Title II: On the Competent Forum

Latin source headnote: A cleric ought to be sued before his own bishop.

From the Council of Chalcedon.

If any cleric has a business against a cleric, let him not forsake his own bishop and run to secular judgments, but let the action first be ventilated before him; or at least, with the counsel of that bishop, they shall obtain judgment before others whom both parties choose. But if anyone acts contrary to these things, he shall be subject to canonical corrections.

Latin source headnote: If a secular judge constrains or condemns a cleric on his own authority, he ought to be excommunicated.

From the Council of Paris.

Let no judge presume on his own authority to constrain or condemn a priest, a deacon, any cleric, or the lesser ministers of the Church without the permission of the pontiff. But if he does so, let him be separated from the Church of God, upon which he is known to inflict injury, until, recognizing his guilt, he makes amends.

Textual note: Both the Latin Library and Friedberg-derived e-texts print Nullus iudicium at the beginning of the decretal. The syntax and the source headnote require a personal subject; the translation therefore renders the evident sense “no judge.”

Latin source headnote: By reason of the thing concerning which the action is brought, a person obtains a forum where the thing is. It is commonly summarized thus.

From the African Council.

Certainly, if the bishops between whom a cause is pending are from different provinces, let the primate in whose province the place concerning which they contend is situated appoint the judges. But if, etc. (cf. c. 1, On Arbitrators, I.43.)

Latin source headnote: A bishop recused as suspect, whose grounds for suspicion are notorious, can appoint a delegate who is not suspect to the parties, whose sentence he will be able personally to put into execution.

Gregory, to Boniface, Defender of Corsica.

If anyone has a cause against a cleric, let him approach the cleric's bishop. If the bishop is recused as suspect, let an executor [or] be appointed by him; or, if even this is rejected by the claimant, one is to be appointed by the same bishop who shall compel the parties to choose for themselves judges by mutual consent. Whatever is defined by them is by every means to be completed through the bishop's solicitude, the law having been observed, [so that there may be no cause by which they can weary themselves with litigation. Given in the month of August, in the fourth indiction, 601.]

Latin source headnote: A layman can be sued before an ecclesiastical judge concerning a thing belonging to a church or cleric; but if he plausibly denies that the thing belongs to the church or cleric, he is sued before his own judge in order to decline ecclesiastical jurisdiction.

Alexander III.

If a priest or another cleric proceeds against a layman concerning his own things or those of the church, and the layman asserts that those things are not those of the church, priest, or cleric who proceeds against him concerning them, but are his own, that layman ought, by rigor of law, to be drawn concerning this before the judge of the forum, since a claimant ought always to follow the defendant's forum, although in many regions it is otherwise by custom.

Latin source headnote: If a feudal question exists between a cleric and a layman, the lord of the fief shall take cognizance; but if he is negligent, a papal delegate shall take cognizance, even one appointed before the negligence. This is what it says according to the reading of the gloss.

The same.

From the representation transmitted to us by B., C., and W., knights of your church, we understood that, when R. de Cassaville had drawn them into a cause concerning a certain possession before our venerable brother the Bishop of Troyes, the nobleman de Campis, their lord, [from whom they held the possessions,] prohibited them under the obligation of fealty from answering concerning a secular fief in an ecclesiastical judgment. Therefore the aforesaid bishop promulgated a sentence of excommunication against them as contumacious, etc. (And below:) [We command that you absolve the aforesaid knights from excommunication, contradiction and appeal ceasing, etc.] (And below:) Thereafter you are to command that the cause be terminated through the lord of the fief; and if he has maliciously delayed anything, you are to impose the due end upon it, with the obstacle of appeal removed.

Latin source headnote: A feudal question ought to be terminated through the lord of the fief, whether secular or ecclesiastical, even if the vassals are clerics; and, if several lords are claimed, one cannot take cognizance—especially in the other's absence—whether the fief belongs to him. This is what it says according to the more notable reading.

The same.

But because a question was moved against the same provost concerning certain fiefs, we establish that, once a bishop has been consecrated in that church who possesses full authority and power, cognizance concerning those fiefs is to be taken under his judgment if they pertain to ecclesiastical cognizance; otherwise the question itself is to be left to the imperial pleasure, as shall be just.

Latin source headnote: Malefactors against churches can be sued in either forum.

Lucius III.

Since it is a general rule that the claimant follows the defendant's forum, it is fitting that plunderers first be sued before secular judges. But if they treat the exhibition of justice with contempt, or if the judges are negligent for any cause whatsoever, because they are to be judged sacrilegious by the Church, you will be able to exercise ecclesiastical censure against them concerning that crime. But because secular judges are frequently remiss in exhibiting justice to ecclesiastical persons in judgment, it has now been introduced by custom in favor of the Church that the rectors of venerable places can sue their malefactors, who are to be judged sacrilegious, before whichever judge they prefer.

