Title XIII: On the Restitution of Those Despoiled

Latin source headnote: Against one seeking restitution, a defendant objecting concerning ownership is not to be heard unless the plaintiff consents.

Gregory IX, to the Bishop of Constance.

Although greatly [the scourge of blindness borne by Philagrius, the bearer of the present letters, invites your fraternity to preserve justice for him, nevertheless, because he wished you to be made more prompt by us to restore the things which he asserts are prejudicially detained from him, we have foreseen that the present writing should be directed to you.] But Philasius, a blind man, has complained to us that his field, together with his vineyard, has been unreasonably occupied by men of your church. If this is so, although before every contention the possession violently taken from him ought to have been restored to him, nevertheless, because [our common son] Eventus, a deacon of that church, with his consent undertook that he would lawfully prove that the said field belongs to that church’s right, therefore inquire into the truth; and, if this is proved, it is to be said to him that he should withdraw from his contention; otherwise, before every contention, let the thing taken from him be returned to him. So that thereafter cognizance concerning ownership may remain unimpaired for each party, etc. He indicated furthermore, etc. (Cf. c. 4, On Payments, III. 39.)

Latin source headnote: A renunciation made after spoliation does not stand against one seeking restitution of a benefice, because it is presumed not to have been voluntary. And I deliberately added “because it is presumed not to have been voluntary,” since, even if it were proved voluntary, such an exception or renunciation ought to stand in beneficial matters.

Alexander III, to the Bishop of Worcester.

You shall take solicitous and diligent care to investigate at what time H. renounced the church; and if it is established to you that he had been despoiled when he renounced the same church—whether he renounced on this occasion only, or whether he renounced the aforesaid church on several occasions, provided that he renounced while despoiled—you shall not admit against him, before he has been restored, the witnesses of the other party concerning an oath and a renunciation voluntarily made, because it is not likely that one who renounces while despoiled has voluntarily renounced his right. But you shall not postpone receiving the witnesses of the same H., through whom he intends to prove for himself that he was violently despoiled of the aforesaid church, provided that they are suitable.

Latin source headnote: One seeking restitution of a benefice is not heard, even if he proves spoliation, if it is proved that he had previously resigned that benefice voluntarily.

The same.

Having received the complaint of P., a cleric, that he had been violently despoiled of the church of Procebrant, we, [by commanding] through apostolic writings, if we remember correctly, gave you a mandate that, if this were established, you should cause it to be restored to him by our authority. When this became known, it was answered by the adversary, as we are told, that this ought not to benefit him because he had of his own free will abjured the aforesaid church before the Archbishop of York, legate of the Apostolic See. But because we have not written to unlearned men, but to discerning persons, and because it belongs to us to discern what reason dictates, by the authority of the present letters we command your discretion that you diligently and subtly inquire into the truth of the matter, and, if it is established to you that the aforesaid P., compelled by no fear or force but voluntarily, abjured the aforesaid church in this manner, you shall impose perpetual silence upon him concerning this, every occasion and appeal being removed.

Latin source headnote: In an interdict for retaining possession, the defendant fails when his abjuration has been proved. This is what it says in relation to the title.

The same, to the Bishop of Worcester and the Archdeacon of Ely.

Having heard the complaint of our beloved son T., a cleric of our dearest son in Christ, the illustrious King of the Scots, that H., parson of the church of Sander, was unduly troubling him concerning his church of Pelen, which the aforesaid T. had obtained, then free and vacant, upon the presentation of the same king, although the same H. is said to have sworn voluntarily that he would move no question against the aforesaid T. concerning the church of Porten, we gave a mandate to our venerable brother the Bishop of London and to you, son archdeacon, that, after the truth of the matter had been more fully investigated, if it were established to you that the aforesaid H. held the parsonship of another church, or had confirmed by a voluntarily furnished oath that he would not thereafter move a question against the aforesaid T. concerning the same church, you should thereupon, appeal being removed, impose perpetual silence upon him and restrain him from troubling that man concerning this.

