Title XXXVIII: On Proctors

Latin source headnote: No one is heard as another's proctor unless he has a mandate lawfully made.

Gregory the Great to Maximus, Bishop of Salona.

We had indeed caused other [writings to be sent to your fraternity before, but at the time when we wished to release your men whom you sent to us.] We have learned that you wrote to certain of our men that you had not then sent the aforesaid men for the case, and therefore that the things done with them ought not to stand; but Thomas also [the defender of your church] stated that this had been said to him orally by you. For this reason we have now judged that not even the bearers of the present letters ought to be trusted, lest the same thing likewise be said concerning them afterward. Therefore, because this has forewarned us that we ought to be more cautious, if you wish to plead the case, send [henceforth] a person instructed in it, with a mandate lawfully made, confirmed by your subscriptions and those of the priests or deacons and witnesses, and with the proceedings recorded according to custom, so that whatever has been transacted with him may stand in law. [For we not only, etc.]

Latin source headnote: A sentence, even one condemning a person in costs, pronounced against an absentee lawfully excused through a messenger for a probable cause, is invalid. This states the rule according to its true meaning.

Alexander III.

We have received the complaint of the cleric A. that, although our venerable brother the Bishop of Worcester had undertaken, by our mandate, to terminate with the due conclusion the case which is pending between him and the Bishop of Salisbury concerning the church of Bribec., nevertheless, because that cleric could not present himself to him on the appointed date, inasmuch as he was detained by illness—as he was prepared to prove through a certain priest and deacon whom he had sent into the presence of that bishop—the bishop condemned the same A. to restore the expenses which R., Archdeacon of Lisieux, had incurred by coming then for that case on that date. We therefore command and enjoin upon your discretion that, if the aforesaid bishop has not absolved the same A. from the aforesaid sentence in accordance with our mandate, you, after inquiring more diligently into the truth of the matter, if it is established to you that the Bishop of Worcester condemned the aforesaid A. to restore the expenses for no other reasonable cause than merely because, while detained by illness, he did not come into his presence on the appointed date—since no one can be compelled, unless he wishes, to appoint a proctor in serious cases, and since he sent a priest and a deacon to prove his illness—are not to delay in absolving him from the same sentence by our authority, the remedy of appeal being removed.

Latin source headnote: A sentence pronounced with a proctor who has been revoked and informed of this does not prejudice the principal. This states the rule according to the common understanding.

Clement III.

Textual note: The Latin Library transcription's quadum and quibusdum have been corrected to quadam and quibusdam.

We have received from the representation of our beloved son I., Archdeacon of Séez, that, when a controversy had arisen between him and Master G. de Sang. concerning a certain prebend of the church of Lisieux which is called de Pomeria, G. of Tortona, presenting himself as a proctor of that archdeacon appointed for that case, opposed the same master, who had come to the Apostolic See on this account, with certain letters of ratification, as he said. But when some progress had been made in cognizance of the case, although the aforesaid G. had been expressly forbidden by that same archdeacon, his principal, in the presence and with the assistance of two clerics, to undertake cognizance of the case and to use his letters in court for undertaking the trial, he nevertheless proceeded in that case and, as is said, received an adverse sentence. But because one of the aforesaid clerics is said to have died, [we nevertheless,] considering that the same G. ought not to have proceeded, contrary to the prohibition of the archdeacon himself, to undertake the trial of his case, command your discretion by apostolic writings that, if, as the account stated, the foregoing is established by the oath of the archdeacon himself and of the surviving cleric—namely, that the same archdeacon expressly forbade the said proctor to undertake the determination of that controversy or in any way to use his letters of ratification in court for undertaking the trial—you, notwithstanding the sentence pronounced against him, are to cause possession of the aforesaid prebend, together with the fruits received from it, by whomsoever it may be detained, to be restored by our authority to that archdeacon, provided that no other canonical obstacle stands against his restitution, the obstacle of contradiction and appeal being removed. Once restitution has been made, if the archdeacon himself can prove his canonical institution, you are to decree, as shall be just, that it remain ratified and inviolate, appeal being set aside.

Latin source headnote: A rescript obtained concerning subsequent judicial proceedings by a proctor who has been revoked and informed of this is invalid, as is a proceeding or sentence issued through him, if the revocation reached the opponent. This states the rule according to the gloss.

