Title XIV: On Fraud and Contumacy

Latin source headnote: A defendant who did not admit into possession a person who was to be sent into possession at the judge’s command will not, according to canonical equity, be punished if within a year he gives security to submit to the law. This is what it says.

Alexander III, to the Bishop of Hereford.

In addition, since it frequently happens that a plaintiff is to be sent into possession for the purpose of preserving the property because of the absence of the adverse party, and because of the latter’s fraud or power the plaintiff cannot obtain the thing to be preserved, while, as the end of the year approaches, the defendant offers the security due, lest he lose possession, your fraternity asked us with what kind of penalty the defendant is to be punished because he did not obey the command of the judge. To this we say that in ecclesiastical persons and affairs the rigor and severity of the law is not required nor exercised; rather, since justice is not endangered on this account, it ought patiently to be tolerated and admitted when the defendant binds himself by security to submit to judgment.

Latin source headnote: Because of a defendant’s contumacy, a judge can sequester the thing sought and condemn the contumacious person in the expenses which the plaintiff incurred because of his contumacy or fraudulent exception. This is what Panormitanus says.

The same, to the Abbot of Ramsey and the Archdeacon of Ely.

We learned from your letters directed to us that, when we considered that the cause conducted between our beloved sons, the monks of Etoll and the canons of Lincoln, and also Gervase, a cleric, concerning the churches of V. and M., should be committed to you, and the canons, although lawfully cited, contumaciously absented themselves, you—although the monks were to be sent into possession of the things sought on account of the contumacy of the adverse party—nevertheless, wishing to act more mildly with them out of regard for their religious state, caused the possession to be sequestered, so that at least in this way the canons, affected by weariness, would be compelled to submit to judgment.

But finally, when the parties had been established in your presence and the aforesaid monks petitioned that the churches be restored to them, the canons answered that your authority had wholly expired because they had obtained letters from us to other judges which appeared to prejudice the former letters. But because no mention of the former letters was made in the later ones, nor were the names of the churches contained in them which had been placed in the former ones, but it was said indefinitely, “concerning certain churches,” we, considering that malice and fraud ought to protect no one, and being unwilling to leave so great a mockery unpunished, by commanding your discretion through apostolic writings, order that, when you are requested concerning this, you shall summon the parties before your presence and determine the aforesaid cause according to the form of the former letters, notwithstanding the later letters, causing the expenses which the monks are known to have incurred because of this to be restored to them by the canons.

Latin source headnote: When the plaintiff is contumacious, witnesses ought to be received and sentence rendered, even when issue has not been joined, at the defendant’s urging. This is what it says according to the common understanding.

The same, to the Bishops of Exeter and Winchester and the Abbot of Hereford.

We committed to you, brother bishops, and to our venerable brother, the Bishop of London, under a certain form, for determination the cause which is conducted between the noblemen F. and R. of Arden formerly, son of Agatha, concerning his birth. (And below: cf. c. 17, On the Office of a Delegated Judge, I. 29.) Moreover, if his adversary, having been lawfully cited, should scorn to approach your presence or to obey your judgment, or even if, as is proposed to us, he has absented himself for many days past, since he is said to have departed from England and afterward not to have appeared openly in the land nor approached your presence, you shall nevertheless summon to your presence his proctor, if perhaps he left one. Whether the proctor comes or not, or if he left no proctor, all denunciations having been sent to his house, you shall attentively hear the cause according to the order of law and, after receiving the witnesses of the other party, shall, within three months after receipt of these letters, proceed according to the said form, the obstacle of appeal being removed, to the rendering of sentence, in such a way that you by no means defer the decision of the cause beyond three months, notwithstanding any letters—whether those which make mention of restitution of possession to R. of Arden to be made, or those which make mention of leaving the possessory judgment to the king, or any others—which were obtained before, or if any should happen to be obtained afterward without the tenor of these letters having been set forth. Indeed, if within the aforesaid time you are unable or unwilling to proceed in execution of the things which have been said, we will that our commission ought for this reason to expire.

