Title X: On the Order of Judicial Inquiry

Latin source headnote: Against a woman claiming someone as her husband, an exception of consanguinity is admitted, which must be discussed before judgment is pronounced concerning the marriage; and it is sufficient to pronounce upon the principal matter itself. This is what it says.

Clement III, to the Bishop of Alatri.

We have understood from your letters that, when a certain woman claimed a certain man as her husband, she produced witnesses in support of her contention; through them the man’s party, fearing future prejudice to itself, interposed an exception of consanguinity, by which it maintains that the woman’s petition is entirely defeated. Because you wished to consult us as to whether the impediment of consanguinity should be dealt with before sentence is rendered upon the matrimonial cause, we have considered that your inquiry should be answered in this way: since, when the exception is proved, the principal question is extinguished, cognizance must be taken of the exception before proceeding to the point of definition. When this has been done, you shall absolve the man from the woman’s attack, as the reason of law requires.

Latin source headnote: If a defendant objects that the plaintiff is a despoiler, he does so either by excepting, and then he is heard first and, when this is proved, is not compelled to answer, but is not restored by this; or by bringing an action, and then both questions are determined together, and when it is proved he will be restored.

Innocent III, to the Bishop of Narni.

When the beloved son, the Abbot of Ferentillo, had approached our presence, complaining of the noblemen O. and A., his brother, and the sons of R., lords of Arrone, the parties being established in our presence, we appointed as auditors our beloved sons I., cardinal priest of the title of Saint Mary across the Tiber, and G., cardinal priest of the title of Saint Pudentiana. In their presence the abbot set forth his complaint: that the aforesaid nobles, without any previous demand, coming with armed force and an army to the monastery’s castle of Ferentillo and Gabio, had presumed to damage the said monastery, through seizures of animals, burning of crops, captures of men, homicides committed, and other losses up to the amount of five hundred Lucchese pounds, apart from the slaughter of men and the injuries inflicted; and he requested that justice be done for him concerning these and likewise other matters which he wished to propose against them.

Before joinder of issue it was answered against him in the form of an exception that, since the abbot himself had promised the noblemen O. and R., under an oath furnished, that he would assist them against all men—except the Roman Pontiff, the emperor, and their legates—to retain what they then held in castles, villages, and other goods, and to recover it without fraud or evil contrivance if they lost any of it, through his deceit and violence they had fraudulently lost the castle of Sirati, which both their ancestors had held and they themselves had possessed in peace. [Although he had often been admonished by them concerning this, he refused to restore it to them. Indeed, rather, in breach of the compact, he and his men had plundered in animals, spoils, and other household goods the three villages—namely Quadraginta, Casale, and Carpium—which the said abbot had received under safeguard for himself and his party; married women had been shamefully treated and women also harshly beaten. He even caused a priest, with his hands bound behind his back, to be led before him, afflicted with blows and wholly stripped of his garments. He also caused the men of the villages to be shut in prison, where it happened that one of them expired. The abbot also caused fire to be set by night to the castle in which the said nobles dwelt; through this, in the aforesaid losses and many others, they said that they had been despoiled of as much as one hundred marks.] They therefore petitioned to be restored before they answered his petitions, especially since they had witnesses present through whom they wished to prove their contention immediately, and they endeavored to show by the authorities of both laws that restitution ought to be made to the despoiled before entry upon the cause.

