Title XXVI: On Prescriptions

Latin source headnote: A bishop prescribes in three years against another bishop a place converted to the faith by himself; but while the church is vacant or is in schism, prescription does not run against it.

From the African Council.

It was resolved that, if anyone after the laws has converted some place to Catholic unity, if he has held it for three years without anyone seeking it back, it shall no longer be sought back from him; provided, nevertheless, that during those three years there was a bishop who could seek it back and remained silent, [he shall suffer prejudice.] But if there was none, prejudice shall not be done to the mother church; rather, when the place has received a bishop, which it did not have, it shall be permitted to seek it back within three years from that day. Likewise, if a bishop has been converted to the Catholic faith from the party of Donatus, the prescribed time shall not prejudice him; but from the day on which he was converted, he shall have for three years the power to seek back a place that belonged to that see.

Latin source headnote: It is summarized in two ways. First thus: the silence of a prelate does not harm the church until prescription is completed. Second thus: prescription does not run in invaded property. Johannes Andreae.

From the Register of Gregory, to Patricia of Italy.

Nothing profits most glorious health and beauty on the surface of the body if a wound lies hidden within. And that discord to which outward peace furnishes attendance is the more to be guarded against. But as to that which Your Excellency earnestly strives to recall to our memory in the aforesaid letters, know that it was written to you: we will to determine nothing with you concerning causes of the poor with scandal or forensic clamor. We remember that we wrote this also to you, and we know that, with the Lord helping, we restrain even ourselves from the strife of causes with ecclesiastical moderation and, according to that apostolic meaning, sustain with joy the plundering of our goods. But we believe that you know this: our silence and patience will not create prejudice in the property of the poor against the pontiffs future after me. [Hence we also, fulfilling, etc.]

Latin source headnote: Through quiet and good-faith possession of thirty years, a church prescribes a private person’s thing. This it says insofar as it speaks of a church prescribing actively, and this understanding is to be held.

Gregory.

The sanctions of the holy Fathers, establishing [this] and the human laws, have confirmed it irrefragably, and we, in the present council with all who are with us, confirm it irrefragably: that all possessions belonging to the individual provinces of our brothers, which have been possessed by them quietly and in good faith for thirty years without synodal proclamation, shall be held perpetually, and permission to be heard shall be granted to no adversary. But if some presumptuous person shall have deviated with rash mouth, because he acts against the statutes of the holy Fathers, let him be indissolubly bound by the bonds of excommunication and wholly banished from the Church and alien from the communion of the brothers.

Latin source headnote: The fourth part of tithes and funeral offerings is prescribed against a bishop if it is not paid for a space of forty years and the cathedral church was not vacant in the meantime.

Alexander III, to the Archbishop of Salerno.

As to the fourth part indeed of a tithe and the offering of the dead, a cleric appears able to defend himself from the claim of a bishop by prescription of forty years, unless perhaps in the meantime the pastoral see had lacked a pastor who ought to have exacted the rights of his church. For the Roman Church does not admit a thirty-year prescription against a church.

Latin source headnote: A possessor in bad faith does not prescribe.

The same.

It is to be guarded against with vigilant study, since the supreme measure of divine judgment has from the beginning decreed that one relinquish one’s own things and not seek another’s, lest we be possessors in bad faith of another’s estates and property, [especially] ecclesiastical property, since no ancient possession of days by divine law aids any possessor in bad faith unless he comes to his senses after he learns that he possesses another’s property, since even at law he cannot be called a possessor in good faith. For the Ephesian legislator, the paternal uncle of Origen, first imposed the force of law upon thirty- or forty-year prescription solely to avoid the sluggishness of the wretched and the error and confusion of a long time. But it has pleased us that it shall have no force either in known matters or in matters lying hidden.

Latin source headnote: One church prescribes tithes in the parish of another through a space of forty years.

The same, to the Bishop of Maurienne.

It reached our ears upon your report that two churches under your examination rather frequently litigated concerning tithes that one of them possessed in the parish of the other for forty years, and through this it thinks the latter’s action extinguished; but the other, wishing to evict them by parochial right, proposes that prescription ought not to obstruct it. Therefore, your fraternity considered that we should be consulted as to what the law is in this case. Let it therefore become known to your fraternity by the tenor of the present letters that, by divine and human law, the condition of the possessor is better, because forty-year prescription wholly excludes every action.

