff suing on his own behalf is ordered to provide a suretor who should remain until the end of the trial, as in C 23 q. 5 c. 19. If he shall have been found to have made an unjust claim, let him restore all damages pertaining to the defendant, as in C 3 q. 3 d.p.c. 4221 and §4, and the tenth part of the amount by means of a bill,^{[1433] [1434] [1435] as in Authenticum Generaliter C. de episcopis et clericis.223 However, the defendant sued in his own name is ordered to give fiduciary surety that he shall appear in court, as in C 3 q. 3 c. 19 or, instead, offer the surety oath∕24 as in C 1 q. 7 c. 9 and D 28 c. 13.}

Concerning the Judicial Order (Cap. xi)

When multiple legal proceedings are proposed,^{[1436] [1437] [1438] [1439] [1440] and both are civil in nature, but unequal, the rubric obtains which states â€?let him who first appeals also first litigate,^6 as in C 7 q. 1 c. 5.227 If they are criminal and unequal, the greater takes precedence over the lesser, as in D 8 c. 2.228 If one is civil and another criminal, the criminal takes precedence some­times over the civil and sometimes the civil over the criminal; (on the other hand) sometimes the criminal over the criminal, and sometimes the civil over the civil. A criminal proceeding takes precedence over the civil as when someone seeks an legacy from me by means of a testament and I say that it is false and then accuse him according to the Lex Cornelia de falsis.229 The civil proceeding takes precedence over the criminal as when someone is accused of kidnapping[1441] [1442] [1443] [1444] [1445] [1446] [1447] [1448] [1449] and he declares he did not sell a free man or another's servant but (only) his own and the question is raised whether the man was a slave and to whom he belonged. 231 The criminal process takes precedence over another criminal proceeding, for example, pandering over adultery.232 The civil takes precedence over another civil proceeding as when someone seeks a legacy from me and I say that he is my slave. Certainly, in all these cases the material question ought first to be answered, if possible.233 You shall find all these in C 3 q. 11 d.p.c. 3. It must also be noted that the defendant, having been convicted,234 cannot counterclaim his accuser until that one is completely restored to all things235 or defamed about another crime, nor can he claim from a greater crime to an equal or lesser one, unless he first be absolved or restored as in C 3 q. 11 cc. 1-2, and C 4 q. 1 c. 2. Having been condemned in a civil trial,236 however, he cannot do this because the guilty and infa­mous cannot accuse others save in certain cases, as in C 2 q. 1 c. 14. If the defendant is not yet censured∕37 and has great dignity, as in the case of prelates and clerics, and the accuser is of inferior dignity, as a layman∕38 then the defendant is able to counterclaim against his accuser concern­ing an equal and lesser crime. This occurs because of the dignity of the accused, as in C 32 q. 7 c. 9 si quis fuerit vituper.,[1450] [1451] [1452] [1453] [1454] [1455] [1456] [1457] [1458] and C 3 q. 11 c. 3, which states that the accuser ought to purge himself by oath before he is received in accusation of the bishop. If, however, the defendant were of the same status, 240 then he could counterclaim the greater crime against the accuser. Also, certain others say that when a lesser crime is objected, the one objecting the greater crime is prevented from raising an exception.241}

Concerning Exceptions242 (Cap. xιι)

The first exception is given to the defendant. This stands under a general name against the plaintiff. The second exception takes a specific name, ^lreplication,^,243 and is granted to the plaintiff against the defendant. Thereafter, exceptions multiply—duplicatio, triplicatio, quadruplicatio and more,244 as clearly gathered from C 29 q. 1 d.a.c. 1 which states that error prevents matrimony.24⁵ Therefore, if a free man married his own serving girl or another (believing she was freed) and was then sued by her master, he is aided by the exception of servile condition^⁶ as stated in the same question^⁷ However, if she shall offer the exception of replica­tion, that she received her freedom from him or knew that she was a free woman, she may defend herself with this, as found in the same Causa, q. 2 c. 3.²⁴⁸ Therefore, one says the exception is like an elision or exclusion of the suit. Thus, the replication undoes the first exception.

There are various reasons which introduce exceptions, as in C 31 q. 1 cc. 1-3.24⁹ One reason is fear, as in C 15 q. 6 cc. 1-2.2⁵⁰ There is deception, as in Extrav. Alex. iii., propositum™ There is the â€?object of a pending suit,'252 as in C 11 q. 1 c. 50.25³ There is the â€?revocation,'254 as in D 54 c. 19. There is the generalis pactio, as in C 12 q. 5 c. 3255 and C 27 q. 1 c. 1.256 There is the act of swearing an oath, as in D 85 c. 1.25⁷ There is â€?interdiction,'258 as in C 35 q. 9 c. 1259 and C 25 q. 9 d.p.c. 2. There is error, as in C 29 q. 1 d.a.c. 1 and time, as in C 16 q. 3 c. 13 and C 16 q. 3 c. 14; age, as in C 30 q. 2 c. 1²⁶0 ^{[1459] [1460] and C 20 q. 1 c. 10 and C 20 q. 2 cc. 1-2; favor, as in C 35 q. 6 c. 2;[1461] and malice, as in D 70 c. 2262 and C 31 q. 2 c. 1.263}

Some stays are temporary or dilatory, others perpetual and peremptory.26⁴ A temporary delay hinders proceedings for a period of time.26⁵ A dilatory exception delays the proceedings. A perpetual excep­tion permanently blocks all proceedings.266 A peremptory exception ends the trial. The first exception (temporary) must be opposed to the plaintiff’s charge before the beginning of the joinder of issue,²'*’⁷ the oth­ers at some time before the sentence/*⁸ as in C 3 q. 6 d.p.c. 2. Normally, whoever raises an exception ought to prove it∕6⁹ just as he who sues, as in C 6 q. 5 d.p.c. 1.27° Thus, to the extent he proves it, it appears that the defendant is suing by raising an exception to the charge, that is, he is performing the office of the plaintiff, as in D 54 c. 10.271 There is no proof required from the one denying the fact of the case, provided that the exception is affirmatively made,^[1462] as in C 6 q. 5 d.p.c. 1.^[1463] It should be allowed only to the extent that a transactio or a tardy confession of liabil­ity concerning the plaintiff’s charge shall not have intervened^^[1464] that is a surety and without calumny, because no one is able to claim more, that is, to request then that the appointed time be moved forward unless there is some pressing reason of necessity or utility as in D 79 c. 11,^[1465] nor can it be requested that the trial be transferred from one church to another, unless he has surety from his own bishop, that is litterae dimissoriae.²⁷*'

On Overclaims277 (Cap. xιιι)

