Title IV: On Custom

Latin source headnote: A custom imposing a burden upon churches ought to be removed by the office of the judge. This it says according to the more particular interpretation.

Gregory I, in the Register.

It befits us, through our consideration, to relax customs which are known to impose a burden upon churches, [nor there, etc.]

Latin source headnote: By custom an act or solemnity can be introduced through which possession of an absent thing is transferred without an actual taking of possession. This it says, and according to Abbas Siculus it is a singular case.

Innocent III to the Archbishop and Chapter of Lund.

From the letters which you, brother archbishop, sent to us, we have clearly understood that the kingdom of Denmark, as regards matters pertaining to the law of the forum, is governed entirely by its own customs and the institutions of its kings. Hence it happens that the province has no use of wills of the kind that elsewhere is observed according to legal practice in the last dispositions of the dying.

But if anyone, while in good health or when making his last disposition, wishes to confer certain possessions upon cloisters or other religious places for the remedy of his sins, you state that this is the form of conferring them upon a church: in donations of this kind, it is customary for a small quantity of earth to be taken in the hand, or in the edge of a cloak held by the hand of the bishop or of any other prelate of the church, or, wrapped in a small cloth, to be placed with due humility upon the altar itself before witnesses who see and hear, according to the said form, which in the vernacular is called scotatio.

But because, as you assert, a donation of this kind is maliciously obstructed by certain quibblers, you humbly petitioned us to provide with paternal solicitude that religious places and churches upon which many possessions have been conferred under such scotatio cannot or ought not rashly to be disturbed by anyone. Therefore, unwilling that such constitutions—which, as you assert, length of time has maintained and the practice of a custom hitherto approved has preserved—should be weakened by any temerity, we command your discretion by apostolic writings to cause donations of those things which, by virtue of the custom, are piously and providently conferred, or have already been conferred, upon cloisters, churches, or any religious places to be irrevocably observed, since a sign of this kind, which is called scotatio, is clear evidence not so much of a donation made as of possession delivered. If you find any contradictors or rebels, relying upon apostolic authority you are to restrain them through ecclesiastical censure, warning having first been given and the obstacle of appeal removed. [Given at the Lateran, on the sixteenth day before the Kalends of December, 1198.]

Latin source headnote: A custom by which the declaration of the people is held as a judgment in ecclesiastical causes is not valid.

The same to the Bishop of Poitiers.

You should know that it has come to our hearing that in your diocese, even in ecclesiastical causes, a less than reasonable custom is observed: when some cause is tried there and the allegations and complaints of each party have been heard, those present—learned and unlearned, wise and foolish—are asked what the law is; and what they, or any one of them after seeking the counsel of those present, have declared is held as the judgment.

We therefore, considering that a custom which conflicts with canonical institutions ought to have no weight, since a judgment rendered by one who is not the proper judge obtains no validity, grant you by authority of the present writings, notwithstanding the aforesaid custom, the power to render judgment in the ecclesiastical causes of your subjects, after their merits have been established before you, as the order of reason requires. [Therefore let no one, etc. Given at the Lateran, on the twelfth day before the Kalends of March, 1199.]

Latin source headnote: Custom cannot have the effect that a cleric who is not a bishop can exercise those things which are reserved to the episcopal order. And this is a notable case. Abbas Siculus.

The same to L., our Vicar stationed at Constantinople.

The higher the place which you obtain from the benignity of the Apostolic See, the more solicitously you must take care to show yourself such in your actions, turning aside neither to the right nor to the left, that you may be seen to discharge the apostolic office no less in reality than in name.