Latin source headnote: Laymen cannot possess spiritual things; therefore, by consequence, neither can they prescribe them. This it says, and it is alleged daily.

The same, to the Bishop of Parma.

The cause being conducted between our beloved son I., Archdeacon of Reggio, and the nobleman G. de Baiso concerning tithes that the same G. and his men are known to have in the court of Fogliano, we commit to your experience, in which we have full confidence, to be heard and terminated by means of justice. Therefore, by commanding through apostolic writings, we order your fraternity that you shall summon the parties before your presence and, the arguments having been heard and diligently learned, contradiction and appeal ceasing, decide the cause itself with its due end, notwithstanding prescription of time or a grant of an ecclesiastical or secular person, if the same G. should wish to oppose it; because, since laymen cannot retain tithes, they can prescribe them by no reasoning.

Latin source headnote: If interruption is opposed against a prescription of forty years, which alone runs against a church, each party will prove [its claim].

The same.

But we will you to know and firmly hold this: against churches the Roman Church does not admit a prescription shorter than forty years, although certain canons approve a thirty-year prescription; and a church can defend itself against a church by prescription of forty years concerning a thing that it is known to have possessed undisturbed for forty years. But if a question concerning prescription and interruption has been moved between the parties, witnesses ought to be received from either party; and, if interruption has been proved, the prescription will not bind.

Latin source headnote: Boundaries of ecclesiastical estates are prescribed through a space of forty years.

The same.

Because, upon the indication of Abbot C. of the Monastery of Saint Peter, [which is situated in a place called Baia,] we have learned that a grave question concerning [certain] boundaries has arisen between him and John, Abbot of the Monastery of Saint Lucia [situated in the city of Syracuse,] lest the contention itself be prolonged between them, we have provided that it be terminated by the determination of a land surveyor. [And therefore we wrote to Fantinus the defensor that he ought to send there to your fraternity John the land surveyor, who set out from the city of Rome for Palermo.] We therefore exhort you that, approaching with him the places concerning which there is contention [and either party being established nearby,] you shall cause it to be terminated in your presence, preserving for either party a prescription of only forty years. [But whatever, etc.]

Latin source headnote: Prescription does not run in time of hostility.

Lucius III.

From the complaint transmitted to us by the abbot and monks of Haben., we learned that, although the Church of Camenon belongs to their right, and the people of Sibin. and Vinto. are parishioners of that church, the clerics who held the aforesaid churches from N. and W. gradually withdrew every parochial right except the right of burial from the mother church. For, retaining the tithes and other revenues for themselves, they permitted only the bodies of the dead to be carried to the aforesaid church; their successors are said to contend to take away the aforesaid parochial rights. Through apostolic writings we command your discretion that, if you learn that what is asserted rests upon truth, appeal removed, you shall cause the aforesaid tithes and offerings, together with other revenues, to be restored to the aforementioned mother church, prescription not running during time of hostility, and shall henceforth restrain the aforesaid clerics from receiving them by ecclesiastical censure.

Latin source headnote: Procurations that are owed to legates and messengers of the Apostolic See cannot be prescribed.

Innocent III, to the Abbot of Ceneda.

Coming to our presence, the beloved sons, the Provost of Saint Nazarius and A., Canon of Saint Stephen, syndics and proctors of the beloved sons, the primicerius and clerics of Milan, complained gravely to us concerning the ordinaries of the greater church that, although they themselves devoutly receive and furnish procuration for the legates and messengers of the Apostolic See, the said ordinaries refuse both to furnish procuration for them and to impart aid for expenses to those furnishing it. Hence they complained that grave prejudice was generated against the clerics of Milan. For since it often happens that our messengers and legates make passage through that city, the fewer there are in furnishing their procurations, the more heavily those furnishing them are burdened; and the more persons among whom the burden of procuration would be divided, the more easily it would be borne by those furnishing it. Since we do not cease continually to keep watch for those ordinaries and others, and to minister spiritual things to all as the Lord shall grant, it does not appear why they strive to defend themselves in a special right of this kind, especially since the Apostle also says, “If we sow spiritual things for you, it is no great thing if we reap your carnal things,” and our daily insistence is the continual solicitude of all the churches, as those present and remote alike know more fully. But, willing that what presses upon all be borne together by all, by commanding through apostolic writings, we order your discretion that, unless the said ordinaries show through a special privilege of the Apostolic See that they are immune from furnishing procurations, even if for the longest time they have not furnished the service of procuration—since prescription cannot claim a place for itself in such matters—you shall decree, appeal removed, that they are bound to undertake the burden of procuration in due order. [If indeed, etc. Given at the Lateran, on the seventh day before the Kalends of March, 1199.]

