Title XXIX: On the Office and Power of a Delegated Judge

Latin source headnote: A delegate of the Pope has power not only over the parties but also over others who impede his jurisdiction.

Alexander III, to the Bishop of London.

Because it was asked of us on your part what is to be done concerning powerful persons who, when we command justice to be furnished to someone concerning those whom they love or wish to protect, compel the complainants to be silent through their threats or terrors, and thus our mandate is eluded, we respond thus to you: just as those acting and those consenting are punished with equal penalty by the testimony of scripture, so you will be able by ecclesiastical constraint to restrain both those who are drawn into the cause and their principal supporters, if you manifestly know that they impede justice.

Latin source headnote: When different letters under the same date and contrary form are obtained and presented by different persons to the same judges, execution of both is suspended until the Pope is consulted.

The same, to the Bishop of Bologna.

Indeed, if letters are first obtained from us concerning some cause and other letters are afterwards opposed, with no mention made of the earlier letters, if this becomes known to the judges, until they consult the Roman Pontiff and thereby learn his will more fully, they shall altogether suspend execution of both letters, lest through the diversity of the letters the conclusions of causes be impeded. Likewise, when, etc. [cf. c. 9, On Sentences and Res Judicata, II.27.]

Latin source headnote: A delegate of the Pope who is impeded can subdelegate a cause that can suitably be terminated without him.

The same, to the Bishop of London.

If, because of your weakness or any other grave cause or necessity, you cannot be present to conduct causes that are committed to you by the Apostolic See, let it be free to you to commit your functions to discreet and suitable persons, yet in such a way that, if the matter is of such importance, they ought to consult you—unless perhaps the causes are so grave that they cannot suitably be terminated without your presence.

Latin source headnote: If a cause is committed to be decided before a certain day, unless the parties extend it, the jurisdiction expires through the lapse of the day. § 1. Where no certain penalty is established by law, the delegate imposes an arbitrary one. This is what it says.

The same, to V., Bishop-Elect of Chartres.

Concerning causes that are committed to be decided within a certain term, we will your knowledge to hold this: unless the day fixed by the Apostolic authority is extended by the common consent of the parties, when it has passed, the mandate expires.

§ 1. Upon those also who have neglected to come at your citation for causes committed to you, or to obey your judgment concerning them, if the business is such that a certain penalty for it is expressed in the canons, you shall inflict that penalty; otherwise, you shall take care to punish them according to your judgment in accordance with the quality of the offense and of the cause.

Textual note: A stray ñ separating the two parts of the source headnote was removed as a transcription artifact.

Latin source headnote: Through a simple commission of a cause, a delegate can cite, punish the contumacious, and do the remaining things that pertain to the cause.

The same, to the Archbishop of Sens.

Furthermore, concerning the matter on which you wished to consult us—whether a delegated, non-ordinary judge without letters of commission is permitted to compel a contumacious person to come, or to condemn him if he does not come—let it become known to you by the authority of the present letters that, after a cause has been delegated to him, even simply, by our authority he can sufficiently compel the parties and also restrain the contumacious with ecclesiastical severity, even if the letters of commission do not contain this or the parties do not possess our mandate that they should appear. For from the fact that the cause is committed to him, he receives full power over all those matters that are known to pertain to the cause itself.

Latin source headnote: If a cause has been committed to several persons, even simply, each one can subdelegate. This is what it says, and it is alleged daily.

The same, to the Bishop of Winchester.

Although we are entangled by a multiplicity of affairs and occupied with grave and diverse solicitudes, nevertheless, beyond the common duty, the charity and affection of your fraternity, by which we love your person, compels us to respond to your consultations, lest we seem to leave undiscussed the matters that your discretion wished to present to us to be resolved.

Therefore, let it become known to your solicitude that a judge delegated by us can delegate to others, [to one or several], a cause committed to him: either the entire cause to be heard and terminated; or so that they may hear the allegations and reasons and receive the attestations, reserving the sentence to himself; or so that they may do only some one of these things according to the will and good pleasure of the one delegating. Nevertheless, he cannot delegate the same cause to another with appeal set aside, even if it was committed to him with appeal removed.

But if a cause is committed to two persons, even if it is not added that one may proceed in it without the other, nevertheless either of them can commit his functions in this matter either to his co-judge or to another. [But, etc.; cf. c. 3, On Rescripts, I.3.]

Latin source headnote: A delegate of the Pope executes his own sentence when the one to whom he had committed its execution cannot or will not execute it.

The same, to the Bishop of Norwich.

You signified to us through your letters that sometimes a sentence concerning some cause is rendered in vain by a delegated judge when the ordinary judge is unwilling to commit it to execution at his mandate, or cannot bring it to effect because others resist. Concerning this, however, we respond thus to your consultation: if the ordinary judge at the mandate of a judge delegated by us either will not or, because others resist, cannot bring the sentence given by him to effect, the delegated judge can commit it to execution by our authority committed to him; and if any persons resist him, he can restrain them by ecclesiastical sentence. [If at any time, etc.; cf. the following chapter.]

Latin source headnote: If the ordinary knows that one whom a delegate of the Pope orders to be inducted into possession was not canonically instituted, he shall not resist violently, but shall insist with prayers that the delegate defer until the Pope is consulted.

The same.

But if at any time clerics before a delegated judge draw prelates of churches into a cause concerning the churches that they hold, and before the same judge obtain the churches through a settlement or in another manner, in which it is certain that they had no canonical institution whatever, nor even corporal possession, the ordinary judge ought not violently to resist the mandate of the delegated judge, but ought to insist before him that he defer putting them into possession until the truth of the matter becomes known to us.

Latin source headnote: After a definitive sentence has been committed to execution, the jurisdiction of the delegate expires.

The same, to the Bishop of Brescia.

In the letters that your fraternity directed to us you inserted certain questions concerning which you sought that a solution be furnished to you by us. One of these, indeed, is this: until what time can a delegated judge interpose his functions so that the adjudged matter or settlement is observed? Concerning this we respond thus to your consultation: from the time when the delegated judge personally, or through another if he could, committed the sentence to execution or ordered that it be committed, his authority and jurisdiction ceases, because he has once discharged his office.

Latin source headnote: When the defendant is absent but not through contumacy, a delegate appointed even for a fixed day shall not restore the plaintiff, although the plaintiff wishes to prove possession and ejectment.

The same, to the Abbot of Saint-Aubin.

By the ministry of the service undertaken, we are compelled to respond to the consultations of individuals, so that, if anything of doubt or question arises in anyone's mind, it may be resolved by the Roman Church, which by the Lord's disposition merited to obtain primacy among the others.

It was asked of us whether, if someone asserting that he was despoiled of a church or any possession without judgment and reasonable cause obtained letters from us to judges that possession should be restored to him within a certain time if it were established for the judge that he was so despoiled, possession ought to be restored to him when the one who holds the church or possession that he reclaims had, before any mention was made of the letters themselves, absented himself for the sake of studies, pilgrimage, or another cause of this kind, and cannot exhibit his presence to the judge within the fixed time.

Concerning this we respond thus to your inquiry: he neither can nor ought to have restitution, although he is prepared before the delegated judge to prove his possession and ejectment by suitable witnesses, unless the one who possesses had absented himself through contumacy. But if the judge extends the term until the return of the one who possesses, his jurisdiction expires, because without the consent of both parties it is not permitted to a judge in any way to extend a term fixed by the one delegating. [Furthermore, etc.; cf. c. 19, On the Right of Patronage, III.38.]

Latin source headnote: A delegate of the Pope has jurisdiction in the cause committed to him over an ordinary and any greater person.

The same, to the Bishop of Chartres.

Indeed, because you first wished to consult us how a judge delegated by us ought to compel a bishop who is not subject to him to do or give something when, by our mandate, he undertakes to terminate a cause that is pending between the bishop and a cleric or layman, we have decided to respond thus to your question: a judge delegated by us performs our functions, and hence in that cause he is superior to and greater than those whose cause he undertook to terminate.

Therefore, if a bishop or another person who is not of his jurisdiction should be rebellious or contumacious in a cause that we delegate to him, according to the quality or quantity of the deed he will be able to be compelled by the delegated judge with a sentence either of interdict or suspension, in such a way that the judge, proceeding temperately according to the quality of the business, forbids the bishop either entry into the church or the priestly office, or even subjects to interdict that bishop's land which pertains specially to his jurisdiction. [Concerning witnesses, etc.; cf. c. 5, On Compelling Witnesses (2, 14), in Compilation I.]

Latin source headnote: If the first man obtained the first dignity to become vacant in a church, and a second obtained a certain dignity of that church when it became vacant, and it afterwards becomes vacant, it is owed to the first and not the second. This is what it says, and it is a notable decision.

The same, to the Archbishop of York and the Bishop of Coventry.

On behalf of N., a chaplain, it became known to us that, when he obtained our letters to you, brother of Coventry, that you should assign him the archdeaconry that should first happen to become vacant in your church, R., his adversary, obtained other letters, as is said, to you, brother of York, with no mention of the earlier ones, that, if his maternal uncle wished altogether to relinquish the archdeaconry that he held in the same church, you should cause it to be assigned to him.

Therefore, because, if we had remembered that we had directed our letters for the aforesaid N., as we have said, we would in no way have written for his adversary, and being unwilling that our letters that we sent for the same N. lack effect on this occasion, we command your fraternity by apostolic writings, under precept, that you assign to the aforesaid N. the archdeaconry of that church, if it is vacant, notwithstanding the later letters.

Latin source headnote: Where a contrary will of the Pope does not appear, a delegate ought to preserve the form of law and admit reasonable exceptions. Johannes Andreae.

The same, to the Archbishop of York.

On your part it has been asked of us whether, when we commit some cause under a certain form, the delegated judges ought so to follow the form committed to them that they do not admit reasonable exceptions. Upon this we answer your question in this manner: even if at times it is expedient for a delegated judge to preserve the form prescribed to him, he nevertheless ought to admit reasonable exceptions and proceed in the cause according to the equity of law, unless it is expressed in our letters that no exceptions ought to be admitted. We believe that neither we nor our predecessors have ever expressed this.

Latin source headnote: A delegation made to a dignity, without a proper name being expressed, passes to the successor.

The same, to the Abbot and Convent of Marmoutier.