Latin source headnote: The causes of clerics are terminated according to the laws, not according to the customs of laymen. Or thus: in a place under the temporal jurisdiction of the Church, the causes of clerics are to be terminated according to canon law. This is what it says according to the gloss, and each summary admits of qualification.

Celestine III.

That to clerics—(And below:) No bishop or cleric is to be drawn to secular judgments. For they have their own judges, and they have nothing in common with public laws. Pope Boniface, moreover, and Gelasius and many other of our predecessors, agreeing with the more ancient councils—as is clearly apparent to men skilled in both laws—issued the same provision in sacred constitutions. Therefore, induced by this reason, through apostolic writings we command that, if clerics residing at Paris have any pecuniary causes against others, or others against them, you decide them with appeal removed according to canon law, and do not permit custom to prevail over written law.

Latin source headnote: A layman cannot sue a layman concerning a civil matter before an ecclesiastical judge unless secular justice is lacking or custom demands it.

Innocent III, to the Bishop of Vercelli.

Although, by reason of the office of service we have assumed, we are debtors to all in justice, nevertheless it is fitting for us to provide for certain persons in their own right in such a way that we do not appear to do injury to others, and that—God forbid—matter of scandal is not taken from the source from which it ought to be stilled by provident consideration. You should know that we have learned from the representation of our beloved sons, the consuls and commune of Vercelli, that, although they wish to exhibit the fullness of justice to every complainant according to approved custom concerning each question moved against them before the consuls of justice, certain persons, in order to nullify their jurisdiction and weary them with labors and expenses, obtain apostolic letters concerning matters that do not touch ecclesiastical judgment. Thus, in addition to weakening the jurisdiction of the consuls, they compel them to labor in many ways. Therefore, wishing to consult their advantage in such a way that we do not allow the justice of others to perish, through apostolic writings we command your fraternity that, whenever it should happen that such letters are obtained from the Apostolic See by laymen of Vercelli concerning matters, especially those that touch the secular forum, you decree them by our authority null and void, with the obstacle of appeal removed, provided that the said consuls and commune exhibit complete justice in secular judgment to those complaining against them.

Nevertheless, let it be lawful for those who have considered that they must contend in this way under the same consuls, if they feel themselves aggrieved in anything, to appeal to your hearing, as has been observed hitherto, or to ours if they prefer—especially at this time when, the empire being vacant, those who are oppressed by superiors in their justice cannot have recourse to a secular judge. But if the consuls of justice have been recused as deservedly suspect, let the cause of suspicion be conducted before arbitrators elected in common; and if it is proved to be just, let recourse be had to you or to us for justice, as is expressed above. [Given at Ferentino, on the second day before the Kalends of June, in the ninth year of our pontificate, 1206.]

Latin source headnote: A widow cannot sue a layman before an ecclesiastical judge except concerning an ecclesiastical cause or in the absence of a secular judge.

The same, to the Archdeacon and Treasurer of Tours.

It was intimated to our ears from the tenor of the letters of the nobleman G., Count of Brittany, that, when we had committed to you and G. of good memory, master of the schools of Saint Martin, the cause known to be conducted between the noblewoman F. and the nobleman I. de Meduano concerning her inheritance, to be terminated with a due end, the same count commanded that woman—since both she and the aforesaid I. belonged to his forum—to refer the cause to him, promising her that in his court he would cause the fullness of justice to be exhibited to her, taking care nevertheless to intimate to you that a business of this kind ought to be terminated in his court. But you and the aforesaid woman, wholly unwilling to obey him, strive to proceed in the cause and less than reasonably to take his jurisdiction from him. Hence he humbly petitioned us to deign to remit the cause to him, to whom it specially belongs.

Therefore, considering that we are debtors to widows in justice in such a way that we ought not to do injustice to others, through apostolic writings we command your discretion that, unless the cause is of a kind known to pertain to an ecclesiastical judge, you take care to suspend action upon it, provided that she can obtain her justice through a secular judge; otherwise, notwithstanding his contradiction, you are to terminate the cause, according to the form handed to you in other letters, reason leading the way. [Given at Rome, at Saint Peter's, on the Kalends of January, in the eighth year of our pontificate, 1205.]

Latin source headnote: A cleric cannot constitute a layman as judge for himself, even if his own oath and the adversary's consent are added.

The same, to the Archbishop of Pisa.