An overclaim is made in four ways: what is being claimed, time, location, and cause.27⁸ This first is when one requests 20 for 10, as in C 14 q. 1 c. 2. It concerns time, for example when when someone demands something before the legal date or condition,²⁷9 as in D 78 cc. 1-4.28° It concerns location as when someone requests something in a place other than what was specifically promised to him by stipulation, as in C 19 q. 3 c. 2-328¹

and C 7 q. 1 c. 31,^[1466] and C 21 q. 2 c. 1, and in many articles of secular law.^{[1467] [1468] [1469] [1470] [1471] [1472] [1473]} It is by reason of cause if I promise you one of two things and you, though it was my choice, demanded the other only.28⁴ If anyone shall have claimed more and maliciously extorted a surety but, before the joinder of issue,28⁵ then did penance, he shall not be fined, since the mere attempt to commit a crime does not cause injury^⁶ for this man does not claim more in the trial but only wants to claim, as in C 33 q. 3 c. 14. After joinder of issue, the claimant convicted concerning an amount falsely added shall be punished with the amount of the whole debt.28⁷ Convicted by this law, the enemy of the human race lost his battle with Christ, as Pope Leo (the Great) said: â€?Indeed, the greedy and avaricious claimant persisted in plunder and, though having no right over Christ, had put forth his hands with injustice and, claiming more, the entire sum of the debt was removed and he lost his possession of the human race.'288 This is by civil law.28⁹ However, if more is claimed concerning some thing, location,^[1474] or cause, he will accordingly pay triple the advocate’s fees^{[1475] [1476]} because it is an overclaim.292 If he later claims more, let the length of the stays in the trial be doubled.29^[1477] Therefore, what shall we say if after join­der of issue he is not convicted but confesses? He must be treated more leniently, as in D 50 c. 3.29^{[1478] [1479] Some legists say that he should be fined only the advocate’s fee but others state that, after the joinder of issue, he shall pay them threefold.29≡}

Concerning Compensation^{[1480] [1481] [1482]} (Cap. xiv)

When considering someone who is both a debtor and creditor, ²⁹7 it must be asked to whom he is indebted and who owes him, as in C 27 q. 2 d.p.c. 18, c. 19, c. 21 and in many passages of the (civil) law,298 which state that a man is held both to render the debt to the wife and also is able to demand the debt from her.^[1483] Thus, from the compensation of the debtor and creditor the contribution is made, unless perhaps they consent to remit the debt and thus compensation would intervene, if it be opposed as a counterclaim and not rejected, as in C 33 q. 5 c. 1, provided that if the reason is clear and legally made (and not after many disputes) there is compensation, whether owed from the reason of the suit or from the type of the crime, as in C 22 q. 2 c. 20, C 32 q. 4 d.a.c. 1, and C 23 q. 5 c. 6.^{[1484] [1485] [1486] [1487] [1488] [1489] [1490] [1491] The compensation runs to the extent that the amounts agree, as in C 23 q. 5 c. 6.301 But both deceit and negligence are compensated, deceit with deceit, negligence with negligence, sin with sin, as in C 32 q. 6 cc. 1,302 2, 3.303 In each suit, compensation is opposed as a counterclaim save in the charges of robbery by forced4 and the failure to return a deposit..''**15 For today it is stipulated that no outside party, save the owner, may prevent anyone from the restitution of the deposit^6 as in the Authenticum.307 Profit does not compensate for it, as in C 33 q. 5 c. 1, C 1 q. 1 c. 27, and C 33 q. 4 c. 4, and C 32 q. 4 c. 3; nor is there compensation for shameful acts, as in D 14 c. 1, and C 22 q. 4 c. 3-7. However, eternal life can be gained through the compensation of suffering in this world, and that suffering can also make up for a lesser fault,[1492] as in C 22 q. 2 c. 20, and C 23 q. 5 c. 6 at the end. When called to court, the one standing surety shall make good concerning that to be given the one for whom he has interceded. The debt is made good neither by fixed date nor condition, nor shall it be compensated for another as suits your convenience, even when the other party desires it, as in D 14 c. 1, where it is said when com­pensation is not admitted so that we do something evil lest another do something worse30[1493] [1494]}

Concerning Witnesses3^ω (Cap. xv)

Giving testimony in a trial is a public duty^{[1495] [1496] [1497] [1498] Some witnesses, however, are rejected by the law, and others because of their office312 As in C 3 q. 5,313 the law rejects those held in public chains,314 one who hired himself out to fight with wild beasts,[1499] and those who made a profit[1500] [1501] [1502] [1503] [1504] [1505] [1506] [1507] [1508] [1509] [1510] [1511] by having accepted money for giving testimony, as in C 4 q. 3 c. 3.'υ7 Again, those are rejected who, according to certain ones, once gave testimony in a civil matter against someone and now desire again to speak against him, as C 4 q. 3 c. 3 §Item.318 Also rejected are domestic servants and those from the household3^ These are not able to give testimony in either a criminal or civil case, according to certain commentators, whose error is refuted on the basis of C 35 q. 6 c. 2.320 Domestic servants are those who come from the household or are connected to it in some necessary way.321 They cannot save in situations: when a church has a civil case against another church or someone else,322 as in C 14 q. 2 c. 1, and dis­solving marriage,323 as in C 35 cc. 1,324 2,325 3.326 Parents are also not heard against sons, nor sons against parents, as in C 4 q. 3 c. 3 §34.327 Women are not able to give witness in testaments or criminal cases, as in C 33 q. 5 C. ιg.[1512] However, they can in a civil case, as in C 15 q. 3 c. 2.[1513] [1514] [1515] [1516] [1517] [1518] [1519] [1520] Advocates, however, may not testify for those whom they defended, nor may judges testify in cases where they are, or were, judging,33° as C 4 q. 3 c. 3 §19 and C 2 q. 6 c. 38331 They are also rejected who gave the same premeditated statement,332 as in C 4 q. 3 c. 3 §27333 and C 3 q. 9 c. 17. Not only are enemies of the defendant rejected^4 but also those suspect in some way, as in C 3 q. 5 c. 5. A single witness shall not be heard so that a judgment may be made on the basis of his testimony alone,33≡ but according to him whenever there is presumption, as in C 4 q. 3 c. 3 §38.336 Nor may someone testify in his own case,[1521] [1522] [1523] [1524] [1525] [1526] [1527] as in the same dictum from Gratian. Certain ones also say a serf may not be heard as a witness save in the most serious crimes,338 as in C 2 q. 1 c. 7,339 c 2 q. 1 _c. 14, and C 6 q. 1 d.p.c. 22 and C 12 q. 2 d.p.c. 58,340 or unless there is a lack of evidence^41 in which case fewer valid proofs are allowed, as in C 4 q. 3342 and C 14 q. 2 c. 2. You should understand the same obtains for criminal and infamous crimes. Additionally, hearsay is not received, save in two cases:343 marriage or where, after a debt has been legally repaid, which the creditor declares has been made, there are witnesses who differ from the declaration of the creditor and state to the contrary that only a part has been repaid or if the debtor confesses that he owes money.}