Since the Abbot of Leicester, who, after first receiving our mandate, fixed a day for the parties to act, having first taken the counsel of prudent men, joined to himself in cognizance of the cause the newly substituted Abbot of Winchester in place of the judge who had previously died, after our mandate had been presented to him, because the commission of the letters emanated from us under the express names of places and not of persons, we therefore hold their sentence ratified and firm, insofar as it is just.

Latin source headnote: If the Pope delegates a question concerning the right of presentation, appeal having been removed, and under this form, that the delegate should ordain the church upon the presentation of the one to whom he shall see that it pertains, through this he does not have power to institute, but to pronounce judgment, and the one to whom it pertains shall institute; and, if his right is impaired, he lawfully appeals.

The same.

Concerning what, moreover, you wished to add, namely, if, after a question has arisen among certain persons concerning the presentation of a priest, it should happen that the cause is delegated to someone under this form—that, if it should be established that the right in question pertains to either party, upon that party's presentation he should ordain the church with a suitable person, appeal having been removed—whether it is lawful for the delegated judge, without the diocesan bishop's knowledge, or when the archdeacon or archpriest protests, to put the cleric presented to him into possession of the church, especially if the person presented was unknown or less suitable; and whether, if the archpriest, archdeacon, or bishop to whom institution pertains should appeal, deference is to be given to their appeals: concerning this we wish your discretion to hold that, although we commit to someone for determination, appeal having been removed, the question that is disputed concerning presentation, it is nevertheless not our intention to generate prejudice to the diocesan bishop, archdeacon, or archpriest. Therefore, the one who is to be presented must be presented to him by whom he is to be instituted. And their appeal shall hold if, seeing their right impaired, they should decide to appeal, because the remedy of appeal has been removed not from them, but from the parties between whom the cause was committed. [But concerning churches, etc., cf. c. 9, On Census, III. 39.]

Latin source headnote: If a cause is delegated simply to two persons, the sentence of one does not hold.

The same.

We remember having committed to our venerable brothers, the Bishops of Fréjus and Gap, the matrimonial cause that is known to be conducted between the woman I. and Blanchacius. When they had indeed convened together and, as we have learned, had ordered that woman to be restored to the man, the man so afflicted the woman with torments and lashes that, unwilling and coerced, she confessed a relationship of kinship between herself and her husband. And so it happened that at the judgment of one of them he put away the same woman, who is said to have borne him five sons and to have remained with him for fourteen years without any question.

Hence, because matrimony is proved to be so great a sacrament in the Church of God that it ought not to be dissolved without a reasonable and evident cause, especially since it was instituted not by man but by God, we command your discretion by apostolic writings that you diligently and subtly inquire into the truth of this matter; and, if you find that the aforesaid B. separated the said I. from himself solely at the judgment of one of the aforesaid bishops, because, when a cause is committed to two persons, the sentence of one does not hold, after prior admonition you are to compel him, appeal having been removed, to receive the same woman kindly as his wife and to treat her with marital affection. But if perchance he should disdain to do this, appeal ceasing, you are to bind him and the woman brought in over her with the bond of excommunication. If, nevertheless, any persons should appear who, after she has been received back by him, wish and are lawfully able to challenge their marriage, after the parties have been summoned before you, you are to hear the cause and terminate it with a canonical end, appeal having been removed, employing that maturity and circumspection which it is fitting to employ in the whole business.

Textual note: The Latin Library transcription's sit institutam has been corrected to Friedberg's printed sit institutum; the neuter participle agrees with matrimonium.

Latin source headnote: A delegate who is the lord of the impetrant can be recused.

The same, to the Bishops of Oxford and Winchester and the Abbot of Hereford.

We committed under a certain form to you, brother bishops, and to our venerable brother the Bishop of London, for termination, the cause that is disputed between the noblemen F. and R. of Ardenna, formerly the son of Agatha, concerning the birth-status of Agatha. But because the same F. of Ardenna held the aforesaid Bishop of London entirely suspect, for the reason that he is the lord of the aforesaid R., we decided that he should be removed and that you, son abbot, should be substituted in his place. Therefore, by apostolic writings we command and enjoin you that you subtly inquire into the truth of the matter concerning the birth-status of the aforesaid A., and if, etc. [Cf. c. 4, Who Are Legitimate Children, IV. 17; c. 3, On Fraud and Contumacy, II. 14.]

Textual note: Both the web transcription and Friedberg's printed text read ispsum, an evident typographical error for ipsum; the translation renders the intended pronoun.

Latin source headnote: From the subdelegate of a papal delegate who did not subdelegate the whole matter, appeal ought to be made not to the Pope but to the delegate himself.

The same.

When, by consulting us, you seek to be taught whether it pertains to you to confirm the sentence that judges delegated by us have rendered in causes in your province, although nothing concerning the causes [themselves] was conducted in your presence, we answer your consultation by the present letters that you are not bound to confirm that sentence unless you wish to do so. But know that this is incumbent upon you by duty of office: if the sentence cannot be put into execution at the mandate of those judges, you are to furnish them aid and favor; and you will be able to confirm it if you know that it was rendered reasonably.

Likewise, if, concerning a cause that is committed to you by our delegation, an appeal has been interposed by one or more ecclesiastical persons to whom, so that [meanwhile] you may spare the parties' labors and expenses, you commit cognizance of that cause and examination of the witnesses while reserving the sentence to yourself, you are not bound, in view of an appeal of this kind, to leave the cause itself undetermined.

Latin source headnote: The jurisdiction of a delegate before whom the issue had been joined does not expire upon the death of the delegator.

Lucius III, to the Archbishop of Canterbury and his Suffragans.

It has been reported [on your part that, although the remedy of appeal had been removed in commissions made by Alexander III, our predecessor of holy memory, nevertheless one of the parties alleges that the mandate expired upon the death of the mandator, whether or not the issue had been joined, and therefore, all business having been postponed, you await an apostolic mandate in suspense.] We therefore answer your consultation [by the authority of these presents] that, if the issue had been joined before the death of our predecessor, the mandate in no way expired upon the death of the mandator. But if he died before the joinder of issue, the judges whom he had delegated are not to proceed in that case by virtue of a delegation of this kind. Therefore, appeal ceasing, it will be possible to proceed in that case in which, before the mandator's death, the issue had been joined through statement and answer. But where the mandator's death preceded joinder of issue, the proceeding is to stop altogether, whether or not an obstacle of appeal had been interposed. Given at Verona, on the sixth day before the Kalends of July.

Latin source headnote: If the delegate cited the party before the death of the delegator, his jurisdiction has been perpetuated. And one who pursues the suit before the judge from whom he appealed renounces the appeal.

Urban III.

We consider it pleasing and acceptable that you expend due care upon the business committed to your discretion and, in matters that cause doubt, in keeping with the gravity of your office, seek the judgment of the Apostolic See. Indeed, your devotion has consulted us whether, when an edict of citation was issued before the death of the delegator but the issue was joined after the death of the [delegator], the delegated judge ought nevertheless to proceed in the cause; and whether one is understood to have renounced an appeal who, after it had been interposed, sought adjournments for producing witnesses and then, renouncing production and pleading, sought to have the attestations solemnly published, just as you assert that all this happened under your examination around the death of Pope Lucius, our predecessor of good memory, who had delegated you as judges.

We answer your inquiry in this manner: because in the former case, once the citation had been made, the business was, as it were, begun, and especially if the delegate is not certain of the death of the delegator, there can and ought to be proceeding in the cause, and whatever, with justice as guide, shall have been definitively determined through judicial procedure shall hold. But in the second case there appears to have been a withdrawal from the appeal, if it should be established that the one who appealed proceeded in accordance with the matters set forth above.

Latin source headnote: If a cause is committed to three delegates with the clause, “but if not all, etc.,” before the incapacity of the third becomes apparent, two cannot proceed, and, if they proceed, they do nothing. This is what it says, as far as § We add. § 1. The clause, “if not all of you are able,” includes will under incapacity with respect to perfecting the jurisdiction of the co-judges. The same applies to two appointed with the clause, “but if both.” This is what it says, as far as § The sixth. § 2. If the defendant before the delegate objects against the plaintiff that he is excommunicated, but does not prove it within the due time, the plaintiff is heard. But if he proves it, the delegate shall absolve the plaintiff if he was excommunicated on account of the cause committed to him. If on account of another cause, he shall remit him to his excommunicator. If the latter does not wish to absolve him, the Pope's delegate shall absolve him, unless it is among the cases reserved to the Pope. This is what it says. § 3. One absolved by the delegate concerning the cause for which he had been excommunicated shall appear, or answer concerning that cause, before the excommunicator, unless it has been delegated to another; and, if the excommunicator has maliciously delayed, the delegate who absolved him shall take cognizance. This is what it says.

Celestine III.

Your prudence: (And below: [cf. c. sole, On the Amendment of the Pleading, II. 4.]) In the fifth place, moreover, you entreat to be informed whether, when a cause is committed to three or more persons in such a way that, if all are unable to take part, two shall nevertheless execute it, if the defendant has been summoned by only two, he is necessarily bound to come; and, if he has been cited by only two or by more, [and] has appeared before two, while the third or another beyond him neither comes in person nor excuses himself by letter, as is customarily done, whether the two present can proceed in the cause, define it, and terminate it by the reckoning of a sentence.

In this case we answer in this manner: when any one of the delegated judges has not shown through a reliable messenger or an excuse sent in writing that he is unable to take part, or it cannot otherwise be canonically established concerning the same, the remaining judges ought not to proceed to cognizance of the cause. But if they proceed, they shall be reckoned to have done nothing. This indeed was the ancient provision of the Apostolic See, that it would more willingly delegate recognitions [and decisions] of causes of this kind to two persons than to one, and to three than to two, since, as the sacred canons attest, a judgment that is confirmed by the opinions of several persons is complete. For anyone who should presume to judge outside the form of the rescript received would be proved to exceed the bounds of the mandate.

§ 1. We add also that, where it has been set down in the commission that, if all are unable to take part, two shall nevertheless execute it, even if one of them, although he is able, is unwilling to take part, the two are nevertheless to proceed in the cause, although that third person is to be most gravely reproved because he evades or disdains to execute the apostolic mandate. We say that precisely the same is to be observed also in a cause that is committed to two persons with this added: that, if both are unable to take part, the one shall nevertheless execute it.