Latin source headnote: If the defendant is contumacious after joinder of issue, then, if the cause is otherwise clear, a definitive sentence is rendered; if it is not clear, the plaintiff is inducted into true possession.

Urban III, to the Priors of Neuflieu and Viger.

As you noted to us in your letters, etc. (And below:) Because the defendant had contumaciously withdrawn from your presence, you compelled him to furnish security under oath that he would obey the law before you in all respects. And when he had presented himself before you on the appointed day, under the pretext of an advocate, whom he did not have, he refused to answer with his customary malice. Finally, at the plaintiff’s urging, he answered that he had received for forty years the tithes concerning which there was contention; and afterward, employing various excuses, he broke forth into the utterance of an appeal and, in contempt of his oath, contumaciously withdrew.

Therefore, by commanding you we order that, in order to convict his malice, you summon him once to your presence; and, if he comes, you shall hear what shall be proposed and, appeal ceasing, impose a fitting end upon the business. But if, having been summoned, he scorns to come, you shall nevertheless determine the cause by definitive sentence, since issue has been joined in the matter introduced, or at least adjudge possession to the person present, saving only the question of ownership to the person absent. Concerning that matter, however, etc. (Cf. c. 4, On Parishes, III. 29.)

Latin source headnote: One who, after the plaintiff’s contention has been established, interposes a peremptory exception which he does not prove immediately but receives delays to prove, if he fails in proving, is immediately, without waiting for the definitive sentence, condemned in expenses and compelled to pay; but if he cannot, he will be punished in his person according to the judgment of the judge. This is what it says. This text is noteworthy according to the reading which pleases Panormitanus.

Innocent III.

Desiring that an end be imposed upon lawsuits, lest the parties be burdened beyond measure with labors and expenses—especially when litigation concerns ecclesiastical benefices or offices, which cannot long remain vacant without loss—we establish by the present decree that, after one party has established its contention, if the other should perhaps wish to interpose a lawful exception which it is unwilling or unable to prove immediately, because exceptions of this kind are frequently interposed through calculated malice to impede or defer the proceeding, then, when delays have been accepted, it shall from that time be condemned, if perhaps it fails in proof, to pay the other party the moderate expenses thereafter to be incurred in the judgment. And if it is not solvent, it shall be punished otherwise according to the judgment of a discerning judge, so that, at least terrified by this fear, no one may readily interpose false exceptions to the injury of another.

Latin source headnote: A person cited for the whole cause, with a certain term assigned for appearing, is bound to appear at the term; and, if an impediment exists at the term, he ought to appear as soon as he can after the term; otherwise he will be condemned in expenses from the time the citation was issued.

The same, to the Bishop of Palestrina, Legate of the Apostolic See, and the Dean of Brin.

When the beloved sons Master S. of Liège and H., canon of Laon, messengers of the beloved son H., called Bishop-elect of Liège, had formerly approached the Apostolic See on his behalf, the beloved son [L.], archdeacon, and H., canon of the Church of Liège, afterward coming to our presence in their own names and those of certain of their fellow canons—L., archdeacon, H., cantor, L., provost of Saint Peter, and certain others—whose letters of ratification concerning the same business they exhibited to us, proposed certain crimes against that bishop-elect, through which they endeavored to repel him from election to the Church of Liège as unworthy. (And below:)

Although, however, no slight suspicion had arisen against him from the fact that the same bishop-elect appealed from the grievance of the adverse party and that, although the appeal had not been interposed through sufficient proctors, he could have prosecuted it while they prosecuted, nevertheless, wishing to observe the order of law in all things, by strictly commanding him we ordered that by the Sunday then past on which “I am the good shepherd” is sung, he should approach our presence either personally or through a sufficient proctor sufficiently instructed, lest he appear afterward to evade examination through delays or any occasions, to answer concerning all the aforesaid matters; otherwise, since we assigned the aforesaid term to him as peremptory, he should know that, so far as we could by law, we would thereafter proceed in the aforesaid business.