But afterward a messenger of the aforesaid H., approaching our presence, proposed to us with firm assertion that the same H. had been despoiled of the same church through violence; and for that reason he obtained our letters to you, directing that, if it were established to you after the truth had been learned that H. himself had been despoiled when he renounced that church, you should by no means receive against him the witnesses of the other party concerning an oath and renunciation voluntarily made, but rather should not delay to receive the witnesses of H. himself, through whom he intended to be able to prove that he had been violently despoiled of the aforesaid church, provided that they were suitable; and that, according to their depositions and the reasons and allegations produced on this side and that, you should judge in that cause what was just, the obstacle of appeal being removed, notwithstanding [our] letters, if any others had been obtained by either party, or the form which we expressed in other letters obtained concerning this. We added, furthermore, that if anything had been changed in the cause itself after the messenger of the aforesaid Henry began his journey to come to our presence, before entering the principal cause you should, every contradiction and appeal ceasing, restore the whole cause to the state in which it was known to have been when the messenger of H. himself undertook that journey, unless perhaps in the meantime the same H. could come to an agreement concerning the church itself with the other party by voluntary will.

But now it has become known to us from the letters of the aforesaid bishop and from yours, son archdeacon, that you, [as you ought], following the tenor of the former letters, cited the parties with due solemnity. When, however, after several citations a peremptory day was finally appointed, the contumacy of the aforesaid H. had been more fully established to you by lawful proof, and when you learned from the testimony of suitable persons that the often-mentioned H. not only held the parsonship of another church but also, of his voluntary will, had abjured the church of Pelen in perpetuity in the face of the Church, you prohibited him from thereafter troubling the said T. concerning this.

Although, however, the messenger of the same H. obtained the later letters, as we have said, containing a different form—that, notwithstanding letters obtained by the other party, anything changed in the cause after the same messenger began his journey to come to us ought to be revoked—nevertheless, because we did not understand, nor ought it to have been understood, that what had been done by you under the authority of our letters should be rendered void, but only if anything had been changed by presumption or violence, by commanding your discretion through apostolic writings we order that you shall by no means attempt, on the occasion of those letters, to revoke the sentence which you rendered before receipt of the later letters; and, if you have decreed anything against that sentence, you shall take care to revoke it, the obstacle of appeal being removed, and shall by no means permit the aforesaid H. to proceed against the same sentence, but rather, contradiction and appeal being set aside, shall cause the sentence to be inviolably observed by our authority. But if the sentence was rendered after receipt of the subsequent letters, notwithstanding that sentence, you shall proceed in the cause according to the tenor of those letters, appeal being set aside, provided that the aforesaid H. was despoiled through violence and furnished that oath while despoiled.

Latin source headnote: The question of noncanonical institution cannot be raised against one seeking restitution of a benefice.

The same, to the Bishop of Brescia.

In your letters—(And below: [Cf. c. 9, On the Office of a Delegated Judge, I. 29.]) Concerning that question—namely, when someone says that he has been violently ejected from possession, and his adversary says that he was not canonically instituted—we answer that proceedings concerning the violent ejection ought to be conducted before proceedings concerning canonical institution, because even a robber must be restored according to the rigor of law. [Likewise, when, etc. (Cf. the following chapter.)]

Latin source headnote: An exception of crime does not stand against one proceeding by the interdict unde vi or quod vi aut clam.

The same, to the Bishop of Exeter.

Likewise, when someone says that he has been violently ejected from possession, or that his adversary has secretly entered the possession, and the adversary alleges a crime against him in order to repel him from his contention by reason of the crime, it does not indeed occur to us that the latter’s objection ought to be admitted, or that the execution of the principal cause ought for this reason to be delayed, because he cannot proceed criminally against him before restitution, since he is presumed to be his enemy.

Latin source headnote: One despoiled even by a judge, the order of law having been omitted, is to be restored before all else.

The same, to the Archbishop of Canterbury.

Upon the complaint of the cleric R., the bearer of the present letters, we learned that, while he was devoting himself to scholastic disciplines, you despoiled him, [without his having been cited], of the church of Werfort without a judgment. But because it does not become your honor to despoil the clerics of your jurisdiction, without a manifest and reasonable cause, of their benefices—clerics for whom you are bound to provide with paternal foresight—[by commanding] your fraternity through apostolic writings we command that, if it is so, you restore to the aforesaid cleric the aforementioned church together with the revenues received from it, and permit him to possess it in peace. But after restitution has been made, if you wish to propose anything [thereupon] against him concerning the aforesaid church, you will be able, personally or through your sufficient representative, to proceed according to judicial order with the same R. before our venerable brother, the Bishop of Exeter, delegated by us; and you shall firmly receive and observe what [he] shall thereupon decree, for we have committed the cause to the same bishop for determination.

Latin source headnote: A spouse is restored to a husband who proves betrothal and carnal union and gives security for her safety, unless the husband’s cruelty is great.

The same.

