Title XVII: On the Sequestration of Possessions and Fruits

Latin source headnote: A thing into possession of which a sending has been made ought not to be sequestered, even if the person sent into it was violently ejected from it. Or, more notably, thus: A sequestration made in place of a sending into possession for the avoidance of scandal ought to be revoked after security has been offered and expenses restored.

Innocent III, to the Archbishop of Milan.

For this God anointed us [with the oil of gladness above our fellows, that we should love justice and hate iniquity. We fulfill this laudably when, walking on the royal road, we turn aside neither to the right nor deviate at all to the left, but, justly pursuing what is just, we neither regard the person of the poor nor honor the face of the powerful, because there is no acceptance of persons before the Lord; when we also discuss merits by subtle examination and consider the quality of petitions, so that we render to everyone his right and reasonably repel petitions which do not accord with reason.]

For the Abbot of Regula, coming to the Apostolic See, explained to us [and our brothers] that, when M., [formerly Archbishop of Milan], your predecessor, concerning the cause which had been conducted for a rather long time between him and his monastery, after many commissions finally obtained letters directed to [our venerable brother] the Bishop of Verona, [a cardinal of the Roman Church], and he, [the delegated judge, after the parties had been established in his presence], rendered sentence in the possessory judgment partly for the monastery and partly for the archbishop, when the proctor of that monastery afterward wished to institute a question concerning ownership, [the archbishop’s party rather often sought delays and adjournments. And when the same archbishop had very often informed the aforesaid Bishop of Verona by letters that he by no means declined his judgment, and each party was at Novara before the messenger of the bishop himself, who had been sent for this purpose,] the archbishop objected that the bishop’s jurisdiction had expired, asserting that only the cause of possession and not that of ownership had been committed, and that, because he had pronounced concerning possession, having once discharged his office, he could not thereafter take cognizance of the question of ownership. [And after alleging these matters, the aforesaid archbishop appealed.]

To these things the monastery’s party proposed to the contrary that the cause conducted between the archbishop and the monastery had been committed to the aforesaid bishop absolutely and without distinction, and it therefore said that the scope of the cause ought not to be divided. [It also added that, since the archbishop had so often sought from the judge a delay and a place in which he ought to answer before him concerning that question of ownership, he could not afterward refuse him or appeal in any respect; especially because, while the adverse party was absent, as stated above, he himself had petitioned for the same judge and had caused the remedy of appeal to be prohibited in the apostolic rescript.]

But the judge, [having employed the counsel of prudent men], decreed that, on account of the archbishop’s contumacy, the plaintiff should be sent into the possession which had been adjudged by the bishop himself to that archbishop, from which, nevertheless, the archbishop violently ejected the monastery. And when [the beloved son G., then prior but now abbot of that monastery, and G., messenger of the adverse party], approached the Apostolic See for this reason, Pope Celestine, our predecessor of good memory, after all the matters stated above had been more fully understood through [our beloved sons Hugh, cardinal priest of the title] of Saint Martin, and the cardinal deacon of Saint Mary in Aquiro, whom he had granted to them as auditors, through [Al. of good memory,] then Bishop of Albano, interpreted his rescript in this manner: that both the cause of possession and that of ownership had been delegated to the judge, since it had been committed absolutely and without distinction and its scope ought not to be divided, [and that for the aforesaid reasons the same judge could not have been refused by the archbishop even through the obstacle of appeal.]

Therefore, the same predecessor of ours, wishing to defer to the archbishop and abbot without injury to justice, also ordered the aforesaid possession to be sequestered with our venerable brother the Bishop of Vercelli and the Bishop of Novara of good memory according to his judgment. He enjoined upon [our venerable brother] the Bishop of Reggio and the [then, of happy memory,] Bishop of Modena that, [having summoned the parties to their presence and notwithstanding any contradiction or appeal concerning either the principal or the incidental matter], after taking fuller cognizance within two months of the cause of possession and ownership, they should decide it with a due end and afterward resign possession to the party which prevailed triumphantly concerning ownership.

[*And when the same letters reached the said Bishops of Modena and Reggio and the parties had been established in their presence, the archbishop’s proctor offered security to purge the contumacy, if any had preceded. The monastery’s proctor was unwilling to receive it unless sequestration of the possession first occurred and the right which belonged to him from a commission of this kind was preserved, so that the archbishop should seek from him in judgment as from the possessor. When, on the other hand, the archbishop’s proctor answered that it ought to be sought from him as from the possessor, the debate was prolonged, and the term within which the aforesaid bishops ought to have taken cognizance concerning ownership expired. Moreover, a messenger of the monastery, again approaching the Roman Church, asserted that it had stood through the archbishop that neither had possession been sequestered nor had proceedings concerning ownership been conducted in the cause. For this reason our said predecessor commanded our venerable brother, the Bishop of Bobbio, through apostolic writings that, after possession, together with the fruits received from it, had been restored to the monastery, they should afterward hear whatever question the parties had against one another.