After being called, the witnesses are obviously then examined, as in C 3 q. 9 d.p.c. 15.^[1528] It must also be noted that testimony made from hear­say is said to be twofold: either we learned and knew it from our own ears or we learned that it was so from the report of others ³4⁵ The first is improperly called hearsay^⁶ and more properly is about seeing concern­ing that which, when it was happening, one was perceiving it fully by seeing.347 Sight is accepted for each corporeal sensed⁸ touch and see,349 taste and see,3≡⁰ smell and see,3≡¹ hear and see;3⁵² and Exodus says: â€?the voices were seeing,'3≡3 that is, they were hearing³â‰ˇ4 Therefore, such testi­mony must be accepted everywhere, just as concerning what we see with our bodily eyes. Properly said, however, hearsay is not acceptable unless as in the aforementioned cases and especially in those whose origins exceed our memory.^{[1529] [1530] [1531] Again an uncalled witness is understood as able to testify, as in C 4 q. 3 c 3 §25. In every judgment, unless a greater number is required,356 two witnesses suffice,357 as in the same dictum of Gratian.35[1532] They ought to testify whose good faith does not waver[1533]59 If more witnesses are introduced by both parties, those ought to be believed whose testimony is closer to the truth[1534] The number of witnesses ought not to be taken into account but, instead, the sincere faith of those more assisted by the light of truth, as in C 4 q. 3 c. 3.361}

Concerning witnesses, one must carefully ask about their condition, that is, whether a witness is a citizen, of honest and blameless life, or whether he is said to be reprehensible, since witnesses ought to be beyond any exception that might be raised,36² and whether they are wealthy or poor, etc., all (qualities) listed in C 4 q. 3 c. 3 §2 and C 2 q. 1 c. 7. Again, although witnesses can be compelled to testify,363 something proven by various canonical passages, nevertheless the Roman church has been accustomed never to force anyone to offer testimony.-³*’⁴ However, if he possibly feared the opposing party,^{[1535] [1536] [1537] [1538] [1539] [1540] [1541] [1542] [1543] [1544] it falls to the judge to summon him again to give testimony, as in Extrav. to the Bishop of Genoa, Super eo366 and Unde porro 367 The witness is also rejected when accused of a crime in a civil case and convicted by the civil law. However, on account of this he ought not be punished, as (declared) in the Extrav. to the Bishop of Winchester368 Similarly, neither a heretic nor a Jew may be admitted to testify against a Catholic, as in C 2 q. 7 c. 26369 and C 2 q. 7 c. 24.37° Therefore, witnesses ought to swear (and can be com­pelled to do so) since one is not a witness unless he has sworn,371 as in C 2 q. 1 c. 7 and C 3 q. 9 c. 20, either with the party present or contuma­ciously absent.372 They ought to swear absolutely that they saw and heard and it was done in their presence, as in C 3 q. 9.373}

Witnesses are able to be produced by the same man in the same trial and against the same party up to four times. But the fourth wit­ness ought not be brought without some legal solemnity, which is con­tained expressly in the laws.37⁴ When the statements of the witnesses shall have been published, there can be disputation, as in Extra. Licet praeter solitum.^{[1545] [1546] [1547] [1548] [1549] [1550] [1551] Nevertheless, one cannot always produce witnesses four times,376 though the fourth may follow. Always four times.377 For if any delay was denied, either a second after the first, a third after the second, whether once or more than once, and one produced a witness, he is unable to produce any more^78 therefore, sometimes (a witness may be produced) once, sometimes more than once, as twice, three,379 four times, but never more than four.38° It ought further be known that the examination of witnesses was introduced neither through the civil law nor the canons but by Daniel,381 (it was) an allegation by Solomon,[1552] not a repetition.[1553] This (woman) indeed said â€?you are my son,’[1554] [1555] [1556] [1557] [1558] and took (him) after judgment^5 Again it ought to be known,'486 that since a diversity of places impedes testimony^7 just as in the case where one man spoke under an oak and the other under a mastic tree;388 likewise, there are different times, when one says that he saw on one day and the other, on another, as in C 3 q. 9 c. 16. Certain authors say that this legally obtains in matters unchanging and unrepeatable, for example homicide.[1559] [1560] [1561] [1562] [1563] [1564] [1565] However, in matters which can be repeated or prolonged for a long period of time, difference in times in no way denies the integ­rity of the witnesses, for example, if someone is accused of adultery, and witnesses should come, and one says it was committed on one day, but another says on another day. However, this judgment should be voided if one pays attention to what was said about the oak and mastic trees,39° though those who believe this concerning these trees explain it so: those elders first asserted that they had seen once and afterwards,391 having been separated, then contradicted each other and,392 with their differing accounts tested, were rejected, having declared the same time but not the same location.393 This may in no way be preserved. However, if one wit­ness said that he knew the time and place but the other did not remember the place and time, but nevertheless knew best the truth of the matter, and the first said little and the another supplemented his testimony, the testimony of both is heard. Also, the testimonies of both parties must be received by other judges along with other suitable witnesses, unless they were already made known, as in Extrav. Causa quae inter αr394 It must also be understood that, concerning the question that has been judged, it happens that new legal questions39≡ emerge and because the witnesses were informed that one party wishes to bring forward new witnesses or that the witnesses already heard now accept something new, we believe it permissible at least that the new questions can be received, as in Extrav.}

Fraternltatl tuae.^[1566] In sum, it must be noted that if it is the case that I am compelled to admit a gladiator^^{[1567] [1568] [1569] or someone similar, as a witness, his testimony must not be credited without torture, as in C 4 q. 2/ c. 3 §17,398 C 2 q. 1 c. 7,399 and C 5 q. 5 c. 4. Again, it must be known that a false wit­ness sins three ways[1570] [1571] [1572] [1573] and, thus, a threefold penalty is inflicted on him. Indeed, he sins against God,401 Who is the Truth, and thus he is punished with a seven-year penance, as in C 6 q. 1 c. 18. He sins against the judge, whose presence he deceives, and accordingly becomes infamous and is henceforth unable to testify^2 as in C 22 q. 5 c. 7. He also sins against his neighbor, whom he injures, since he alters the truth with his lie and,403 accordingly, ought to suffer retaliation, as in C 3 q. 9 c. 16. It also seems we must add that if someone reveals those things about which his witnesses testified he is then denied the opportunity to produce further witnesses, unless to disprove his adversary’s depositions.[1574] Concerning this point, however, the truth of legal experts is an opinion rent into heresies and schisms. Also, testimonies given in the presence of both parties can be done without prejudice towards subsequent production of witnesses, as in Cod. 4.21.18.40[1575] [1576] [1577] [1578] It must also be noted that the statements of the wit­nesses should be interpreted benevolently,40β so they not appear cited concerning the charge of perjury, as in Extrav. Cum IuJilipraeposito.407}

Concerning Proofs408 (Cap. xvi)