It has indeed come to our hearing that certain simple priests at Constantinople presume to administer to the faithful those sacraments which from the time of the Apostles have duly been reserved to bishops alone. Such is the sacrament of confirmation, which bishops alone ought to confer through the imposition of hands upon those reborn by anointing them with chrism. In order to devise excuses for sins and nourishment for their own error, these priests put forward custom alone, although length of time does not diminish sins but increases them, and they become the graver the longer they hold an unhappy soul bound. Wishing, therefore, that these and other things which offend the eyes of the divine majesty be rooted out of the Lord’s field, we command your discretion by apostolic writings, by way of precept, strictly to prohibit all Latin priests stationed at Constantinople from hereafter presuming upon such things by their own temerity.

Although these things are not to be despised by the faithful, it is nevertheless safer that, without danger, they be omitted from necessity—which has no law—than that they be conferred in vain, not without grave danger, by those to whom it is not lawful to confer them, out of temerity—which is condemned by law—since a certain shadow is displayed in the act, but the truth does not follow in the effect. [Others also, etc. Given at the Lateran, on the sixteenth day before the Kalends of December, 1199.]

Latin source headnote: A custom by which a sentence of interdict is violated is not valid.

The same to the Dean and Chapter of Le Mans.

When a dispute arose between you on the one side and the canons of Saint-Pierre-de-la-Cour on the other concerning the fact that the said canons of Saint Peter did not observe a general interdict imposed in the city of Le Mans by our venerable brother your bishop or by you, each party sent its messenger to the Apostolic See so that the same cause might be terminated by a due conclusion. The parties, therefore, having appeared in our presence through suitable proctors, we granted them a free and benign hearing.

The proctor of your church stated that, when the church of Le Mans wishes at a fitting time and place to subject the city to an interdict because of the excesses of the secular power, the church of Saint-Pierre-de-la-Cour, like a member not adhering to its head, has not failed to celebrate the divine offices with bells rung and doors open while the others ceased. When our venerable brother Octavian, then Bishop of Ostia, was exercising the office of legation in those parts, they approached his presence and took care to set forth their complaint to him concerning this. Having summoned the parties and diligently heard and considered the arguments of each, since the party of the church of Saint Peter could not show that it was protected by privileges of the Apostolic See, and since it was firmly established before him that they were led to this by pride rather than by a reasonable cause, he definitively determined that, when an interdict had been imposed in the city of Le Mans, that church should observe it. He also subjected to the bond of excommunication and the penalty of order and benefice those who considered that his judgment should be resisted.

Afterward, when the entire city of Le Mans was subjected to ecclesiastical interdict because of certain excesses of the secular power, and the canons of Saint Peter were notified to cease from the celebration of divine offices and to observe the interdict as did the other churches of that city, they added greater temerity to their audacity and performed their office with greater solemnity, not fearing to act against the judgment of the legate.

Their proctor, however, alleged on the opposing side that the church of Saint Peter had been free and exempt from its foundation and had been founded and endowed from the goods of the progenitors of our most dear son in Christ, John, illustrious King of the English. He firmly asserted—and believed that he established his claim by this—that the same king and his progenitors conferred the deanery and prebends of that church without consulting the diocesan bishop. He also alleged that the church had hitherto enjoyed such freedom by custom and that your bishop had acknowledged this many times: namely, that you could place under interdict the parochial chaplain who celebrated outside the choir of the aforesaid church. Concerning the aforesaid custom he alleged that, even under a general interdict, it was lawful for them to celebrate the divine offices with bells rung and in a loud voice, provided that those under interdict and those excommunicated were excluded.

We therefore, recognizing that the sinew of ecclesiastical discipline would be broken by such a custom, if any such custom existed, have considered that it should be wholly invalidated with the consent of our brothers, since it is to be regarded not as custom but rather as corruption. We nevertheless grant the same church of Saint Peter, from the benignity of the Apostolic See, that when a general interdict has been imposed in the city it shall be lawful for them to celebrate the divine offices with doors closed, those excommunicated and under interdict excluded, without bells being rung, and in a subdued voice. [Therefore let no one ... of our definition and concession ...] If anyone, however, [should infringe] the sentence of our definition, etc. [Given on the third day before the Nones of February, in the eighth year of our pontificate, 1206.]