§ 2. The sixth question proposed to us on your part contained this: when a cause is committed to certain judges, and it sometimes happens that the defendant objects against the plaintiff that he cannot stand in judgment, inasmuch as he is bound by the bond of excommunication, if the defendant is unwilling, or is unable, immediately to prove him excommunicated, whether the plaintiff ought nevertheless to be heard until the truth of the matter that is objected has been disclosed and unraveled. We remove this doubt in this manner: if the one who objects to something of this kind does not immediately, or within a competent term, prove lawfully what he contends, the plaintiff ought to be permitted to be heard without any impediment. But if, either from the plaintiff's confession or in any other manner, it should be lawfully established that the plaintiff is bound by the bond of excommunication, he can lawfully be absolved by the delegated judges according to the form of the Church, [provided] that, if he was excommunicated by an ordinary or delegated judge on account of another just and evident cause, he ought to be remitted to the excommunicator to be absolved. But if the latter has employed malice, the delegated judges are freely to execute this according to ecclesiastical rite, provided that the kind of excommunication is not of that [offense] whose absolution is reserved solely to the Apostolic See; for it is established law that, to delegated judges to whom the principal matter is committed, the accessory matter is also committed.

§ 3. But if he has been absolved by these judges—after, namely, furnishing an oath that he will stand by the mandate of the Church—you ask again [to be taught] whether he is bound to answer concerning the same cause for which he had been excommunicated before the same delegated judges or before the ordinary by whom he had been excommunicated, and by whose judgment or mandate he ought to stand. In this case we answer thus: he ought to stand before the excommunicators themselves concerning that cause for which he had been excommunicated and to observe their mandate, unless that business has been specially delegated to other judges by the Apostolic See. But if the excommunicators have maliciously delayed, then the delegates shall exercise in the accessory matter the same jurisdiction as in the principal matter. [Given at the Lateran, on the fifteenth day before the Kalends of July, in the third year of our pontificate, 1193.]

Textual note: Three stray ñ characters in the Latin Library transcription, occurring between the divisions of the headnote, have been removed; they are not part of the Latin text. The transcription's ordinano has also been corrected to Friedberg's printed ordinario.

Latin source headnote: If a cause is simply delegated to three persons, two cannot proceed without the subdelegation of the third. But if they have done so, appeal can be taken from them. The same applies if they were appointed with the clause, “but if not all.” For the proceeding of two without the third having been consulted is not valid. This is what it says, encompassing both understandings.

Innocent III, to the Archbishop of Reggio and the Bishop of Cefalù.

When the cause that is disputed between our venerable brothers, the Archbishops of Monreale and Rossano, concerning certain tithes had been committed by us to our venerable brothers, the Archbishops of Palermo and Capua, and to you, brother of Reggio, to be terminated with a due end, the aforesaid Archbishop of Monreale, as we learned from his letters, came in response to the first citation of the aforesaid Archbishops of Palermo and Capua. Established in their presence, he proposed by way of exception that, for two reasons, he ought not to stand before their judgment: first, namely, because the cause itself had been delegated to three judges, and he had been summoned to judgment by only those two, while you, brother of Reggio, although present, were unconsulted and unaware and had not committed your authority to them concerning this; and also because, before their citation and knowledge of the letters, he had sent his messenger to the Apostolic See for the same cause, in which matter he affirmed that a decretal of Pope Alexander III, our predecessor of happy memory, supported him more plainly. But the same archbishops, unwilling to admit his exceptions, rendered an interlocutory sentence against him that he should answer; on account of this, the same archbishop, feeling himself aggrieved, appealed to the Apostolic See.

We therefore commit the inquiry into the aforesaid matters and their canonical decision to the examination of your discretion, and by apostolic writings command your fraternity that, after those who ought to be summoned have been summoned before you and the truth concerning the foregoing has been more diligently inquired into, if it should be established to you that the aforesaid archbishops in no way admitted the aforesaid exceptions, notwithstanding what was done by them, you are to cause the tithes themselves—of which the aforesaid Archbishop of Monreale asserts that he was despoiled after his messenger had approached the Apostolic See on account of this, especially since he asserts that the same tithes were confirmed by the Apostolic See both to himself and to his church—to be restored with the fruits received from them, every obstacle of contradiction and appeal having been removed, whether it was done through lay power or even through the same judges; and afterwards you are to hear whatever question remains, insofar as you are able by law, and, appeal having been removed, decide it with a due end. [Given at the Lateran, on the Kalends of November, 1198.]

Latin source headnote: If two persons are delegated with the clause, “but if both, etc.,” when one has been recused the other can proceed alone, nor does the proceeding hold if he proceeds with the person recused.

The same, to the Convent of Conches.

When a question concerning the abbacy of your monastery had been conducted for a rather long time between you and S., formerly your abbot, [the parties at length approaching our presence, we appointed our beloved son H., cardinal-deacon of Saint Eustachius, as auditor. In his presence it was alleged on behalf of S. in this manner: when our beloved son I., cardinal-priest of the title of Saint Pudentiana and at that time legate of the Apostolic See, had entered Normandy and had held a diligent inquiry with the abbot and brothers concerning the condition of that abbey, he found nothing there worthy of reproof, as appears evidently from the letters of Pope C., our predecessor of good memory, in which that cardinal's declaration is inserted.

But after he later departed from the monastery, his letters were fraudulently obtained to our beloved sons, the Abbot of Troarn and the Prior of Saint Barbara, concerning an inquiry to be made into the abbot and the whole monastery, with no power given to the investigators to make any determination against the abbot, as is evidently gathered from the testimony of the same cardinal. Therefore, when the aforesaid investigators approached the aforementioned monastery and wished to exceed the bounds of the mandate in conducting the inquiry without preserving the order of law, the same abbot appealed to the Apostolic See before the inquiry took effect. And although he had begun his journey to come to the Roman Church, the said investigators, deferring neither to the appeal reasonably interposed nor to his absence or any excuses, promulgated against him, contrary to the order of law, a sentence of removal, although the power of pronouncing judgment had not been granted to them, as is plainly declared from the letters of many prelates.

Therefore, when the aforementioned abbot approached the presence of our said predecessor and made him more certain concerning his irregular removal, our predecessor, having annulled all things that had been ordained contrary to the order of law by the said investigators, restored the same abbot by his sentence, committing only its execution to our venerable brother the bishop and our beloved sons L. and H., the Archdeacons of Évreux. But after a day had been assigned to the parties by the bishop alone and both parties came at the term, although the abbot expected that restoration would be made to him according to the tenor of the apostolic mandate, he was unable to obtain it. On the contrary, the bishop labored by prayers, threats, and terrors to induce him to submit to that bishop as arbitrator—not concerning the making of restitution, which was the principal business, but only concerning the deferral of its execution. And because the adverse party had approached that place with arms and a multitude of armed men, it happened that, as stated above, he submitted to the said bishop as arbitrator, faith being pledged in his hand and the letters of restitution being deposited with him, not to be delivered to the adverse party but to be diligently preserved and returned to him at an opportune time. But the bishop himself, not fearing to act contrary to what he had promised, returned the aforesaid letters to the abbot's adversaries.

And thus, with the arbitration violated alike on the part of the bishop himself and of the adversaries, monks approaching the presence of Melior of good memory, cardinal-priest of the title of Saints John and Paul and at that time legate of the Apostolic See, obtained letters of commission to I., formerly Dean of Rouen, concerning the grievance of the arbitration. At his first citation a monk sent by the said abbot was captured by the adversaries and consigned to iron chains; but when the same abbot came at the second citation, he was compelled by pressure to submit to the dean as arbitrator, not concerning the abbacy, regarding which no question was disputed before him, but for the diminution of certain revenues in grain. But because the other party did not preserve its pledged faith concerning observance of the arbitration, as had been agreed, the said S. was again compelled to labor to the Apostolic See, where at length, concerning both the principal question and even the incidental question,] our letters regarding it had been directed to the Bishop of Lisieux and the Abbot of Bec, [that they should strive to elicit the truth concerning the matters that had been intimated to us and should determine what they should see was reasonably to be determined according to God, the order of law being observed in all respects, in such a way that either one should fulfill the apostolic mandate without the other if the other was unwilling or even unable to be present. Mention was made in those letters concerning the pledge of faith violently extorted, as the same S. asserted, and that it concerned not abjuring the monastery but only deferring restitution, as has been said, lest, if these matters were omitted, the commission should appear to have been obtained with the truth suppressed.

But when the parties were established before the delegated judges, the party of the man whom he called an intruder said that the aforesaid bishop was suspect to him for two reasons: both because he had a certain cause against the aforementioned monastery concerning a church, and also because he had not admitted that man, upon his return from the Roman Curia, to the kiss of peace. Hence he was unwilling to stand to law either before them or before either one of them, although he said nothing against the abbot; instead, appealing frivolously, he contumaciously absented himself. But the said executors, by no means deferring to the appeal, which was no appeal at all, having taken the counsel of many prudent men, put into execution the sentence rendered by our said predecessor, restoring the abbacy to the aforesaid S. and imposing perpetual silence upon the aforesaid intruder.

And when the diocesan bishop, although frequently required at their command on the part of the Apostolic See, refused to induct S. himself into corporal possession, they committed its execution to certain deacons. These not only were not admitted, but, afflicted with blows by the monks and their supporters, were consigned to confinement in prison. On this account, a sentence of excommunication was promulgated by the delegates against the intruder, the monks, and their supporters, according to the tenor of the apostolic mandate. But the intruder and monks did not on this account cease to celebrate divine offices; after that intruder had died, they even presumed to elect another excommunicated man, as is evidently perceived from the delegates' letters.

And when not even thus could they be led back to the fruit of a better life, the oft-mentioned S. began a journey to come to the Apostolic See. But messengers of the monks, anticipating him, fraudulently obtained letters concerning the conferral of the gift of benediction upon the one whom they had elected, which they sent to their region more hastily than they ought. The said S. therefore sought that those monks—who presumed to cut out the tongue and tear out the eyes of one of his predecessors, attacked another while he sat at table with swords and clubs, and left another alone in the church prepared to celebrate Mass—be punished with fitting chastisement; that possession of the abbacy be fully restored to him, as had been determined by our said predecessor and afterwards ordained by the delegated judges; and that the intruder who had been assumed after a sentence of excommunication had been rendered against him be condemned by perpetual silence.

