Title XXV: On Exceptions

Latin source headnote: If a witness is convicted of a crime excepted against him, or appears to have been convicted otherwise, he is repelled from testimony; but he is not punished for the crime if it does not touch the principal matter.

Celestine III.

Finally, as to the fact that objections can be made against the statements and persons of witnesses against whom nothing was objected before their oath or depositions, after the attestations have been published, know that this has obtained by long custom in the Roman Church: that before the oath or depositions and afterward, a lawful exception [at law] can be objected against the statements and persons of witnesses. And, if crimes are objected against witnesses concerning which they had not hitherto been accused, but which are only opposed by way of exception by anyone, proof certainly of those crimes is to be exhibited before the cause is terminated by sentence, since, as the canonical institutes declare, witnesses without any infamy, suspicion, or manifest stain are required in giving testimony. But if only [those] crimes concerning which at another time they were convicted or confessed are objected against witnesses, they can be repelled from testimony, because, as Pope Stephen and many other Roman Pontiffs testify, their confession is not to be believed against others unless they first prove themselves innocent. Moreover, if witnesses have been convicted of or confessed crimes objected against them solely by way of exception, they ought not to be punished by the ordinary penalty, since an accusation does not proceed against them according to the order of law. It therefore suffices if they are repelled from giving testimony, especially where the crime objected against them does not appear to touch the cause at issue.

Latin source headnote: When the defendant excepts against the claimant on account of excommunication, a replication of communion does not obstruct him.

Innocent III, to the Archdeacon of Richmond.

It was asked of us on your behalf whether one who knowingly communicates with an excommunicated person in speech or prayer can repel the excommunicated person himself from his accusation when the latter replicates a communion of this kind against him. We therefore respond to your inquiry in this way: the excommunicated person himself can be removed from accusing the other, since the first is excluded from the communion of the faithful, while the second is removed only from participation in the sacraments.

Latin source headnote: One who has several benefices does not except against another concerning plurality. This it says. Johannes Andreae.

The same, to the Bishop of Aosta.

Since the office of ecclesiastical provision, [to which, although unworthy, we have been called by the Lord’s disposition, has, according to the word of the Apostle, established us as debtors to the wise and the unwise, it thus befits us to discuss with subtle investigation the questions brought to the notice of our apostolate, to terminate them by judgment or through reasonable settlement, and to commit for decision by others, on our authority, those that we cannot [decide] ourselves, so that no one may be able to complain in the sight of the Apostolic See that he has suffered a failure of his right, and so that we may appear, as we are bound by the care of pastoral solicitude, to judge just things and love justice.]