From that transmitted to us—(And below:) Because the truth could not become clear to us, we have considered that the cause should be committed to your experience; through apostolic writings we command your fraternity that, if it is established to you that the aforesaid woman had been lawfully betrothed to the aforesaid knight and carnally known by him, you shall cause her to be restored to him, sufficient security nevertheless having been received that he ought not to inflict any harm upon her. But if the husband persecutes the woman with such mortal hatred that she deservedly distrusts him and holds him suspect, she shall be carefully committed for safekeeping until the decision of the cause to some upright and honorable woman, in a place where neither the husband nor his relatives can inflict any violence upon the woman.

Latin source headnote: Through payment of the pension from the donated thing, made to the donee with the donor’s authority, possession of the donated thing is acquired for that donee to such a degree that, if he is expelled from it, he will be able to proceed by the interdict for recovering possession.

The same.

When our beloved son G., canon of Holy Trinity of Hasul, came to us, having been sent by his prior and chapter, he proposed in our hearing that, when our venerable brother the Archbishop of York had granted them the church of N. and confirmed it by his own writing, in such a way that after the death of G. of Pontino, the cleric who held the aforesaid church at that time, it would in every way be applied to their uses, and meanwhile, by the authority of that archbishop, the same G. would pay an annual pension to those canons, we afterward, having diligently inspected the writing of that archbishop, considered that the same grant should be confirmed by apostolic authority. But when the aforesaid cleric had died, the said canons, although they had not been inducted into possession of the aforesaid church by the archbishop himself, nevertheless, placing very great confidence in the grant and our confirmation, entered the church itself lest they be troubled by a certain cleric who was endeavoring to harass them concerning that church; and they appealed to our hearing both against the archbishop himself, by whom they feared they would be aggrieved, and against the aforesaid cleric. While two of their brothers were prosecuting the appeal made by them, the often-mentioned archbishop caused the grain and all the goods of the church which the aforesaid cleric G., when dying, left there to be carried away against the will of the aforesaid canons—which we can scarcely believe. (And below:)

Master M. and A., clerics and messengers of the same archbishop, who were present, steadfastly excused him concerning these matters, and added that a grave injury had been inflicted upon the aforesaid archbishop by the aforesaid canons, because, even if they had letters of grant from him, they ought not, after his authority had been disregarded, to have entered into possession by themselves. We therefore answer that, if the aforesaid canons, during the cleric’s lifetime, received an annual pension from the aforesaid church under the authority of the same archbishop, then, when that cleric was dead, although they did not seek the authority of the same archbishop, they nevertheless did not enter possession wrongfully, since, as is provided in the laws of secular princes, he possesses in whose name possession is held.

We commit the cause itself to you, in whose prudence and integrity we confide, commanding your fraternity through apostolic writings that, having summoned the parties before your presence, if their assertion is established, before entry upon the principal cause you shall by our authority cause the grain and all the goods of the church carried away after the appeal by command of the archbishop himself to be restored, the obstacle of appeal being removed. Thereafter you shall earnestly admonish the archbishop to hold his grant ratified and henceforth cease to harass the aforesaid canons concerning the aforesaid church. But if he is unwilling to acquiesce in your admonition, you shall diligently hear the cause concerning the church and determine it without acceptance of persons, the evasion of appeal being removed.

Latin source headnote: If, while the plaintiff proceeds in the petitory action, the defendant brings a possessory action concerning the same thing, proceedings are conducted only in the possessory action, the petitory being suspended.

Lucius III, to the Archdeacon and I., Archpriest of Tours.

You should know that it has reached us from the complaint of the woman B. that, when the knight C. had joined her to himself in marriage and, treating her with marital affection, had begotten a daughter from her, he afterward removed her from himself without a judgment of the Church and obtained letters to judges for accusing the marriage on the ground of consanguinity, the obstacle of appeal being removed. But when, before the woman was cited by the delegated judges, she had petitioned through the diocesan bishop that her husband be restored to her, and for this reason she had sent her own messenger to us, finally, having been established before the aforesaid judges, now personally, now through a proctor, she petitioned both before entry upon the cause itself and afterward that her husband be restored to her. The judges, however, restitution being entirely denied—which ought not to have been done—wished to proceed in the principal matter, whereupon she appealed from such a grievance to our hearing.

Therefore, because we ought to impart apostolic protection to those unjustly aggrieved, by commanding your discretion through apostolic writings we order that, if it is so, you shall cause her own husband to be restored to the aforesaid woman, every contradiction and appeal ceasing, revoking as void the things done after her appeal, and afterward shall hear the cause concerning the marriage attentively and determine it with a canonical end. Given at Verona on the twelfth day before the Kalends of November.