Latin source headnote: A subject does not prescribe obedience against a prelate.

The same, to the Priors of Costa and Saint Donatus.

Since it is not permitted for the members to withdraw from the head, we cannot sufficiently marvel that, as was intimated to us upon the report of our venerable brother the Archbishop of Braga, although your churches are situated in his diocese, nevertheless you, putting forward no privilege of exemption, contumaciously refuse to obey him as your bishop. Therefore, since to resist is the crime of divination and to be unwilling to acquiesce is the wickedness of idolatry, unwilling to sustain that subjects do not obey their prelates as they are bound, by the common counsel of our brothers and through apostolic writings we command and strictly order in virtue of obedience that henceforth, without any contradiction, you shall furnish the aforesaid archbishop and the Church of Braga the obedience and reverence owed, as the other clerics of his diocese do, notwithstanding prescription of time. Otherwise, we shall hold as ratified the sentence that he shall reasonably render against you or your churches on this account and, with God as author, shall cause it to be inviolably observed. [Given at the Lateran, on the twelfth day before the Kalends of August, 1199.]

Latin source headnote: Concerning rights belonging to the Roman Church, only a hundred-year prescription runs.

The same, to the Nobleman Matafelon.

It reached the hearing of our apostolate upon your complaint that the castellan of the same castle denied returning certain rights from the castle of Palazzuolo, granted to you by Pope Alexander, our predecessor of happy memory. Furthermore, we caused you and the beloved son Leo, consul of the castle itself, who were established in our presence on this account, to be heard diligently. It was indeed proposed on your behalf that the aforesaid Pope Alexander, our predecessor, granted to you in the already-mentioned castle of Palazzuolo each year forty solidi of Pavia denarii, which the Roman Church was accustomed to receive there annually; and also the meals, banns, pleas, forfeitures, and all rights that the Apostolic See had there. But the castellan of the same castle most steadfastly asserted that they were owed to you for no reason. To prove this, you introduced the privilege of the aforesaid Pope, in which it is expressly contained that all the aforesaid things were granted to you by him with the common counsel of the brothers, and the census book of the Roman Church, in which it is similarly contained, as the consul himself with another fellow castellan acknowledged in our presence, that the people of Palazzuolo are bound to pay each year to the Roman Church forty solidi of Pavia money. You also endeavored to prove this through witnesses who said that they had seen the aforesaid census paid to the messengers of the Roman Pontiffs for the last fifty years. Moreover, you endeavored in many ways to prove other articles through many witnesses.

But among other things it was responded in opposition that neither the Pope Alexander’s privilege nor the census book brought you any advantage, since you had not used the Alexander’s privilege for a space of thirty years, and the census book was suspect because it had not been received in our chamber but in that of Master G., cardinal deacon of Saint Adrian at that time, and the scriniarius had written the statements of the witnesses otherwise than they had spoken them. We therefore, the attestations, allegations, arguments, and instruments of either party having been diligently heard and learned, attending more to the authority of the privilege than to the depositions of witnesses, considering also the census book, which we did not hold suspect although it was found not in our chamber but in that of the Cardinal of Saint Adrian, who had received it from the chamber of Blessed Peter when he was chamberlain, and not believing that the scriniarius, since he had sworn to execute his office faithfully, had written anything other than what was said by the witnesses, considering moreover what is far stronger, that the matter itself principally touched the Roman Church, against which no prescription runs except one of a hundred years, by the counsel of our brothers condemned the adverse party in the payment of the aforesaid census, namely forty solidi of Pavia money, and the other things sought, firmly enjoining it by apostolic authority that it shall pay to you without difficulty—not as to you, but as to the Roman Church, by whose authority you ought to receive it and of which, on account of the aforesaid benefices, you also exist as vassal—what is established to have been adjudged by us with the common counsel of our brothers.