But, on the contrary, it was proposed on your behalf in this manner: when the aforesaid Cardinal I. was exercising the office of legate in those regions and committed to the aforesaid Abbot of Troarn and Prior of Saint Barbara for termination the cause itself concerning both the waste committed by S. himself and his incontinence, after ascertaining the truth and observing the order of law in every respect, they rendered against him a sentence of deposition, which was afterwards confirmed by our said predecessor. But S. himself intimated to the same predecessor of ours that he had been unjustly despoiled of that abbacy, the aforesaid cardinal likewise asserting that it had not been his intention that the delegated judges should proceed to the abbot's deposition, although this too had been committed to them, as is found in their letters. Hence, our oft-mentioned predecessor did not restore him in the absence of the other party, but ordered that he be restored by the aforementioned bishop and archdeacons, because it had been concealed from them that the aforesaid cardinal had also granted to the said abbot and prior the power of deposing him.

Therefore, when the parties convened on the day and at the place assigned to them by the delegates of the Apostolic See, the said S., with faith pledged, affirmed in the bishop's hand that he would stand by his arbitration concerning that cause. The bishop diligently admonished the parties to direct themselves toward the things that belong to peace, and such a settlement was made between them that the said S. would withdraw from the abbacy in perpetuity. The delegated judges held that withdrawal ratified, and the same S., as is contained in the delegates' letters, affirmed by oath that he would firmly observe it. And although he had obtained duplicate letters of entirely the same content concerning his restoration, after the settlement was made—which our oft-mentioned predecessor later confirmed—he surrendered one and fraudulently retained the other.

But, after the passage of time, when the settlement had been observed by him for a while, he caused the same cause to be committed, through the aforementioned Cardinal Melior, to the former Dean of Rouen. In the presence of the dean and of our venerable brother the Archbishop of Rouen, the first settlement was renewed, and there the aforesaid S. again abjured the abbacy and corporally furnished an oath that he would henceforth observe the settlement itself, as is contained in the letters of the Archbishop of Rouen himself and could be proved by many witnesses. These things were done before the Dean of Rouen chiefly for this reason: the priory that S. himself was to obtain was situated in the diocese of Rouen. When he had held it for two years and, by living dishonorably, had consumed almost everything, he violently extended his grasp to other goods of the monastery.

And finally, approaching our presence and expressing certain of the foregoing matters but keeping others silent, he carried back our letters to the aforesaid Bishop of Lisieux and the Abbot of Val-Richer, that they should diligently inquire into the truth of all matters and determine what justice demanded. But when they had cited the parties before them, although the bishop was suspect to the other party for the aforementioned reasons and because he answered Abbot R. that, if he could, he would harm him, and although he had been recused by that party and the latter wished to prove this before the co-judge who was not suspect or before arbiters chosen by the parties, the said Abbot of Val-Richer was unwilling to admit this. An appeal was afterwards taken from those two before entry into the cause; they nevertheless decreed by sentence that S. himself was to be restored, imposing perpetual silence upon his adversary concerning the abbacy.

Therefore, when the aforesaid cardinal had prudently and faithfully reported the foregoing and certain other matters to us and our brothers, because it was established to us through the letters of the aforesaid judges, the bishop and Archdeacon of Évreux, to whom the cause concerning the restoration of S. himself had been committed by our said predecessor, that with the assent of both parties a settlement had been made under this tenor: that the Priory of Saint Stephen, with all its appurtenances, and certain other things were granted to him to possess for as long as he lived; that he withdrew from the suit by his spontaneous will; and that he surrendered his instruments into the hands of those judges after breaking the seal that he had used; and because we evidently perceive from the letters of the aforementioned Archbishop of Rouen that he abjured the aforementioned abbacy, we, being unwilling that through us, who punish perjuries, a way be opened to perjuries, since by receiving a settlement of this kind he also renounced the abbacy, with the counsel of our brothers communicated, absolve you and your monastery from the legal attack of S. himself, imposing perpetual silence upon him concerning that question. What was done by the last delegates does not stand in the way, since from these matters it appears evidently that, to say nothing of the others, if the foregoing matters were established to them, they proceeded less than lawfully by restoring one who had no right to seek anything back. And]

Although the abbot alone, before appeal was taken from him, could have proceeded according to the form of our letters, nevertheless, by the fact that he held an interlocutory conference with the bishop himself, he consequently confessed that the appeal earlier interposed from the same bishop had not held and that, by law, he could not fulfill the apostolic mandate without him when he was able but unwilling to take part in the business. Nor was it his intention to decide anything without his co-judge; and with one who had already ceased to be a judge he was unable lawfully to determine anything concerning the aforesaid business. Thus, their will and power were mutually opposed: since he was unwilling to do what he was able to do, and was unable to fulfill what he wished to do, what had been done by the two could not by law obtain effect. Therefore let no one, etc. Given at the Lateran, on the Ides of April. [1199.]

Textual note: Two evident transcription errors in the Latin Library text have been corrected against Friedberg's printed page: frustratonrie … absentavi to frustratorie … absentavit, and mundaverunt to mandaverunt. The ungrammatical episcopos—which also appears in Friedberg's printed text—has been corrected to episcopus as required by the singular verb esset. The edition's reading Lesionensem has been rendered “of Lisieux”; Friedberg's apparatus records Lexoviensem among the variants, and the same bishop is called Lexoviensis later in the chapter.

Latin source headnote: If the delegate's jurisdiction expires at the peremptory term that he assigned to the parties, after a suitable hour of the peremptory day the judge shall not wait for the contumacious party. If it does not expire, he can wait until the next day and cite again, if he wishes.

The same, to the Archbishop of Toledo.

Your fraternity has consulted us whether, when you cite the parties peremptorily for the reception of witnesses, publication of their depositions, or rendition of a sentence, and one of them contumaciously absents itself on the appointed day, you are to proceed in the business at least around the final part of the day or instead wait until the following day; and, if you have waited, whether the contumacious party is to be cited again, since there was no proceeding on the day assigned to the parties.

We, however, believe that a distinction must be made whether the jurisdiction endures after the peremptory term or expires at it. If it endures, equity so counseling, you will be able to wait until the next day, nor, once the peremptory term has elapsed, is the contumacious party to be cited, unless the kindness of the judge grants it this favor. But if it expires, unless the parties—especially when they know this—have presented themselves to you at an hour when you can suitably proceed to execute that for which you lawfully assigned them a peremptory term, from then on you will be able to execute what you intend, lest judicial instance vanish in vain.

But lest ecclesiastical judgment be exercised in darkness, because according to the testimony of the Truth, “he who does evil hates the light,” although, according to custom and lawful constitutions in the Roman manner, the day begins from the middle of the night and ends in the middle of the following night, whence legal authority has decreed that what is done in two half-nights is to be held just as if it were done in any part of the daylight, we nevertheless understand that hour for proceeding to be suitable from which you can complete before the darkness of night what is incumbent upon you. Moreover, in assigning a peremptory term, a discreet judge ought not so to constrict his jurisdiction unless necessity requires it.

Latin source headnote: For a new cause a delegate is removed, even after joinder of issue, and another is substituted.

The same, to the Abbot of Bordellia and the Prior of the Holy Sepulcher.

By the intimation of our beloved son R., rector of the church of Saint Saldatus, it has reached our hearing that, when he had formerly obtained from us that the cause disputed concerning parochial right between himself and T., rector of the chapel of Saint John of Glovernia in the diocese of Worcester, be delegated to our venerable brother the Bishop of Worcester and his co-judges, afterwards, although there had been proceeding in the same question, in the course of time before the reckoning of a definitive sentence was reached, the same bishop admitted the said R. among his familiars. Without that bishop, according to what was commanded in our letters, the other co-judges were unable to proceed in the cause; and one of those co-judges is an official of the aforesaid bishop, on account of which he could be held suspect by the adverse party.

Hence, since for a cause of this kind both the bishop and the aforesaid official—inasmuch as the same R. had sought them as judges and later became their familiar—could deservedly be recused by the adverse party, R. sought that decision of the cause itself be committed to your discretion. Therefore, by apostolic writings we command your discretion that, if it is so, unless after he became the bishop's familiar he consented to litigate before him, you are to proceed in that cause according to the contents of the former letters, reason leading the way and the obstacle of appeal having been removed; otherwise, the parties are to return to the examination of the former judges. [But if not all, etc. Given on the sixth day before the Kalends of February, 1206.]

Latin source headnote: A papal delegate can execute his sentence for as much as a full year. This is what it says, and it is an exceptional case.

The same, to the Prior of Saint Fridianus.

To one asking what is meant by ecclesiastical censure—(And below: [cf. c. 20, On the Signification of Words, V. 40.])—if a delegate appointed by us excommunicates one who disdains to obey a matter adjudged, although it appears to some that he has discharged his office, so that he has no further proceeding by virtue of the jurisdiction delegated to him, while others say that his jurisdiction endures until the sentence is obeyed, so that meanwhile he can absolve one who is willing to obey: we, nevertheless, walking along the path of equity, establish by authority of these presents that a delegate appointed by us can exercise the jurisdiction committed to him for executing the sentence not only for the four-month period that is conceded by law to a defendant for paying a debt, but for as much as a full year, just as is observed in the case of one who is found contumacious before joinder of issue.

Latin source headnote: A papal delegate can subdelegate the beginning, middle, and end of a cause jointly and separately. This is what it says, as far as § But. § 1. Appeal can be taken from a subdelegate having jurisdiction; it is otherwise if he lacks jurisdiction, unless he exceeds the manner prescribed. For then he can be recused, unless he was appointed with the parties' consent. The Abbot. § 2. From a subdelegate not appointed for the whole matter, appeal is taken to the subdelegator, but not to the original delegator; it is otherwise if he was appointed for the whole. This is what it says, as far as § But him. § 3. An auditor appointed without the parties' consent can be recused as suspect, but not without cause. The Abbot. § 4. If one of two delegates of the prince, with the clause “appeal having been removed,” subdelegates to the other who accepts, the one accepting cannot subdelegate or proceed with appeal removed, although he could do so before acceptance. And, if appeal is to be taken from him, it shall be taken to the Pope, even if he was subdelegated not for the whole matter. This is what it says according to the truer understanding. § 5. If a papal delegate subdelegates not for the whole matter, a party cannot appeal from the subdelegate on the ground that he was appointed without the party's consent; he can nevertheless be recused by showing a just cause before the delegate, and then the delegate shall decide. From the delegate, even if he should refuse to admit the recusal, appeal is taken to the Pope. This is what it says.

