Title VI: That Before Issue Has Been Joined No Proceeding Is to Be Had to the Reception of Witnesses or to Definitive Sentence

Latin source headnote: If an action concerning adultery is brought for separation from bed, and before joinder of issue the defendant is contumacious, he can be excommunicated; but witnesses cannot be received, nor can the cause be decided.

Innocent III, to the Abbot of Saint Proculus and L. the Canon.

For this purpose God established the governance of the whole Church in the Apostolic See, [so that, because according to Holy Scripture God made man upright, but man involved himself in infinite questions, difficult knots of questions may be referred to it to be dissolved by its upright judgment.] It came to the knowledge of our apostolate through the representation of your letters that, when the cause pending between R. and B. his wife had been committed to you by apostolic authority, the proctor of the same R. was unwilling to answer the wife's complaint, by which she accused her husband of adultery for separation from bed and so that she might recover her dowry, until his advocate should come, and he sought adjournments.

When, by frequently seeking adjournments of this kind, he appeared to mock you, you received the woman's witnesses after taking counsel. At last the proctor, approaching your presence, said that he was prepared to answer; but on the appointed day, when it was believed that he would answer the complaint mentioned above, he first petitioned on the husband's behalf that the wife be restored, appealing lest it be done otherwise. But because the woman said that she held her husband suspect—both because in his house she had been compelled to confess that she had committed adultery with several persons and because he publicly kept a prostitute—and the same proctor neither gave security for the woman's safety nor afterward took care to present himself before you, you endeavored again to receive the woman's witnesses, and, after the attestations were published, diligently heard what was alleged in her name.

But because, when you treated with jurists concerning the rendering of sentence, you found different counsels from different persons—some saying that simple deference was to be shown to the appeal, others that deference was not to be shown to it, and some also asserting that the appeal did not hold at all, since the woman was not to be restored to a husband held suspect unless sufficient security for her safety had been given—you wished to consult us, amid such variety, concerning how one was to proceed in this business. Therefore, with the counsel of our brothers, we answer your consultation in this way: although the judicial order is to be observed in other controversies and is not observed in every respect in matrimonial causes, nevertheless, because in the present business the action concerns not the bond of marriage but the crime of adultery, through which separation of the marriage, not union, is intended, and because witnesses were received and the attestations even published before issue was joined, whether or not deference should have been shown to the appeal, no proceeding is to be had to definitive sentence. The aforesaid R. could nevertheless have been bound by a sentence of excommunication on account of his own contumacy, or even that of his proctor if, knowing of it, he did not purge it. [Given at Perugia, on the fifteenth day before the Kalends of October, 1198.]

Latin source headnote: In a cause of restitution, sentence cannot be pronounced against a contumacious person before issue has been joined. This states the rule, comprehending every manner of summarizing it.

The same, to the Patriarch of Jerusalem and the Archbishop of Caesarea.

Approaching our presence, our venerable brother the Bishop of Paphos presented to us letters of our venerable brothers the Bishops of Acre, Tiberias, and Beirut, containing the sentence which those bishops promulgated concerning the cause pending between our venerable brother the Archbishop of Tyre on one side and the plebanus of Saint Mark on the other. The aforesaid bishops asserted through their letters that, when they had undertaken by our mandate to terminate that cause, they summoned the parties to their presence. But the [aforesaid] plebanus was willing neither to receive their letters, in which the tenor of our mandate was expressed, nor to present himself before them; and, when cited a second time, although he had been willing to receive [neither their messenger] nor their letters, he appeared before them, alleging the causes of his earlier absence and, after inspecting the tenor of our letters and also petitioning for and receiving adjournments [from them], departed with permission, promising that he would return to them on the appointed day.

When the Archbishop of Tyre petitioned for the benefit of restitution in the presence of the delegated judges, the plebanus of Saint Mark of Venice, against whom he was proceeding, answered nothing to the objections but appealed to our hearing. And although he had frequently been admonished by them to obey the law, because his appeal did not hold—since in our letters the obstacle of appeal had been closed to the parties, although he had been recalled to judgment through their messengers—he nevertheless was unwilling to answer further or even to appear before them.