Latin source headnote: In assigning offices to a new dignity, the custom of neighboring cities is observed. If their customs differ, the more reasonable one, which prejudices no one else, shall be observed.

The same to the Bishop of Ely.

When formerly our venerable brother the Bishop of London intimated to our ears that he proposed to establish a precentor in his church and to assign him a fixed revenue without injury to anyone, we, inclining to his prayers, granted him permission to institute such a precentor, provided that prejudice should be inflicted upon no one in conferring revenues upon him. We nevertheless established that the precentor so instituted should have in the church of London, in sittings, processions, and other matters, the dignity which other precentors have in other English churches.

Afterward it was intimated to our ears that, although the same bishop had instituted our beloved son B. as precentor in that church, he had not taken care to execute what had been established by you concerning the aforesaid dignity, although two years had already elapsed. Therefore we commanded you not to postpone executing it, after removing the obstacle of any contradiction and appeal, restraining contradictors through ecclesiastical censure.

Recently, however, our beloved son the dean and certain others holding personates in the aforesaid church transmitted their complaint to us: customs differ among the English churches, and some precentors have a lesser dignity while others have a greater; nor can their dignities, since they are either diverse or conflicting, be combined into one. Yet the man newly instituted as precentor in the church of London, not content with what he can have without prejudice to others, strives on occasion of our letters to arrogate to himself, to their prejudice, certain dignities belonging to the dean and other persons of that church.

Therefore we command your fraternity by apostolic writings that, if you know that precentors have different dignities in the English churches according to the different customs of the places, you cause the said precentor to have in the church of London that dignity, and, appeal being removed, to remain content with that dignity, which he can obtain without prejudice to another while the reasonable and approved customs of the church are preserved. [Given at the Lateran, on the second day before the Nones of February, in the eleventh year of our pontificate, 1208.]

Latin source headnote: It cannot be introduced by custom that anyone may relinquish a dignity without the permission of his superior, or that a person who has been elected may administer without having received confirmation from the superior.

The same to the Convent of the Monastery of Corvey.

When our venerable brother the Bishop of Ostia and our beloved son L., cardinal-priest of the title of Holy Cross, were formerly exercising the office of legation in the regions of Germany, they found that the abbot of the monastery of Herford—which is known to belong immediately to the Roman Church—had migrated by his own temerity to the monastery of Corvey, which is likewise a special possession of the Roman Church, without either obtaining or seeking permission to leave the former monastery or confirmation from us or from those who were then exercising our office in those regions.

[When he had come to Nordhausen to receive the regalia, although those legates were present there, in order that his contempt might appear the more manifest he took no care to approach them, showing himself in every way a despiser of their mandates. For this reason the said legates firmly commanded our venerable brother the Bishop of Paderborn to summon him into his presence and, after all the aforesaid matters had been set forth more diligently before him, not to delay suspending him from every office and benefice until he presented himself before us to seek pardon for his contempt.

But when he sent his messenger into their presence and excused himself through that messenger concerning all the aforesaid matters, he alleged in his defense the general custom of that land. He asserted that neither the Supreme Pontiff nor his legates were in any way required for confirmation of an election, for obtaining a blessing, or for permission to pass from one monastery to another, since such a custom had hitherto been observed in those regions.

The same legates, however, induced by the prayers of many ecclesiastical and secular princes who most urgently petitioned them on his behalf, relaxed the aforesaid sentence. They commanded the Bishop of Paderborn not to delay enjoining the aforesaid abbot to send his messengers to the Apostolic See by the recently past Sunday on which Laetare Ierusalem is sung, in order to receive our mandate concerning this and the other matters through those messengers. If he should perhaps neglect to do this, the bishop was thenceforth not to delay returning him to the former sentence and causing it to be firmly observed.]