The same, to the Archbishop of Canterbury.

Concerning the articles of the questions about which you wished to consult us, we answer your fraternity in this manner: by our constitution no derogation whatever is made from the consultation of Pope Alexander III, our predecessor of good memory; rather, the latter is explained by the former, or indeed in the former those things that had been omitted in the latter are more truly supplied. For he answered that, if, concerning a cause that is committed to someone by apostolic delegation, an appeal has been interposed from one or more ecclesiastical persons to whom the delegate, so that he may spare the parties' labors and expenses, commits cognizance of that cause and examination of the witnesses while reserving the sentence to himself, he is not bound in view of an appeal of this kind to leave the cause undefined.

We, however, establish that, although one to whom a cause is committed with appeal removed cannot delegate it to others without the obstacle of appeal, nevertheless, if a delegate appointed by us or any judge should appoint someone not so much as a cognizor as an executor for some certain article, appeal is not permitted from him unless he exceeds the manner prescribed, provided that he is appointed or received with the parties' consent. But if a delegate appointed by us should decide to commit to him either the beginning of the suit or the end of the cause, to say nothing of the whole business, appeal may lawfully be taken from him as from a judge, since issue ought both to be joined before a judge and a cause to be decided by a judge.

Therefore, it was our intention—as can also be plainly perceived from the tenor of the aforesaid constitution—that, so that judicial authority may be exercised more freely, a delegate appointed by us may lawfully delegate to another the beginning, end, and middle of the cause committed to him, not only jointly but also separately. It does not stand in the way that it is said that a judge ought to take cognizance personally at the beginning, middle, and end, since, before he renders sentence, he ought diligently to investigate all things that were done in the judgment.

§ 1. But when he commits the whole cause, or its beginning or end, to someone, appeal can lawfully be taken from that person as from a judge. But when he commits only the middle to someone, appeal cannot be taken from that person as from an auditor, unless he exceeds the bounds of the mandate or is deservedly suspect. Hence, lest he be capable of recusal, we providently establish that he be appointed or received with the parties' consent.

§ 2. Moreover, when a delegate appointed by us transfers his entire jurisdiction to another, if there is to be an appeal, it will have to be taken not to him but to us. But when he reserves some of the jurisdiction to himself, if the cause was committed to him with appeal removed, appeal can by law be taken not to us but to him. Hence, if perchance appeal were taken from one to whom the middle of a cause is committed—whether he is called a cognizor or executor or, what is better, an auditor—on the ground that he either exceeds the bounds of the mandate or is deservedly suspect, nevertheless the delegate appointed by us will still be able, according to the aforesaid consultation, to decide the cause, so that the parties' labors and expenses may be spared.

§ 3. But neither party will be able to recuse the one whom a delegate appointed by us has appointed as auditor unless it shows before him a just cause for recusal.

§ 4. But if two persons have been delegated by the prince and one commits his authority to the other, the latter cannot and ought not to proceed with appeal removed or delegate the cause to another, although it is expressly contained in the commission made to the two that, with appeal removed, either can proceed without the other if both cannot take part together; for what he can do solely by the jurisdiction delegated to him by the prince, he cannot do with jurisdiction committed to him by a co-delegate. Hence, if appeal has been taken from him, although it has appeared to some that appeal can be taken also to the co-delegate, it nevertheless appears to us that appeal is to be taken only to the original delegator, for the reason assigned above.

§ 5. Therefore, the appeal of the one concerning whom your fraternity wrote to us—if, on the occasion of our constitution, he appealed to our hearing on the ground that a delegate appointed by us, reserving the definitive sentence to himself, committed the hearing of the cause to certain persons who were neither appointed nor received with the parties' consent—ought not to have impeded the auditors from proceeding unless he showed a just cause for recusing them, or was prepared to show it before the delegated judge. Even if they had been deservedly recused as suspect, the delegate appointed by us could nevertheless have judicially dispatched the cause itself, with the subterfuge of appeal removed. But if the delegate was unwilling to admit a just cause for recusal and compelled him to litigate before suspect persons, he could lawfully appeal from such a grievance to our hearing, and whatever was presumed to be done after an appeal of this kind ought to be adjudged null and void. [Given at the Lateran, on the sixth day before the Kalends of April, 1204.]

Textual note: Five stray ñ characters separating divisions of the Latin source headnote have been removed as transcription artifacts.

Latin source headnote: A papal delegate, unless he is maliciously relieving himself, compels a subdelegate to accept the subdelegation; nevertheless, in coercing him, he shall defer to his dignity and person. This is what it says, as far as § Likewise, when the whole. § 1. Just as a papal delegate can commit the whole cause, so he can commit the citation and punish one who disdains to accept it. This is what the Abbot says. § 2. If the Pope knowingly committed an appeal interposed from his delegate appointed with the clause “appeal having been removed,” the jurisdiction of the first delegate is meanwhile suspended with respect to execution. This is what it says according to the true understanding. § 3. An ordinary executes a sentence at the mandate of a delegate even if he knows it to be unjust. The Abbot. § 4. A delegate who is impeded from proceeding on the appointed day shall punish the party who procured this and, with respect to that day, shall commit the cause with appeal removed, in odium of the procuring party, unless the parties extend the business. The Sicilian Abbot.

The same, to the Bishop of Ely.

The diligence and solicitude of the pastoral office that you exercise concerning execution of our mandates, and the zeal of your rectitude, invite us—even though we are hindered by the manifold occupations of business—to withdraw ourselves from them for the hour in which, intending to answer, we may attend to your consultations. For the discretion of your fraternity has consulted us whether, if a person delegated by the prince should wish to delegate to another a cause committed to him, he can constrain one unwilling to receive the delegation to receive it. We have decided, with the counsel of our brothers, to answer your consultation in this manner: since jurisdiction to appoint a judge is conceded by law to a person delegated by the prince, provided that he does not maliciously seek to relieve himself, he can compel one who resists, because that jurisdiction would appear to be of no moment if it had no coercion. Nevertheless, the aforesaid delegate ought solicitously to provide that, if necessity requiring, he should decide to delegate the business to superior persons, in applying coercion he defer to their dignity and person.

§ 1. Likewise, you subsequently also asked whether a delegate, when he sees it to be expedient, can enjoin whomever he wishes to cite the parties to his presence, and inflict a penalty upon them for contempt if they disdain to obey. To this we answer your fraternity briefly that, since the delegate can commit the whole business to another, as was expressed above, after prior discretion he can entrust the office of citation to anyone and deservedly punish one who shows contempt. [On your part, etc. (cf. c. 11, On the Office of an Ordinary Judge, I. 31.)] (And below:)

§ 2. Moreover, you sought to be taught through the Apostolic See whether, when appeal has been taken from a sentence rendered by authority of our letters in which appeal is prohibited, and letters to other judges have emanated after the appeal, execution of the sentence rendered by the first delegates ought to be delayed at the mandate of the later judges, so that the first judges execute it neither personally nor through others. We answer your inquiry in this manner: when we knowingly commit the cause of appeal to other judges for cognizance, we appear to receive the appeal and revoke the jurisdiction of the former judges, so that execution of the sentence is meanwhile suspended until the merits of the appeal have been more fully discussed. [Moreover, etc. (cf. c. 14, On Rescripts, I. 3.)] (And below:)

§ 3. But because it often happens that execution of a sentence is entrusted to the ordinary, you asked whether, if the ordinary knows it to be unjust, he ought to put it into execution or rather should stop. Therefore, considering that not cognizance but only execution is entrusted to him, we answer your inquiry in this manner: because the ordinary is bound to comply with the delegate, even if he knows that sentence to be unjust, he is nevertheless bound to execute it, unless he can bring it about before the delegate that the latter absolve him from this burden. [To be taught, etc. (cf. c. 11, On the Office of an Ordinary Judge, I. 31.)] (And below:)

§ 4. But since it often happens that, on the day that a judge delegated by us has assigned to the parties, through the procurement of one of them so that the business may be prolonged, the judge himself is summoned away by the king or archbishop, we, wishing to meet the maliciousness of the perverse, decree that, if it is established to the delegate that this was procured by the malice of some party, he is to punish that party with fitting chastisement and, lest it carry away any gain from a fraud of this kind, commit the business to be heard for that day to a person suspect to neither party, who is to proceed in it with appeal removed, unless perchance the parties consent that the business be prolonged. [Moreover, etc. (cf. c. 1, On Sacraments Not to Be Repeated, I. 16.) Given at Rome at Saint Peter's, on the fourteenth day before the Kalends of January, 1204.]

Textual note: Four stray ñ characters separating divisions of the Latin source headnote have been removed as transcription artifacts.

Latin source headnote: A subdelegate from a papal delegate who does not have jurisdiction can coerce one who impedes him. This is what it says, encompassing both understandings.

The same, to the Abbot of Saint Hilary and Master G., Canon of Treviso.

We learned from the letters of our venerable brother the Patriarch of Grado that, when our beloved sons, the primicerius of Grado and the pleban of Saint Sophia of Venice—to whom the cause that is known to be conducted between the clerics of Saint Justina and the priest Albert concerning the fact that the same priest asserted himself to be a cleric of that church had been delegated by us—had ordered the same patriarch to declare that the aforementioned clerics were not bound by the bond of anathema, although they had been denounced as lying under a sentence of excommunication by the Archpriest of Padua, by whom a certain rescript had been obtained from us concerning the same business in which, as is asserted, no mention was made of the former letters, because they would not receive the said priest as associate and brother, the patriarch himself was unwilling to obey those judges in this matter, who were exercising our authority. This was especially so since our venerable brother the Bishop of Castello, although required, did not decide to obey them concerning this. The patriarch announced by his letters to the clerics of Santa Maria Formosa the mandate of the aforesaid judges, which our beloved son the Archdeacon of Castello, pleban of the same church, did not permit to be read publicly before the people.

[And when, after a few days had elapsed concerning this, the same archdeacon had been kindly required by the same patriarch at the monastery of Saint Nicholas, suddenly stirred to anger he assailed the same patriarch with grave verbal injuries in the presence of many.] The patriarch, considering that by such a great excess of injuries the archdeacon had gravely offended not only him but also the church of Grado, or rather us ourselves, subjected both the archdeacon himself and the aforesaid church to ecclesiastical interdict, [especially for this reason: because from ancient custom, as is said, it has been established that letters directed by the Patriarchs of Grado throughout the patriarchate of Grado are admitted without distinction by all.