For both the messengers of the chapter of Novara and the same cleric Jacob approached the Apostolic See because of the question being conducted between the beloved sons, the chapter of Novara and Jacob the cleric, concerning a prebend of the Church of Novara. And while either party was established in our presence and that of our brothers, it was alleged in our auditorium on behalf of Jacob in this way: [that, when formerly by mandate of F., of good memory, cardinal priest of the title of Saint Marcellus, then legate of the Apostolic See, he had been invested with the first prebend then to become vacant in the Church of Novara, a stall in the choir and a place in the chapter having been assigned to him, and afterward the son of the beloved son Saxo Vulgaminus, a noble Roman citizen, had been admitted to it by authority of the Apostolic See—who suffered molestations and oppressions from the relatives of the aforesaid Jacob concerning possession and fruits of the prebend itself—at length an amicable settlement concerning those fruits intervened between Jacob himself and the aforesaid nobleman, because silence had been imposed upon Jacob himself concerning the prebend so that he could move no further question concerning it. At length it pleased C., our predecessor of good memory, after considering the labors and expenses of the aforesaid Jacob, at the prayers of certain cardinals, to confer upon him the prebend of the Church of Novara that had belonged to Master B. de Suno and to invest him with it by his own hand through a ring, strictly commanding the chapter of Novara that, notwithstanding the election that they had made concerning several persons to be assumed as canons in the Church of Novara, the constitution that they had made concerning the fruits of prebends—all of which our same predecessor had invalidated by the counsel of the brothers—and any alienation, obligation, or assignment of the same prebend, they should, every difficulty set aside and appeal postponed, receive Jacob himself as a brother and canon in the name of the said prebend, place him in corporal possession of the prebend itself, and assign him a stall in the choir and a place in the chapter. Otherwise, they should know that our beloved provost of Saint Gaudentius of Novara, our subdeacon, and R., canon of Gorgonzola, had been firmly commanded by our predecessor himself that they should not delay executing these things by canonical coercion, appeal postponed. We plainly perceived all these things to be contained in the letters of our same predecessor. And when the said canons passed by the apostolic mandates and commands with deaf ears, the aforesaid executors, having heard whatever was proposed on behalf of the canons and received it reduced to writing, after many admonitions and delays sought by them, having taken counsel with prudent men and decreeing that the exceptions of the canons were not to be admitted, assigned to Jacob himself, according to the tenor of the apostolic mandate, a stall in the choir and a place in the chapter; and one of the executors, namely R. de Gorgonzola, by the mandate and will of the other, placed him in corporal possession of the prebend and, after very many admonitions, bound the aforesaid canons with the bond of excommunication unless within fifteen days they obeyed the apostolic mandate, as is contained in the instruments that he exhibited to us.]

But the canons of Novara, responding on the contrary, alleged very many exceptions by which they intended in every way to repel Jacob himself from receipt of the prebend, [saying that, through the letters that Jacob himself had obtained from the aforesaid Cardinal F., he had been invested with the prebend after an appeal had lawfully been interposed; that our aforesaid predecessor invalidated what had been done concerning him by the cardinal; and that after the annulment had been made, contrary to apostolic prohibition, he did not fear to invade the fruits of the prebend by his own authority. Moreover, he obtained the investiture of the prebend and letters of execution from our predecessor through false suggestion, because he did not disclose that he was beneficed in another church, nor did he say that for those two prebends that were vacant in the Church of Novara—one of which had belonged to Master R. and the other to Master P., now Bishop of Novara but then a canon—a priest and another who ought soon to be ordained priest had, with discretion granted to two persons before that general ordinance was made, been concordantly elected and admitted in the Church of Novara. Furthermore, many other things were proposed on either side that we did not order to be intermingled with the present letters. Therefore, wishing to preserve each person’s justice unharmed, because certainty concerning the foregoing could not be given to us as was fitting, by the counsel of our brothers we determined to commit the fact itself to your fraternity; through apostolic writings] we command that [the parties having been summoned to your presence, unless within two months it shall lawfully be established to you that the aforesaid priest and the other who ought soon to be ordained priest were canonically elected and admitted to those two prebends before that general ordinance annulled by authority of the Apostolic See, by our authority and with the obstacle of any contradiction and appeal removed,] notwithstanding the other exceptions, you shall cause Jacob himself to enjoy peaceful possession of that prebend with which he is known to have been invested by Celestine, our predecessor, especially since those who are established to obtain various benefices in different churches cannot oppose against him that exception, that the aforesaid Jacob possesses a benefice in another church. [But those, etc. Given at the Lateran, on the fifth day before the Nones of March, 1198.]

Latin source headnote: A judge ought to establish a term for proposing all dilatory exceptions, after which he will not hear one making an exception, except in the three cases excepted here.

The same, to the Bishop of Ely.

The pastoral—(And below: [cf. c. 28, On the Office of a Delegated Judge, I.29.]) Moreover, because termination of causes is sometimes maliciously prolonged through dilatory exceptions, responding to your inquiry, we decree that all dilatory exceptions be proposed within a certain time to be assigned by the judge, in such a way that, if the parties thereafter wish to oppose any exceptions concerning which they had not made protest, they shall in no way be heard, unless perhaps one newly belonging to them has arisen, or the person who wishes to oppose it makes faith by oath that he afterward came to knowledge of it. We establish, etc. (cf. c. 14, On Judgments, II.1.) [Given at Rome at Saint Peter’s, on the fourteenth day before the Kalends of January, 1204.]