Proof of a doubtful matted^[1579] is confession of liability made through arguments.^[1580]*¹ The one making the charge should prove, not the one denying^[1581] As the Master (Gratian) relates, it is the nature of things, a legal custom, that the fact of denying is no proofs² as in C 6 q. 5 c. 1 and C 6 q. 5 d.p.c. 1.413 i do not say that he cannot prove, only that he is not compelled to do so.414 It was instituted that the burden of proof is the duty of the plaintiff, from whom the suits come, not the defendant, as stated in the aforementioned text (C 6 q. 5 c. 1 and d.p.c. 1.)^[1582] Nevertheless, sometimes it is customary that the defendant is able to prove, as in C 29 q. 2 c. 6; at other times, the burden of proof is necessarily transferred from the plaintiff to the defendant, as in C 33 q. 1 c. 3. Therefore, it is said that proof is incumbent upon the one speaking, not the one denying; but you should understand this means if they are of equal condition, that is one may not be believed or presumed more than the other, as said else­where in C 11 q. 1 c. 15.41⁶ The plaintiff follows the court of the defendant, not the defendant the court of the plaintiff^⁷ unless on behalf of the plaintiff there be a res litigiosa or a delict41⁸ against the defendant as in C 6 q. 2 c. 1419 and C 4 q. 5 c. 1?²⁰ Sometimes the defendant is compelled to prove, for example, if you raise an exception, or if he does something else when himself acting as plaintiff, as in D 54 c. 10.421 When the plaintiff fails to prove, the defendant, even if he has said nothing in his defense, shall win as in C 6 q. aliter accusatori It must be proved to the judge, not to the opponent, as in C 35 q. 6 c. 8423 and C 35 q. 6 c. 7. Again, argu­ments prove this: certain ones suffice;424 others are advantageous⁴25 Witnesses in legitimate number are not rejected, as in C 15 q. 5 c. 2,^{[1583] [1584] [1585] [1586] [1587] [1588] [1589] [1590] nor public documents correctly made, as in C 25 q. 2;427 likewise private doc­uments written and signed to one's own prejudice^8 as in C 27 q. 1 c. 36 and C 20 q. 1 c. 16, which in civil law are called apochaf29 and Cintapochafv' Private statements and notes/31 in which one either does not say he was owed anything or the witness did not vow that something is or is not owed, help but do not suffice432 Then, indeed, it damages the sons who are inheriting, for sons are not allowed to sue against the judgment of their guardian, as in C 11 q. 1 c. 13. Likewise, it is believed that what the testator spoke or vowed is what the heir, â€?who is the other self,' had said or vowed.433}

Presumptions concerning, for example, a single witness and reputation,^[1591] are also useful but are not (by themselves) sufficient,^{[1592] [1593] [1594] [1595] [1596] [1597] [1598] [1599] as in C 35 q. 6 c. 4436 and D 86 c. 24. Nevertheless, sometimes a sentence may come from presumption alone, as in D 54 c. 15, C 11 q. 1 c. 25. Thus, the sentence is given either through proof, by documents and witnesses, or because of presumptions. Sometimes it is given through agreement con­cerning reputation,437 as in C 3 §Item,438 or justified suspicion, C 32 q. 1,439 or only from what is evident to the judge, as in C 3 q. 2 c. 9. Again, we must know that proof defeats presumption44° For example, if anyone hears some case �extraordinarily,^1 we presume he heard it. If the con­trary were proved, presumption is eliminated, as in C 35 q. 3 c. 11442 Presumption is also eliminated by a contrary presumption, as when we see someone living in religion we presume him to be good; if, however, we see him lapsed into heresy, there is presumption to the contrary.[1600] [1601] [1602] [1603] [1604] [1605] The burden of proof is transferred from plaintiff to defendant, sometimes on account of delict, sometimes because of personal privilege, or because of the remedy of presumption.}

Concerning Judgments and Judges (Cap. xvιι)

Judgment is called a threefold act by three persons contesting before the judge.444 To judge the case in the most holy way, the most sacred Gospel books should be placed in their midst, so that the judges may rule with greater certainty and the absence of the contumacious, considered as present, may be filled with the presence of God⁴4⁵ Though, indeed, God is everywhere, nevertheless He is considered even more present when His Gospels have been placed before all. It is fitting that the judge be of sound character, of free status, not a woman,44^β older than the age of twenty, and not a child, as in C 3 q. 7 c. 1⁴4⁷ Certain people are pre­vented by nature from being a judge, others by the law, and still others by customs. The last, as in C 3 q. 7 d.p.c. 1, is not as if they lacked judgment but, instead, since it has been received by custom that they do not per­form civil offices^⁸ It must noted that if a serf had declared a sentence from delegation while considered a free man, it still obtains the firmness of a legal judgment even if he were subsequently driven into servitude,^[1606] as in C 3 q. 7, same paragraph(C 3 q. 7 d.p.c. 1.).^{[1607] [1608] [1609] [1610] [1611] [1612]}

Let judges know that they judge others no more than they themselves are judged, since judgment is more terrible towards them than to the liti­gating parties.45¹ With God as witness, judges provide decisions for men's disputes. For it pertains to their office to consider the cases of both God and man with frequent regard and to weigh them absolutely with an equal scale balanced by the hand of equity⁴5² It must be known that if a judge is not held liable for a crime, he is able to condemn the accused in any way, unless the church, having been deceived, had convicted an inno­cent man. Then, the judge is not able to judge him legally and with due office until he is restored. However, if the judge is bound by a crime and, nevertheless, is supported by the church, he is able to judge from the duty of his office, but not from the merit of his life or permission of the law.453 All the canons in C 3 q. 7 speak to this, save for the last.454 If he was cited by the church for a crime, then no power of judging is reserved to him unless from our legal ability (residing in the office of judge).

Again, he ought to judge according to things alleged in court, not according to the movement of his own spirit.455 The good judge does nothing from his own judgment but, instead, declares the laws according to the laws themselves, as in C 3 q. 7 c. 4.^{[1613] [1614] [1615] [1616] [1617] However, on this point, learned opinion varies. Some consider indeed that the guilty ought to be absolved457 according to what was alleged in court, and the judge allows a guilty man to merit those things the judge himself does not know; how­ever, the judge may not go against the sentence, that is, against what he ought to do according to the law, as in C 23 q. 5 c. 41, and C 33 q. 2 c. 18. Accordingly, they say that this text obtains in a judgment of absolution, not condemnation.458 Others say that it ought to be referred to a superior judge. Still others declare it thus should be done in a civil case (a criminal one) where the judge purges the province of evil men to punish and drive them away.459 This is so if they were subject to him, for he shall be able to expel but not punish foreigners, as in C 23 q. 4 c. 7, unless they perhaps willingly submitted to his jurisdiction, as in C 11 q. 1 c. 39 and C 11 q. 1 c. 46, or, again, if the man broke the law in that province, as in C 3 q. 6 c. 1 and C 6 q. 3 c. 4 and C 6 q. 3 c. 5.}