But, at the insistence of the clerics and parishioners of the aforesaid church, the patriarch relaxed the sentence of interdict with respect to that church, enjoining the same clerics under penalty of excommunication not to presume to participate with the archdeacon in divine offices. But when the aforementioned patriarch, together with the aforesaid bishop, had approached the monastery of the Holy Cross for celebrating the funeral rites of a certain person, and the archdeacon wished to involve himself in the divine offices, the patriarch withdrew to one side to avoid scandal. On account of this the archdeacon began to burden him with grave verbal injuries. Likewise, although the same archdeacon had ceased from divine offices for the space of one day, afterwards, while under interdict, he was not ashamed to celebrate publicly.

In addition, the patriarch laid a grave complaint against the oft-mentioned bishop: although the latter is bound to show obedience and reverence to him and the church of Grado, and although he had commanded him to hold the aforesaid archdeacon as under interdict and the clerics of Saint Mary as excommunicated, and to cause the sentences of excommunication and interdict rendered by him to be inviolably observed throughout the diocese of Castello, the same bishop, to the injury of the patriarch, permitted the archdeacon to minister freely in the church of Castello and commanded the clerics of his diocese under penalty of fealty to announce publicly throughout their churches that the archdeacon and the aforesaid clerics lay under neither a sentence of interdict nor of excommunication. Hence the same patriarch humbly entreated us to take care to punish such great injury and excess, and what had been attempted not only against him but rather against the Apostolic See by both the bishop and the archdeacon, in such a way that material for committing similar things would be cut away from others.

But the said bishop intimated to us by his letters that, when the patriarch declared that the clerics of Saint Justina were not bound by the bond of anathema—whom the same bishop had earlier declared excommunicated by mandate of the Archpriest of Padua, a judge delegated by us, as is asserted—and a contention arose on an occasion of this kind between the patriarch and the archdeacon, the patriarch, from a certain disturbance, placed the archdeacon under interdict. When the latter fled to the benefit of appeal, the patriarch promulgated a sentence of interdict against the oft-mentioned church, and was unwilling to receive the satisfaction offered by the archdeacon concerning this unless the archdeacon affirmed by an interposed oath that he would obey the patriarch's mandates. The same bishop added also that, fearing lest the patriarch break out into anything that would tend to the prejudice or grievance of the bishop himself, his church, or his clerics, he appealed to the Apostolic See, solicitously entreating us to take care to restrain the patriarch from undue molestation of himself and his church and of the clerics and churches of his diocese.]

Therefore, when there had been litigation for some time concerning the foregoing and other matters between the proctors of each party before our beloved son the cardinal-deacon of the title of Saints Cosmas and Damian, whom we had appointed auditor for them, and he had faithfully reported to us what he heard, because it could not be established to us whether, by the letters said to have been impetrated to the Archpriest of Padua—which were not shown to us—the letters obtained to the aforesaid primicerius and pleban had been revoked, we decided to commit the cause itself to your examination.

By apostolic writings we command that, after the truth concerning the foregoing has been more fully inquired into, unless it should be established to you that the letters said to have been impetrated in the second place to the aforesaid Archpriest of Padua made express mention of the earlier letters obtained to the oft-mentioned primicerius of Grado and pleban of Saint Sophia, so that through the second letters the first letters appear to have been revoked, because it is not doubtful that the first judges had jurisdiction by authority of our letters—which they were afterwards able to entrust to the patriarch with respect to execution of their sentence, from which the same patriarch had also received coercive power, since jurisdiction so entrusted would appear illusory if a subdelegate of this kind had no coercive power—you are to cause the sentence of interdict promulgated by the same patriarch against the Archdeacon of Castello, for the reason that, impeding the execution of that patriarch, he did not permit the latter's letters announcing the mandate of the aforesaid judges to be read publicly, to be inviolably observed, with the obstacle of appeal removed, until sufficient satisfaction has been made to the same patriarch for the injuries inflicted.

But if it should be established that the first letters were lawfully revoked by the second, since it appears that the first judges had no jurisdiction at all and thus it is consequently established that the patriarch himself received no jurisdiction or coercive power from them, you are to declare null and void the aforesaid sentence of interdict rendered by the same patriarch. [Nevertheless, etc. Given at Rome at Saint Peter's, on the eleventh day before the Kalends of January, in the tenth year, 1207.]

Textual note: The Latin Library headnote's iurisdictionent has been corrected to iurisdictionem; the former is not a Latin form.

Latin source headnote: The jurisdiction of a delegate expires upon the death of the mandator while the matter is untouched.

The same, to the Bishop of Poitiers.

Although the abundant multitude of business flowing in from every direction does not cease to impel our mind toward various cares, your fraternity, whom we embrace in the Lord with sincere charity, nevertheless compelled us to set aside for a time the solicitude that, by debt of pastoral office, we were exercising in the execution of other matters, and to make your doubt certain by an apostolic answer.

Therefore, since you decided to ask of us whether, if we delegate some cause to three judges, causing that clause to be placed in our letters, “but if not all of you are able to take part in executing these things, two of you shall nevertheless execute it,” and one, after he has committed his authority to one of the others, has been removed from their midst, while the third is deservedly recused as suspect, the surviving colleague can decide the business in his own name and that of the deceased, we answer your inquiry in this manner: if, while his colleague was alive, he did not begin to use the jurisdiction delegated to him by that colleague, because a mandate of this kind expired upon the mandator's death while the matter was untouched, he does not alone have the office of judging. But if, before the other's death, he began to use the jurisdiction thus entrusted, he will be able to fulfill both his own authority and that of the other.

Latin source headnote: No one is believed to be a delegate unless he proves the delegation.

The same, to the Bishop of Bayeux.

Since one learned in law—(And below: [cf. c. 33, On Election, I. 6.])—moreover, you asked: when it is commanded to you by someone under this form, “By the authority that I exercise, I enjoin you to denounce such a person as lying under a sentence of excommunication,” and, while you hesitate concerning the apostolic mandate, no proof of it is furnished to you by anyone, whether you are bound to execute a mandate of this kind. Concerning this we give you the following answer: unless you are certain of the mandate of the Apostolic See, you are not compelled to execute what is commanded. [It happens, etc. Given at the Lateran, on the tenth day before the Kalends of September, in the eleventh year of our pontificate, 1208.]

Latin source headnote: Jurisdiction cannot be extended from one matter to another through a proctor who does not have a mandate concerning the latter matter.

The same, to the Bishops of Paris and Troyes and the Abbot of Saint Geneviève.

When formerly our beloved sons, the Abbot and Convent of Vézelay, showed us by their complaint that the nobleman Peter, Count of Auxerre, was endeavoring to construct a certain pond, mill, and house on their land to their prejudice and grievance, we committed the cause itself to our venerable brother the Bishop of Nevers and our beloved son the Treasurer of Nevers. By their letters we learned that, after issue had been joined concerning the church's petitions, witnesses had been received on both sides, the attestations had been published, and afterwards there had been disputation between the parties concerning the witnesses' statements, the count's party finally proposed before them that they ought not to take cognizance of the damage done to the woods and other things, concerning which the witnesses appeared to depose, since there was no mention of damages in our rescript, [adding that the things concerning which the question was conducted were from the fief of the nobleman the Duke of Burgundy, as the same duke acknowledged in his open letters, and therefore recourse concerning them was to be made to the lord of the fief rather than to the said judges.]

To this it was answered on the other side that [even if not expressly, nevertheless tacit mention of the damage done was contained in our letters, since the word “grievance” was inserted in those letters. On that account they could take cognizance of them at least as accessories or appendages of the principal business. Likewise,] since issue had been solemnly joined concerning all the articles about which the witnesses had deposed, the judges were bound to take cognizance of them and pronounce judgment. [But it also asserted that the count was not to be heard concerning the exception of the fief, which was objected far too late, namely after publication of the witnesses.]

To these things the count's party replied that, even if issue concerning the damages had been joined by his proctor, nevertheless prejudice could not be generated against him from this, since the proctor had not been appointed for this but only for that cause expressed in the letters of commission, namely concerning the castle, pond, and mill. To this the other party answered that the count could no longer challenge the proctor's act, which he had by no means decided to revoke until after publication of the witnesses. But the judges, having taken the counsel of discreet men concerning the matters proposed on each side, pronounced interlocutorily that cognizance concerning the damage done by the count pertained to them. Hearing this, the count fled to the benefit of appeal. Hence the judges, after summoning him and when he appeared neither personally nor through a suitable respondent, bound him with the bond of excommunication, [but, when he persisted in contumacy, they remitted the same cause, with the attestations faithfully placed under seal, to our presence.

Moreover, when the proctors of both parties were established at the Apostolic See on account of this, the monastery's proctor proposed before us that, since the town of Vetenedum is common to the monasteries of Vézelay and Saint Germain of Auxerre, in such a way that they have terrage, pannage, lodging dues, rent, thirds, lods, sales dues, and retention in it, the aforesaid count—who had been accustomed to receive nothing other than two denarii annually from each peasant in the name of custody or safeguard—now, usurping jurisdiction over it for himself contrary to justice, extorts five solidi from every villager. In a certain place in the same town, after prohibition had been made both to him and to the Hospitallers, who held that place within the monastery's censual tenure, having received it from them by exchange, he was building a castle, pond, and mill to their prejudice and grievance, with grave damage done to woods, stones, and other things. On this account the same proctor sought that the aforesaid buildings, inasmuch as they were constructed after prohibition and denunciation, be demolished; that the aforesaid count be compelled to cease from molestation of the monastery of Vézelay concerning this; and that he furnish the same monastery suitable compensation for the damage done.

But the count's proctor alleged that, because homicides and robberies were very often perpetrated in the aforesaid place of Vetenedum, which was subject to his jurisdiction, wishing to meet so many and such great dangers, he constructed for the security of travelers a certain house on ground that he had received from the Hospitallers by exchange, where he had learned that a fortified house had formerly stood, with a certain pond and mill built there for the use of the guards of that house. But the aforesaid abbot and convent, falsely saying that they were heavily burdened concerning this, impetrated letters to the aforesaid judges; and although the said count offered to them in the judges' presence that, if they proved that they had sustained any damage on account of those buildings, he would repair that damage to them not only singly but doubly, they utterly rejected both this statement and also other forms of peace.