Latin source headnote: An excommunicated person can make an exception, appeal, and make every defense; but he cannot bring a counterclaim.

The same, to the Monks of Farfa.

When a question was being conducted before you by our delegation concerning damages and other matters between the beloved sons, the prior and convent of Argenteuil, on one side, and the nobleman S. de Mauléon of the Diocese of Poitiers on the other, and the proctor of that nobleman wished to decline your judgment because he held two of you suspect, the proctor of the monastery alleged that the benefit of an exception of this kind was forbidden to the party of the same nobleman because he was bound by the bond of excommunication. For since an excommunicated person, lest he receive an advantage from contumacy, can be convened, if he could have free recourse to exceptions, that which was introduced in his disfavor would very often be drawn to his favor. Hence you sought to be instructed by the oracle of the Apostolic See how you ought to proceed in this article of doubt. To this we have determined to respond to your inquiry that lawful defense in judgment is reserved to the aforesaid nobleman, and especially recusation of a judge, since it is dangerous to litigate before a suspect judge, and the Apostolic See does not knowingly commit a cause to suspect judges. Hence, in such matters the favor of the excommunicated person is not considered, but the equity of the person judging, since judgment ought not to limp, and it appears sufficiently absurd if, while the claimant attacks, an opportunity for defense is denied to the defendant, because in this way one who ought to be absolved would often be condemned. Furthermore, since a just sentence is not to be denied to an excommunicated person when he exists in a cause of absolution, nor ought the remedy of appeal to be forbidden to him if he is condemned contrary to justice, we do not see by what reason other lawful supports should be withdrawn from him in one and the same matter. But we do not think thus concerning a counterclaim, lest that which is sustained as a remedy of defense be extended to material for attack.

Latin source headnote: One who makes an exception is not seen to confess the things included in the exception, and an exception of falsity can be opposed even after sentence.

The same, to the Monks of Farfa.

When our venerable brother I., Bishop of Sabina, sought before our beloved sons R., cardinal priest of the title of Saint Anastasia, and P., cardinal deacon of Saint Lucia in Septisolio, whom we granted as auditors to him and R., your proctor, the Church of Saint Vitus [of Granica] with its possessions and [its] appurtenances, asserting that it belonged to him in spiritual and temporal matters, the same [proctor,] before the intention of the same bishop had yet been established, responded prematurely that, even if the said church had formerly been subject to the Church of Sabina, nevertheless the bishop could not claim it, since the Monastery of Farfa held it by reason of an exchange. To prove this he exhibited a certain instrument in which it appeared prima facie to be contained that Bishop Theodosius, with the assent of his priests, determined that the aforesaid Church of Saint Vitus should be granted in exchange to your monastery for certain churches and other property.

To these things [however] the aforementioned bishop proposed that his intention had been established through a response of this kind. For since your party responded that it held the said church by an exchange made by the Bishop of Sabina, which it also endeavored to prove by a public instrument, it appeared by consequence to confess that it believed that the said church belonged to the Church of Sabina at the time of the exchange, since exchange is numbered among contracts of good faith and cannot lawfully be celebrated with anyone other than the owner or one who was held in the place of the owner. He added that, although he wished to stand by a confession [of this kind] insofar as it appeared to act against you, nevertheless he did not at all admit against himself an instrument of this kind, which is known to be supported neither by the authority of a notary nor by the subscription of witnesses.