Latin source headnote: From the hundred-year prescription, which alone runs against the Roman Church, the periods of schisms are to be deducted.

The same, to the Abbots Hel. and Gu.

Since by other letters we commanded you that, in the cause known to be conducted between the Church of Hildesheim on one side and the Church of Gandersheim and the Roman Church on the other, you ought to receive witnesses to prove prescription, by notification of the present letters we have determined to declare to you that, after prescription against the often-mentioned monastery and its liberty is said to have begun, the rupture of three schisms against the Roman Church intervened. Therefore, although it has been established by both legal and canonical definition that against the holy Roman Church, which rejoices in a special privilege, no prescription except one of a hundred years can claim a place for itself, nevertheless we do not will the periods of intervening schisms, which according to the order of law impede the course of prescription, to be computed in any way, but, diligent consideration having been applied, to be deducted from the computation itself. [Given at Ferentino, on the fifteenth day before the Kalends of July, in the ninth year, 1206.]

Latin source headnote: An inferior prelate can prescribe the whole episcopal right in certain churches of his diocese; nevertheless, the time during which the cathedral church was vacant is subtracted from the prescription.

The same, to the Bishops of Ely and Rochester.

Having heard and understood the merits of the cause being conducted between our venerable brother the Bishop of Worcester and the beloved son the Abbot of Evesham concerning the churches situated in the Vale of Evesham, which the bishop asserts belong to him by diocesan law, while the abbot [asserts] that they are altogether exempt from his jurisdiction, we learned clearly that these churches were not withdrawn from episcopal jurisdiction through privileges of the Roman Pontiffs, unless perhaps the Vale of Evesham is that place which, having been endowed with liberty by two kings, namely Cenred and Offa, Pope Constantine of good memory endowed with liberty, as is contained in his privileges. But they are proved through witnesses to have been possessed with full right by the Abbots of Evesham for so long a time that they appear lawfully to have prescribed episcopal right in them, unless perhaps in the meantime the Church of Worcester was vacant for so great a period that, the time of vacancy being subtracted, the prescription is not at all completed. [Although the cause has been concluded on either side, nevertheless, because either party lost proof that it asserts was necessary, we, considering that either church discharges the function of a minor, after equity was weighed restored either against the other for proving the omitted argument, lest either be injured by grave loss on account of negligence of this kind.]

Wherefore, through apostolic writings, we command your discretion that, after inspecting the privileges of Kings Cenred and Offa, which the abbot asserts that he has concerning the aforesaid liberty, if through them it shall be established that the Vale of Evesham is that place which Celestine, our predecessor, endowed with liberty, you shall absolve the Evesham abbot from the claim of the Worcester bishop concerning the aforementioned churches and, adjudging that they are subject with full right to the abbot, shall impose perpetual silence upon the bishop concerning them. But if the abbot fails in this proof, you shall hear the proofs concerning the time during which the episcopal see was vacant within the forty years; and, if it is established to have been vacant for so long a time that, it having been subtracted, a forty-year prescription is not completed, you shall adjudge episcopal right in those churches to the bishop and impose perpetual silence upon the abbot concerning it. But if the bishop does not prove an exception of this kind, nevertheless, because he proved interruption concerning the Pentecostal procession in the village and Church of Morton, the reception and procuration of the archdeacon, and also payment of Peter’s Pence in the Vale of Evesham, and also concerning cognizance of matrimonial causes, the suspension of a chaplain in the aforesaid village of Morton, and the interdict of the chapels in the aforesaid village of Evesham, you shall adjudge episcopal right concerning these matters to him—provided, nevertheless, that concerning suspension and an interdict of this kind, interruption was made within forty years—imposing silence upon him in the other matters that the abbot is proved to have prescribed. [But if perhaps they are unwilling, etc. Given on the third day before the Nones of February, 1205.]

Latin source headnote: A subject cannot prescribe against a superior either visitation or the procuration owed by reason of visitation in himself, although another could prescribe both in the person of another.

