Title XXXVI: On Settlements

Latin source headnote: Instruments and other contrary rights of the parties are taken away by a settlement.

Gregory I, to A., Subdeacon, and Dom., Abbot.

Just as it is grave [and full of reproach that a controversy arisen among persons serving almighty God concerning secular business remain for a long time, so it is praiseworthy and fitting to religious zeal to prefer peace pleasing to God to earthly advantages and, from transitory things, to purchase gains of charity that will always remain. And therefore, because a long contention was drawn out concerning the possessions of Faianum, Nasonianum, and Libinianum, situated in the province of Sicily in the territory of Palermo, between the provosts of the monastery of Saints Maximus and Agatha, which is called Lucuscanum, and, on the other side, the administrators of the hospice established in this city of Rome that is called that of Valerius, but now, with agreements intervening, a salutary decision has proceeded, with God as author, between you, Antonius our subdeacon and provost of the aforementioned hospice, and, on the other side, our most beloved son Dometius, abbot and priest of the aforesaid monastery, it is necessary that every occasion of discord be capable of being forestalled and that the acts conducted be confirmed by intervening authority.]

Accordingly, after the salutary decision made concerning your controversy, we decreed that all instruments, or whatever else exists that could in any manner, whether from prescription of time or otherwise, bring the parties aid from law or any privilege [if, which may it not happen, they wished to come against one another], are to be, just as [also] you seek, void and quashed of every force, and that the page alone of the agreements now made between you obtain valid and perpetual strength. If perchance through carelessness or inexperience something of less firmness has been inserted into it, let it receive the fullest force of cognizance from this authority of ours, [nor to remain, etc. In the month of January, the second indiction, 598.]

Textual note: The Latin Library transcription's qiua has been corrected to quia.

Latin source headnote: A settlement concerning tithes made with the superior's assent holds.

Alexander III.

We establish that, if a settlement concerning tithes has been made between you and some ecclesiastical person with the assent of his bishop or archbishop, it is to remain ratified and unshaken in perpetuity.

Latin source headnote: If a chapter consented to a settlement that a prelate made in the name of the church, it cannot afterwards dissent.

The same, to the Bishop of Dulmensis.

It happens at times that, although an abbot or prior of some conventual church makes a settlement with an ecclesiastical or secular person concerning matters disputed between them before a delegated or ordinary judge, after letters of ratification from his chapter have been shown, the chapter itself nevertheless endeavors to revoke the same settlement. Hence, because you wished to consult us concerning this, we answer you that, if the abbot or prior had letters of ratification from his chapter, the chapter will not be able to revoke the settlement that he made, if it was observed for some years, as though it had not consented to it.

Latin source headnote: A settlement cannot be made concerning an ecclesiastical benefice, even with the interposition of an oath.

The same, to the Abbot of Strat. and the Prior of Saint Eusebius.

Established in our presence, the cleric G. showed us by his assertion that, when a controversy arose between himself and the cleric A. concerning the chapel of Stratis, it was finally quieted through a settlement; and, although the settlement itself had been confirmed on each side by pledged faith, the aforesaid A. nevertheless refuses to observe it. Therefore, because settlements of this kind sometimes contain the appearance of simony, and according to the Apostle it is fitting for us to abstain not only from evil but even from the appearance of evil, by apostolic writings we command your devotion by way of precept that, when you have been required on account of this, you summon the parties before your presence and, after the settlement has been revoked as null, hear the cause more diligently, etc.

Latin source headnote: Through a settlement made without the bishop's authority, the prelate, but not the church, can be made censual.

The same, to the Bishop of Chartres.

Hereafter, know that, when someone who is afterwards to have some right in the church at issue, after impetrating letters to an extraordinary judge, settles with his adversary, if the settlement is not contrary to law, it is not to be reproved in any way by the bishop of the place. But a payment made under this pretext without episcopal authority by the church over which he presides does not exceed the life of the one who made the payment.

Latin source headnote: If a benefice that is held through a settlement is impetrated as vacant by one who was mediator of the settlement, the impetration is not valid. This is what it says with respect to the title.