Latin source headnote: A violent possessor is compelled to restore the thing together with the fruits, including those which could have been received, to repair the losses, and to make satisfaction for the injuries.

Celestine III.

A grave complaint [has come] to us—(And below:) Therefore, through apostolic writings we command and firmly enjoin your fraternity that, having summoned the parties, if the aforesaid matters are established to you, you shall compel the aforesaid archdeacon, by ecclesiastical constraint, relying upon our authority, every favor, fear, and affection being set aside and every delay, contradiction, and appeal ceasing, to restore in their entirety the things taken from the brothers of the aforesaid monastery, to repair the losses fully, and to make competent satisfaction for the injuries inflicted; then you shall admonish the archbishop to hold his grant ratified and henceforth cease to harass the aforesaid canons concerning the aforesaid church. But if he is unwilling to acquiesce in your admonition, you shall compel him, being attentively provident that you cause to be rendered to them, by the aforesaid sentence, the obstacle of any appeal being removed, not only the fruits received by the new and violent possessor, but those which the former possessors would have received if it had been lawful for them to possess.

Furthermore, if any persons should determine to oppose the restoration of the things taken to the aforesaid brothers according to our mandate, you, supported by our authority, shall strike them with a sentence of anathema, notwithstanding appeal. But if the aforesaid archbishop perhaps does not come at the citation of your admonition, or is unwilling to obey your mandate, you, having received the witnesses of the monastery of Dol, shall proceed in the whole business according to the aforesaid form and take care to execute it with every solicitude as we have said, appeal ceasing, providing in every way that you do not permit the liberties granted to the aforesaid monastery by our predecessors and by you to be diminished or infringed by anyone.

Latin source headnote: One who has entered possession without the knowledge of the lord to whom it pertains can, as soon as the lord learns of it, be repelled by that lord even violently; nor from such repulsion does a possessory interdict lie against the lord for the person repelled. This is what it says.

Innocent III, to the Bishop and Chapter of Tortona.

Formerly, we remember committing, under a certain form, to the beloved sons, the abbots of Lucedio and La Colomba, the cause which was conducted between you, in the name of the Church of Tortona, and the beloved sons B., the master and brothers of the Knights of the Temple in Lombardy, concerning the house of Calventia. The abbots themselves, having summoned the parties and issue having been joined in their presence, received the witnesses produced by each party; and, when renunciation had been made, they solemnly published their depositions on each side and, reducing them to writing by a public hand, remitted the fully instructed cause to our presence. We therefore granted as auditors to the beloved son C., canon and proctor of the Church of Tortona, and to the aforesaid master our beloved sons I., cardinal priest of the title of Saint Stephen on the Coelian Hill, and H., cardinal deacon of Saint Eustace. Before them it was proposed on your behalf that, when formerly certain Humiliati had sought from V., Bishop of Tortona of good memory, license to construct a hospital and oratory in the place of Calventia, the Bishop of Tortona redeemed certain possessions from certain knights who held them in fief from the Church of Tortona, and granted them to the Humiliati at their request under this condition: that in honor of God and the Blessed Virgin they would construct an oratory and hospital there in the name of the Bishop of Tortona; would furnish three solidi as an annual payment to the Bishop of Tortona; and the person placed over that place would receive investiture from him and, for himself and the other brothers, would make manual obedience to him and his successors, the bishop nevertheless retaining for himself lordship of the place.

But the said master, aspiring to that house and wishing to join it to the house of Caselle, so circumvented them that, without your knowledge, they delivered themselves and their things into his hands, this condition nevertheless being added: if what they did pleased you, without whose assent they asserted that they could do nothing. The master accepted the condition added and affirmed that otherwise he would not receive them. (And below:)

Then the master, approaching Calventia, took from there the ornaments of the church, the instruments of the house, and the books, and caused ninety sheep to be led away. Afterward, returning to you when what he had sought had been denied him, he added that he was prepared to render you an account if perhaps he had offended you. But you, observing his malevolent intention, strictly prohibiting him from intermeddling with the aforesaid house, appealed to the Apostolic See. And when you, brother bishop, heard what had been done, all of you together approached the same house and cast out from it those whom you found there, left by the master for the custody of the house, lawfully repelling force with force, as all laws permit. Hence, since possession of the aforesaid house had been delivered to the same master under a condition, the condition not existing, the delivery was not valid. Furthermore, since the same master secretly entered that house, no prejudice was generated against you whereby you could not repel him when this came to your hearing, especially since the true lord either moved a controversy against him, or he suspected, or ought to have suspected, that he would. (And below:)