But to this your party responded that, since the proctor objected to it by way of exception, he was not seen to have confessed the intention of the adverse party, because, according to the lawful sanctions, one who uses an exception is not judged to confess the intention of the adversary against whom the action is brought. It added that, even if at the time of the exchange the Monastery of Farfa believed that the said Church of Saint Vitus belonged to the Church of Sabina, nevertheless the aforesaid proctor could afterward have informed his belief in such a way from certain causes or probable conjectures that [now] he believed the same church not to have belonged to the Church of Sabina at that time.

Furthermore, in order to prove that the already-mentioned church belonged to him in temporal matters, the aforementioned bishop introduced certain witnesses through whom he endeavored to show that the bishops of Sabina had rather long possessed both the said church and its mills, lands, and other goods, freely disposing of them at the pleasure of their will. [Certain witnesses were also produced by your party to prove prescription; through them your proctor asserted that it was sufficiently shown that for ninety years your monastery had possessed the same church with its mills and other goods in peace. But to this the party of the bishop responded that, although certain witnesses appeared to depose concerning ninety years, nevertheless, according to the order of law, there ought to be subtracted from the computation the periods of schisms known to have intervened in the times of Innocent and Alexander, Roman Pontiffs of good memory, and, by our special indulgence granted to the aforementioned bishop, the time of Conrad, formerly Bishop of Sabina, when, on account of his absence—since he exercised pastoral care in the Church of Mainz—and the negligence of those to whom care of the bishopric of Sabina had at different times been committed, the rights of that bishopric were neglected; since we determined that the same bishop was to be restored, as regards defense of the rights of the bishopric of Sabina, to the condition that it had when the same Conrad received the prelacy of the Church of Sabina, the remaining time without doubt did not at all reach the limit of lawful prescription.]

Therefore, after deliberation with our brothers concerning these and other matters proposed before the aforesaid cardinals, we understood that the aforesaid bishop had not at all established his intention through the depositions of witnesses or the response of the aforesaid proctor, because, as was premised, one who objects an exception is not understood to have confessed the intention of the adverse party; nor [even] through the instrument exhibited by the opposing side, since in it Bishop Theodosius, by whom the exchange is proposed to have been made, is not called Bishop of Sabina, although in the transcript that the proctor used “of Sabina” had been appended through the vice of falsity. Although the person who falsified the transcript of that instrument exceeded greatly, nevertheless, because the delict of a person ought not to redound to the damage of the church, and an exception of falsity can be cast forth not only before sentence but even afterward—since a sentence rendered under pretext of false instruments can, when the truth has been discovered, be retracted within the space of twenty years—we do not will prejudice to be generated against your monastery through it.

But because it was established to us that the aforesaid Church of Saint Vitus was situated in the Diocese of Sabina, we adjudged to the same bishop episcopal right in all [spiritual] matters in it, excepting only those things known to have been withdrawn from him through authentic writings, since it was in no way proved to be exempt through privilege or lawful prescription. But because the said bishop, who claimed the same church [for himself as to temporal matters,] did not show himself fortified [concerning this] by lawful prescription, although he proved that a Bishop of Sabina possessed the goods of the same church for some time, we determined by sentence that you were to be absolved from the claim of the bishop as to the temporal matters of the same church. [Let no one therefore, etc. Given at Viterbo, on the second day before the Nones of August, in the twelfth year, 1206.]

Latin source headnote: If an exception excluding jurisdiction, on account of which an appeal was made, is proved true, the judge of appeal ought not to take cognizance of the principal matter, but to stay proceedings. This it says on the understanding that these were judges of appeal, and it is a notable understanding. Panormitanus.

Honorius III, to the Abbots of Saint-Hubert and Saint Martin of Liège.