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

We learned from your letters that, when formerly a settlement had long since been made between the clerics R. and A. concerning the church of Vult. and the chapel of Torhec pertaining to that church, before you, brother bishop, who had been delegated as judge, by the authority of G., who at that time was protecting A. in the cause and had been inscribed as a witness, afterwards the same G., coming to our presence and falsely representing himself as a cleric when he had not yet been tonsured as a cleric, impetrated our letters to the Bishop of Durham and the Dean of York, if we remember well, concerning the same church and chapel, with the settlement itself kept silent. But when the same G. and the responsals of the aforesaid R. were finally established in our presence, we, learning the truth concerning these matters from your letters and also considering how the aforesaid G. did not deny that he had taken part in the settlement and had not yet been tonsured when he obtained those letters, decided by apostolic authority to impose silence upon him concerning the aforesaid church and chapel.

Latin source headnote: A settlement cannot be made concerning an ecclesiastical benefice, but an amicable composition can be made. This is what it says, and it is daily alleged.

The same.

Concerning what you asked—whether a settlement can be made regarding an ecclesiastical benefice brought into litigation—we give the following answer, just as long ago, if we remember well, we gave an answer not dissimilar to another asking: according to the form ascribed by the canons to other settlements, a settlement cannot be made concerning a sacred thing in litigation. For we believe that sacred things being possessed in return for something given, retained, or promised has the appearance of simony. But otherwise, if the litigants compose matters between themselves freely and amicably, we by no means say that this opposes the sacred canons.

Latin source headnote: A settlement made concerning the things of a church by a prelate without the superior's consent does not bind his successor.

The same, to the Abbot of Straphor and the Prior of Phe.

Coming to the clemency of the Apostolic See, our beloved son Master G. of Favill. showed us by his intimation that the monks of Marmoutier cultivate lands in the parish of Saint M. of Marchia, and their tenants receive from that church all ecclesiastical sacraments, both necessary and voluntary, and nevertheless they refuse to pay to that church the tithes established by the canons. But they pay it a third part of the crops and presume to retain two parts for themselves; and of the other minor tithes, such as the offspring of animals and fruits of gardens, they are not ashamed to furnish nothing at all.

But they reckon that they can protect themselves in this by pretext of a certain settlement made between the aforesaid monks and a certain priest, predecessor of the aforementioned G., namely, in such a way that from two ploughlands of land that the monks hold in their demesne, they pay only a third part of the tithes [of the crops], retaining the rest for themselves. Thus it happens that, taking from this an occasion for acting maliciously, the monks convert into their demesne, more astutely than providently, estates devolved to them from a failure of cultivators, and aggregate four or perhaps more ploughlands to the two, furnishing tithes from them no differently than they would have furnished from the two, although according to the tenor of the settlement they would be bound to pay complete tithes from them.

Therefore, since it is fitting for us to provide for churches lest their rights appear to perish for anyone, by apostolic writings we command your fraternity that, when you have been required concerning this, after both parties have been summoned before your presence, you inquire more diligently into the truth of the matter. Unless the aforesaid monks plainly produce before you a privilege granted to them concerning this by [the clemency of] the Apostolic See, or unless the aforesaid monks show that the prescribed settlement was confirmed by apostolic authority, since otherwise it appears to have been made between persons [thus] rather than between churches, and since we do not permit agreements conducted among some to harm others, with every delay and appeal removed, you are to compel them and [their] cultivators with every strictness to furnish perpetually every year to the church of Saint Mary of Marturen. all the tithes [in their entirety] arising from any things whatsoever, completely and without [any] diminution, and [also] to restore to the same church a just valuation of those tithes that they had unlawfully retained.

But if, according to the matters proposed to us, it should appear to your discretion in judgment that the aforesaid monks can justly be pressed only to furnishing a third part of the tithes, then, with appeal removed, by apostolic authority you are to compel the oft-mentioned monks to furnish to the aforementioned church the third part as tithes of all things that the canons have decreed are to be tithed.