Understanding that the aforesaid house had been delivered to the same master under a condition, and that no prejudice had been inflicted upon your right by the fact that the same master, not ignorant of your right, took possession without your knowledge—especially since, immediately when this became known to you, you determined that force should be repelled with force—and that the same master by his own temerity entered possession without the knowledge of you, to whom he knew that possession pertained and whom he ought to have suspected would move a question against him, by the counsel of our brothers we absolve the said proctor, personally and in your name, from the attack of the master himself, in the name of the house of the Knights of the Temple, with respect to making the restitution which he sought, saving to him the question of ownership, concerning which nothing was conducted in this judgment, as the aforesaid Abbot of Lucedio explained to us orally. We nevertheless decree that you furnish due satisfaction to the same master if, in defending your right, you perhaps exceeded the measure to the injury of him or of the house of the Knights of the Temple.

Latin source headnote: If consanguinity in a prohibited degree is objected against one seeking restitution of a spouse, and proofs ready at hand are offered, then, after an oath concerning absence of malice has been received from the objector, restitution will be denied with respect to the marriage bed and made with respect to the other matters. But if the proofs are not ready, full restitution will be made, unless the husband’s cruelty is great.

The same, to the Archdeacon of Bourges.

We recently received your letters, containing that, when a certain matrimonial cause was being conducted in your presence while our venerable brother the Archbishop of Bourges was acting in distant regions, a woman named Guillelma most urgently petitioned to be separated from B., her husband, to whom she alleged that she was joined in the fourth degree of consanguinity. Accusers also appeared, producing witnesses and a chart setting out the line of consanguinity on both sides; they said that they had been absent at the time the marriage was contracted and that they were prepared immediately to prove the things which they proposed. The husband, on the other hand, petitioned that his wife be restored to him, alleging that she had departed from him by her own temerity.

Moreover, the wife’s party replied that restitution should be entirely denied, both on account of the future danger of incest and because, with the proofs ready and at hand, what was maintained could be demonstrated without evasion. In addition, it alleged that the husband’s cruelty was known: he possessed impetuous levity and bestial cruelty; and, if he had free power over his wife when she had been restored to him, her friends feared that danger of death or bodily torment would thereby threaten her, and thus they would desist from the accusation, preferring that she live in whatever manner rather than perish. They added, nevertheless, that she had departed from the husband with permission, in tears and unwilling. But the knight himself nevertheless petitioned that his wife be restored to him freely and peaceably; and, lest otherwise be done, he appealed to the Apostolic See. Therefore, since exceptions of this kind are rather often proposed in matrimonial causes, you sought to be instructed by an apostolic rescript as to what is to be done in such matters, eliciting from the foregoing, as from a certain theme, many questions.

First, you asked whether, when some degree of consanguinity is alleged in which the Apostolic See cannot and is not even accustomed to dispense, and proofs are ready and at hand, restitution is to be granted or denied. Second, you asked whether the same rule of law exists if some dispensable degree or another dispensable impediment is alleged and proofs are similarly present—whether restitution ought to be granted or denied. Third, you asked whether, if the husband’s cruelty and savagery are known to the judge, so that, angered because the controversy was moved, he is likely to treat his wife with torments and afflict her with injuries, and the accusers thus desist from accusing because they fear the woman’s death, this furnishes in the first or second case an aid for denying restitution. Finally, you asked whether, if restitution is to be denied in any of the aforesaid cases and appeal is made to the Apostolic See, deference should be given to an appeal of this kind.

Indeed, concerning the resolution of the proposed question, different persons hold different opinions: some assert that restitution is to be made in the aforesaid cases; others hold the contrary; and some choose a middle way, saying that it is sometimes to be made and sometimes indeed entirely denied.

The first appear to be assisted by the decretal letter of Pope Lucius of good memory, our predecessor. In it he reproved certain delegated judges who denied to a woman, despoiled and seeking her spouse, the restitution of a husband who had dismissed his wife without a judgment of the Church and afterward objected consanguinity against her; and he commanded that the woman so despoiled first be restored to him, and that cognizance afterward be taken of the matrimonial cause. The danger of incest, however, appears to oppose their assertion. But they answer that the fear of incest is empty, since even after the benefit of restitution has been obtained, one who has knowledge of consanguinity is neither permitted to demand the marital debt against conscience nor bound to render it, because, if such a person acts otherwise, he builds toward Gehenna, just as does one conscious of consanguinity concerning whose marriage no question is moved.