Afterward, when he had sent his messengers to the Apostolic See, those messengers, wishing to excuse him in many ways, alleged in his defense the general custom of that land. Since this is rightly to be considered not so much a custom as a corruption, being plainly hostile to the sacred canons, we command that it not be observed hereafter. [Given at the Lateran, on the fifth day before the Nones of May, in the eleventh year of our pontificate, 1208.]

Latin source headnote: It can be introduced by custom that one church is bound to elect for itself a prelate from the body of another. And custom is the best interpreter of laws.

The same to the Dean of Salisbury, A. the Archdeacon, and Master P. Penetel, Canon of Paris.

When our beloved son William, a monk of the church of Andres who presented himself as the elect of that same church, and G. Daubins, a monk and proctor of the monastery of Charroux, litigated against one another in our presence concerning the right of electing an abbot in the monastery of Andres and concerning the election of that same William, William petitioned that his election, celebrated unanimously by the brothers of the church of Andres, be confirmed by apostolic authority. He asserted that, both by common law and by a special privilege granted to them by Pope Alexander of happy memory and afterward confirmed by us, the free authority of electing belonged to those brothers alone.

For by common law every congregation of monks ought to elect an abbot for itself; and it is contained in the privilege of that same Alexander that, when the abbot of the monastery of Andres dies, no one is to be set over it by any cunning of subreption or violence except the person whom the brothers, or the sounder part of them, consider should be elected according to God and the Rule of blessed Benedict. It is also known that we granted the aforesaid brothers that, when their church happens to be vacant of an abbot, it shall be lawful for them by a regular election to set over themselves as pastor a suitable person from the body of that church or from elsewhere, who is to be presented to the monastery of Charroux so that he may receive confirmation from it and show it the reverence which he owes.

The said proctor Geoffrey alleged on the opposing side that formerly, at the petition of Count Baldwin, his wife, and his sons, patrons of the church of Andres, it had been established by G., Bishop of Thérouanne of good memory, that, if the aforesaid place should flourish so greatly by divine favor that a prior or abbot were established there, his election should rest with the brothers of that place and the chapter of Charroux. Under cover of this statute it had been observed from times long past that, when the monastery of Andres was vacant, the brothers of Andres elected for themselves as abbot, in the chapter of Charroux, someone from the body of the monastery of Charroux. Therefore, because the aforesaid election of William had been attempted less than canonically, both contrary to the tenor of the statute and contrary to approved custom—which is the best interpreter of laws—it deserved to be quashed; and the aforesaid brothers should be commanded to proceed to the election of an abbot according to what had hitherto been observed.

[He added that neither the privilege of our aforesaid predecessor nor our confirmation could prejudice the monastery of Charroux, since they had been obtained by subreption without any mention at all of the aforesaid statute and approved custom. The same G. further alleged that the said election should be quashed for another reason also: namely, because it had been celebrated both by persons under interdict and concerning a person under interdict.

For when Lambert, Bishop of Thérouanne of good memory, commanded the aforesaid brothers—as we perceived was contained in his open letters—to go within the space of eight days to the monastery of Charroux, from whose body they ought to elect an abbot, and there to elect as they ought, and warned them that, if they did not do so, they should know themselves to be suspended from every office and benefice and from entry into churches, they despised the bishop’s mandate and refused to elect within the appointed time as they ought. Therefore, since after the expiration of the term they began to be bound by the sentence of suspension, the election afterward presumed by them ought to be adjudged invalid.

To this it was answered on the opposing side that, since the monks of Andres were by no means bound to elect in the aforesaid manner, they were not bound to obey the bishop when he peremptorily commanded this without cognizance of the cause; and therefore the aforesaid sentence of interdict could not bind them, as having been promulgated less than reasonably—especially since, within the term established by the bishop, they had gone to the monastery of Charroux and sought permission to elect from their own monastery, although they were unable to obtain it. Against this the other party replied that, even if the said sentence had perhaps been less than just, they were nevertheless bound humbly to obey it, since it had been promulgated by the diocesan bishop.]