But on the abbot’s behalf it was replied as follows: that his libellus ought first to be answered according to the rule of law by which it is said, “Let him who first calls another to judgment first proceed”; that restitution could not be sought from one who had not been the despoiler, especially since the said castle pertained to the right and ownership of his monastery, which the adverse party did not deny at all; and hence that the true owner, to whom his own thing returns from another by whom it is possessed, even after rather long periods, ought to obtain the advantage of retention, while the restitutory judgment is known to lie only against a despoiler. Nor could restitution be demanded for losses inflicted, but a competent action ought to be brought for them; otherwise, since the abbot’s party also complained that very grave losses had been inflicted upon it, those losses would first have had to be restored, if restitution were to be made for matters of this kind according to the tenor of the aforesaid rule. They also asserted that the chapters speaking of restitution to be made have place in criminal matters and when someone is despoiled by an adversary and is sued concerning the very thing of which he had been despoiled. Moreover, the adverse party said that the rule introduced by the abbot’s party has place in mutual petitions, since causes treated in turn are afterward determined by one sentence. But when one party proposes that something is owed to it by way of restitution or in some other manner, and the other asserts by way of exception that it has been despoiled and will by no means answer before its own restitution, it asserted that cognizance must first be taken of the incidental matter.

We, however, believe that a distinction must be made as to whether the question of spoliation is raised by those nobles by way of an action for seeking restitution, or in the form of an exception for repelling the opponent’s contention. For when it is proposed by way of an action, the mutual petitions are understood not to touch one another, as being distinct; and consequently, in accordance with the aforesaid rule of law by which it is said, “Let him who first calls another to judgment first proceed,” the one which was proposed first would be treated first, although, when both had been brought into the same proceeding and treated in turn, they would be determined together by the same sentence. But because that question was raised by those nobles only by way of an exception, by the common counsel of our brothers we pronounced by an interlocutory judgment that their proofs concerning that exception should first be heard; and, when it had been lawfully proved, they should not be compelled to answer the abbot concerning the aforesaid petitions until they were restored by him, since one despoiled is by no means compelled to answer his despoiler before restitution.

1. Yet when spoliation has been proved only by way of an exception, restitution is not to be made by this fact, just as, if some crime is alleged against a witness by way of an exception so that he may thus be repelled from testimony, even if [thus] the crime has been proved against him civilly, the ordinary penalty is not therefore inflicted upon him, but credence is merely not given to his testimony. This occurs for the reason that an accusation is not proceeding against him. Nor are witnesses whose testimony is rejected held among the infamous as though on account of false testimony. [But when, etc. Given at Amelia on the third day before the Nones of October, 1198.]

Latin source headnote: Against one seeking an inheritance there lies an exception concerning birth, which must first be determined before the ecclesiastical judge. This is what it says according to the gloss, with the understanding that the inheritance here had first been sought before the secular judge, and an exception had been taken concerning illegitimacy.

Honorius III, to Louis, King of the Franks.

We do not believe it escapes your prudence that the cause concerning the birth of our dearest daughter in Christ, the illustrious Queen of Cyprus, since it pertains to the ecclesiastical forum, has long since been brought to our examination. Hence we took care to admonish by our letters Philip, king of the Franks of illustrious memory, your father, that if the queen herself should perhaps propose before him a question concerning succession to the county of Champagne, he should not hear it until the aforesaid cause concerning her birth, upon which that question is known to depend, had been determined. Therefore, although, as we wrote to your father, we wish the queen herself to be heard in her just petitions, nevertheless, because to begin the cause of succession dependent upon it before the cause concerning birth had been determined would be nothing other than to entangle the business in diverse proceedings and to disturb the order of judgment by a certain confusion, if perhaps you are requested concerning this by the queen herself, or by her messenger or any other person, you shall wait patiently until the aforesaid cause concerning birth has received its end by apostolic judgment. [Given at the Lateran on the seventeenth day before the Kalends of December, in the eighth year of our pontificate. 1223.]

Latin source headnote: One bringing a possessory action for recovery is not bound before restitution to answer his despoilers, except concerning the question of spoliation; he can nevertheless be repelled from bringing the action by an exception of spoliation. This is what it says.

Gregory IX.

A person sued concerning spoliation is not to be heard against one seeking restitution—unless he brings a counterclaim against him concerning the question of spoliation—since a petition for restitution is known to be privileged in this respect: one instituting it is not compelled before restitution to answer his despoilers, although he may be repelled from bringing the action when the spoliation is proposed by them by way of an exception.