Title XII: On the Cause of Possession and Ownership

Latin source headnote: The cause of possession and ownership ought to be determined before one and the same judge, nor is judgment to be pronounced against an absent person.

Gregory I, to the Duke of Sicily.

Having received [the letters of your Magnitude, we were saddened that you indicated that certain possessions, which you say you held, had been unreasonably occupied by the agents of the Church of Syracuse. But we believe that this did not come to the knowledge of our brother and fellow bishop John. For, once the truth was known, whatever had been unlawfully done could readily be corrected. And therefore, because] it has been decreed by legal provision that both the cause of momentary possession and the cause concerning ownership ought to be heard before one and the same judge, and we cannot determine anything against a party who has not been heard, [to the aforesaid brother, etc. Given in the month of October, in the second indiction. 598.]

Latin source headnote: If proceedings have been conducted in both the possessory and the petitory action, the judge, after receiving the proofs concerning both, may first discuss the proofs concerning the possessory action and determine it. This is what it says.

Celestine III.

Finally, we were asked whether judges appointed to take cognizance of possession and ownership, wishing to spare the parties heavy expenses, may hear the allegations concerning both intermingled and likewise admit the witnesses, and thereafter first hear the attestations concerning possession and pronounce according to their tenor; and whether this is lawfully done. We answer that it may lawfully be done, since this is expressed in the civil law.

Latin source headnote: If a person who has been despoiled, bringing the possessory and petitory actions together, proves possession and spoliation but not lordship or ownership, he prevails in the possessory action but fails in the petitory.

Innocent III, to the Archbishop and Canons of Sutri.

When the Church of Sutri was without a pastor, you came together and, as is customary, after the grace of the Holy Spirit had been invoked, unanimously elected a pastor, petitioning that his election be confirmed by the Apostolic See. But the beloved sons, the clergy of the conventual churches of that same city, afterward laid their complaint against you before us: that, since they and their predecessors had been accustomed to take part in making episcopal elections, you presumed, while they were unwilling, resisting, and excluded, to proceed to make the election; and for that reason they petitioned that it not be confirmed, but rather annulled.

Therefore, when the parties had been established before the Apostolic See for a question of this kind, we gave them as auditors our beloved sons B., cardinal priest of the title of Saint Peter in Chains, I., cardinal priest of the title of Saint Prisca, and the cardinal deacon of the title of Saint Mary in Cosmedin. In the presence of these auditors witnesses were produced on both sides, and, their depositions having been published, the party of the canons said that by the witnesses whom they had produced their contention—that the election pertained to them alone—had been sufficiently proved. The party of the clergy nevertheless asserted that by the statements of the witnesses whom they had produced they too had more fully proved their assertion that they ought to take part in the election of bishops; through these statements, they said, it was established that they had been present with the canons of the cathedral church at the elections of the three bishops who had last and immediately presided over the Church of Sutri, and that they had possessed with the others a voice in electing.

We therefore, having heard the allegations and reasons of the parties and having diligently inspected the depositions themselves, because we clearly discovered that your witnesses had been inconsistent in giving their testimony and had wavered before the said auditors against the credibility of their attestation, as those auditors afterward reported to us, and because they were endeavoring in a certain manner to establish a negative—wishing to prove that the right of election pertained indeed to you in such a way that it by no means pertained to your adversaries—while it was sufficiently shown by the witnesses of the adverse party that in the elections of the three bishops mentioned above the clergy had been present and had possessed a voice in electing, by the counsel of our brothers we decreed that the aforesaid election, made while they contradicted and were excluded, should be annulled, restoring the often-mentioned clergy to that quasi-possession which they had held before the controversy was moved.

Yet because in the aforesaid question whatever right either party had in the election appeared to have been brought into judgment, since it is provided by the civil law that not only that which it was intended should come into judgment does come into judgment, but that does not come into judgment concerning which it was expressly intended that it should not come; and since, according to the canonical statutes, the elections of bishops are known regularly to pertain to the clergy of cathedral churches unless perhaps a special custom obtains otherwise in some place; and since the aforesaid clergy could not acquire for themselves the right of electing from the fact that they had proved that they had taken their place among those electing the bishops of Sutri on three occasions, because of the brevity of a time not extending to lawful prescription; and since, when the plaintiff does not prove his case, the person sued will prevail even if he has furnished nothing—we have considered that you should be absolved from their attack concerning elections to be made, imposing perpetual silence concerning this upon the often-mentioned clergy of the churches. [Therefore let no one, etc. Given at the Lateran on the seventh day before the Ides of February, 1200.]