Innocent III to the Bishops of Chalon and Catalaun.

Our venerable brother the Bishop of Toul, appearing in our presence, has tearfully complained that, when formerly, in order to conduct the case pending between himself and the dean of Toul of good memory concerning dilapidation, excommunication, perjury, and certain other crimes, he appointed the priests T. and G. as proctors and arranged for them to be sent to the Apostolic See, after he subsequently began to waver concerning their fidelity, he revoked within a short space of time the mandate which he had given them. But they, although they had received the letters revoking the mandate, nevertheless proceeded in the business and, presenting themselves as proctors, entered into litigation with [his] adversary, namely Geoffrey, Archdeacon of Toul; thereafter, together with him, they obtained our letters to our beloved son G., Archdeacon of Paris, and his colleagues, to the prejudice of that bishop.

Although their citation had not been presented to that bishop, nevertheless, when it had come to his knowledge that the case pending between them and the said dean and archdeacon had been committed to them, he hastened into their presence. And when the aforesaid bishop, after much insistence, had obtained a copy of our rescript and was carefully examining its tenor with prudent men, greatly wondering that the above-mentioned priests had obtained letters of this kind as proctors, and requested an adjournment from those judges in order to prove that they were false proctors, they, regarding the exception interposed as useless and superfluous, refused to grant him a delay for proving it. For this reason that bishop had recourse to the benefit of appeal and withdrew from the presence of those judges while appealing. But they, paying no deference to the appeal, presumed to proceed in that business and also, although issue had not been joined and the order of law had been passed over, to receive witnesses against that bishop, [and,] removing him from the church of Toul by sentence, [contrary to the form of our mandate, granted the chapter of Toul free power to elect a pontiff for itself. But when the said bishop and P. the archdeacon had recently come into our presence on this account and had litigated before us for some time concerning the proceedings of those judges, that bishop produced thirteen witnesses—certain abbots and monks of the Black and White Orders and certain secular clerics. When they had been diligently examined, it appeared clearly from their depositions that, when the above-mentioned bishop requested an adjournment to prove the aforesaid exception, the aforementioned judges denied it to him, and that, although that bishop appealed to the Apostolic See on this account, they nevertheless proceeded in the business after the appeal had been interposed to us.]

We, however, although we could scarcely give credence to the assertion that the often-mentioned judges, being learned, provident, and honourable men, had proceeded in the manner stated—especially since, in the report which they transmitted into our presence, they made no mention of an exception of this kind having been interposed—nevertheless, because the bishop gave us full proof concerning the things alleged through religious, provident, and honourable men, of whom it is not likely that, forgetful of their salvation and in contempt of the sanctity of their oath, they bore false witness; considering also that the exception of a false proctor may be raised not only before sentence but even afterward, in accordance with canonical and lawful enactments, since, when it has been proved, the trial is regarded as null and the controversy as of no moment, we have judged that the proceeding of the aforesaid judges must be annulled by sentence, with the counsel of our brothers, [restoring the business to that state, etc. Given at Rome, at Saint Peter's, on the Kalends of February, in the ninth year, 1207.]

Latin source headnote: If proceedings for adultery are brought before a secular judge for the legal penalty, a proctor does not intervene; it is otherwise if they are brought before an ecclesiastical judge for separation.

The same to the Bishop of Brescia.

Textual note: The Latin Library transcription's ecclestiastico has been corrected to ecclesiastico.

Of your fraternity (And below: [cf. c. 10, On Him Who Has Known His Consanguineous Wife, IV.13.]) We respond to your consultation in this way: if a husband accuses his wife of the crime of adultery before a secular judge so that the lawful penalty may be inflicted, because he must then undertake the bond of formal inscription and bind himself to the penalty of retaliation, he must accuse her in person, being personally present, and not through a proctor. But if a husband wishes to accuse his wife of adultery before an ecclesiastical judge so that he may withdraw from cohabitation with her, because then, even if perhaps he must make a formal inscription in order to designate in writing the name, place, and time and all the things comprised in the civil law, he nevertheless ought not in any way to bind himself to retaliation—lest perhaps, even when he has failed in proof, he attain the effect of his intention—it can be permitted, if necessity shall demand it, that he accuse through a proctor, since an accusation of this kind, even though it is made concerning a crime, is nevertheless not criminal but is, as it were, mixed between civil and criminal, although proceedings are conducted more securely in the presence of the principal persons. [You asked, etc. (cf. c. 25, On Betrothals, IV.1). Given at Rome, etc., 1206.]