Formerly it was intimated to our ears that, when Pope Innocent, our predecessor of happy memory, had commanded our venerable brother the Archbishop of Trier to cause the amicable settlement entered into between the noblemen L., Count of Loon, and W. of Holland, crusaders of the Diocese of Utrecht, concerning the abduction of the noblewoman, wife of the same count, lands, and other property to be observed, and the said W. endeavored to go against the aforesaid settlement and turned himself to the evasion of appeal, the same archbishop, not deferring to his appeal, which he decreed to be frivolous, promulgated against the aforesaid W.—who was otherwise bound by the bond of excommunication—a sentence of excommunication specifically on account of the aforesaid settlement, and a sentence of interdict against his land. And when afterward the beloved son G., proctor of the said count, obtained our letters to you concerning execution of those sentences, and H., proctor of the aforesaid W., publicly contradicted them in the hearing, our venerable brother P., Bishop of Albano, and our beloved son R., cardinal deacon of Saint Mary in Cosmedin, whom we appointed as auditors for the aforesaid proctors, because it was manifestly established through the things proposed by them before the auditors that the said W. was bound by the bond of excommunication, decreed by sentence that the proctor of the same W. was not to be admitted to obtain letters or to contradict, and released the letters that the proctor of the said count had obtained to you. We indeed, at the insistence of the proctor of the often-mentioned count, who feared the cunning of the other party, commanded you that, proceeding in the matter committed to you according to the form expressed in our aforesaid letters, reason going before, you should decree that any letters that it might happen were obtained from us by surreption concerning the foregoing on behalf of W., to the prejudice of the often-mentioned count, and that did not make full mention of the foregoing, lacked force.

But recently it was proposed before us on behalf of the aforementioned G. that, when the letters of our aforesaid predecessor were presented to the Archbishop of Trier, the latter proposed before him by way of exception that he was in no way bound to respond by authority of the letters themselves, both because the mandate had already expired upon the death of the mandator while the matter remained untouched, and also because, contrary to the constitution of the general council, he was drawn into a cause more than two days’ journeys outside his diocese. And because the said archbishop refused to admit this exception, the same W. uttered the voice of appeal to us. But the aforesaid archbishop, having contemned his appeal, commanded our venerable brother the Bishop of Utrecht to cause the aforesaid settlement to be firmly observed through ecclesiastical censure. It was also added on behalf of the aforesaid W. that the said count, falsely claiming that the aforesaid appeal was frivolous, obtained the aforesaid letters to you while excommunicated and with the truth concealed. Wherefore it was humbly supplicated of us on behalf of W. himself that, since he, his land, and his other goods exist under the protection of the Apostolic See, we should deign mercifully to provide for him concerning this, notwithstanding the sentence that he incurred while crossing into England with Louis, since we absolved him from it. We therefore, wishing to provide for him after he had been absolved from the bond of excommunication, commanded through our letters the Abbot of Saint Lawrence in Oostbroek and his fellow judges that, if they found the matter to stand thus, after recalling as void whatever they found to have been attempted after an appeal of this kind, they should hear the cause and terminate it with its due end; otherwise they should remit the parties to your examination, condemning the appellant in lawful expenses.

But the proctor of the adverse party responded that the same G. was in no way drawn more than two days’ journeys outside his diocese, since the archbishop himself had established a term in such a place as was not more remote from him than is provided by the constitution of the general council. The proctor of the same count also added that the often-mentioned W. was bound by another excommunication by authority of our already-mentioned predecessor, of which he made no mention at all in the letters directed to the already-mentioned Abbot of Saint Lawrence and his fellow judges. Wherefore the proctor of the often-mentioned count petitioned that for the aforesaid causes we decree them void and empty. But because in so great a contradiction among the persons proposing the truth is not established to us, we command your discretion that, if the proctor of the said G., within three months after the first term assigned to him by us concerning this, shall be able to prove the exception that he proposed before the often-mentioned archbishop—namely, that the mandate expired while the matter remained untouched, or that he was drawn into a cause more than two days’ journeys away, contrary to the constitution of the general council, or even that the Count of Loon himself was excommunicated at the time when he obtained our letters to you, as the proctor of W. himself explained before us—you, decreeing that the appeal of the said G. was lawful, shall take care to stay proceedings in the matter. But if the proctor of the often-mentioned W. fails in proof of the said exceptions, or if the count himself sufficiently proves that the said W., at the time the letters were obtained for him, was bound by an excommunication other than that which he incurred when crossing into England, you shall proceed in the matter itself, appeal postponed, according to the form delivered to you, notwithstanding the letters obtained for the Abbot of Saint Lawrence and his fellow judges, or any letters that may appear to have been obtained from the Apostolic See with the tenor of the present letters suppressed.