Latin source headnote: With respect to its sense, this says the same thing as the immediately preceding decretal.

The same, to the Canons of Bethlehem.

When, concerning the election of the Church of Bethlehem, a question was being conducted between R., our subdeacon, and P., canon of the Lord’s Sepulchre, recently in our presence, each conducting himself as the elect—since the aforesaid subdeacon had been confirmed by our venerable brother, the Patriarch of Jerusalem, while the other enjoyed royal favor—we gave them as auditors our beloved sons P., cardinal priest of the Basilica of the Twelve Apostles, I., cardinal priest of the title of Saint Stephen on the Coelian Hill, and G., cardinal deacon of Saint Mary in the Portico. In their presence, witnesses having been received on each side and their depositions published, they faithfully and prudently reported to us and our brothers what had been alleged on this side and that. But we, having been sufficiently instructed concerning the merits of the cause both through the cardinals’ reports and through the acts, after sharing the counsel of our brothers, decreed, by the mediation of justice, that the person who had proved that he had been despoiled by secular power should be restored. Yet because both the possessory and also the petitory matter had been brought into judgment, and both the question of restitution and that of election had been fully argued, and because it was established to us that the election of each had been less than canonical, since a judge ought to pronounce upon even the matter of which he has taken cognizance, we considered that both elections should be annulled by sentence according to the canonical sanctions. [Moreover, etc. (Cf. c. 2, On Confessions, II. 18.)]

Latin source headnote: One who brings an action concerning ownership may, before the conclusion of the cause, bring a possessory action for acquiring or recovering possession; but after conclusion and before sentence he cannot do this unless a just cause is present.

The same, to the Bishop of Noyon.

You pursue the duty of pastoral office with a solicitous mind when, inflamed by zeal for justice, you humbly seek and devotedly await, through the oracle of the Apostolic See—from which the authority of your jurisdiction depends—answers concerning doubtful points of law, lest perhaps a new diversity of opinions or an exception of law distinguished by novel variation should produce, not the effect of law, but rather bring about a failure of justice. Indeed, as you informed us through your letters, it sometimes happens that, when one who asserts that he has been despoiled brings his despoiler into a cause and, being asked at the very beginnings of the law which judgment he prefers to employ, enters the lawsuit concerning ownership without making any mention of the violence inflicted upon him, then, when the proceeding in the cause has advanced so far that witnesses have been produced on this side and that, he endeavors to begin a new judgment concerning the possessory matter, saying that one who has begun to vindicate a thing does not appear to renounce the possessory judgment. It is resisted on the other side that, when he voluntarily proposed the complaint concerning ownership, he created prejudice against himself in the question of possession, which according to the order of law could and ought first to have been proposed and determined. Your fraternity therefore asked what is to be established in these matters. We, however, answer your consultation in this way:

The possessory judgment which is proposed for recovering or acquiring possession may indeed be employed by one who has begun to vindicate the thing before the petitory judgment first instituted has been renounced or concluded. For it has been established by legal provision that one who has vindicated land from the person against whom he could have proceeded by the interdict unde vi may nevertheless institute the interdict while the judgment is pending; the other possessory judgments, which by their nature precede the vindication of ownership, are to remain in their force.

But if the petitory judgment has been renounced or concluded, so that the cause concerning ownership can now be determined by the decision of a definitive sentence, the possessory judgment is not to be employed while the cause remains undecided, lest lawsuits be heaped upon lawsuits and a way be opened to frauds—unless the judge who takes cognizance of the cause should see that this is expedient for a just cause, as, for example, when the inequity of the invader is readily inferred from manifest indications and a mischance or malice has taken from the despoiled person the faculty of proving ownership. Therefore, having considered these and other causes which contain equity or justly move the mind of the judge, we do not deny that, even after the cause has been concluded, a possessory action may be brought. [Given at the Lateran on the fifth day before the Kalends of June. 1202.]

Latin source headnote: If proceedings have been conducted in the petitory and possessory actions together, they are determined by one sentence, and the possessory is put first in the determination; but the petitory prevails in execution.

The same, to the Bishop and Official of Saint Andrews.