But the judges, going to the city of Tyre, when the same plebanus persisted in his contumacy, received the witnesses produced by the opposing party and, after the depositions had been reduced to writing, commanded the plebanus to approach them to object against the persons or statements of the witnesses. When he was unwilling to do this, they pronounced a sentence of excommunication against him, adjudged possession of the parochial right to the aforesaid archbishop, restored him in full so far as lay in them, and, by authority of the Apostolic See, strictly prohibited anyone from presuming to disturb the possession restored to the church of Tyre, to contravene the apostolic institution, or to exercise parochial right at Tyre as plebanus of Saint Mark or as any other person.

[Moreover, they pronounced a sentence of excommunication against all those who thereafter consented to the subtraction of parochial right by that plebanus or furnished aid or assent to him in his malice, establishing the same against the plebani to be sustained (substituted?) for him thereafter. But our beloved sons, the noblemen Orso Badoer and Marino Giacomo, sent to us on behalf of the nobleman Enrico Dandolo, Doge of the Venetians, proposed in our presence that formerly, in the recovery of the eastern land, prelates of churches and secular princes granted to the Venetians by full right a third part of the city of Tyre, which they possessed for a long time without litigation. But after the death of those who had experienced in effect their fidelity, constancy, and aid in the recovery of that land, their successors, either ignorant of or ungrateful for the benefits conferred by the Venetians upon the Holy Land, improperly moved a question against them concerning the parochial right of the church of Saint Mark—which belongs by full right solely to the church of Saint Mark situated at Venice. But when the destruction of the western land supervened, they obtained letters from Clement and Celestine of good memory, our predecessors, that before the recovery of that land they should not in any way be compelled to answer anyone concerning this matter. Hence, when the said archbishop obtained letters of commission concerning it, the aforesaid plebanus, as one who held the judges suspect for certain reason—inasmuch as it was established that two of them were suffragans of the church of Tyre—and also because the letters themselves had been obtained by suppression of the truth, since no mention of the aforesaid letters was made in them, appealed to our hearing. But after an appeal had lawfully been interposed to us, the judges, before issue had been joined, pronounced a sentence of excommunication against him and all his accomplices and presumed to adjudge possession of the parochial right to the aforesaid archbishop and his church. But when he did not obey so unjust a sentence, the same archbishop despoiled his churches of their goods.]

Therefore, since it was established to us by inspection of the sentence that issue had not been joined before those judges; since from the transcript of the letters which those predecessors of ours had granted to Venice it was manifestly apparent that the letters had been obtained by suppression of the truth; since it did not come into doubt but rather was manifest that two of the aforesaid judges—namely, the Bishops of Acre and Beirut—were subject to that archbishop as suffragans to their metropolitan; and since from these things it was established that the same plebanus had lawfully appealed, even if he had appealed less than lawfully, although the judges perhaps could have pronounced a sentence of excommunication against him on account of contumacy, they nevertheless ought not to have pronounced definitive sentence concerning the principal business before issue had been joined. Therefore, with the counsel of our brothers, we quashed the aforesaid sentences rendered by those judges—or rather declared them quashed and void—and we will that no prejudice be inflicted through them upon the church of Saint Mark or its supporters.

Hence we commanded the [said] Archbishop of Tyre to restore to the same church of Saint Mark [both] the instruments and also everything which, on the occasion of a sentence of this kind, he had occupied personally or through others, and not to impede the Venetian church from enjoying possession of its parochial right and other dignities as it had before the sentence was rendered. [Therefore, your fraternity, etc. Given at the Lateran, on the Nones of April, in the third year of our pontificate, 1200.]

Textual note: The source prints sustinedos (substituendos?) in the bracketed passage concerning future plebani. The translation preserves both the printed form's apparent sense and the source's conjectural alternative.

Latin source headnote: If, before issue has been joined, the defendant is contumacious, the claimant is placed, if possible, in possession for the sake of custody; otherwise the defendant will be excommunicated.

The same, to the Bishop of Brescia.