Therefore, while his adversaries waited for him at the Apostolic See, we considered that he should be awaited for a long time, even beyond the term; but he neither came nor sent a sufficient proctor, but only a simple messenger bearing letters of his excuse. For he wrote that he had received late the aforesaid Master S., his messenger, upon whom, when he withdrew from us, we had enjoined orally that he should cite the same man; hence, both on account of the shortness of the term and the dangers of the roads, he could not present himself before us. But it operated against this that, just as he had sent to us an excuser, so he could have sent a representative, since it had not been enjoined upon him that he come to the cause only in his own person, but that either he should approach or he should send a suitable proctor.

Furthermore, when someone is commanded to present himself to a judge at a certain term, two things are commanded under this form: that he come to the judge and that he approach on the day appointed to him. Hence, if he cannot come on the assigned day, he is nevertheless bound to present himself to the judge, as reason suggests and lawful sanction manifests. For if someone is commanded to pay a certain thing to another on a certain day, he will not for that reason be released from the command if he is unable to pay on the given day; indeed, he is bound to payment even when the day appointed for payment has elapsed.

Wherefore, because the said bishop-elect neither came nor sent a sufficient representative on the day appointed to him, or afterward, although awaited for a rather long time, and because there was no hope of his nearby arrival—inasmuch as he had in some fashion excused his delay by letters and feared the summer heats and ambushes set for him—by the counsel of our brothers we held him contumacious and took care to condemn him to the lawful and moderate expenses which his adversaries had incurred from the time the citation was issued, when they began to await him, regarding as frivolous what was meanwhile said by some to have been attempted concerning H., provost of Saint Denis.

Latin source headnote: A sentence in a beneficial cause does not pass into res judicata with respect to a superior so as to prevent him from being able to inquire into the rights of the parties, especially when sentence was rendered against a person absent, although contumacious and undefended.

The same, to the Archbishops of Armagh and Cashel.

When formerly the cleric D., presenting diverse letters of the prelates of Ireland to Pope Celestine, our predecessor, asserted that he had been elected Bishop of Ross, and no one appeared who proposed anything against him, our said predecessor caused the office of consecration to be conferred upon him through A., Bishop of Albano of good memory, and sent him back consecrated to his church. But afterward the beloved sons F. and G., monks, approaching the presence of the same predecessor of ours, each asserted that he had been elected by the canons of the Church of Ross, and the same F. explained that the aforesaid D. had been consecrated to the same church at the Apostolic See, which he had circumvented through false letters.

For this reason our same predecessor committed their cause to you, brothers, the Bishops of Cashel and Laon, under this form: that you should solicitously inquire into the form and proceeding of the election of the aforesaid D.; and, if it were established that he had been canonically elected, you should cause him to enjoy peaceful possession; otherwise, you should hear the cause between the aforesaid F. and G., and whichever one’s election you found to have been canonical and more reasonably made, reason going before, you should take care to prefer it to the election of the other; and you, brother of Cashel, should consecrate as bishop the one whom you reasonably considered should be confirmed.

But, as we learned from your letters, when the letters of the said commission had been presented to you, you wished first, according to their tenor, to inquire into the election of the aforesaid D. When the said D., although cited by you a third time, was unwilling to present himself before you, you proceeded in the cause; and you learned, both from the testimony of the clergy and people of the Church of Ross and from the assertion of the illustrious King of Cork and the prelates of his province, that the election of the aforesaid F. had been canonically celebrated, and afterward took care to confirm it by apostolic authority, especially since the chapter of the Church of Ross steadfastly asserted that it had not elected the said D., nor had it thought in any way about the election of the aforesaid monk G.