The second assertion, however, is supported by the oracle of Pope Clement of happy memory, our predecessor. When he was asked whether, when a certain woman was claiming a certain man as her husband and he, in order to repel her, interposed an exception of consanguinity, the impediment of consanguinity should be dealt with before sentence was rendered concerning the marriage, he answered the inquiry made in this manner: because, when the exception is proved, the principal question is extinguished, cognizance must first be taken of the exception before proceeding to the point of definition, since in many cases restitution is also deferred according to the canonical sanctions.

It appears not unfittingly adapted to the final opinion that, in degrees of consanguinity prohibited by divine law, access to restitution should be closed, but that, in degrees forbidden by human constitution, restitution should have its place with effect, since there can be no dispensation in the former, but dispensation can be granted in the latter, as blessed Gregory and many others granted dispensations. Hence one who, at the command of the Church, renders the marital debt in this circumstance does not sin.

We, however, at present reprove none of the aforesaid opinions, nor do we wish any prejudice to be generated against any of them by our response, although the aforesaid mandate of Pope Lucius relates to the possessory action, while the response of Clement, our father and predecessor, relates to the petitory action. Furthermore, since that woman who has knowledge of consanguinity—especially within the degrees prohibited by divine law—cannot be carnally joined to a man of this kind without mortal sin, because everything which is not from faith is sin, and whatever is done against conscience builds toward Gehenna, restitution would in vain be adjudged in such a case to the person despoiled. For in this matter she ought not to obey the judge against God, but rather humbly to endure excommunication. Thus a difficulty would arise as though insoluble, because on account of the sentence she would have to render the marital debt, and on account of conscience she ought not to render the debt. Hence it would happen that they would be gravely impeded, and a snare would be prepared for each of them, since they could not be joined carnally to each other, nor could either be matrimonially joined to another.

For this reason it appears better to us that, when consanguinity is objected—especially in the degrees prohibited by divine law—and proofs ready at hand are immediately offered, restitution should indeed be adjudged in other matters, but, for greater caution, after an oath has been received that an objection of this kind is not made maliciously, restitution with respect only to carnal union, especially if reputation agrees, is to be deferred until, the proofs having been heard and discussed, the cause is determined without evasion, since it is better for each to be dispatched in this way than to remain impeded in that way.

But if she does not have proofs ready immediately, but awaits longer delays, because there is a presumption against her who departed from her husband without a judgment of the Church solely by her own temerity, she ought to be compelled to full restitution by ecclesiastical censure. Nevertheless, by refusing association in the marriage bed she ought humbly to endure that censure until she offers proofs that have been prepared; and then, having sought absolution, she will be absolved according to the form of the Church. But before a command is issued to her under the obligation of an oath, let proceedings be conducted after the proofs have been received, in the manner stated above. If, however, the husband’s cruelty is so great that sufficient security cannot be provided for the trembling woman, not only ought she not to be restored to him, but she ought rather to be removed from him; otherwise, sufficient security having been provided if this can be done, the spouse assuredly appears to be restored to the husband before cognizance of the cause.

Latin source headnote: By the mere conveyance of a woman to a man’s house, when no betrothal preceded or the betrothal was invalid, possession is not acquired; hence, when she departs on her own authority, restitution does not lie.

The same, to the Bishop of Volterra.

It was proposed before us on behalf of the woman M. that, while she was still within the years before puberty, a certain paternal uncle of hers wished to join her in marriage to the son of H., a citizen of Siena, who was not yet seven years old. When she had been conveyed to the house of that citizen, and when she reached marriageable years, being unwilling to ratify what had been procured in this matter by her said uncle, she sought from our venerable brother, the Bishop of Siena, license to marry another. And when that bishop had cited the parties, and the aforesaid M. appeared in judgment through a suitable proctor, seeking that the possessions and other things given for her in the name of dowry be restored to her, while the other party sought restitution of that woman, asserting that she could not conduct the cause through another but ought personally to attend its treatment, the aforesaid bishop, doubting what he could decree by law concerning these matters, suspended the course of the business, as he informed us by his letters.