Latin source headnote: For the defense of his church, someone can oppose an exception of excommunication, perjury, or another lawful exception, and cannot be repelled through a replication of excommunication or perjury.

The same, to the Archdeacon of Translig., the Official, and I., Canon of Tours.

The beloved sons S., P., and G., canons of the Church of Saint Mary of Graçay, showed by a petition transmitted to us that, when M., a canon of the same church in the Diocese of Bourges, drew them into a cause before the dean and Master Hervé, Canon of Auxerre, delegated by us, concerning the fact that they opposed the election made by certain canons of Graçay of him as prior of the aforesaid church, and they proposed before the aforesaid judges that the said M. ought not to be heard because he was excommunicated and entangled in the crime of perjury. And when the said M., objecting by way of exception and replication that the aforesaid G. and P. had committed perjury and that S. was excommunicated, endeavored through this to refute their exception, their proctor proposed that, although the judges had assigned the aforesaid M. a term to prove his replication, nevertheless his proof concerning this ought not to be received, because, even if the perjury objected against the aforesaid canons were proved, nevertheless they were not on that account to be repelled from defense of their church. He also added that the excommunication of the aforesaid S. could not be replicated with effect against the excommunication objected by way of exception against the said M., both because S. showed this by the letters of his absolution, and because the exception opposed and proved against M. himself would repel him from acting, while the replication would by no means repel the often-mentioned S. from defending, even if it were proved. Wherefore he petitioned that, omitting proofs of a replication of this kind—in which, even if it were proved, labor would, as was shown above, be consumed in vain—they should receive the proofs that they should determine to produce to prove the matters objected against M. himself. But the judges themselves ruled interlocutorily that they would first receive proofs concerning the aforesaid replication, on account of which an appeal was made to our hearing. Wherefore, we command your discretion that, if the matter stands thus, after recalling as void, etc.

Latin source headnote: If the ordering of a church is retarded through an exception of suspension against which nullity is replicated, absolution is made as a precaution.

Gregory IX, to I. and M., Canons of Prague.

Of the Apostolic See—(And below:) Indeed, while you were established at the Apostolic See, certain sentences of suspension and removal from benefices were objected against you by way of exception. Although you proposed that you could prove through suitable witnesses and instruments that they were null, nevertheless, lest it happen that the ordering of the Church of Prague, on account of which you had come, be retarded by the obstacle of an objection of this kind, we relaxed the sentences themselves as a precaution. But because, etc. [cf. c. 9, On Excommunicated Clerics, V.27. Given on the fourth day before the Ides of May, in the year 1227.]

Latin source headnote: Notwithstanding an exception of excommunication, a rescript obtained in a cause of appeal is valid, even though it makes no mention of an excommunication rendered after an appeal from a grievance. This it says, and according to this it is a notable and singular case, from which perhaps one rule could be gathered: that it is not necessary to make mention in a rescript of something introduced after an appeal, even from an interlocutory [sentence]. Panormitanus.

The same, to the Dean of Lincoln.