When he commanded through his messenger that, according to the tenor of the apostolic mandate, the abbot be inducted into the possession which the Bishop of Verona had adjudged, Hugh of Camerario violently ejected the abbot from it. With his accomplices he drove away by armed force both the bishop’s messenger and the abbot and monks; burned with fire the boat by whose conveyance they had approached there; plundered the cells of the monastery; beat several lay brothers; and did not blush to burn houses situated outside the enclosure of the cloister, together with certain animals and a certain man. After this reached the hearing of the same predecessor of ours through the report of the abbot’s messenger, by strictly commanding our venerable brother, the Bishop of Ferrara, he ordered that, having summoned the parties and after possession, together with the fruits received from it from the time of the sentence rendered by the said Bishop of Verona, had been restored to the monastery, he should take cognizance concerning ownership and, preserving it unharmed in the possession adjudged to it, should decree what was just and cause it to be firmly observed by apostolic authority, the obstacle of appeal being removed. He was also to restrain by sentence of excommunication, appeal being removed, those who opposed apostolic mandates or troubled the monastery concerning the other possession; and he was to announce the said Hugh and his accomplices as excommunicated and cause them to be avoided by all until they made competent satisfaction to the monastery for all things taken and injuries inflicted and presented themselves before the apostolic countenance with his letters, unless you, brother archbishop, exercised against them this coercion as had been commanded to you.

But the said Bishop of Ferrara, having received letters of the Apostolic See concerning this, as we learned from his letters, after admonition had been made, promulgated a sentence of excommunication against Hugh of Camerario and his accomplices when you were unwilling to excommunicate him within the appointed term; and when, although lawfully cited by him, you neither approached nor sent a sufficient representative, but excused your absence by words and letters, he pronounced, saving the question of ownership, that possession was to be restored to the monastery. And when he caused the abbot to be inducted into it through his messenger, that abbot was cast out from it through the violence of armed men, at the command of you, brother archbishop, Hugh of Camerario, and the beloved sons, the consuls of Milan.

For this reason the same abbot petitioned us that we ought to confirm by apostolic authority the sentence of restitution so often rendered for him and, after possession had been restored to him together with the fruits, should cause him to enjoy it without molestation. But the beloved son Passaguerra, your proctor, and his associates said that the abbot’s petition was not to be admitted, especially for this reason: that the abbot himself, in the letters which he obtained from the Apostolic See to the Bishops of Bobbio and Ferrara, had suppressed the truth and expressed falsehood. For he had suggested that the Bishop of Verona had promulgated sentence concerning possession, saving the question of ownership, although he had only decreed that the abbot be inducted into possession for the purpose of preserving the property. He also concealed the truth when he made no mention before the Apostolic See of the giving of security offered by the archbishop before the said Bishops of Reggio and Modena.*]

We therefore, [after mature counsel had been held concerning these and all other matters proposed on this side and that with our brothers, the archbishops and bishops established at the Apostolic See, understanding that the said Bishop of Verona had decreed that the abbot be inducted into possession only for the purpose of preserving the property, as was consonant with reason, since issue concerning ownership had not been joined before him; and that it had not stood through the same M., the former archbishop, that he did not furnish the security offered within the year and purge the contumacy, if any had preceded; also considering that the abbot himself had obtained the letters to the Bishops of Bobbio and Ferrara through suppression of the truth and expression of falsehood—not rendering sentence, because issue had not been joined before us, but responding to the abbot, we answered that his petition according to the aforesaid form was not to be admitted, and commanded that he lack the writings which he had obtained through falsehood;] reduce the scope of the cause to the state in which it had been when our aforesaid predecessor committed the cause of ownership and possession to the Bishops of Reggio and Modena, the mandate of sequestration being entirely revoked. [We will and command, nevertheless, that the sentence of excommunication rendered against Hugh of Camerario and his accomplices be inviolably observed until fitting satisfaction.]

But lest we appear to fail the monastery in its right, we decree that there are to be restored to it the moderate expenses incurred for this from the time when the Bishop of Verona decreed that it be inducted into possession until the time of the satisfaction offered, and that sufficient security to submit to judgment is to be furnished by you. [The sentence, however, etc. Given at the Lateran on the sixth day before the Nones of March. 1198.]

Latin source headnote: If one sent into possession for the purpose of custody dissipates the fruits, those dissipated are recalled and sequestered with the others.

Honorius III, to the Prior of Deben and the Dean of Calin.

The beloved son R., rector of the church of Bethusia, showed us by his petition that, when a question was being conducted concerning the same church before the Abbot of Sibiton and his colleagues by apostolic delegation, between him on the one side and the abbot and convent of Cisteria in the diocese of London on the other, those judges, inasmuch as they were more favorable than was due to the other party, after an appeal had been lawfully interposed by the same R., inducted the aforesaid abbot and convent into possession of the church itself for the purpose of custody. They dispose according to the choice of their own will of the fruits of that church received in the meantime, to his prejudice and injury. Wherefore, we command your discretion that, if it is so, causing the aforesaid fruits to be sequestered until decision of the business, you shall recall to its former state whatever you find meanwhile to have been disposed of by them from those fruits, restraining contradictions by ecclesiastical censures.

Latin source headnote: If a defendant in possession appeals from a sentence rendered against him, the fruits of the thing sought are lawfully sequestered if they are dissipated by him.

Gregory IX.

The fruits of the possession can reasonably be sequestered while litigation is pending from one who has appealed from a sentence, if they are dissipated by him.