Christo auspice: Impetrato consensu amplissimi ordinis facultatis Iuridicae, in inclyta Academia Basiliensi, pro solenni gradu in utroque Iure consequendo, has propositas assertiones de Testibus defendet Caspar Niess Tremonianus

kind.

28. Generally and regularly, it obtains both by common law and by approved custom that witnesses are to be produced and received only after the joinder of the issue original: "litis contestationem".

29. It is also of undoubted law that the production of witnesses ought to be made at the expense of the producer, whether witnesses are produced by the plaintiff to prove the positional articles, or by the defendant for the proof of his defense.

30. If the witnesses are far away, the judge, if he sees it to be expedient, can institute the examination by the help of the law, having implored the judge of that place, or also, if they are excellent or weak persons, by sending a notary to them, although otherwise credence is given not so much to testimonies as to the witnesses, and therefore they ought to be present in their own person before the judge.

31. Furthermore, the judge, after he has ordered proofs to be made and the producer has named the witnesses and requested them to be examined, ought to summon the witnesses and notify the opposite party of the examination. And with that party present, or contumaciously absent, let him receive the witnesses, and let him demand from them an oath, with the adversary having been legally summoned or contumaciously absent. But what if the lord himself is summoned, and not the procurator who joined the issue, and the lord has not come, does the examination have validity? We affirm that it does not have validity.

32. Witnesses ought to swear that they will tell the truth of those things which they know in the case, without affection, and that they will avoid every calumny of falsity. For it is handed down in both laws that an unsworn witness is not to be believed at all. Nor should it be ignored that witnesses should provide this oath before the deposition; if however they do it after, then their testimony is worth nothing.

33. Hence it is asked, can the religion of an oath be remitted to witnesses by the consent of the parties? Pope Innocent III responded that it cannot. We deny, however, that a statute or custom, that full faith is generally attributed to all unsworn witnesses, has validity.

34. Lastly, it must be added that the judge ought to examine the witnesses one by one, secretly and privately from the parties, with only a notary employed who may record the statements, and, having recalled the oath to their memory, religiously question them on all articles and interrogatories. Which having been done, the parties having been summoned, the attestations are opened and published; after publication, however, the ability to produce more witnesses is denied to the parties.

35. Finally, let this arduous and difficult original: "fastigiū imponat hæc ardua & difficilis" work be completed by those who agree with these points.