The devotion of your fraternity—(And below: [cf. c. 10, On One Who Has Known His Wife's Consanguine, IV.13.]) You further consulted whether, if anyone cited by lawful peremptory citations is unwilling to appear, the judge ought to promulgate sentence against him before issue has been joined, so that, affected by weariness, he may at least present himself before the judge in order to appeal. To this we have considered that your consultation should be answered in this way: if the defendant contumaciously absents himself before issue has been joined, and the cause is of such a kind that the claimant can be inducted into possession of the things sought, he is to be inducted into it for the sake of custody. But if the cause is of such a kind that he cannot be put into possession, the contumacious person who absented himself contumaciously is to be compelled through ecclesiastical censure to obey the law. [Moreover, etc. (cf. c. 20, On Prebends, III.5.) Given at Rome, etc., 1206.]

Latin source headnote: The reception of witnesses made against a person who is not contumacious before issue has been joined is null in a matrimonial cause.

The same, to the Abbots de Decima and Helemosio of the dioceses of Orléans and Chartres.

Approaching the Apostolic See, our beloved son, the nobleman G., Viscount of Benaicum, [showed us with humble complaint that, when he had lawfully taken the noblewoman Eustachia as wife and had received two daughters from her, at last that noblewoman, at the persuasion of the enemy of the human race, withdrew from him. And when he could not obtain justice concerning this matter from our venerable brother the Bishop of Poitiers, his diocesan, at the petition of his messengers and of the same woman we considered that the cause pending between them concerning their marriage should be committed to our beloved sons the Abbot of Saint-Léger, the Dean of Saint Peter, and the Prior of Saint-Hilaire de la Celle at Poitiers. As they intimated to us through their letters, when it had been clearly established to them that the aforesaid E. had withdrawn by her own authority from her husband, by whom she had received two daughters, after taking the counsel of prudent men they decreed that the same E. ought to return to her husband, with full power reserved to her to accuse the marriage after her return if she wished. When she was unwilling to do this, they bound her by the chain of excommunication and subjected her land and household to ecclesiastical interdict.]

[But when we afterward commanded that sentence to be inviolably observed, as it had reasonably been rendered, until suitable satisfaction, at last the same E., at the suggestion of our venerable brother the Bishop of Angers and our beloved sons the Abbots de Granateria and de Bellofonte, obtained the delegation of that cause to our venerable brother the Bishop and our beloved son G., Archdeacon of Quimper, and Master P. de Buter, Canon of Angers, under this form: that, if it were established to them that the same woman, as the same bishop and abbots had written to us, had been unable on account of wars to approach the aforesaid judges at the place fixed for her, and that she had wished to give the opposing party safe conduct on the border of the bishoprics of Poitiers and Angers and to furnish most sufficient security that she would preserve them harmless, then, after revoking as void whatever they found rashly attempted to her prejudice after an appeal lawfully interposed to us, notwithstanding the aforesaid commission they should summon the parties before them and, after fully hearing and considering the arguments on each side, terminate the cause with a due end, appeal removed, causing what they decreed to be firmly observed through ecclesiastical censure.]

[But they, as we perceived was contained in their letters, after assigning the parties a term at Vouvant and afterward at Luçon, received through letters and a proctor the excuse of the same viscount, who asserted that he did not dare approach those places because his enemies held dominion there and because of the danger of death. The opposing party and the barons who were present there answered him that they had sent that viscount letters of safe conduct, together with letters of the Viscount of Thouars, Seneschal of Poitou, through a messenger. The viscount's proctor replied that he did not dare approach a place suspect to him on account of letters, but petitioned that a safe place be assigned to him and that his wife be restored. He said that, if the judges were unwilling to do this, his lord was being aggrieved; on this account he had recourse to the remedy of appeal and afterward, although requested, was unwilling to answer before the judges, asserting that they were manifestly suspect, and renewed the appeal that had been made. But the judges, believing that the appeal was not lawful and afterward learning through witnesses that sentence had been rendered against the said woman after the appeal, declared that it did not hold at all.]