The beloved daughters in Christ, the prioress and convent of Campsey, took care to signify to us that, when a question was being conducted between them on one side and the prior and convent of Bucklesham on the other concerning certain tithes and other things for which they were convened by the latter before the Abbot of Saint Benedict and his colleagues by apostolic authority, and they appealed to us from a sufficient grievance and sent their messenger to prosecute the appeal, the aforesaid judges afterward rendered a sentence of excommunication against them. Therefore, when our letters concerning the aforesaid appeal, making no mention of the excommunication, had been obtained through the same messenger for the Prior of Angles and his fellow judges, the adverse party, proposing that it had appealed because those judges denied admission of the exception of the aforesaid excommunication proposed against them by the same party, obtained our letters concerning this for the Prior of Yarmouth and his fellow judges. Before them it was proposed by way of exception on behalf of the women that, since the said sentence had been rendered after a lawful appeal and the aid of defense is known to belong to every excommunicated person, the aforementioned judges were unwilling to admit the exception of the contrary party, just as they ought not. But when the said Prior of Yarmouth and his fellow judges did not receive an exception of this kind from them, they appealed to our hearing. Wherefore we command that, if it is so, after recalling to its due state whatever you find to have been attempted after an appeal of this kind, you shall proceed in the same matter, reason going before, according to the tenor of our former mandate directed to the aforesaid Prior of Yarmouth and his fellow judges.

Latin source headnote: Even an original claimant ought not to be repelled from prosecution of an appeal through an exception of excommunication. This it says, and it is a singular case insofar as it speaks of a claimant.

The same, to the Abbot of Saint Saviour of Pavia and the Provost of Vercelli.

The chapter of Tornacens. signified to us that, when they had elected P. as their archpriest, the Archbishop of Milan, refusing to confirm the election presented to him, instituted a certain cleric Zepus as archpriest of the aforesaid church. Wherefore, when they appealed to the Apostolic See, we are said to have committed the cause itself concerning these matters to the Provost of Saint Stephen, who, confirming their election and pronouncing that the right of electing belonged to the chapter itself, absolved the adverse party from their claim. When the parties appealed from this sentence to the Apostolic See, they obtained that the cause itself be committed to you. But when an exception of excommunication was opposed by the other party against the aforementioned chapter, you, attending less providently to the fact that no one ought to be excluded from prosecution of an appeal under pretext of an opposed excommunication, since every lawful defense is reserved in judgment to an excommunicated person, wrongly decreed that the adverse party was not to be compelled to respond to them; on account of this the said chapter appealed to our hearing. (And below:) We command that, if it is so, notwithstanding an exception of this kind, you shall proceed in the same matter.

Latin source headnote: A defendant who objects excommunication against a claimant at any part of the litigation is heard; and, if he maliciously delayed, he is condemned in expenses; and granted that he does not except, the judge himself will repel a publicly excommunicated person.

The same.

A defendant who knowingly omits an exception of excommunication when dilatory exceptions are proposed is not prohibited from opposing it at any part of the litigation; this is to be observed specially in this exception, lest anyone be compelled to communicate with an excommunicated person to the peril of his soul. But if he omitted it so that the claimant might be wearied by labors and expenses, he is to be condemned in lawful expenses. Moreover, one publicly excommunicated is nevertheless to be repelled by the office of the judge even if an exception of this kind is not opposed.

Latin source headnote: An exception of a matter adjudged does not belong to a defendant absolved because he did not possess [the thing].

The same.

When your adversary has been absolved by the judge because at the time the litigation was initiated he had ceased without fraud to possess the thing sought from him, if he now possesses it, an exception of a matter adjudged does not obstruct you when you seek it anew.

Latin source headnote: A rescript obtained by an excommunicated person concerning prosecution of an appeal is valid, even though he made no mention of the excommunication.

The same.

We have decreed that our venerable brother the Archbishop of Narbonne, who, appealing from the judges to the Apostolic See because of a sufficient grievance, brought back to you our letters concerning his appeal, is to be admitted to prosecute the aforesaid appeal through the same letters, even if, at the time the rescript was obtained, he was bound by the bond of excommunication for other causes of which no mention is made therein, because it would profit an excommunicated person nothing to appeal if he could not prosecute his appeal and obtain letters concerning it.