Meanwhile, however, the aforesaid D., approaching the Apostolic See [and] making no mention at all of the aforesaid commission or even of the elections of the aforesaid persons, [did not fear to suggest to us that, when he was returning to the diocese of Ross with the aforesaid letters of our predecessor, the aforesaid King of Cork had caused it to be prohibited to him that he enter the diocese or Church of Ross until he paid, or at least promised, a certain sum of money to him. But when his friends afterward, without his knowledge, promised certain gifts to the king, he was admitted to his church and ministered in it for half a year. But when he was unwilling to pay the money promised by his friends, the king, moved to anger, commanded the dean to show him no reverence. Although the dean was bound to the said D. by an oath, nevertheless, because he could not obtain the archdeaconry from him for his still-young son, on the Thursday of Holy Week he presumed to steal the oil which ought to have been blessed; and, although on account of this he had been bound by D. with the bond of excommunication, nevertheless, on the Tuesday of the following week he stole the books of the Church of Ross and did not at all hesitate to transfer himself to the king against him. Wearied by the harassment of these two, he was compelled to leave the king’s land, on account of which he obtained from us letters to our venerable brother, the Bishop of Ferns, and his co-judges, directing them diligently to induce and admonish the aforesaid king to permit him to return safely to his church without any exaction of money and to exercise the administration of the episcopate in temporal and spiritual matters; otherwise, they were to bind the king with the bond of excommunication and subject his land to interdict, relaxing neither sentence until he fulfilled the apostolic mandate concerning D.’s reception. They were also to compel the aforesaid dean, if the foregoing were established to them, to come to the Apostolic See, suspended from office and benefice, and, until he came to his senses, cause him to be publicly announced as excommunicated.]

Furthermore, he obtained letters concerning certain other grievances and injuries against the said F. and certain others, [asserting that the same bishop detained the rights of the Church of Ross and that the same monk F. had rashly laid violent hands upon the archdeacon and clerics. Moreover, when the same D. departed from us with letters of this kind, after a space of almost three months] the said monk F. approached the Apostolic See and afterward presented to us letters on your behalf which contained how you had proceeded in the aforesaid commission. Therefore, after diligent deliberation concerning this had been held with our brothers, fearing lest, just as our predecessor is said to have been circumvented through the letters which the same D. had presented to him, it might also happen that we were circumvented through your letters, presented to us by the same monk, wishing therefore still to act mercifully with the absent man, so that [both] his malice might be [more strongly] convicted, we considered that the said monk F. should be remitted jointly to you, by more strictly commanding your fraternity through apostolic writings that, notwithstanding the fact that the election of the same F. had been confirmed, you should lawfully cite the often-mentioned D., if he could be found in Ireland, to the cause and, after the faculty of defense had been granted to him, should proceed canonically in the cause itself, having God alone before your eyes.

If, having been found, he should scorn to present himself before you within three months, you shall proceed to the consecration of the said F., every occasion being set aside. But if he is not found in Ireland, after a period of one year has been granted to him from the time when he is understood to have appealed to us—if not by word, nevertheless by deed—by undertaking the journey to come to the Apostolic See, you shall commit the administration of the Church of Ross in spiritual and temporal matters to the said F.; and, when that period has elapsed, you shall not defer to consecrate him as bishop. [Lest, however, etc. Given at Perugia on the fifteenth day before the Kalends of October. 1198.]

Latin source headnote: If proceedings are conducted by way of inquisition against a person contumaciously absent, witnesses can be received even when issue has not been joined, and a definitive sentence can be rendered, even by way of deposition, if the offense merits this.

The same.

The word emitted by the instrument of the Lord’s voice is a word of truth: that the tree which uselessly occupies the earth is deservedly judged to be cut down and cast into the fire, so that the earth, which is held barren under the harmful occupation of a useless tree, may through a new planting receive suitable cultivation for bearing fruit. Not without reason is H., formerly Bishop of Chur, compared to this tree, for he has until now detained the Church of Chur through violence and, as the beloved sons, the canons of Chur, V., S., and R., and Be. Ro., pleban of Saint George, reported in our tribunal on your behalf, the aforesaid H., Bishop of Chur, not only brought his church low by dilapidating it, as public infamy proclaimed, but polluted it with homicide, incest, and other crimes.