But when there had been proceeding by the judges in the same cause as far as publication of the witnesses, because, after the attestations had been published, it appeared that they had deposed concerning many articles on which issue had not been joined, the count's party alleged that the judges were unable to take cognizance of them. Hence, when the judges pronounced interlocutorily that they could take cognizance of and pronounce judgment concerning the damage done, challenge was made to our hearing.

But we, having heard these and other things that the proctors took care to propose, and having diligently inspected the attestations of both parties, understood that it had been proved for the monastery that, in the aforesaid town, terrage, pannage, lodging dues, rents, thirds, lods, sales dues, and retentions pertained to the aforesaid monasteries, and that the aforesaid pond and causeway had been constructed partly on the property of the monastery of Vézelay and partly within the censual tenure of it and Saint Germain. Likewise, that a prohibition had been made to the Hospitallers, who paid an annual rent to the monasteries for the aforesaid place, not to transfer that place—namely, the monasteries' censual tenure—to the count, and to the count not to receive that censual tenure.

But it appeared to have been proved for the count's party that jurisdiction over the wood with respect to fortifications is his; that, without injury to anyone, the said count can concede the wood itself for the lodging of the people of that town; and that the count himself has jurisdiction in the town and had been accustomed to receive two denarii from each house of the town for safeguard. Likewise, that the fortification itself was founded in the Hospitallers' meadows, and that whoever has something at rent can, with the rent preserved, concede it to whom he wishes. Again, that a fortified house enclosed by palisades and ditches had formerly existed in the same town.]

But because, before issue had been joined, cognizance concerning the damage done in no way pertained to the said judges, since there was no mention of it in the rescript, nor could jurisdiction be extended to them, since a proctor is understood to be constituted only for the matters that are found expressed in the letters of commission, and because, after the attestations had been published, the count understood that deposition had been made concerning these matters and immediately contradicted it, we pronounced that the same judges had [immediately] pronounced interlocutorily with less than justice, and that the oft-mentioned count, who on this account fled to the benefit of appeal, had not been bound by the sentence of excommunication. [But, etc. Given at the Lateran, in the eleventh year, 1209.]

Latin source headnote: One who opened the acts of a cause containing the report of delegated judges by violating their seals is not afterwards heard against those acts.

The same, to the Archbishop of Sens.

When it formerly reached our hearing that our beloved sons Master S. and B. had exchanged an archdeaconry and provostship with one another, [(And below:) [cf. c. 7, On the Exchange of Things, III. 19.] Therefore, because the truth concerning the act of B. himself could not be established to us, we decided to commit the cause concerning this under a certain form to our venerable brothers, the Bishops of Langres and Chalon. Therefore, wishing to proceed in execution of our mandate, after summoning the parties to their presence, they received the witnesses produced on both sides, heard the parties' confessions, and published the witnesses' depositions. And because, on account of a certain article that appeared doubtful to them, they proposed to remit the cause to us after it had been instructed, reducing all the acts to writing they enclosed them under their own seals and assigned them to the parties to be faithfully presented to us.]

But the aforesaid B., not deferring to our delegates, or rather to the delegator, violated their seals and was not ashamed to open the writings that were to have been presented to us. Afterwards, established in our presence while his adversary was present, he proposed before us in his own excuse that the judges had proceeded perversely against him, since they had reduced the acts to writing less than faithfully. Hence, fearing lest he was carrying the letters of Uriah, he opened their writings and discovered what he had suspected.

Indeed, if he had better observed what was expedient, he either would not have received the suspect writings or, having received them, would have faithfully presented them to us and shown before us the cause for his proposed suspicion. Moreover, since he did not complain about the judge whom we granted him on our own motion, but rather about the one whom he himself had decided to choose, and the judges had sent their letters to us through him, likewise complaining about him, we decided that faith was not to be given to his words. But, so that he might at least be punished in that in which he had sinned, we were unwilling—as indeed we ought not—to hear him against the judges' acts that he had rashly violated, lest his fraud appear to have brought him protection. [Since, etc. (c. 7, On the Exchange of Things, III. 19.) Given at the Lateran, on the Ides of January, in the fifth year, 1203.]

Latin source headnote: A delegate is not bound to admit a colleague joined to him through surreptitious letters, nor the latter's subdelegate. This is what it says according to one understanding. Or thus: a delegate is not bound to admit the subdelegate of an impeded colleague if the rescript contains the clause “but if both, etc.” This is what it says according to another understanding.

The same, to the Abbot and Chaplain of Saint Mary of Bologna.

Established before our beloved son M., cardinal-deacon of Saint Theodore, whom we granted as auditor to you and to our beloved son H., messenger and cleric of Saint Agatha, your adversary—who had approached the Apostolic See with the instruments of that church but without letters of ratification, although he had given security for ratification by a surety—you took care to propose that, when formerly a certain man in the parish of Saint Mary, after an appeal had been interposed to the Apostolic See, constructed a house and church in honor of blessed Agatha, Pope Alexander of good memory, our predecessor, committed the cause concerning this to T., Abbot of Saint Stephen, and T., Prior of Saint Victor, to be terminated with a due end. After hearing what had been proposed on each side and diligently inspecting the parties' arguments, they rendered a definitive sentence for the church of Saint Mary, which was afterwards confirmed by our predecessors Lucius, Gregory, and Clement of happy memory.

But the chaplain of Saint Agatha disdained to obey the sentence, received the parishioners of Saint Mary to ecclesiastical sacraments, and, while suspended, presumed to celebrate divine offices. And when the parties had disputed the same cause before our venerable brother H., Bishop of Ferrara, for almost a year, with witnesses produced before him, the party of the church of Saint Agatha, suppressing the truth of these matters, obtained that our beloved son Master L., a canon of Bologna, be joined to the same bishop in decision of the cause. When he was unable to take part in the cause, the aforesaid bishop—to whom by subsequent letters impetrated for the third time it was commanded that, if both were unable to take part in executing the apostolic mandates, he should nevertheless fulfill them—after the attestations had been published and the arguments more fully understood, confirmed the aforesaid sentence, enjoining the chaplain of Saint Agatha under penalty of excommunication that he receive none of your parishioners dwelling within certain bounds to divine offices or ecclesiastical sacraments.

To this the said Hugolinus answered on the other side that formerly the Archpriest of Pastino impetrated an indulgence from our aforesaid predecessor Alexander that he might newly found a church in the village of Castellio, in which the multitude of people had grown exceedingly. Hence the Bishop of Bologna at that time, by mandate of our same predecessor, both marked the site and blessed the foundation stone and placed it in the foundation according to custom; and thus for twenty years he justly possessed the chapel constructed in the same place together with the whole parish that the church of Pastino has to this day. Pope Celestine of happy memory, our predecessor, confirmed it to them by his letters, and we received under our protection the chapel made censual to us by the same archpriest.

Hence, formerly a certain regular canon appointed by the Archpriest of Pastino to celebrate divine offices in that chapel, without authority of the archpriest and chapter of Pastino, appeared before the aforesaid Abbot of Saint Stephen and Prior of Saint Victor after being cited by them, but did not undergo judgment before them. On the contrary, from them as reasonably suspect—because they had wished to claim the aforesaid parish for themselves—he decided to appeal to our hearing. But the same judges, not hesitating to exceed the bounds of the mandate, rendered a sentence concerning both the new and the old population, although according to the tenor of the letters directed to them they could have judged only concerning the old.

But afterwards the aforementioned canon, appearing before the Bishop of Ferrara against the will, or rather prohibition, of his archpriest, litigated for a while before him; but at last, discovering that all the bishop's familiars were adverse to him, he caused the aforesaid master to be joined to him. The messenger of the church of Saint Agatha, however, proposed among other things that, when the said Master L. had delegated his authority to another, the bishop refused to admit the subdelegate, but, after appeal had lawfully been interposed to us, proceeded alone in cognizance of the cause.

Hence, against the first sentence they alleged that nothing concerning the commission impetrated to the first judges reached the archpriest's knowledge; that the judges proceeded after an appeal had been lawfully interposed; and that the bounds of the mandate were exceeded in the proceeding. But against the second they similarly proposed that the regular canon who litigated before the Bishop of Ferrara not only had not been appointed proctor for that cause, but had even presumed to involve himself in the suit contrary to the archpriest's prohibition; that the Bishop of Ferrara had proceeded alone, although the cause had not been delegated to him alone and his colleague, even if unable to take part in the cause, had nevertheless committed his authority to another; and that, after appeal had also been interposed to us, the same man of Ferrara promulgated a sentence for the church of Saint Mary.

But to these things the other party replied that the foregoing could not stand, since it ought not to be believed that the adverse party appealed from those judges when it neither knew nor had heard that letters of commission had emanated to them. Furthermore, since the obstacle of appeal had been closed to the parties in the letters of commission, no deference was to be given to the appeal afterwards interposed. Moreover, since, as the adversary confessed at law, although the party of the one who impetrated the letters in order to pursue the appeal nevertheless did not use them, it ought to be held the same as if the appeal had not been pursued. Hence the sentence had already passed into the authority of a matter adjudged, even if it had been rendered contrary to the litigant's right. And since neither the letters of commission obtained to the first judges were presented at law nor was it otherwise lawfully demonstrated that the judges exceeded the form of the mandate, presumption is rather to be made for the sentence.

What is said on the other side—that that canon was not a proctor—does no harm, since by joining issue before the Bishop of Ferrara he was made master of the suit, having been a general proctor of the church from its foundation, and thus acted and contracted as if he truly were lord of the chapel. This is especially so because he was drawn into the cause not so much in the church's name as in his own, inasmuch as he received to divine offices the parishioners adjudged to the church of Saint Mary and furnished them ecclesiastical sacraments. Furthermore, since it had reached the archpriest's knowledge that the cause itself had been delegated to the Bishop of Ferrara, if he was unwilling to undergo judgment through that canon, he ought to have sent another to conduct the cause. Since he did not do so, it is to be imputed to his negligence, or rather to his malice, since he thus endeavored to enervate our commission.

But, to the contrary, it was answered that the Bishop of Ferrara could proceed alone, since issue had first been joined before him and witnesses produced for the cause, and it had been inserted in the letters of the final commission that, if both were unable to take part in executing the apostolic mandates, the aforesaid bishop should nevertheless take care to execute them. This is understood not as “if they were unable to take part personally or through others,” because that would happen rarely or never, but “if he could not take part personally.” Therefore, no deference whatever was to be given to the appeal interposed for the aforesaid reasons, since they were not sufficient causes.