Latin source headnote: One who has conducted a case by mandate of the principal recovers from him the expenses incurred on that account.

The same.

Textual note: The Latin Library transcription's minoris vel sanioris partis has been corrected from Friedberg's maioris vel sanioris partis (“the greater or sounder part”).

When the proctors of both parties had come into our presence for the case pending between our beloved sons G. and F., archdeacons of the church of Chalon, [we granted them our beloved son G., Cardinal Deacon of Saint Adrian, as auditor. Before him the proctor of the Archdeacon F. alleged that, when he formerly came to the Apostolic See on account of various burdens which his adversaries were inflicting upon the church of Chalon, he obtained letters to our beloved sons the Abbot of Saint Martin, the cantor of Autun, and the Archdeacon of Flavigny, that they should compel the said Archdeacon G. by canonical coercion to cease from molesting the church of Chalon and the men of a certain obedience belonging to it, which is called Potestas Boiaci, and should compel him to render due satisfaction to that church for the injuries inflicted. And when the judges wished to proceed in the case according to the apostolic mandate, the adverse party appealed to the Apostolic See in order to evade the trial. He added also] that he had obtained letters of confirmation from Pope Celestine of good memory, our predecessor, concerning certain statutes of [that] church established with the common assent of the chapter, through the nonobservance of which the church [itself] was being defrauded of its due service. [Although that predecessor of ours had, at the request of that archdeacon, commanded our venerable brother the Bishop of Autun to cause them to be observed, he nevertheless sent his letters to the chapter of Chalon only once concerning their observance and proceeded no further in the matter.] That proctor therefore sought, on behalf of the aforesaid archdeacon, that the [former] case be committed, that the aforesaid statutes be confirmed, and that those things which he had been compelled to expend for the utility of that church be restored to him.

[But the proctor of the other party answered to the contrary that, when the said Archdeacon F., etc. (cf. c. 27, On the Sentence of Excommunication, V.39). But he, coming to the Apostolic See, confessed that he had laid violent hands upon a cleric; suppressing, however, the fact that he had violated the immunity of a church, he obtained letters concerning his absolution. Nevertheless he remained under excommunication, since he had kept silent about one of the causes for which he had been excommunicated. Hence he said that he could neither stand in court nor appoint a proctor, especially since the man to whom he had entrusted the conduct of his case was held bound by the same sentence for a similar offence. He also alleged that the things which he had obtained from the Apostolic See while placed under excommunication lacked force. Although, for this reason, the said Archdeacon G. was not bound to answer him unless he had first obtained the benefit of absolution, nevertheless he had presented himself before the said judges and had shown through the letters of our venerable brother the bishop and our beloved son the dean of that church that neither he had any dispute against that church nor the church against him, and that the letters which his adversary had obtained from the Apostolic See had not been obtained with the will of the chapter. Therefore, when the next day assigned to them arrived, and the parties were asked whether, despite the chapter's opposition, the said Archdeacon F. should be admitted on behalf of the church of Chalon against the same Archdeacon G., G. himself appealed to the Apostolic See because of his suspicion of the judges. But to the allegations concerning observance of the customs of the church, he answered that, when the aforesaid bishop had commanded the said dean and chapter to observe the aforesaid customs, they answered that they would observe them more willingly were the poverty of the church not an impediment, adding that they should report the condition of the church of Chalon to the Apostolic See by their letters. From these matters he therefore concluded both that the expenses incurred by the said Archdeacon F. ought not to be restored to him, since he had come to the Apostolic See rather in order to be released from the bond of excommunication, and that he ought not to be heard concerning confirmation of the customs of the church, since he could not show letters of procuration, but rather the proctor himself had been appointed by the chapter. For this reason he urgently sought that the governance of the church be committed to the said bishop and dean in such a way that whatever they should establish with the greater and sounder part of the chapter, both concerning the institution of canons and concerning other matters pertaining to the governance of that church, should be inviolably observed notwithstanding the contradiction of a few, and notwithstanding the letters sent to the said Bishop of Autun concerning observance of the aforesaid customs. He sought also that the said Archdeacon F. be declared excommunicated, since he had neither satisfied the person injured nor made any mention of the violation of the immunity of the church. But on behalf of the aforesaid Archdeacon F. it was answered to the objections in this way: although he had been accused concerning the violent laying-on of hands, only entry into the church had been forbidden him; but afterward, coming to the Apostolic See, he had been absolved without any contradiction.]