If with diligence—And below: [cf. c. 17, On Prescriptions, II.26.] Concerning this, however, we wonder greatly and are moved that, although we consider you a provident and discreet man, and although, according to the obligation of the pontifical office, the statutes of the holy Fathers ought not to be unknown to you, and you are known to have an abundance of jurists, you asserted that until these times you had held, and held as certain, that it was lawful for any cleric to renounce his right, at least in temporal causes, and to constitute a layman as judge for himself—especially where the adversary's will was added—and by this you tacitly imply that you were reasonably reproved because you answered that an oath interposed concerning this matter ought to be kept, forgetful of that constitution by which it is provided that an agreement of private persons in no way derogates from public law.

Therefore, since this law was specially promulgated at the Councils of Milevis and Carthage—that clerics are not to draw clerics, after abandoning their own bishop, to public judgments, otherwise they lose the cause and are held outside communion; and that bishops as well as deacons, or any clerics, in a criminal or civil business, if they wish to clear themselves in public judgments after abandoning ecclesiastical judgment, even if sentence is rendered for them, lose their place, and this in a criminal action, but in a civil action lose what they have recovered if they prefer to retain their place—it is manifestly plain that they cannot agree voluntarily, any more than involuntarily, to undergo secular judgments. For this is not a personal benefit capable of being renounced, but one publicly [and generally] granted rather to the whole ecclesiastical college, which an agreement of private persons cannot derogate. Nor could an oath lawfully be observed which is framed by unlawful agreements contrary to canonical statutes. [Concerning the other matter, etc. (cf. c. 17, On Prescriptions, II.26.) Given at Rome, at Saint Peter's, on the second day before the Nones of May, in the ninth year of our pontificate, 1206.]

Latin source headnote: Clerics are to be sued concerning their excesses before their own bishop, not before those whom they serve, unless custom or privilege introduces otherwise.

The same, to the Bishop of Beauvais.

Since it sometimes happens—(And below: [cf. c. 28, On Oaths, II.24.]) You further petitioned whether, when certain clerics assigned to the service of the Chapter of Beauvais or of other clerics of your diocese are proceeded against concerning excesses, they are to be compelled to answer the complainants before you or rather before those whom they serve, since those persons contend that they have jurisdiction of this kind, although they cannot excommunicate the clerics or otherwise coerce them. Concerning this, we answer your fraternity in this way: the complainants ought to have recourse concerning such matters to you, as the ordinary judge, especially if the clerics are proceeded against concerning crimes which they are known to have committed in your diocese, unless perhaps those whom the offending clerics serve are able to claim jurisdiction of this kind for themselves by an indulgence or special custom. [Given at the Lateran, on the sixteenth day before the Kalends of January, in the thirteenth year of our pontificate, 1210.]

Latin source headnote: The bishop of the place of the delict condemns a cleric concerning the delict, but does not deprive him of a benefice situated elsewhere; rather, the bishop of the benefice will deprive him, as though executing the condemnation of the judge of the delict. This is what it says according to one interpretation. According to another interpretation, this is what it says: the bishop of the place of the delict condemns a cleric concerning the delict by depriving him of a benefice situated elsewhere; the real execution is carried out by the bishop of the benefice.

The same.

You petitioned to be instructed by the Apostolic See whether a priest who has a church in one diocese and resides in it, but has a domicile by reason of patrimony in another, and who commits an offense there, ought to be judged for the delict committed there by the one in whose diocese he has the patrimony, especially in causes that demand deprivation of his office or benefice. To this we answer briefly that sentence can be promulgated against him by the bishop in whose diocese he committed the offense. But as regards the benefice, the execution of a sentence of this kind is to be carried out by the one in whose diocese he holds it. You asked, etc. (cf. c. 21, On Homicide, V.12.) [Given at the Lateran, on the third day before the Kalends of May, in the sixteenth year of our pontificate, 1213.]

Latin source headnote: A person deserving compassion can sue a layman before an ecclesiastical judge by the interdict unde vi, even if the thing taken away is said to be feudal.

Honorius III, to the Archbishop, Dean, and Archdeacon of Tours.

It was proposed before us on behalf of our dearest daughter in Christ B., formerly illustrious Queen of England, that, when by authority of Pope John of good memory, our predecessor, she had drawn before you into a cause concerning this matter the nobleman G. de Guerchia, holder of the castle of Segré, which belonged to her by reason of dower and of which she had been despoiled by him or his accomplices contrary to justice, the said nobleman proposed by way of exception that the apostolic letters were not valid because the castle of La Guerche, where his principal domicile was situated, was in the diocese of Rennes, which was more than two days' journeys distant from Tours; hence, according to the statute of the general council, he could not be drawn there.