Therefore, because we do not believe it doubtful that this woman—although she is said to be a minor—can conduct the matrimonial cause through a proctor, and that restitution ought by no means to be made to the other party which first petitioned that the woman be restored to it, since that party lacks every advantage of right or possession, because by the aforesaid conveyance alone, which no betrothal or legitimate consent preceded and which none followed either, no binding bond was contracted between them, so that an end may be imposed upon the lawsuits, through apostolic writings we command your fraternity that, if it is so, notwithstanding the aforesaid exceptions and having summoned the parties, you shall hear what the parties shall determine to propose on this side and that, and decree, appeal being removed, what is canonical, [causing what you decree, etc. Given at the Lateran on the third day before the Ides of January, in the eleventh year of our pontificate. 1209.]

Latin source headnote: The interdict unde vi does not lie against one who neither despoiled, nor commanded that spoliation be committed, nor ratified the spoliation.

The same.

When formerly the proctors of A., our venerable brother, the Bishop of Como, and brother G., of the beloved sons, the brothers of the Hospital of Jerusalem, had approached the Apostolic See and presented to us the instruments and the acts of the cause which was conducted between them concerning the church and hospital of Monte Cinaro, as they had been carried out in the presence of our venerable brother the Bishop of Pavia, who had taken cognizance of the cause by our delegation, we, having diligently inspected the things done before that bishop, decreed that they should be held as not done, since it was established to us that he had not been a judge in that cause, as he himself finally acknowledged. We considered that the same cause, with the assent of the parties, which was conducted between them concerning the church and hospital of Monte Citano, should be committed to the beloved son, the Abbot of Accon, in such a way that he would hear all things pertaining both to the possessory and to the petitory judgment which either party should determine to propose, and would determine the cause itself with a due end.

Before him afterward the proctor of the Hospital of Jerusalem petitioned that the aforesaid church and hospital, together with their possessions and appurtenances, which the said Bishop of Como held, be restored to him, asserting that they belonged by right to the Hospital of Jerusalem and that the Hospital had possessed them for a rather long time. To these things the bishop’s proctor answered that he neither knew nor believed that the aforesaid things had ever been possessed by the Hospital of Jerusalem or in any way pertained to it; rather, the Bishop of Como reasonably detained them, since they were situated in his diocese. Therefore, when each party produced witnesses to establish its contention, the said abbot, afterward having inspected the attestations, arguments, and instruments of both parties, condemned the bishop’s proctor to restitution of all the aforesaid things. (And below:)

But recently, when the proctors of each party appeared for this reason before us, the acts of the former judgment having been faithfully presented to us, we diligently examined the cause itself, sometimes personally and sometimes through our beloved sons P., cardinal priest of the title of Saint Marcellus, and R., cardinal priest of the title of Saint Anastasia. It indeed appeared to have been proved through the witnesses that Cratus, the messenger of the Bishop of Como, formerly took the crosses from the Hospitallers, prohibiting them from returning to the aforesaid church or hospital, and that the bishop possessed all the aforesaid things; hence the proctor of the Hospitallers petitioned that the said sentence of restitution be confirmed by apostolic authority.

On the opposite side, however, it was proposed that, even if it had perhaps been sufficiently shown through the witnesses that the Hospitallers had been despoiled by the bishop’s messenger, nevertheless, since it was not established that he did this by the bishop’s command or that the bishop ratified his deed, restitution could not claim a place for itself, although it was established that the bishop held the aforesaid things, which he assuredly possessed by right, since they pertained to him and were situated in his diocese. But to this the other party replied that, although the bishop’s command or ratification was not clearly proved by the statements of the witnesses, nevertheless, because the judge could have informed the movement of his mind from other grounds, a presumption should deservedly be made in favor of the sentence. Therefore, having understood these and the other things which the proctors of both parties took care to propose, we, reviewing more diligently the acts of the former judgment, which had, as stated above, been fully and faithfully presented to us, because it could not be established to us—either by the statements of the witnesses, or by confessions of the parties, since none at all had been made in judgment, or even by instruments which did not in any way deal with the spoliation, or even by the evidence of the fact—that the Bishop of Como had despoiled the aforesaid Hospitallers, or commanded them to be despoiled, or at least ratified the spoliation committed, by the counsel of our brothers we pronounced in the aforesaid question that the interdict unde vi had by no means had place. Justice requiring it, we quashed the sentence of restitution rendered by the aforesaid abbot, although the adverse party proposed that a presumption should be made in favor of the judge’s sentence, since he could have informed the movement of his mind from other grounds.

Latin source headnote: An exception of poverty, the truth of which is established, when interposed by a cleric, prevents execution of a sentence, even one rendered in the possessory action. This is what it says, comprehending the sense of the letter and the true reading.

The same.