Latin source headnote: Just as a settlement cannot be made concerning the right of presentation, so one cannot be made concerning what is annexed to it, so that a person withdraws from litigation when some temporal thing intervenes.

Lucius III, to the Bishop of Ormensis.

Moreover, you asked whether, when a question has arisen between laymen and religious men concerning presentation to some church, a settlement is made between them in such a way that the layman obtains the presentation but the religious men receive a new or greater portion in the church in which they had previously been accustomed to have none or a lesser one, a settlement of this kind holds. Therefore, since the agreement itself deservedly appears simoniacal, we answer that it does not hold by law, nor ought the religious men to obtain any advantage from it.

Latin source headnote: It is not lawful to make a settlement concerning spiritual subjection.

Celestine III.

Moreover, in the fourth place this question arose: a certain cell wished to be exempted from the subjection by which it was bound to the mother house. And when the cause was proceeding in due contest, the brothers of that cell, confessing at law that they had formerly been subject to that house, reported that a question had long ago been moved concerning this subjection and quieted by a settlement—namely, to the extent that, by rendering a certain annual payment to the mother church, the brothers of the aforementioned little cell were entirely exempted from subjection to the principal house.

But, on the other side, the prior of the greater house alleged two things together: first, that, since they had confessed that they had long been subject to that house and had not been exempted before that settlement, it was established that they had been rebels by the very fact that, before the settlement and exception, they contended that they had been withdrawn from its jurisdiction, nor could the subsequent settlement release them from so great a crime of disobedience. The prior also consequently proposed for the greater church that it was not lawful to make a settlement concerning spiritual subjection contrary to the vow of profession. We answer, therefore, that a sentence ought to proceed against them from the aforesaid confession of the brothers of the cell, especially since that settlement—although it could not be clearly established to us concerning what the cell was determinately bound to render—is thought to have contained simoniacal iniquity.

Latin source headnote: A judge can and ought to interpose himself for making a settlement between the parties, except in cases in which the laws do not admit this, as concerning matrimony. This is what it says.

Honorius III, to I., Cardinal-Priest of the Title of Saint Praxedes.

On your part it was proposed before us that certain Greeks furtively received sacred orders from bishops not their own; certain excommunicated persons also celebrate in churches under interdict and, adhering pertinaciously to Greek rites, are willing in no respect to obey Latin prelates. Furthermore, certain Greek and Latin bishops perform consecrations in the bishoprics of others and receive tithes in them to the prejudice and grievance of the bishops of those places, although the bishops of the Greeks had been accustomed neither to receive tithes nor to celebrate consecrations of this kind. In addition, Greek laymen do not fear to put away their wives according to the movement of their own will and bring in others over them, and to work on Sundays and feast days just as on ordinary days.

Moreover, certain barons and knights, both Latin and Greek, detaining contrary to justice abbeys and other churches together with their men and other goods, do not pay tithes and defend in their error others who refuse to pay; and, if a sentence of excommunication is rendered against them for these or other excesses, they hold it cheap, to the peril of their souls and scandal of others. Hence you desire to be taught by us what is to be done by you in all the aforesaid matters and how the Archdeacon of Neoportensis is to be punished, who did not fear in fact to grant to certain persons license to go with merchandise to Alexandria contrary to the statute of the General Council.

We therefore answer your discretion briefly that, since canonical and civil laws have been issued concerning almost all the articles noted above, you are to proceed in these matters, when necessary, according to canonical and lawful sanctions. You will also be able to interpose your part toward composing matters and at times detract something from severity, insofar as, after the condition of the empire and the multitude of transgressors have been weighed with provident deliberation, you see it to be expedient—except, of course, in cases that do not admit the remedy of composition or dispensation, such as the sacrament of marriage. Since it exists not only among Latins and Greeks but also among believers and unbelievers, it will not be lawful to depart from canonical severity concerning it.

But in those matters concerning which no law is found expressed, you are to proceed with equity preserved, always inclining toward the more humane part, especially on account of the still weak condition of the empire, according as you see persons and causes, places and times demand.