[At last, after a peremptory term had been assigned to the parties at Pouzauges, [...] the Dean of Tours, uncle of the same viscount, offered that he would come on his behalf if safe conduct were granted him, alleging nevertheless through letters causes of suspicion against the judges: namely, that the bishop was a blood relative of the nobleman G. de Thouars, Count of Brittany, who was involving himself excessively in that woman's cause, and was subject to the power of the same count; that the archdeacon was a cleric and table-companion of the same count; and that Master P. [...] de Buter originated from the woman's land. But the judges, after afterward assigning another peremptory term to the parties, received the woman's witnesses concerning the consanguinity and, after another term had been assigned to the parties at Malleonia, caused the attestations to be published, while the viscount excused himself through his letters.]

[Finally, when a term had been assigned to the parties for receiving sentence, and when the woman's messengers and [...] the Archdeacon of Tours, brother of the viscount, had been established in their presence, the woman's messengers petitioning for sentence and the archdeacon seeking a term on behalf of his brother, with the counsel of prudent men they assigned the parties a term on which they ought to proceed in the cause according to the order of law. But the woman's messengers, departing contumaciously, appealed on the following day to our hearing, saying that grievance was being inflicted upon their lady because the judges had not been present at Malleonia, where they had assigned the term for rendering sentence, and because they were assigning a place outside the province, although they themselves were from the province of Tours.]

[When the judges deferred to the appeal, the woman's messenger, approaching the Apostolic See, proposed that, although in that cause the aforesaid judges had several times cited the same viscount by peremptory process to suitable places and at lawful intervals, the aforesaid woman appearing, the same viscount was unwilling to come or send a sufficient representative. They therefore received the woman's witnesses and cited the viscount again by peremptory edicts to appear before them to speak against the witnesses or their testimony. But when he did not come or send a sufficient messenger, the attestations having been published by them and the parties cited to hear sentence, the same woman, the said viscount contumaciously absenting himself, petitioned that sentence be given to her; but although frequently requested, they were unwilling to proceed to it. On account of this the woman's party, feeling that grievance threatened her, appealed to our hearing.]

[But we, believing that the same woman was laboring in favor of the marriage, considered that at the messenger's petition those judges should be enjoined to proceed lawfully in the same cause according to the attestations received and to terminate it with a due end, the obstacle of every contradiction and appeal having been removed. We nevertheless commanded our beloved sons [...] the Abbots de Granateria, [...] de Insula Calveti, and [...] de Alba Corona that, if the aforesaid judges were negligent or remiss in executing our mandate, they should not delay proceeding to definitive sentence in that business according to the attestations received by those judges, with the obstacle of appeal removed. But the said Viscount of Benaicum, established in our presence,] set forth a grave complaint before us against the said judges: that, since the said Bishop of Quimper is connected in the nearest degree of blood relationship to the nobleman Guy de Thouars, Count of Brittany, and his archdeacon is a cleric and table-companion of that count—who is the viscount's principal adversary, inasmuch as he presumes publicly to detain his wife and land—and since Master P. de Buter, originating from his wife's land, is excessively favorable to her, and all are under the jurisdiction and power of the same G., the aforesaid count, and no access lies open to them except through the count's district, the persons to whom the cause between him and his wife had been committed were never willing to assign him a place and term except in the land of his enemies, which he did not dare approach without danger of death; and although he did not have letters of safe conduct, even if they had been sent to him, he ought not to have entrusted himself to his mortal enemies.

[Moreover, although we had considered that a certain form should be prescribed to them, after an appeal had lawfully been interposed to us, they abandoned the form which we had prescribed to them and, inquiring only into the appeal while passing over the order of law, when it had not been shown that the appeal was lawful or that anything had been rashly attempted, and when they had not inquired into the other chapters enjoined upon them, less than justly declared void the sentence rightly rendered against the woman.] And, presuming before issue had been joined to receive witnesses concerning the principal matter, [and rejecting his lawful exceptions, they omitted from their letters the greater part of his allegations, especially those which supported his cause, while setting forth on behalf of the opposing party many things that had not been alleged before them. Moreover, the opposing party, which had obtained the delegation of the cause to them by false suggestion, fraudulently intending through reprobate witnesses to weaken the viscount's justice under the pretext of a frivolous appeal, secretly obtained letters for those same men and the aforesaid Abbots de Granateria, de Insula Calveti, and [...] de Alba Corona concerning the rendering of sentence, while the viscount was on the road to the Apostolic See to prosecute his appeal.]