When the beloved son—(And below: [Cf. c. 6, On Arbitrators, I. 43.]) To the fourth question, however, we answer briefly that, when proceedings have been conducted concerning the possessory and petitory matters together, both ought to be determined by one sentence. But although possession is to be placed first in the pronouncement, ownership ought nevertheless to prevail in the execution. [Although, however, etc. Given at the Lateran on the thirteenth day before the Kalends of April, in the tenth year [of our pontificate]. 1207.]

Latin source headnote: A benefice is adjudged to the person who proved that his collator was in possession of conferring it at the time of the collation; by this, however, the unsuccessful party is not prohibited from bringing an action concerning ownership of the right of conferring against the collator himself. This is what the whole letter intends.

The same, to the Bishop of Verona.

When formerly the question which existed between the beloved son, the archdeacon, on the one side, and the archpriest and canons of the Church of Vicenza on the other—(And below:) Therefore, when the aforesaid archdeacon faithfully recounted these things before us, because it was clearly established to us through the same attestations that the archdeaconry itself had been assigned without any protest of the canons by the bishops of Vicenza to the two archdeacons who had successively preceded him; and because the aforesaid canons ought not to have refused the judges or requested a copy of the rescript, since the cause had been delegated to the aforesaid judges with the assent of the proctors of both parties, and the rescript had been obtained by those same proctors, nor ought they to have sought delays for deliberation when issue had been joined before the Apostolic See through the proctors of both parties—we took care to adjudge the aforesaid archdeaconry to him by definitive sentence, notwithstanding exceptions of this kind, imposing perpetual silence upon the canons of Vicenza who contradicted the same archdeacon concerning the stall assigned to the archdeacon and his other appurtenances. Nevertheless, the question of ownership concerning the collation of the archdeaconry itself was reserved to them, if perhaps they should wish to contend concerning this against the Bishop of Vicenza, since a matter conducted between others ought not to generate prejudice against them. [Given at Anagni on the third day before the Nones of January, 1204.]

Latin source headnote: If one seeking a thing fails on one ground, he will be able to seek it on another ground. This is what it says according to the letter. Or thus: For one seeking a thing by right of ownership, it is not sufficient to prove possession. This is what it says in relation to the title.

Honorius III, to the Abbot of Saint Cyprian in the Diocese of Torcello and the Abbot of Saint Mary the New in Venice.

In the cause which was conducted between our venerable brothers, the Patriarch of Grado and the Bishop of Castello, on the one side, and the abbot and convent of the monastery of Saint George in Venice, concerning the subjection of that monastery, on the other, we found it proved for the same patriarch that he was received processionally in that monastery with incense, holy water, and an icon; that when he returned from the step, the bells were rung there, as in the other churches of the city; and, among other things, that the abbot sometimes went to his synod, paying him fifty small Venetian solidi over many years. For the bishop, however, it was found proved that he confirmed the abbots of the same monastery, who rendered him obedience and reverence. The abbots of that monastery also came to the bishop’s synods; when invited to funerals, he was received processionally with the aforesaid solemnity; and, similarly, when invited on the feast of blessed George, he received procuration there. They conveyed him in their boat on the feast of the Purification of the Blessed Virgin.

Since the aforesaid patriarch and bishop had first proceeded in the possessory action concerning these matters, we restored them to the possession or quasi-possession of the aforesaid things. Yet because proceedings had nevertheless been conducted on both sides in the petitory action, and each party appeared to have brought its entire right into judgment, we, having inspected the privileges of our predecessors, by the counsel of our brothers decree that the monastery itself is free and pertains immediately to the Roman Church. We absolve it from the attack of the said patriarch and bishop in the aforesaid matters and in others which concern jurisdiction and subjection, notwithstanding the possession proved concerning the aforesaid matters, since they did not show that they had received such things for so long a time that the privileges of liberty were derogated by this. We reserve, however, to the aforesaid bishop those things which are specially reserved to him in the same privileges concerning chrism, holy oil, ordinations of clerics, and certain other matters.

In addition, since the patriarch proceeded concerning the aforesaid fifty solidi, which he sought as evidence of subjection, by the definitive sentence which he received against him concerning this we do not take away his power if he should wish to proceed concerning them by another right. [Therefore to your discretion, etc. Given on the Nones of May, in the eighth year [of our pontificate]. 1224.]