Title XVI: That Nothing Be Altered While Litigation Is Pending

Latin source headnote: Even a privilege obtained from a prince, through which someone is deprived of the use of possession while litigation is pending without cognizance of the cause, is invalid as surreptitiously obtained, or is to be revoked as contrary to reason.

Alexander III, to the Archbishop of York.

It has not fallen from our memory how, in the first year of our advancement, you caused to be presented to us a transcript of the letters of Pope Honorius, our predecessor of happy memory, in which it was contained that it had been granted by apostolic kindness to your predecessors that both they and their successors should be free to have the cross borne before them throughout all England. We, however, adhering to the footsteps of our predecessor, confirmed to you under the protection of our writing what had been kindly granted to your predecessors by our predecessor. But afterward T., formerly Archbishop of Canterbury of holy and venerable memory, judging that this redounded to the depression of his right and dignity, began to move a question concerning it. And for this reason he appealed to the Apostolic See, affirming, if we remember correctly, that this had by no means been lawful for you and your predecessors. And thus it happened that through our writings we prohibited you from daring for any reason to have the cross borne before you in the province of the Church of Canterbury until cognizance had been taken of the cause itself. Therefore, because through our beloved sons I. and A., your clerics, you laid a grave complaint before us, asserting that we had despoiled you, before cognizance in judgment, of possession of this thing which you and your predecessors had held, we, wishing to defer to you as our venerable brother and to preserve your rights unimpaired [and] inviolate, by the present letters establish that our letters of prohibition, which we directed to your fraternity at the petition of the Archbishop of Canterbury, shall create no prejudice against you whereby you and your successors are not free—as has been granted to you by the benefit of the privileges of the Apostolic See and as you and your predecessors have been accustomed to do this—to have the cross borne before you throughout all England, until it is decreed by definitive sentence whether your church ought by right to have this.

Latin source headnote: One accused of adultery for the purpose of separation from the marriage bed ought not, while litigation is pending, to be deprived of marital possession.

Clement III.

A praiseworthy—(And below: [Cf. Comp. II, c. 3, On Cognizance of Spiritual Matters, IV. 6.]) You ask again, when it happens that a marriage is accused, whether carnal intercourse is immediately to be suspended, or how long it can be dissembled or rather sustained. To this we answer briefly that, since Alexander II expressly prohibits persons from being separated from one another until a just examination of the cause is made, and the institution of Pope Symmachus contains that any prelate who is accused ought not to be abandoned by his subjects before the things alleged shine forth in the light, in the present matter either one of the spouses who is accused cannot, before the accusation is proved, be deprived of the right which that person has in the other. [Furthermore, etc. (Cf. c. 4, Who Can Accuse a Marriage, IV. 18.)]

Latin source headnote: One who has alienated a litigated thing in such a way that it cannot be recovered ought to substitute in its place an equivalent which he will not be able to alienate. This is what it says, together with the following chapter.

Innocent III, to the Abbot and Convent of Saint Sylvester.

The Church of Saint Mary in Via Lata moved a question before the judge L., in the time of B., called Carosomo, senator, against John of Ateia, who was said to detain certain of its possessions contrary to justice. (And below: [Cf. c. 10, On Constitutions, I. 2.]) We prohibit you from presuming meanwhile to alienate the possessions which succeeded into the place and right of those which the Church of Saint Mary had sought from John of Ateia and which were transferred by the same John into your monastery while litigation was pending, so that, if the Church of Saint Mary should perhaps wish to proceed either concerning the vice of the litigated contract or concerning ownership, it may, if it prevails in judgment, have something which it can evict and possess, lest it labor in vain when your monastery no longer possesses it. [Given at the Lateran on the fifth day before the Kalends of December. 1199.]

Latin source headnote: It says the same thing as the preceding chapter.

The same.

The Church of Saint Mary—(And below: [Cf. c. 10, On Constitutions, I. 2.]) petitioned that the possession of which the aforesaid church had been despoiled, the order of law having been omitted, be restored to it. (And below:) We decree as void and empty whatever was done by others after our predecessor recalled the same business to his curia. (And below:) But because, after restitution had been made to you by John of Ateia, you assigned the aforesaid possession to another by title of lease and could not restore it to the despoiled church, we caused an equal quantity of equivalent possessions to be assigned in its place to that church according to the judgment of good men. Because those possessions had been pledged to another, we caused them to be released by you from the creditors, who afterward resigned to us the instrument of pledge. [And because, etc. (Cf. c. 10, On Constitutions, I. 2.) Given at the Lateran on the fifth day before the Kalends of December. 1199.]

Latin source headnote: A suit is to be decided according to the laws existing at the time of the controversy, not according to a privilege obtained while litigation is pending, unless it makes mention of the pendency of the suit.

Honorius III, to the Chancellor, Cantor, and A., Canon of Paris.

The beloved son Master A., parson of the church of Basseville, explained before us that, when a question had arisen between his predecessor on the one side and the prior and monks of Basseville in the diocese of Chartres on the other, concerning the tithes of newly cultivated lands situated within the bounds of his parish, while it was pending before judges delegated by the Apostolic See, the abbot and convent of Saint Martin of Marmoutier at Tours, to whom the aforesaid prior and monks are subject, obtained from the Apostolic See for themselves and their members an indulgence concerning the receipt of tithes of this kind. Under pretext of it the said prior and monks strive to claim the aforesaid tithes for themselves, although no mention of the above-mentioned question had been made in that indulgence. Therefore, we command your discretion that by our authority you enjoin upon the same judges to whom that question was committed that, notwithstanding the aforesaid indulgence, they proceed in the business according to the form handed down to them.