[Hence, since the fraud of his adversaries ought not to support them, and since it is established that after an appeal had lawfully been interposed to us the judges, as manifestly suspect, rashly proceeded in the cause contrary to the form of our mandate, the same viscount urgently petitioned that, after revoking as void whatever had been attempted to his prejudice by those judges or others after the appeal lawfully interposed to us, and after also revoking the letters which had been obtained by falsehood while he was coming to us, we deign to compel his wife through a sentence of excommunication and interdict of the land to return to him, compelling those who detained her and the land by the same severity to restore her and the land together with the fruits received from it, and that we cause the sentences to be published every Sunday and feast day throughout the provinces of Tours and Bordeaux and firmly observed until fitting satisfaction.]

Therefore, since in matrimonial causes we ought to be more inclined toward joining than separating, lest perhaps man presume to separate what God has joined, through apostolic writings we command your discretion that, since, as the same viscount asserts, you are nearer to the land of the already-mentioned noblewoman than to his own, the cause can more conveniently be terminated through you, since safe access lies open to you. After summoning the parties on each side and inquiring more diligently into the truth concerning the aforesaid matters, if it is established to you that before issue was lawfully joined, or after the appeal interposed for the aforesaid causes, witnesses concerning consanguinity against the marriage were received without the fault of contumacy, you are to decree attestations of this kind null and void and, appeal ceasing, compel the said noblewoman through ecclesiastical censure to return to the husband whom she left without due consideration, executing the apostolic mandate with the obstacle of every contradiction and appeal removed, so that, after the husband has received full restitution of both wife and land, you hear the cause concerning the marriage and terminate it with a canonical end. [As for contradictors, etc. Given at Rome, at Saint Peter's, on the thirteenth day before the Kalends of March, 1205.]

Textual note: Several corrupt high-byte characters in the Latin Library transcription mark omitted personal names. The Friedberg-derived reference prints ellipsis points at these positions; they are preserved above as [...] rather than conjecturally supplied.

Latin source headnote: Before issue has been joined, witnesses are not regularly received concerning the principal matter. This rule fails in the cases noted here, namely when the death or long absence of the witnesses is feared. For then, with the solemnity set forth here observed, witnesses can be examined even before issue has been joined. This is what it says as far as § Moreover. When an action concerns carnal or spiritual marriage, witnesses can be received and definitive sentence rendered against a contumacious person even before issue has been joined. But if the defendant is absent, though not contumaciously, then in a carnal marriage no proceeding occurs, but the absentee is awaited. In a spiritual marriage, however, if the action concerns one already contracted, the ancient laws shall be followed; if one to be contracted, the absentee is awaited for six months. But concerning this last case, when the action concerns a marriage to be contracted, speak today as in the chapter How Great and the chapter Desiring, On Election, in the Sixth Book, where provision is made otherwise. This is what it says. § 5. For the perpetual memory of the matter, or when proceeding by way of inquiry, witnesses can be received without joinder of issue and even published. This is what it says as far as “But in other cases.” § 6. If, before issue has been joined, the defendant is contumacious and a real action is brought, the claimant is placed in possession of the thing sought for the sake of custody. The defendant nevertheless recovers it if he comes within a year, provided that he offers security to stand to the law and restores the expenses; but after a year he is not heard without observing these requirements, except concerning ownership. But if one who possesses in another's name is sued by a real action, he shall name the owner in court, and a term will be established for him within which he shall cause the owner to appear. If the owner does not come within the term, the judge will cite him; if he still does not come, the judge will place the claimant in true possession. But if a contumacious defendant is sued by a personal action, the claimant will be placed in possession of the defendant's goods according to the amount of the debt declared—first movable goods, and second immovable goods if no movables exist—or the defendant will be excommunicated. This is what it says to the end.

The same.