We remember formerly giving you a mandate that you should compel our venerable brother, the Bishop of Oviedo, to due restitution to the party of the diocese of Zamora which he held, together with the fruits received, [if it should happen that the beloved son Rainerius entered upon the way of all flesh before he fulfilled the apostolic mandate concerning this.] But because an action which the debtor’s poverty excludes is empty, [through apostolic writings] we command your fraternity that you shall not compel the bishop himself to restitution of the fruits before he himself has been restored in such a manner that he can restore what he received from another’s revenues. [We, however, etc. Given at Rome, etc., on the fifth day before the Kalends of June. 1198.]

Latin source headnote: By proof of an excommunication, quasi-possession of jurisdiction is not proved, although the excommunication was observed for several days; therefore one seeking restitution, having proved this alone, fails. This is what it says with respect to its sense.

The same.

Formerly, when a question arose between you on behalf of your abbey and our venerable brother, the Bishop of Paris, in the name of the Church of Paris, concerning possession of parochial right in the parish of Mont—(And below:) We, considering that from the sole fact that the people of the aforesaid parish abstained from divine services for several days through fear of his sentence, the same bishop had acquired no possession of parochial right over them, and that it had not been proved in any way that, at the time at which he rendered the sentence, he possessed parochial right over them or had even possessed it previously, could not by law adjudge restitution to him, since it was not established that he had been despoiled.

Latin source headnote: One who knowingly receives from a despoiler a thing that has been invaded is bound to restore it to the person despoiled, although the latter does not prove ownership.

The same, in the General Council.

It often happens that, when an unjustly despoiled person’s thing has been transferred by the despoiler to another, while the despoiled person is not aided against the possessor by the benefit of restitution, he loses the effect [of his right] because of the difficulty of proofs of the right of ownership, the advantage of possession having been lost. Hence, notwithstanding the rigor of civil law, we decree that if henceforth anyone knowingly receives such a thing, since he succeeds, as it were, to the despoiler’s vice—because there is not much difference, [especially] with respect to peril of the soul, between unjustly detaining and invading another’s property—the person despoiled shall be aided against a possessor of this kind by the benefit of restitution.

Latin source headnote: One who occupies a particular place in which someone freely possessed rights can, if through that occupation the possessor cannot freely possess his rights as before, be sued in a possessory action for freedom of possession; and restitution cannot be made unless he leaves the place in its former freedom. This is what it says, very exceptionally.

Gregory IX, to the Bishop of Lucca.

When the citizens of Pisa and Lucca had been gravely afflicted and worn down by the grave discord which they had long had between themselves—(And below:) we gave a mandate to P., our subdeacon, that, after the possession which it was established that the Church of Lucca had held in certain castles had first been fully and freely restored to it as it had held it at the time the discord arose, and after sufficient security had been received concerning that possession about which doubt arose that the aforesaid Pisans would obey the law before us, he should relax the sentences rendered against them for the occupation of those castles. (And below:)

Therefore, when the Pisans asserted that it stood through you that restitution was not made to you according to our mandate, and urgently petitioned that the aforesaid subdeacon relax the said sentences, he, having received securities for obeying justice before us, relaxed those sentences. Because of this, you, considering yourself aggrieved, approached our presence, intending to attack the proceeding of the often-mentioned subdeacon. (And below:)

Furthermore, two things were contained in our mandate: namely, that the possession which it was established that the Church of Lucca had held at the time the discord arose should first be restored to it; and that restitution of the same possession should be made fully and freely, as it had held it at the aforesaid time. The first of these related to the fact, but the second to the manner. Hence, although, as the party of the Pisans said, the subdeacon himself was unable in fact to fulfill the form of the mandate because he could not cause possession of the castles to be restored to you—a possession concerning which he had no established evidence—and, even according to what you yourself said, possession of the rents and pensions could not be restored to you because you had not been despoiled of it, there was nevertheless an error in the manner. For he ought to have caused the Pisans to leave to you, fully and freely, the possession of the pensions and rents which it was established by their confession that you held in the aforesaid castles, just as your church had held it at the time the discord arose. This assuredly could not be so unless the Pisans entirely relinquished the castles themselves, because, while they detained the castles and the fortifications of the castles in which you receive the said pensions and rents, you could not hold them fully and freely as you held them when they did not detain the same castles at all, because, for as long as they detain them, it is left in their power not to admit you or to repel you whenever they wish. Therefore, having diligently heard these things, by the counsel of our brothers we adjudge a proceeding of this kind void.