Having therefore perceived clearly these and other matters proposed before us on each side, because it was established before us that the election had been celebrated by suspended persons and concerning a suspended person, we quashed it, as justice required, with the counsel of our brothers. [As a precaution, however, we considered that the sentences of excommunication and suspension against William himself and the other monks of Andres, and the sentences of interdict against their churches, promulgated after an appeal to us had been interposed by our venerable brother the Bishop of Senlis and his co-judges, should be relaxed.]

Moreover, since the aforesaid statute—namely, that the election of the abbot should rest with the brothers of that place and the chapter of Charroux—could soundly be understood in such a way that neither common law nor [apostolic] privilege would be derogated by it, namely, that the election of the abbot should belong to the aforesaid brothers and confirmation to the chapter of Charroux, we command your devotion by authority of the present writings, after hearing what is proposed on each side, that, if such a custom as prejudices common law is proved on behalf of the monastery of Charroux, you decree in this respect that the election of the abbot of Andres is hereafter to be made according to that custom.

Otherwise, if no such custom is proved through which common law is prejudiced in this case, you are to take care, after removing the obstacle of appeal, to adjudge to the monks of Andres the right of electing an abbot, so that hereafter they may have free power, through canonical election, to elect as abbot a suitable person either from the body of their own church or from elsewhere. He is to be presented to the chapter of Charroux so that, if the [election] is canonical, it may be confirmed by that chapter. [Moreover, etc. Given at the Lateran, on the third day before the Nones of January, in the eleventh year of our pontificate, 1209.]

Latin source headnote: A chapter cannot, without the bishop, make new statutes or customs or alter old ones.

Honorius III to the Chapter of Paris.

Since the authority of custom and long-standing usage is not slight, and innovations very often produce discord, by authority of the present writings we prohibit you from altering the constitutions of your church and your approved customs, or even introducing new ones, without the counsel and consent of our venerable brother your bishop. If perhaps you have made any to the prejudice of that bishop since he obtained the governance of the church of Paris, we decree them invalid. [On the sixth day before the Nones of March, in the fifth year of our pontificate, 1221.]

Latin source headnote: A custom by which someone is induced to sin or to dissipate his own goods is not valid.

The same to the Mayor and Burgesses of La Rochelle.

It was proposed before us on your behalf that two abusive customs have hitherto been observed in your country. First, if a native or a foreigner, through the vice of prodigality, through carelessness, or through any other circumstance, should dissipate or lose all his own goods, he alienates at the choice of his own will the goods of his wife—however praiseworthy and honorable her life—both movable and immovable. Consequently it sometimes happens that, when the husband has died, the wife remains without a dowry and the surviving children are subjected to the extreme hardships of poverty.

Second, if a man marries a wife who, violating the fidelity of marriage, manifestly commits adultery, she nevertheless shamelessly demands and wickedly takes half of all the goods which her husband acquired, although she ought rather to be deprived of all her husband’s goods. You therefore humbly petitioned that provision be made for you concerning these matters by the Apostolic See. Accordingly, wishing providently to counsel your salvation and advantage, by the tenor of the present writings we declare that you are not bound to observe customs of this kind, as being contrary to law.

Latin source headnote: Custom does not derogate from natural or divine law, the transgression of which induces sin; nor does it derogate from positive law unless it is reasonable and has been established by prescription.

Gregory IX.

Since sins are the graver the longer they hold an unhappy soul bound, no one of sound mind understands that natural law—the transgression of which induces peril to salvation—can in any way be derogated by any custom, which in this respect is more truly to be called a corruption. Although the authority of long-standing custom is also not insignificant, nevertheless it shall not have force to such an extent that it ought to generate prejudice even against positive law, unless it is reasonable and has been lawfully established by prescription.