Title VII: On the Oath against Calumny

Latin source headnote: A cleric can commit the oath against calumny to another in a cause of his church, and is not compelled to swear personally, nor ought he to do so without his superior's permission.

Honorius III.

Adhering to the footsteps of our predecessors, who say that graver questions are to be terminated by the Supreme Pontiff, after diligently seeking the counsel of our brothers, with God's help we decide the form of this cause irrefragably. We therefore find it provided in the laws that no cleric is to presume to swear. Elsewhere, however, it is found written that all principal parties are to undergo the oath against calumny at the first beginning of the suit, on account of which it comes into doubt for many whether a cleric ought to furnish the oath or whether it is lawful to delegate this office to another person.

But because that constitutional edict in which clerics are prohibited from swearing appears to have been promulgated concerning the clerics of Constantinople by Marcus Augustus to Constantine, the praetorian prefect, it is therefore not believed to pertain to others. Therefore, so that this doubt may be entirely removed from all, according also to the decision of our son H., formerly emperor, made, as we have learned, at Rimini on the third day before the Nones of April, as is contained there, whose words are these: “We therefore confirm its interpretation and decree that the constitution of the divine Marcus ought to be interpreted in such a way that it is judged generally to pertain to the clerics of all churches. For since Emperor Justinian decreed by law that the canons of the Fathers ought to have the force of laws, and since in certain canons of the Fathers it is found that clerics are altogether not to dare to swear, it is fitting that the whole clerical order be immune from furnishing the oath against calumny.”

Moreover, the tenor of the prince's statute in our possession is known to be this: “Therefore we, with the intention of both divine and human law preserved, decree and irretractably define by imperial authority that no bishop, no priest, no cleric of any order, no abbot, no monk, or religious woman is for any reason to be compelled to undergo an oath in any cause or controversy, whether criminal or civil; but if he knows that it is expedient for his church, let it be lawful to delegate an office of this kind to other suitable defenders—yet with this qualification, that a bishop is by no means to dare to swear without consulting the Roman Pontiff, nor any cleric without consulting his prelate.”

We command all bishops, all priests generally, and the entire clergy that these provisions ought thus to be observed, so that, if anyone acts against that constitution, he may know that pardon will thereafter be denied him, and so that they do not take as an example or form from us what we recently did in the cause of our brothers and fellow bishops of the churches of Arezzo and Siena, when we assented to their will and petition.

Latin source headnote: In spiritual causes the oath against calumny is not sworn.

The same, to Ordinator, Subdeacon of the Roman Church, and Master Omnibonus.

We kindly received the letters of your kindness, in which you asked whether it is fitting that the oath against calumny be furnished in the cause conducted under your examination between our venerable brother G., Bishop of Bologna, and our beloved son Aldric, Abbot of Padua. Certainly, in those cases in which an action concerns only churches, tithes, and spiritual things, the Roman Church is accustomed neither to give nor receive the oath against calumny, because such causes obtain their due end not from the strictness of the laws but from the equity of the canons; and the canons impose the oath against calumny upon no one at all in causes of this kind. Hence, the contention about furnishing the oath against calumny having been set aside, let your discretion proceed to further matters.

Latin source headnote: A principal party is not indiscriminately relieved from the burden of swearing the oath against calumny, although he appears through an oeconomus; rather, after inspection of the quality of the cause and persons, it is to be tendered to him or to the oeconomus. This is what it says.

Pope Eugene.

In handling causes we do not command that the oath against calumny be exhibited indiscriminately, but, when we permit it to be done and after diligent inspection of the quality of the cause and of the principal parties, we command it to be furnished sometimes by the principal parties themselves and sometimes by the oeconomi granted to them, who are not altogether ignorant of the cause, upon the soul of the person swearing. Therefore, so that the cause conducted between the Abbey of the Holy Trinity and the church of Ripoll may, by the Lord's authorship, obtain its due end without delay, by authority of the present writings we command that, as shall appear to you more salutary and suitable, you terminate the cause itself as justice dictates, with appeal removed. We also add that the monastery of the Holy Trinity is in no way to be deprived of its right on account of the injury which, while the Abbot of the Holy Trinity was ignorant, we have heard was inflicted upon the Abbot of Ripoll, if justice is otherwise known to favor it.