The judge must also take care to be readily available, yet not allow himself to be treated with contempt or permit subordinates to be exces­sively familiar with him. For contempt against dignity arises equally from manner of life⁴6° He ought not judge ardently against those he considers evil nor, on the other hand, is it fitting that he wail with clamorous prayers,^{[1618] [1619] [1620] [1621] [1622] [1623] [1624] [1625] as in C 23 q. 4 c. 33. A judge is neither constant nor upright whose face betrays the emotion of his spirit462 When sentencing, judges should not be led headlong by anger or fury, as in C 11 q. 3 c. 70, and it is fitting that the one judging examines carefully all matters in the case, as in C 30 q. 5 c. 11463}

One must understand that the judge is not permitted to sell justice nor the witness his testimony, although the advocate may be allowed to sell his valid legal assistance and the jurisconsult, correct legal counsel, as in C 11 q. 3 n. 71 and C 14 q. 5 c. 15.464 The reason for the difference is that wit­ness and judge are consulted by both parties, while the others, advocate and jurisconsult, fall to one party or the other⁴6⁵ Indeed, whoever does not rightly judge and expects remuneration commits fraud against God since, by accepting money, he sells justice, which ought to be freely given,466 as in C 11 q. 3 c. 66.

However, it is asked: is it simony to sell justice? It seems so, since jus­tice is a virtue and numbered among the spiritual gifts, and thus it seems he commits simony who wishes to sell it, as in C 1 q. 3 c. 10⁴6⁷ Some say, however, though selling justice is a sin, it is nevertheless not simony⁴6⁸ Simony is committed when something spiritual is sold, in which the grace of the Holy Spirit is given, since, though the sacrament of marriage is spiritual, nevertheless no grace is conferred in marriage itself,^{[1626] [1627] [1628] [1629] [1630] [1631] [1632] and thus to sell or buy it is not simony, as in C 32 q. 2 c. 13.470}

If a judge judged with evil intent, he makes himself liable to judgment, and reclaiming is awarded to the one who has given the money, as in C 14 q. 5 c. 15.47¹ However, if someone gave money to thejudge so that he would judge well or not judge wrongly then, in this case, since only the judge who accepted the money did something disgraceful, the donor is able to reclaim, as in the aforementioned chapter² and c. enimvero.473 If someone gave money to the judge so that he might judge well or wrongly, since both the giver and receiver did this shameful thing, the donor is not able to reclaim, as in C 14 q. 5 c. 1.474 All things being equal, the condition of the possessor is better, as in C 33 q. 5 c. 1.475 Though the donor cannot reclaim, by general rule the fisc shall be able to revoke from the one who received his money. If, however, a judge impertinentlyjudges wrongly, he shall be punished as seems equitable to the one judging him, as in C 24 q. 3 c. 6.

The judgment is made by the sitting judge, who hears, questions, cites, makes interlocutory statements,^{[1633] [1634] [1635] [1636] [1637] [1638] [1639] [1640] [1641] [1642] [1643] gives favor, makes decisions, grants stays. Judgment is also set forth by the plaintiff accusing, claiming, and refuting counter-arguments. For the defendant, it is by confessing, deny­ing, and by raising exceptions.477 Thereafter, in every judgment four per­sons are needed: the judge, armed with the helmet of justice; the plaintiff, with the dagger of malice; the witness, with the trumpet of truth; the defendant, with the shield of defense^8 as in C 4 q. 3 c. 1 and C 4 q. 3 c. 2.479 The accuser rightly does not come from the household of the judge, as in C 4 q. 4 c. 3.48° It must also be known that in civil, but not criminal, cases the son is able to judge the father and the father, the son,481 as C 4 q. 7 c. infames.482}

We have sufficiently described the judge's office, having paid attention to that title concerning the citing of those contumaciously absent. It must also not be overlooked that not only enemies of the defendant but also those deemed suspect by him are removed from thejudgment⁴8³ The defendant shall be able to refute in writing484 not only judges assigned to them but also their ordinaries,485 as is evident from C 5 q. ult,486 but only to the extent he requests judgment from his own superiors and not from other ordinary judges, which is clearly taught by

C 6 q. 3 § denique,⁴⁸¹ because they asserted it was true before the joinder of issue.^{[1644] [1645]}

Concerning Arbiters (Cap. xviii)

Some judges, called ordinaries, have their own, proper jurisdiction. Others lack their own jurisdiction, but it has been assigned to them. These are called judges-delegate^[1646]8⁹ Jurisdiction is the power granted to another, with permission to deliver the law and the ability to establish equity^{[1647] [1648] [1649] [1650] For the Roman pontiff and prince alone, jurisdiction is complete^91 as for others, the remaining judges, it is not complete, ordi­nary jurisdiction save for those who receive legitimate power from the pope or prince492 Otherwise, it is not ordinary. Sometimes this jurisdic­tion comes through delegation, rescript, consent of parties, or from com­promise^3 According to legal order, the judge is able to delegate initial jurisdiction to those who hold it from the Roman pontiff or the prince. Accordingly, it is fitting that the sitting judge is in some ordinary power. Jurisdiction is delegated by the pope or prince through rescript, as we frequently see happens through the rescript of the supreme patriarch.[1651] [1652] [1653] [1654] [1655] [1656] [1657] [1658] Also, by their own consent, two or more parties choose a judge who sometimes proves suitable to them and sometimes not, as in C 3 q. 6 c. 3, where it is said â€?let him who is compelled to be before a judge not his own be silent if he wishes; if he wishes, let him respond.^5 Through willing consent, one thus is able to choose a judge he deems suitable, from whose judgment he is not allowed to withdraw after the joinder of issue, as in C 3 q. 5 c. 15. This is so if the litigants consented elsewhere to the ordinary judge. The consent of private persons by no reason is able to make that judge who otherwise possesses no jurisdiction^6}

A judge called an arbiter is also constituted by the compromise of both parties.497 He is also not an ordinaryjudge. Not only is a free man of sound reputation made arbiter without being a judge, but also even someone who is infamous,49⁸ but never a serf, as in C 3 q. 7 c. 2.499 It is not important whether the arbiter's reputation is intact or ignominious, merely that he is constituted an arbiter, as is declared in the secular laws,5°⁰ with punishment obligated to each party. Nevertheless, the judg­ment of the arbiter neither conveys infamy nor produces a true legal decision,5°¹ unless the parties have subscribed to it or remained silent for forty days, nor does it provide for an appeal. What it does produce is thus understood: it may be appealed from ordinary arbiters by the privilege of officials in active service;⁵⁰² however, from arbiters, who lack official legal power, it cannot be appealed^³ as in C 2 q. 6 d.p.c. 33,50⁴ C 2 q. 6 c. 34, and C 2 q. 6 d.p.c. 36. Whether this decision shines with the truth, let those seek who are excited by such worldly labor.505 Nevertheless, our fathers told us otherwise.