But we, as those upon whom the correction of these matters lies, when your canons themselves, induced by good zeal, as we judge, took care to accuse the aforesaid bishop [and], considering the enormities of the same man, to bring them to our ears—fearing lest, as is contained in the decree of Gelasius, they would incur apostolic offense if they thought that excesses of this kind ought to be suppressed from the hearing of the Catholic Church—first committed the cause concerning these matters to our venerable brother, the Bishop of Trent, and the beloved sons, the Abbot of Mount Saint Mary and the Provost of Isola; and a second time to our venerable brother, the Bishop of Brescia, and again to the same abbot and provost, etc. But when the bishop himself had contumaciously scorned to approach the presence of the first judges, etc., he was suspended from office and benefice by those first judges under our authority. (And the rest:)

Finally, having been called before the judges by canonical citation, he with difficulty presented himself; but then, advancing a frivolous excuse conceived in malice, he neglected to proceed at law with the canons. For this reason, we, by the counsel of our brothers, suspending the bishop himself—or rather, confirming by apostolic authority the suspension made by the judges—committed the cause concerning these matters for a third time to our venerable brother, the Bishop of Como, and the beloved son, the Abbot of Saint A., to be heard in order to overcome the malice of the bishop himself. They, after the parties had been cited, having associated with themselves prudent and honorable men, when he appeared neither personally nor through a suitable representative, rendered a sentence of excommunication against the bishop on account of his disobedience, admitting the witnesses on your behalf as they had received in mandate from us—namely, abbots, priors, provosts, and other religious men—through whom it was established that every article of the aforesaid crimes had been proved. (And below:)

We therefore, seeing that the judicial order had been observed in this deed, considering furthermore that after the sentences rendered against him he presumed to celebrate, and since many prelates of churches wrote against that bishop and not one wrote in his defense or even to excuse him in any respect, wishing in the name of the Lord with the Apostle to avenge every disobedience, although absent in body yet present in spirit, according to the word of the same Apostle we rendered a sentence of perpetual deposition against him; and, depriving him both of pontifical office and of every priestly office, we considered that he should be condemned without any hope of restitution, nevertheless revoking as void whatever, after the prohibition of the Apostolic See or after the suspension and excommunication had been made, he presumed to alienate from the goods of the church.

Latin source headnote: A plaintiff who is not admitted into the possession decreed to him by a judge for the purpose of preserving the property, or who is expelled from it, becomes a true possessor through the lapse of a year.

The same, in the General Council.

It sometimes happens that, when possession for the purpose of preserving the property is adjudged to a plaintiff because of the contumacy of the adverse party, because of the defendant’s power or fraud the plaintiff cannot obtain the thing to be preserved within a year, or loses it after acquiring it; and thus, since according to the assertion of many he would not become a true possessor after the lapse of a year, the defendant derives advantage from his own malice. Therefore, lest the contumacious person be in a better condition than the obedient person, according to canonical equity we decree that in the aforesaid case the plaintiff shall, when a year has elapsed, be constituted a true possessor. [For this, etc. (Cf. c. 8, On Arbitrators, I. 43.)]

Latin source headnote: If the defendant is not found, it is sufficient for the citation to be posted publicly at his church.

Gregory IX, to the Archbishop of Bordeaux.

Our venerable brother—(And below:) Wishing that an end be imposed upon lawsuits, lest they be immortal, we command that at the beginning of the next approaching Lent—which we have considered should be assigned to you as a peremptory term—you shall present yourself before us, personally or through a suitable proctor sufficiently instructed for joining issue and for transacting all other matters which appear necessary for decision of the business, concerning the right of primacy which the Archbishop of Bourges proposes that he has over you and your province. We nevertheless gave a mandate to the Archdeacon of Transuig and Master M., canon of Tours, that they too should take care by our authority to cite you peremptorily for the same term according to the aforesaid form; and, if you cannot be found, they shall cause the edict of citation to be posted publicly at your church by themselves or others.