But it was replied on the queen's behalf that the same nobleman could sufficiently be sued at Tours according to the statute of the general council, since he was situated not only in the diocese of Rennes but also in the diocese of Angers, because he had several castles and revenues there, and the castle concerning which the question was pending was in that same diocese, which was by no means more than twelve leagues distant from Tours. He also added that, because the said queen ought to have pursued her right before the lord of the fief, the apostolic letters were not valid, since they did not mention that the lord of the fief had been requested and had been negligent or remiss in exhibiting justice to her. He further submitted that those letters had been obtained by the expression of a falsehood, because it had been suggested that the castle belonged to that queen by reason of dower, although neither at the beginning nor during the marriage had it been assigned to her by her husband as a gift on account of marriage.

To this it was answered on behalf of the queen that a despoiled widow could sue the despoiler or holder of the thing before an ecclesiastical judge without first requesting the lord of the fief, since it belongs to that judge to defend widows. Nor does it stand in the way that the castle had not been assigned to her by her husband, since King John of England of illustrious memory, the heir and successor of her husband, granted the aforesaid castle to her in exchange for other dower property, and she had long possessed it peacefully as dower. To these things it was replied on behalf of the nobleman that the aforesaid king had not been the heir of King Richard or the lord of Anjou, but rather the plunderer and invader of that castle, and thus could not transfer to the queen a right which he by no means possessed. To this the queen's party answered that an exception of this kind was not valid against the rescript and ought not to have a place in the possessory action which she was bringing against the said nobleman. Hence, lending your ears to frivolous exceptions of this kind, you have until now delayed proceeding in the principal business, to the queen's considerable grievance and loss.

But we, wishing an end to be imposed upon lawsuits, command your discretion that, if it is established to you that the said nobleman has land and a dwelling in the diocese of Angers, in which he is sometimes accustomed to reside, that the same diocese is not more than two days' journeys distant from Tours, and that the thing in litigation is situated in that diocese, then, notwithstanding the other exceptions—which appear to have a place in the petitory action rather than in the possessory action which the queen was bringing against the same nobleman—you proceed in that business according to the contents of the earlier letters, with the obstacle of every contradiction and appeal removed, reason leading the way, so fulfilling the apostolic precept that the same queen is not compelled through your failure to labor further in coming to us, and that you cannot be reproved for negligence. [Given at the Lateran, on the sixteenth day before the Kalends of February, in the first year of our pontificate, 1217.]

Latin source headnote: Laymen who usurp ecclesiastical rights are compelled by an ecclesiastical judge as sacrilegious persons.

Gregory IX, to Brother Palmerius, Canon of the Holy Trinity.

[Our venerable brother] the Bishop of Bologna complained to us that the podestà and commune of Bologna presume violently to usurp the temporal jurisdiction which belongs by full right to the church of Bologna in [Saint John in Persiceto, Unciola, Massumatico, Poggio, Duliolo, Castel del Vescovo, and] certain [other] castles and villages, and in the quasi-possession of which it is known to have been and to be. [They caused a certain man who had perpetrated homicide at the said castle of Saint John to be exhibited to them by the rector of that castle so that he might be punished by them; they still hold him in chains and refuse to return him. Hence, through our letters we commanded them to desist from molesting the bishop, to restore the murderer to the bishop without any difficulty, and freely to permit him to exercise the aforesaid jurisdiction in the said places, while appearing before us by the feast of All Saints then next past to do and receive what the order of law dictated if they proposed that they possessed any jurisdiction in the said castles and villages. Treating this with contempt, as is said, although diligently admonished, they neither restored the aforesaid malefactor to him nor permitted the bishop freely to exercise this jurisdiction in those places, nor sent a suitable representative to us. Rather, heaping sin upon sin, after the messengers of both parties had approached the Apostolic See, the said podestà and commune sent certain persons on their behalf to investigate and punish a certain crime perpetrated in the territory of Duliolo, which belonged to the jurisdiction of that church, concerning which an inquiry had been made through the messengers of the said bishop and pledges and other securities had been accepted from the malefactors. For this reason the messengers of the same bishop humbly petitioned us that we ought to provide concerning these matters for the indemnity of the church of Bologna.]