We therefore, committing that case to your examination, command your discretion by apostolic writings that [if to you, etc. (cf. c. 27, On the Sentence of Excommunication, V.39).] As [for] the aforesaid statutes, if you find that they were made without any depravity with the assent of the greater or sounder part of the chapter, and the means of the church permit it, you are to cause them to be inviolably observed. [In other matters you are to commit the governance of the church by apostolic authority to the aforesaid bishop and dean, so that whatever they, together with the greater part of the chapter, canonically judge ought to be established, both concerning the institution of canons and concerning other matters, shall have firm effect notwithstanding the contradiction or appeal of a few.] But you are to cause the expenses to be restored to the aforesaid archdeacon if he can lawfully prove that he undertook the advancement of the aforesaid business by mandate of the chapter and came to the Apostolic See on that account. [Let no one by letters, etc. Given, etc., 1198.]

Latin source headnote: A university of scholars also can appoint a proctor to sue and defend.

The same to the Scholars of Paris.

Because in cases brought against you and on your behalf your university sometimes cannot conveniently be present to sue and answer, you have petitioned us that, with our permission, you might be allowed to appoint a proctor for this. Therefore, although by the common law you are able to do this, nevertheless, by authority of the present letters, we grant you the power of appointing a proctor in these matters.

Latin source headnote: If one cited for the whole case appoints a proctor whom he afterward revokes, proceedings may nevertheless be taken against him, insofar as the state of the case permits, without another citation. This states the rule as to its meaning.

Honorius III to the Bishop of Idanha.

Textual note: The Latin Library transcription's proccessibus and limitatone have been corrected to Friedberg's processibus and limitatione.

After the things alleged before us by the proctors of the parties concerning the proceedings of John, canon of Coimbra, Bartholomew, canon of Idanha, and the Dean of Ciudad Rodrigo and their co-judges, our delegates, in the case pending between you and our venerable brother the Bishop of Coimbra concerning the boundary of the dioceses and other matters, had been heard and understood, you should know that, with the assent of our brothers, we adjudged those proceedings and whatever followed from them or because of them void, notwithstanding the letters which the aforesaid Bishop of Coimbra sent concerning revocation of the mandate of his proctor, since before letters of this kind reached him the matter had been concluded on both sides concerning those proceedings. But we judged that the aforesaid Bishop of Coimbra—who had caused the entire business to be called up for examination by the Apostolic See and afterward, not without contempt of us and loss to you, revoked the mandate given to his proctor—was to be condemned to you for the expenses which you incurred from the time when the revocatory letters reached his proctor and which you will also incur until the day on which that bishop presents himself before us, either in person or through a suitable proctor, to proceed lawfully in the principal business and in matters connected with it. Therefore, lest there be any doubt concerning these matters, we have judged that these letters should be granted.

Latin source headnote: A bishop's proctor sues and defends the causes of the bishopric, although he was not appointed under the name of syndic or agent.

The same to M. and R., Canons of Modena.

Your petition presented to us contained that, when our venerable brother the Bishop of Modena, being about to depart for Livonia, appointed you as his general vicars and proctors, whenever you wish to sue the detainers of the goods of the bishop of Modena or to answer those suing against him, it is frequently objected that you cannot do this because it is not expressed in the instrument of the vicariate or procuration of this kind that the bishop himself appointed you as syndics or agents. You therefore humbly petitioned that, since the utility of the aforesaid bishopric is frequently impeded through exceptions of this kind, we would deign to make salutary provision in this matter. We therefore, knowing clearly from the tenor of that instrument that the intention of the bishop himself was to give you free power to sue and answer on behalf of the bishop himself, wholly reject an exception of this kind.