The same cardinal, therefore, having heard these and other things proposed on each side, by apostolic mandate confirmed the sentence rendered by the same Bishop of Ferrara and decided that perpetual silence concerning this was to be imposed upon the adverse party. We therefore confirm by apostolic authority what was done by him and fortify it with the protection of the present writing.

Latin source headnote: A place to which the defendant cannot safely come, and a canon delegated in the cause of a fellow canon, can be recused.

The same, to the Provost of Saint Dominic, our Subdeacon.

Since R., a canon of Genoa, obtained that the pecuniary cause disputed between himself on the one side and P., a citizen of Genoa, on the other be delegated to you, and the same citizen, on account of many grave hostilities in his city, is unable to appear in your presence, as became known to us from the intimation of himself and our beloved sons, the consuls of Genoa, by apostolic writings we command your discretion that you leave to the aforesaid R. an option of this kind: with the canons of Genoa excepted, whom the adverse party deservedly holds suspect because they are his associates, he is to choose a judge in the city or diocese of Genoa—in which, as we hold for certain, there are many provident men—before whom the question is to be terminated. By our authority you are strictly to command that judge to take care to terminate that cause with a due end, appeal having been removed, according to the tenor of the rescript obtained from you.

Latin source headnote: If a delegated judge is commanded to absolve one who says that he was unjustly excommunicated, he ought to absolve him before proof. But if he says that the excommunication is null, the judge shall admit proof of nullity before pronouncement.

The same, to the Archbishop of Rouen.

Since it sometimes happens that laymen—(And below: cf. c. 24, On Rescripts, I. 3.)—moreover, we were asked: when someone complains that a sentence of excommunication was promulgated against him by his bishop after an appeal was lawfully interposed to us, or was otherwise promulgated unjustly, and by our letters we give our judges a mandate that, if it is so, either they confer upon him the benefit of absolution according to the form of the Church or declare that sentence null, and the bishop is prepared to prove that he rendered a sentence of this kind against him before he uttered the voice of appeal, or otherwise justly, whether, without the proofs having been admitted, it is lawful for the judges to absolve the excommunicated person or declare the sentence null.

To this we answer you in this manner: concerning the aforesaid case, if we remember well, we have not been accustomed to write to judges under the form prescribed above, but under this one: namely, that, if they find that the sentence of excommunication was rendered after an appeal was lawfully interposed to us, declaring it to be entirely null, they are to hear whatever question remains; otherwise, having received security according to the form of the Church, they are to confer the benefit of absolution upon the complainant and, after enjoining upon him what is to be enjoined by law, hear the cause and take care to terminate it with a due end.

But if perchance it should appear that we have at times written in the aforesaid case under the form previously noted, in the one of the aforesaid cases—namely, when someone complains that he was bound by excommunication after an appeal was lawfully interposed to us—the proofs of both parties are always to be admitted before proceeding to decree anything concerning this. By these it will finally appear whether the complainant requires absolution or instead is to be declared not bound.

But in the case in which someone asserts that he was unjustly excommunicated, his proof is scarcely or never to be admitted before he has been absolved, except only when he asserts that an intolerable error was patently expressed in the sentence of excommunication; to prove this he is admitted before he obtains the grace of absolution. But if he proposes simply that he was unjustly excommunicated and the bishop seeks that his proofs be admitted to prove that he justly excommunicated him, the bishop is in no way to be heard before that person's absolution, since, even if it were established for certain that a sentence of excommunication was reasonably promulgated against him, absolution would nevertheless have to be conferred according to the form of the Church upon one humbly seeking it. And therefore, in this case, we believe that he is to be absolved immediately according to the form of the Church, so that only then, when the proofs of both parties have been admitted, it may be decreed whether he was justly or unjustly bound. [Given at the Lateran, on the Kalends of September, in the thirteenth year, 1210.]

Latin source headnote: If the subdelegate of a papal delegate has begun to use the jurisdiction, he cannot be removed by the delegate; and, if he has acted contrary to the mandate or exceeded the form of the rescript, the proceeding is null.

Honorius III, to the Archbishops of Messina and Reggio.

By our letters we gave a mandate to our venerable brother the Archbishop of Cosenza that he cause our venerable brother the Bishop of Cefalù to be restored to his episcopate and to the other things of which he had been unduly despoiled. When the latter had been fully restored and had obtained corporal and peaceable possession, if he saw that the same bishop was deservedly suspect of waste, as had been suggested to us, he was providently to join to him a provident and honorable man as coadjutor, without whose counsel he should do none of those things that pertain to temporal administration, until, the truth having been discovered, we should decide that provision be made otherwise; meanwhile, by our authority, he was strictly to prohibit every kind of alienation to each of them.

Moreover, the same archbishop, burdened by bodily infirmity, committed his authority in a business of this kind first to the Abbot of the Holy Spirit of Palermo, and then to the Treasurer of Cosenza. With the counsel of our brothers, as justice required, we quashed their proceedings that were exhibited to us: namely, because the abbot, contrary to the tenor of our mandate, proceeded to inquire whether the bishop was suspect of waste when the latter had not been restored; and the archbishop himself, when he had already discharged his office by committing his authority in its entirety to the said abbot, could not entrust a business of this kind to the said treasurer.

Latin source headnote: If a delegate has pronounced that he has no jurisdiction, he does not reassume it even with the parties' consent.

Gregory IX, to S., Precentor, and Master N., Canon of Amiens.

Know that, by the signification of the woman M. and F., her son, we have learned that, when the noblewoman I., a widow, falsely representing herself as poor, impetrated our letters against them to judges concerning lands and other things, they took care to propose before the judges by way of exception that, because the said letters had been impetrated by the suggestion of a falsehood—since the aforesaid Juliana, who is noble and rich, called herself poor in them—they ought not by law to be convened before them through such letters unless the lord under whose jurisdiction they stand, and before whom they were prepared to furnish to her the fullness of justice, had first been requested. Hence the said judges pronounced interlocutorily that they ought not to proceed by those letters. (And below:)

Finally, the parties submitted to certain persons as arbiters in such a manner that, if they did not decide the cause within the term expressed in the submission, the parties would return to the examination of the same judges. But when the arbiters neglected to terminate the cause within the term, the said judges reassumed jurisdiction through the form of that submission. Feeling themselves aggrieved by them, because they compelled them to litigate concerning those matters from which they had been absolved by them, those persons appealed to our hearing. Therefore we command that, if it is so, you revoke as null, etc.

Latin source headnote: Arbiters chosen for a cause of recusal assign the parties a term for proving the cause of suspicion, and the recused judge compels the arbiters to terminate the cause.

The same.

When a cause of suspicion has been assigned against a judge, not the judge himself, who perhaps, if challenged, would cause harm, but rather the arbiters before whom the proof is to be made, and to whom all things that contribute to this article are known to pertain, can assign a term for this. By the judge himself also—to whom, just as jurisdiction, so also the other things without which the cause cannot be concluded are understood to have been committed—the same arbiters are to be compelled, if they are in disagreement, to unite in one opinion or concordantly call in a third person with whom two or either one of them may do this, lest on an occasion of this kind the principal business be prolonged beyond what is due.

Latin source headnote: Delegated jurisdiction cannot be extended to persons not expressed in the rescript, even with their consent.

The same, to the Abbot of Saint Geneviève.

When P. and G., through apostolic letters, complained before you concerning the Bishop of London that he had not repaid at the promised place and term a loan granted by them, while the judgment was pending the layman I., who was bound to the same merchants for a certain sum, wished, as he asserts, to extend your jurisdiction over himself, so that, if he did not pay the aforesaid sum within the appointed term, you would promulgate sentences of excommunication and interdict against his person and land. We decree that the sentences rendered by you on an occasion of this kind are not valid, since, even if you are said otherwise to preside over a jurisdiction, because you had no jurisdiction over the said I., no extension of jurisdiction is known to have existed, since delegated jurisdiction of this kind cannot be extended to other persons.

Latin source headnote: One older than twenty years can be appointed a delegate by anyone; the same applies to one older than eighteen, provided that the parties' consent intervenes. But one younger than eighteen cannot be appointed except by the prince.

The same.

Since you had completed your twentieth year, you could be appointed a delegate at an age of this kind. But, when someone is established below that age, a delegation made by anyone other than the prince would not hold unless the parties knowingly consented to one who had passed his eighteenth year.

Latin source headnote: The power of several delegates or arbiters appointed simply expires through the death of one.

The same.

When one of the delegates or arbiters, as you propose, was removed from human affairs, their office expired, unless something else had been expressed in the delegation or submission to arbitration.

Latin source headnote: A papal delegate can subdelegate, although he was appointed by virtue of office, or with the parties' consent, or with a clause of preselection, namely, “but if not all, you with another are to execute it, etc.” This is what it says, as far as § But he. § 1. One to whom a business is committed for personal execution can delegate it to another if the parties consent. It is otherwise in the cases expressed here. This is what it says, as far as § But. § 2. One to whom a bare ministry is committed for execution cannot commit his authority to another; it is otherwise for a legate of the Apostolic See. And it is a notable text and is much alleged. The Sicilian Abbot.

The same.

Since the Apostolic See intends to provide for business and not for the persons to whom the same business is committed, if a third judge, although appointed by us by virtue of our office or with the parties' assent as a common judge for them, delegates his authority to another, because this is conceded by law to one delegated by the prince, his delegation will be valid. The same is also to be said when a bishop is commanded to execute the apostolic mandate with one of his other co-judges, and then the remaining two will be unable to proceed without a subdelegate from the bishop.

§ 1. But one who is enjoined to execute a business personally can delegate it to others, provided that the parties consent, except if we were to command that an inquiry be made or that provision be made for churches concerning prelates or other ministers, since in all these cases we appear to choose the diligence and faith of the person to whom we commit such things.

§ 2. But, with the authority of the legates of the Apostolic See preserved, let it be lawful for no one to whom it has been committed to preach the cross, to excommunicate or absolve certain persons, to dispense with irregular persons, or to enjoin penances, hereafter to entrust these things to others, because in this matter not jurisdiction but rather a certain ministry is committed to him.

Textual note: Two stray ñ characters separating divisions of the Latin source headnote have been removed as transcription artifacts.