We must note C 3 q. 7 c. 2, since the judge is prohibited from undertak­ing arbitration of the same case he is judging and ordering it submitted to him in arbitration^⁶ If he declares a decision, the penalty must not be carried out.50⁷ Today we believe^⁸ however, the arbiter accepts the power, so that the â€?exception of an adjudicated matter'509 may be given the defendant who is absolved and, the victorious plaintiff, the execution of the judgment from cause.^5ω

Concerning Those Having Confessed5¹¹ (Cap. xix)

Those having confessed are considered judged.512 This is found in C 2 q. 1 c. 1, 2, C 2 q. 5 c. 20,513 C 15 q. 8 c. 1, C 15 q. 5 c. 2. However, individual

On these privileges, dignitates ordinariae, Berger, Encyclopedic Dictionary, 612.

This agrees with Bulgarus.

On this canon in Gratian and comparison with Bulgarus' discussion of the arbiter in his letter to Haimeric, see chapter 2.

Compare the Summa Simonis, ad C 3 q. 2 c. 2 s.v. praesenti decreto: Quod utrum bene dica­tur, arbitrio lectorum inquirendum relinquimus quos huius mundi labor exagitat. Litewski, Zivilprozeβ, 582 and n. 82, comparing also Bulgarus.

C 3 q, 7 c. 2 §. 19 and Dig. 4.8.9.2.

Again, the treatise contrasts contemporary practice with the older law. Compare here also the use of hodie in the De edendo.

On the exceptio rei iudicatae, Berger, Encyclopedic Dictionary, 628 and, for comparison, the De edendo above in chapter 3. See also C 3 q. 7 d.p.c. 1.

On the actio iudicati, Berger, Encyclopedic Dictionary, 519.

On confessio, generally, Norr, Prozessrecht, 78-79.

For the classical law, Yan Thomas, “Confessus pro iudicato. L'aveu civil et l'aveu penal a Rome,” in LAveu, antiquite et moyen-age: Actes de la Table Ronde (Rome: Ecole Irancaise du Rome, 1986): 89-117, also, comparing here the De edendo, Litewski, Zivilprozeβ, 377 n. 307. The canon treats the ordeal. On the transition from the ordeal, see above in chapter one. For the period treated by our ordo and thereafter (including Fourth Lateran), among many studies, Winfried Trusen, “Das Verbot der Gottsurteile und der Inquisitionsprozeβ. Zum Wandel des Strafverfahrens unter dem Einfluβ des gelehrten Rechts im Spatmit- telalter,” in Sozialer Wandel im Mittelalter. Wahrnehmungsformen, Erklarungsmuster, aspects of this subject must now be noted. Indeed, these are serious matters, filled with mysteries and exposed to snares. That those having confessed in the initial proceeding are considered convicted^{[1659] [1660] [1661] [1662] [1663] [1664] [1665] [1666] [1667] [1668]} is distin­guished in many ways. Indeed, it is thus categorized:515 if the confession is in the initial proceeding, it obtains; if extra-judicially, not at all.51⁶ Thus we spoke correctly, since the solemn confession also made extra-judi- cially sometimes prejudices the suit;51⁷ for example if a priest or deacon confesses extra-judicially that he sinned before ordination he may only perform the office of, respectively, deacon or subdeacon, as in C 15 q. 8 c. 4. However, if they confessed after ordination that they had sinned, they are suspended for a time from office; thereafter they will rise again through the fruits of penance to their original grades, as in D 82 c. 5. Again, it is said that â€?those having confessed in the initial proceeding are considered convicted' should be understood that they freely confessed and not from fear or the violence of torture^⁸ as in C 15 q. 6 c. 1,51⁹ C 32 q. 2 c. 16,52θ and C 15 q. 5 c. 2.521 Again, he who confesses in the initial proceedings thus prejudices himself if he confesses against himself. If, however, he confesses for himself, he does benefit, as C 15 q. 3 c. 5 and the dicta preceding and following.522 Again, one having confessed in the initial proceedings is considered guilty unless he is younger than puberty,^{[1669] [1670] [1671] [1672] [1673] [1674] [1675] [1676] [1677]} a child or another minor, as in C 20 q. 2 c. 1 and C 20 q. 2 c. 2, which states if children of both sexes entered the monastery and took the monastic profession by word and deed,52⁴ they did not prejudice them­selves or their parents for, until a year and a day,525 they are able either to leave or be recalled by their parents, as in C 20 q. 2526 and C 22 q. 5 c. 15. It is customarily said that confession in the initial procedure prejudices the one who confessed, unless some legal remedy is available, for example, if the confession were extorted by fear or through forced⁷

One must note that confession is made in many ways. One confesses by law, reason, or one's own voice, as in the chapters already noted; (oth­ers include) by interpretation, 528 through absence, as in C 3 q. 9 c. 10, through reception of religious orders, as in D 27 c. 1 and D 28 c. 4, prius­quam, and through offering a gift there to confess God.52⁹ Again, it must be understood that confession may not be obtained from witnesses who have not been carefully instructed by the judge concerning the questions in the criminal case. I do not speak here about tortures but, instead, beat­ings, since the judge was an ecclesiastic,53° as in C 5 q. 5 c. 4^^,31 and C 23 q. 5 c. 1 (at the end);^{[1678] [1679] [1680] [1681] [1682] [1683] [1684] [1685] it cannot be from the defendant, whose con­fession of a crime ought to be voluntary, as shown in many texts above.}

There are those who say that a confession also sometimes can be extorted from the defendant, as in C 23 q. 5 c. 1533 and C 14 q. 6 c. 1. In a civil case, however, confession ought not be obtained by torture except from servants, as in C 2 q. 6 c. 30.53⁴ One must not overlook that if some­one, fearing torture, had confessed in the initial proceeding and, because of this, was convicted and excommunicated, he is to be admitted to court if he comes within a year to assert his innocence; after a year, let his voice not be heard, as in C 11 q. 3 c. 36.535 Furthermore, certain ones assert that one who confessed in the initial proceeding cannot have recourse to the remedy of appeal^⁶ as in C 2 q. 1 c. 3 and C 2 q. 6 d.p.c. 41 §1. Indeed, from this it is evident that the correct decision of the judge has been ordered to be executed and, from this fact, it should be clear that there is no appeal for those who confessed before a magistrate.’’-³⁷

Concerning the Swearing of Oaths and Perjury53⁸ (Cap. xx)