Latin source headnote: A corporation is bound to swear the oath against calumny unless it relieves itself by appointing an oeconomus.

The same, to the Bishops of Maguelone and Nîmes.

The laws of secular emperors and the ecclesiastical constitutions of the holy Fathers protect and defend religious men in the service of almighty God and do not permit any molestation or disturbance contrary to holy order to be inflicted upon them. We have however learned that the oath against calumny is required from the Abbot and Brothers of Clairvaux as it is from others—although this is uncustomary among the brothers of that order—and we cannot and ought not compel them to furnish it.

§ 1. But lest they appear on an occasion of this kind unlawfully to retain the rights of others, and lest they fall from their cause if the aforesaid oath has not been furnished on their behalf when the matter demands it, we command them to appoint in their monastery, as the imperial laws permit, an oeconomus who can claim and except on their behalf and, when necessary, exhibit the oath against calumny. Therefore, through the present writings we command your fraternity that you instruct the same brothers who are in this cause more fully, as reason requires, so that they cannot thereafter lose their rights on this account and ought, so far as justice permits, to satisfy others in such causes.

§ 2. But you, brother Bishop of Nîmes, are to appoint a suitable oeconomus who appears fitting for that monastery in such an office.

Latin source headnote: Clerics also swear the oath against calumny in their causes, notwithstanding a contrary custom.

Lucius III, to the Bishop of Ely and the Archdeacon of Norwich.

Furthermore, because it is fitting that new antidotes be prepared for new diseases, we will and command that, in the cause concerning suretyship pending between R., cleric of Saint Albans, and I. and F., Canons of London, in order to elicit the truth you cause the oath against calumny to be furnished by both parties, appeal ceasing, notwithstanding the custom which is contrary to law. [Given at Rome, at Saint Peter's, on the fifth day before the Ides of December.]

Latin source headnote: The proctor or syndic of an ecclesiastical or secular corporation can swear the oath against calumny. This is what it says.

Innocent III, to the Bishop of Piacenza.

When we considered that the cause pending between our venerable brother the Archbishop of Ravenna and the commune of Faenza concerning the village of Lugo and certain other matters should be committed to delegated judges, and those judges had not proceeded in the business, we commanded the parties to present themselves before us for that cause. When their proctors, with instruments of ratification, had been established in our presence, and when there had been argument for some time in our presence concerning joinder of issue, the reception of certain witnesses, and many exceptions, we at last caused the petition of the archbishop to be exhibited through his proctor and the other party to answer it; and, after the interrogations and answers had been reduced to writing and issue had been most fully joined before us, we caused the oath against calumny to be furnished by the proctors themselves on each side. [But because, etc. (cf. c. 37, On Witnesses, II.20.) Given at Ferentino, on the tenth day before the Kalends of July, in the ninth year of our pontificate, 1206.]

Latin source headnote: A bishop swears the oath against calumny if he personally chooses to litigate, with the Gospels merely set before him but not touched. But if he litigates through a syndic, he will be able to swear through him. This is what it says. § 1. A claimant who refuses the oath against calumny without cause ought to fall from the action instituted; the defendant, however, ought to be held as having confessed. This is what it says.

Gregory IX, to the Bishop of Beauvais.

Since in the pecuniary cause which you propose has been moved between you and R. you have chosen to litigate not personally but through a syndic or representative, the oath against calumny will indeed have to be furnished through him. But if you litigate personally, it appears that an oath of this kind is to be exhibited by you with the Gospels merely set before you but not touched, as when giving testimony. (And below:)

§ 1. The penalty for one refusing this oath when it is to be furnished is that the claimant falls from the action instituted, while the defendant ought to be held as having confessed.