But since it is very unjust [and an enormous sacrilege] that things conferred upon venerable churches for the remedy of sins, or left to them, or otherwise acquired by them in just ways, [by faithful and Catholic men, by whom it is fitting that they be preserved,] be applied to other uses, the invaders of those things are therefore deservedly, as sacrilegious persons, [unless they restore them, through the rectors of the churches, since sacrilege is an ecclesiastical crime,] to be subjected to anathema until suitable satisfaction. [It is also known to have been introduced in favor of churches that the rectors of venerable places can sue their malefactors before whichever judge they prefer. But, an exception to the forum having been opposed through your messengers, it was urgently petitioned by them that, since a claimant regularly ought to follow the defendant's forum, we should leave a question of this kind to secular judgment.]

[Therefore, after diligent deliberation concerning these matters with our brothers, with paternal sweetness we admonish, entreat, and beseech them, adjuring them by the salvation of their souls and calling God to witness, that, since in this matter it is far more glorious to be conquered than to conquer, they not refuse to receive saving medicine, but, granting us these things by gratuitous liberality in hope of eternal reward, render due satisfaction to God and the Church concerning the aforesaid matters. For with solicitous affection we desire the salvation of the citizens of their city, devoted to the Roman Church, taking care to bind what is broken and bring back what is cast away, and desiring to recall them through our patience to penance. Therefore, unwilling to dissemble the affliction of the same church, to the peril of the said podestà and commune which is involved in it, lest we act contrary to the obligation of our office, knowing that we ought to obey God rather than men, through apostolic writings] we command your discretion that, if the aforesaid matters are established to you, after [your diligent] admonition has first been given, you compel them through ecclesiastical censure, with appeal removed, to cease from conduct of this kind and to make satisfaction for past damages and injuries. [The witnesses, etc. Given at the Lateran, on the sixth day before the Kalends of February, in the fourth year of our pontificate, 1230.]

Textual note: The clause Civitatis enim suorum ecclesiae Romanae devotae is grammatically difficult in both e-texts. The translation follows the contextual sense, taking it to refer to the citizens and their city as devoted to the Roman Church.

Latin source headnote: One privileged not to be bound to answer except in a certain place can be sued there, and also where he has his domicile, if he promises to answer or pay in another place. According to Johannes Andreae.

The same, to the Bishop of Durham.

Our beloved sons I. and A., Roman citizens, showed us by their petition that, when they had obtained letters for the Abbot of Saint Geneviève of Paris against R., your predecessor, concerning a certain sum of money, you caused it to be proposed that it has been granted by the Apostolic See to all Englishmen that they cannot be sued in pecuniary causes on this side of the sea, on account of which the same abbot did not proceed in the business. But because, even if such a privilege had been granted, it nevertheless would not benefit those who promised their adversaries to answer or pay in a certain place, since they can be sued both there and where they have their domicile, we command that you satisfy them, as you are bound, concerning the money itself together with just and moderate expenses and suitable satisfaction for damages, with usury ceasing altogether. Otherwise, through our letters we command the same abbot to proceed without the loss of delay in the business committed to him according to the tenor of our prior mandate, notwithstanding the indulgence proposed on your behalf.

Latin source headnote: Although laymen can prorogate the jurisdiction of one who is not their judge, clerics nevertheless cannot do so unless the consent of the diocesan bishop is added and the judge whose jurisdiction they wish to prorogate is an ecclesiastical person.

The same, to the Abbot of Troyes.

You signified to us that the cleric P., at the petition of the merchant C., subjected himself to your jurisdiction if he did not satisfy him concerning borrowed money by the term now elapsed. (And below:) We answer your inquiry in this way: although the consent of private persons can constitute as their own judge one who is known to preside over a jurisdiction, nevertheless clerics cannot consent to one who is not their judge unless perhaps he is an ecclesiastical person and the will of the diocesan bishop is added.

Latin source headnote: One lawfully cited is bound to prosecute the cause before the judge who cited him, notwithstanding that after the citation he changed his forum.

The same.

You proposed to us that a certain subject of yours, lawfully cited by you to a cause at the petition of a certain adversary of his, intends to decline your judgment because he afterward began to belong to another's jurisdiction. But we do not believe it doubtful to your prudence that in the aforesaid cause he has no right to recall the forum, since he has, as it were, already been forestalled by the other party.

Latin source headnote: Every cleric can be sued in the Roman curia, although otherwise he does not specifically obtain a forum there; nevertheless, for cause he has the right to be sent back home.

The same.

Although by reason of delict, contract, domicile, or the thing concerning which a cause is moved against a possessor—by which grounds a person regularly obtains a forum—your bishop had not been sued at the Apostolic See, nevertheless, because that same See is the mother and mistress of all churches, he could rightly be compelled to answer his adversaries there, unless he had come for another just and necessary cause; and if he had alleged that cause at the time, his right to be sent back home would have been preserved.