One says, however, that an oath is the discrete vow or assertion of truth through God brought as witness.’’-³⁹ Therefore, to swear an oath is nothing other than to affirm or deny, with God bearing witness.^{[1686] [1687] [1688] [1689] [1690] [1691] [1692] [1693] Accordingly, it is the greatest remedy used to settle disputes^1 for truly, when the oath is offered, every dispute is ended.542 Indeed, the apostle said â€?the conclu­sion of all disputes is the oath.,543 The oath, however, must not be offered except in dubious or uncertain matters, (as in) C 22 q. 1 c. 5.544 It is espe­cially introduced on account of human suspicion. Truly, if one man believed another, it would not be necessary. Since we wish to persuade the weak that is useful for them, and they do not believe the plain word, they are permitted to swear since they do not believe the word alone. When the oath is imposed, they judge it valid. Thus the evil of the oath is from not believing, not from making it, as in C 22 q. 1 c. 14 and C 22 q. 1 c. 5, and many others.}

The oath was instituted on account of the sacrilege of the idolatrous.545 Just as formerly it was conceded to those under the old covenant to sacri­fice offerings to God,54^f> so that they might not sacrifice to idols, thus they were also allowed to swear by God, not that they did this lawfully, but because it is better to offer to God than to demons, as in C 22 q. 1 c. 8.54⁷ Indeed, we are forbidden to swear through created things, not because, in the fashion of the pagans we believe that there is some spirit dwelling in them, nor that we hold the created order in contempt by judging things promised through it as worthless, as in C 22 q. 1 d.p.c. 16.

One swears an oath orally and solemnly,^[1694] that is, by touching the Gospels.^{[1695] [1696] [1697] [1698] [1699] [1700] [1701] [1702] [1703] But one asks whether he might be less guilty who, vowing by a simple word, perjures by God than through the Gospel?55° Indeed, this canon seems to say he is no less guilty: C 22 q. 1 c. 11.551 If this were so, then all of us today would be criminals and infamous,552 since we invariably say â€?I swear by God.' This would be monstrous and inappropriate.553 Certain ones thus answer this question by saying that the Church today judges it more terrible to swear repeatedly by God than by the Gospels,554 when formerly one seemed more contemptible in transgressing a vow made by placing his hand on the Gospels than by breaking a plain oath to God, as in C 22 q. 1 c. 11. In this case, they say one must understand this as when someone swears on the Gospels without touching them or invok­ing God. When he does this, then he does no more than one swearing by God. Thus, he is not guilty who vows by created things,555 nor one who swears by the Gospels or on relics since,55β though he names them, nev­ertheless he does not actually vow by them for he is not making the oath to them but, instead, to the one to whom the relics were dedicated. Thus the sense would be â€?may God, and these relics, so help me,,557 that is, â€?I desire my salvation from God, to Whom these relics were dedicated.' When someone vows, however, not naming God but some created thing,}

for example the sun and moon,^{[1704] [1705] [1706] [1707] [1708] [1709] [1710] though the sense could be the same, namely �I swear through His power, Who created and rules such things,' nevertheless the word is suspect and scandalizes the weak,559 and thus we are forbidden to vow this way.}

Sometimes one swears an oath extra-judicially, and sometimes in court.5⁶⁰ Whenever an extra-judicial oath is offered,’’⁶¹ it is not a judicial oath5⁶² to be given or retendered.’⁶³ Nevertheless, offered, renounced, tendered, or entered it offers an advantage. Sometimes the oath is ten­dered by one party in court with the judge's approval. When tendered, it is normally referred.’’¹â€™⁴ This is also the third oath which, on account of the plaintiff's lack of proof is deferred, not referred, by the judge to the defendant. The first is conventional or voluntary,^[1711] the second, necessary,^{[1712] [1713] [1714] [1715] [1716] [1717] [1718] [1719] [1720] the third, judicial.’’*’7 The last one is not retendered. From the first two, a suit and exception arise, but not from the third.’*8 An oath tendered, but not yet offered, can be revoked; once revoked, however, it ought not subsequently be retendered.’*9 An oath openly tendered by one party in court is either accepted or not. If it is accepted, it is either offered or retendered. What has been retendered is not retendered again. Therefore, the defendant, to whom the oath has been tendered, ought to pay the debt, swear an oath, or retender. The plaintiff ought to desist, swear an oath, or retender. According to Justinian, however, he is permit­ted to recuse.57° That is the fourth part. Certainly, the tendering of swear­ing an oath shall not appeal, though the one who has been retendered is able to appeals1 This is worthy of note, because sometimes the oath has greater, sometimes lesser, authority than does the legal judgment. It has less authority when a minor is being restored against an oath, as in Cod. 2.27.1’72 and C 31 q. 3 c. 1 and C 27 q. 1 c. 1. It has greater authority because the legal judgment prejudices the truth, which the oath cannot.573 Again, it must be known that it is not rightly retendered to the proctor,574 though sometimes he may rightly tender the oath, for exam­ple if it were enjoined to him by name or he had to tender the general mandate.[1721] [1722] [1723] [1724] [1725] [1726] [1727] [1728] [1729] In private matters, the tutor is able to tender the oath of the defendant, also the curator, a slave acting as the oeconomus, and also the heir, if he has free administration^6 A boy may not tender an oath,577 since boys under the age of fourteen are not compelled to swear, as in C 22 q. 5 c. 15.}

One asks according to whose intent the oath ought to be received, the one giving or the one receiving it? Certain ones say to retender the oath, (one must consider) whether both parties have an honest intent^⁸ or only one does, or both, instead, a malicious intent. Indeed, if both have an honest and right intention, the oath is received according to their mutual understanding. If, however, both have a malicious intent, one must have recourse to the common understanding of the word and, in that sense, the words (of the oath) must be understood in the way that customarily is correct^⁹ as in Extrav. Si inter aliquos.58° However, if only one party has an evil understanding, whether the one giving the oath or the one receiving it, then God, Who is the witness of conscience,’^ thus accepts, just as that one to whom it is being vowed or who vows honestly and understands rightly, since one person's deception ought not defend another's deceit^² as in C 22 q. 5 c. g.58³

One customarily asks whether a man sins more who swears on a stone or one who swears by God.^[1730] The former doubly sins,^{[1731] [1732] [1733] [1734] [1735] [1736] since he menda­ciously swears an oath and should not have done so that way, namely, by created things.586 However, if the penalty is heavier the more holy the thing by which one swears, then he subjects himself to a more serious perjury who vows mendaciously by God, as in C 22 q. 1 c. 16. In sum, it must be understood that sometimes one is prohibited from swearing an oath, unless it concerns making peace, as in C 22 q. 5 c. 17.}

Concerning perjury, it must be maintained that it is sometimes called a false swearing, at other times a transgression of the oath, an indiscrete oath, or a lie confirmed by oath. The first and second are not always a sin; the third, however, always, but not always a crime. The fourth is always a crime.58⁷ Moreover, if anyone once has perjured himself, he cannot be a witness concerning the rest of the proceedings,588 nor can he assent to an oath or stand as an oath-taker in his own suit or another's, as in C 22 q. 5 c. 14.