Because it is frequently called into doubt by many whether witnesses can be received before issue has been joined, we have considered that it should be declared by authority of the present writings to be regularly true that, before issue has been joined, no proceeding is to be had to the reception of witnesses, unless perhaps the death or long absence of the witnesses is feared. In these cases, when one is to proceed civilly, lest the truth be concealed and an abundance of proof be taken away by fortuitous events, the elderly, the infirm, and other witnesses concerning whom fear exists for some reasonable cause are without doubt to be admitted even before issue has been joined, whether the party sued is contumacious or is absent without malice so that he cannot be sued. But if the claimant does not sue the adversary within a year from the time when he can be sued, or at least does not announce to him a reception of witnesses of this kind, the attestations so received are not to be valid, lest perhaps he procure this by fraud so that, through the passage of time, lawful exceptions for excluding the witnesses, or others, cannot have a place.

§ 1. Moreover, special causes can occur in which something else is incidentally to be observed, as, for example, if a question is moved concerning someone's election or marital union. For then, lest a church suffer injury in spiritual and temporal things because of long delay, or an occasion of fornication be furnished to a man or woman—especially when a degree of kinship prohibited by divine law is objected—in cases of this kind, if namely the person against whom the action was to be directed appears contumacious, either because, after receiving a peremptory citation, he treats coming with contempt, or because he maliciously conceals himself, or because he impedes the citation from reaching him, witnesses are deservedly to be admitted before issue has been joined, and nevertheless, if the cause is clear, one is to proceed to definitive sentence.

§ 2. But if he is absent otherwise, and the action concerns a spiritual marriage already contracted between a prelate and a church—especially when the election has been confirmed—we will that what is defined in the sacred canons concerning awaiting such persons be observed in this article.

§ 3. But if perhaps the action concerns a spiritual marriage to be contracted, the person elected as prelate is to be awaited for the space of six months, unless, after weighing the circumstances of the business, he is to be awaited for more or less time by the superior's providence.

§ 4. But if an action concerning carnal marriage is to be brought, either spouse is to be awaited until his death is probably presumed. For since he is absent without fault—as if perhaps he is detained by captivity, illness, or another just impediment, or even stays in remote regions by his own but not malicious will, so that he cannot easily or quickly be cited—he ought not to be prejudiced, since perhaps he has lawful exceptions to destroy the opposing claim. It does not stand in the way that lapse of the flesh could be objected, since in marriage many cases occur in which spouses are compelled to remain continent without fault, although not without cause.

§ 5. There are also other similarly special cases, which we remember having distinguished elsewhere, in which witnesses can lawfully be produced without joinder of issue, as when an inquiry into excesses or publication of witnesses is imminently to be made.

§ 6. But in other cases one must prudently consider whether the contumacious person is sued by a real or personal action. If by a real action, the claimant is certainly to be placed in possession of the thing sought, so that the defendant, affected by weariness, may come to answer. If he comes within a year, let him recover possession after furnishing security to appear for judgment and exhibiting suitable satisfaction for expenses. But if he neglects to offer security within a year, after the year the claimant will be constituted the true possessor, with a lawful defense concerning ownership alone reserved to the opposing party.

§ 7. But if anyone is sued concerning immovable things which he possesses in another's name, he ought immediately to name the owner in court, within a certain space of days to be established by the judge, and bring this to the owner's knowledge so that, coming personally or directing a suitable representative, he may oppose the claimant's claim. But if, after the allotted time, he is unwilling to fulfill what has been arranged, as though the suit brought has been joined from the day on which the possessor was called to judgment for the purpose of interrupting prescription of long time, the judge shall summon the owner of the possession by three lawful edicts; and then, if he remains in the same will, after examining the business summarily, the judge shall not delay placing the claimant in possession of the things themselves, with every allegation concerning the principal question reserved to the absentee.

§ 8. But if he is sued by a personal action, either the claimant is to be placed in possession of the defendant's movable goods, or of his immovables if perhaps he has no movables, according to the amount of the debt declared, or an ecclesiastical sentence is to be pronounced against the contumacious person. The judge, namely, is to be content at the beginning with whichever penalty ought to be feared more, proceeding nevertheless to the other if the insolence of the contumacious person merits this. If he comes within a year, or even after a year, he will be heard according to the distinction noted above in the other case.