Latin source headnote: A judge ought to ensure, especially in a matrimonial case, that one appointing a proctor enjoys full liberty.

Gregory IX to the nobleman Ubaldo, a citizen of Pisa.

Coming to the Apostolic See (And below:) We command that you restore the noblewoman D., who is held under your power, to full liberty, causing her to be conducted safely to the castle of Massa in the diocese of Lucca, so that, being free there, she may freely appoint a proctor who may pursue her justice before us. You, therefore, are to send into our presence a suitable proctor concerning the betrothal which is alleged to have been contracted between your daughter and the son of that noblewoman, who is to have full power to sue and answer.

Latin source headnote: If a general proctor is denied an adjournment for consulting his principal, who is absent for a probable cause, the proctor can appeal.

The same to the Archbishop of Canterbury.

Our beloved son Master L., rector of the church of Auna, showed in a petition transmitted to us that, when the priest R. obtained our letters to judges against him concerning that same church while he was staying at Bologna for the purpose of study, and the same rector had been cited by authority of those letters by the judges themselves, his general proctor for transacting all his business appealed to our hearing on his behalf because they refused to grant him a suitable period within which he might consult the rector himself as to whether he ought to contest or yield the claim. Therefore we command that, if it is so, after revoking as void, etc.

Latin source headnote: If a defendant withdraws from court, leaving a proctor only for suing, he is contumacious and is condemned in costs.

The same to the Bishop of Lisieux.

When H., Prior of Séez, and the layman T. had appeared in our presence, we granted them our beloved son O., our subdeacon, as auditor concerning the case pending between them over a certain sum of money. (And below:) Because the prior, after receiving the libel concerning the money in which the said T. said that he was bound to him in his wife's name, withdrew without leave, leaving a certain proctor merely to sue, and because the auditor himself did not see that person to be sufficient under the procuratorial mandate given to him to defend the prior, regarding the prior as contumacious on this account, after making a prior assessment he condemned him to the aforesaid T. in one mark sterling for expenses. (And below:) But we, desiring to put an end to the litigation and approving what is known to have been done by the aforesaid auditor, command that, when the parties have been summoned, etc.

Latin source headnote: A judicial proceeding conducted with a revoked proctor stands if the judge and the adversary were ignorant of the revocation. This states the rule according to the common and true understanding.

The same.

When the mandate of a proctor has been revoked by the principal after joinder of issue, if this was done without the knowledge of the judge or the adversary, the judicial proceeding which that person afterward conducted as though he were proctor ought to be ratified.

Latin source headnote: A son under paternal power can be a proctor in court, even for future litigation; and a proctor appointed jointly with several others, each for the whole, is preferred if he has first taken charge of the business; it is otherwise if he was appointed at a different time. Likewise, a proctor ought to appeal from a sentence unless he is excused by a cause; in that case he ought to notify the principal of the sentence, but he is not bound to prosecute the appeal.

The same.

The judge did not proceed unjustly when he admitted as proctor a son under paternal power, although appointed for future controversies, who, although appointed at the same time as others, nevertheless first undertook the office of procuration. This could not have occurred in the case of proctors appointed at different times, since upon the appointment of the later one, the procuration of the former would have been revoked. He also could and ought to have appealed to our hearing from the sentence insofar as it was pronounced against him, or, if a just cause excused him, at least to have notified the principal so that he might have recourse to the benefit of appeal, although the proctor was not bound to prosecute the appeal against his will.

Latin source headnote: The proctor of a community whose magistrates and sworn officers are excommunicated is not excluded from obtaining a rescript, unless they are named in the instrument of procuration, or it was made by their authority, or they were knowingly admitted to it. This states the rule and is a noteworthy and subtle decision.

The same.

We were consulted whether a proctor appointed by some community to obtain a rescript ought to be excluded from obtaining it on the ground that the magistrates and sworn officers through whom that community was governed were bound by a sentence of excommunication at the time when the office of procuration was enjoined. We answer in this way: unless those persons were named in the letters of procuration, or the appointment of the proctor was otherwise made by their authority, or the community, knowing them to be such, appointed that proctor together with them, a proctor of this kind is not to be excluded.