Again, one must note that are three ways a vow can be illicit: by its nature, the mode of speaking, or by an external reason^⁹ It is illicit by its own nature because what is sworn is against the law, Gospel, and pope. By the virtue of the law itself, then, it must not be observed. In this case, all the canons in C 22 q. 4 are understood as applying.59° It is illicit from how one swore, when he indiscreetly swears he would not do something, which otherwise could be legally done, for example, if one vowed he would never become bishop which, nevertheless, is a vow that must be kept, as in D 85 c. 1. It is illicit due to an intervening, external reason, (for example) if anyone, after having taken the simple religious vow of chastity,^{[1737] [1738] [1739] [1740] [1741] [1742] [1743] [1744] [1745] took a wife. To take a wife is not by its own nature a sin, but here it is a sin because of the contrary vow which had preceded it. Some also add that it is not prudent to go against the vow but that a three-year penance must be imposed for breaking the simple vow,592 as in D 27 c. 3.}

Concerning Judgments (Cap. xxi)

Whatever commanded by the judge that is not contrary to nature, law, or good customs is called a judgment.593 Some are interlocutory, others definitive, conditional, or dispositive.594 An interlocutory judgment is given by judges between the beginning and end of the trial.595 A condi­tional judgment must not be offered but, if given, shall be endured, as in C 2 q. 6 c. 29; yet, this judgment is given in both uncertain matters and trustworthy persons and frequently in trustworthy matters and persons, as in D 33 c. 7,596 c 35 q. 6 c. 4, C 35 q. 3 c. 20. Often the pope, the supreme patriarch, gives a judgment under condition, for example, if requests shine with the truth59⁷ or when he has established something either by dispensation or out of consideration for time, age, or grave necessities^⁸ When the case is being judged by the same pope or his successor, it is able to be changed. C 35 q. 9 c. 4599 and C 35 q. 9 c. 6 speak to this. A dispositive judgment, if unjust, is able to be corrected, unless the correction is unsuitable and less favorable, for example if a prelate or some other one gave an estate or something else to establish a church or to be conse­crated for sacred use. It is disgraceful that what has been given for the founding of a church or appointed for holy use be revoked, as in C 17 q. 3 c. 41 and C 14 q. 6 c. 2. It also a natural impossibility, for an order unjustly conferred cannot be removed until its execution,^{[1746] [1747] [1748] [1749] [1750] [1751] [1752] [1753] as in C 1 q. 1 c. 97 and C 32 q. 7 c. 28. There are also dangerous times. For example, during perse­cution many things have to be allowed, as held in C 1 q. 7. The definitive sentence is the lawful declaration ending a controversy in court. The judge ought to form it in his heart not immediately but with deliberation after discussing the matter and then declare it in writing.’*6 If he does otherwise, it does not merit the name of judgment,’*2 as in C 2 q. 1 at the beginning.’*3 If the text contains something wrong, he ought to emend it and, with its parts rearranged, he then recites the corrected version in this fashion: â€?I, John, Archbishop of the church of Dublin, the judge of the dispute between Arthur and Mellus, having heard the allegations, con­demn Arthur.’’*4}

After the suit has been recited, the judge shall not be permitted subse­quently to make a correction, even if he could still (do this and) finish on the same day.’*⁵ When he passed judgment, he ceased to bejudge; he performed his duty, whether well or badly.’*’ Possible exceptions to this are the Roman pontiff and the emperor.’*⁷ Again, it must be known that the bishop is able to judge minor disputes without written decision and, especially, those of base matters,^[1754] as in C 11 q. 1 c. 45.^{[1755] [1756]}

One must further note that decisions take the form of condemnation, absolution, command, excommunication^6ω The sentence of condemna­tion or absolution is sometimes unjust from cause, order, spirit. At other times, it is just in the same three ways, and sometimes just with respect to the cause yet unjust from order and spirit^{[1757] [1758] And just as such things are able to be mixed up with one another, if the sentence was not entirely, or only in order, unjust, though just in other ways, by virtue of the law itself it does not hold, as in C 2 q. 1 in the beginning. However, if it was just from both spirit and order at the same time, or only from order, it ought to be preserved and, when confirmed by a silence of ten days, shall not be able to be retracted unless in certain cases, for example, if it were given against statutory law,612 or due to a payment to a corrupt judge, in which case by virtue of the law itself it is illegal, as in C 2 q. 6 c. 41 §6. It is also illegal if it contains manifest iniquity,[1759] as found in the Extrav. to the Archbishop of York,[1760] or delivered due to false documents^[1761] [1762] [1763] in which case within a year, according to the canons and, up to twenty years according to the secular laws, it shall be able to be retracted,616 according to the distinc­tion entitled contumacy we made above and, in this case we have been so inclined, if the judge were following the text of the documents, and the question either not moved before the sentence, nor terminated, or only moved. Again, it shall be void if the decision were made from false wit­nesses, that is, on the basis of false testimonies 6π Some, nevertheless, understand this as so if the witnesses were false and bribed since, if they were not bribed, but merely false, the sentence shall not be retracted,61[1764] [1765] as is found in the AuthenticumEw The sentence thus shall be retracted not because the witnesses are false but because they are corrupted by money[1766] [1767] Henceforth, these things which we have spoken concerning a sentence that may not be retracted must be understood in a civil, crimi­nal, or pecuniary case, in which the sentence of the judicial order, having been declared and confirmed with integrity, shall not be able to be nulli­fied in any way, save in the aforementioned cases.}

Yet, there is a particular, spiritual, ecclesiastical case where the judi­cial decision concerning falsehood can be retracted by means of exami­nation and appeal nor is it constituted to be otherwise than indicated: matrimony, which is spiritual, though indeed there is the rule that legal judgment prejudices the truth.621 Nevertheless, it does not damage holiness or religion, as in C 35 q. 9 d.p.c. 2.^[1768] Indeed, some consider this generally true in all things unless it endangers the salvation of the soul.62³

Concerning the sentence of excommunication, briefly, one must know that, whether it was entirely just or unjust it holds, provided that it was not given after appeal, until nullified by a superior judge, as in C 11 q. 3 c. 4. Nevertheless, this does seem wrong and contrary to canonical equity, unless one assigns the reason of diversity, which is such: punishment accompanies excommunication. Immediately when the sentence is declared, one is excommunicated, separated from communion, and remains so until released by a superior judge.

Now, the sentence of precept follows.62⁴ One must note that some­times the prelate orders something against God and sometimes he does not. If he does this against God, this command must neither be held nor obeyed, as in C 11 q. 3 c. 91 and following^⁵ However, when he orders something not contrary to God, or is uncertain, it depends on whether or not what he commanded pertained to his office or his prelature. In the first case, he must be absolutely obeyed, as in C 11 q. 3 c. 11 and C 11 q. 3 c. 18 and C 23 q. 1 c. 4. In the second case, the one subject to him shall be free either to obey or not unless he is subject to one who, like God, is placed over his head, as in C 11 q. 3 c. 99 and C 19 q. 3 c. 2.