The same, to the Bishop of Paris.

When our venerable brother the Archbishop of Sens was visiting the Province of Sens by the obligation of his office, making passage through the Diocese of Paris, he had need to turn aside to the churches of the Abbot of Saint-Magloire, the Prior of Castres, and certain others of the same diocese. When he sought from them the procuration owed to him, they inhumanly denied the exacted procuration, altogether contemning to pay it, alleging only this in defense of their denial: that they did not remember having paid a procuration of this kind to the predecessors of the same archbishop, nor that it had ever been sought from them. But the same archbishop, on account of the procuration less than reasonably denied to him, suspended them from execution of their offices by authority of a rescript that he had obtained from the Apostolic See concerning this; afterward, because they did not observe the sentence of suspension, he bound them with the bond of excommunication. We perceived all this to be contained in the letters of the archbishop himself, who sought that the same sentence be confirmed by apostolic authority.

We therefore, considering their foregoing allegation altogether null—since it was impossible to prescribe against a procuration owed by reason of visitation, just as prescription can in no manner run against visitation itself, even if another could prescribe both against him—[by commanding] through apostolic writings, we order your fraternity that you shall cause the sentence that the aforementioned archbishop rendered against contemners of this kind, both by authority of our rescript and by the ancient custom of the metropolis, to be inviolably observed throughout your diocese until worthy satisfaction, because according to divine law an ox treading grain is not to have its mouth closed, and, according to the Apostle, “if one sows spiritual things, it is no great thing if he reaps carnal things, since no one is compelled to serve as a soldier at his own expense.” For if they wish to object and prove anything other than what was alleged above against the intention of the often-mentioned archbishop, we shall cause justice to be exhibited to them. [You also, etc. Given at the Lateran, on the fourth day before the Kalends of December, in the fifth year of our pontificate, 1202.]

Latin source headnote: One who possesses in another’s name does not prescribe; nor even does one who possesses in his own name unless he has good faith and a just title, if a presumption is against him. This it says according to Johannes Andreae, with the addition supplied by Panormitanus.

The same, to the Archbishop of Pisa.

If by diligent meditation you had weighed what that ark of the tabernacle signifies, in which, at the Lord’s command, the rod and manna were deposited together with the tablets, you would by no means reckon that we wrote harshly or severely to you, since in the breast of the Roman Pontiff, who by God’s authority is known to preside over all prelates of the churches, there ought to be both the rod of correction and the manna of sweetness, so that with the one he may cherish the humble and devout, but with the other strike rebels and punish delinquents. Hence it is that wine and oil are applied to the wounds of that wounded man whom the Samaritan brought into the inn, so that, unless the wounds of delinquents are soothed by the oil of admonition and exhortation, the wine of ecclesiastical severity may follow. Therefore, although from the matters that we have premised, our admonitions and mandates having been contemned—by which we frequently endeavored to induce your fraternity to absolve our beloved son W., Margrave of Massa and Judge of Cagliari, from the oath of fealty that you caused to be furnished to you and the Church of Pisa, so that, notwithstanding it, he might swear to us and the Roman Church—we could perhaps have proceeded against you not only with severity of words but with execution of ecclesiastical discipline, since the Judicate of Cagliari belongs to the right and property of Blessed Peter, just as all Sardinia belongs immediately, and nothing has been reasonably alleged on your behalf why it was permitted to you to exact an oath of fealty for yourself or your church from the Margrave of Massa, Judge of Cagliari. (And below: [cf. c. 12, On the Competent Forum, II.2.])

But concerning the other article, you responded in this way: that from the time when you were assumed to the office of prelate, you received the oath of fealty for the Apostolic See from the judges [of Sardinia,] knowing that Villanus the archbishop, your predecessor, a man of great authority and integrity who existed for a long time as a cardinal in the Roman Curia and knew its customs and statutes more fully, and all your predecessors, who were men of great authority, had thus equally held and acted by ancient custom, since nothing had hitherto been objected to you or them by the Apostolic See. We therefore, having more fully considered these and the other things that the beloved son Master Bondinus, your messenger, wished to propose, did not understand that you or your church was supported concerning this by any right through which you could reasonably be excused from execution of our mandate, since you do not show authority of the Apostolic See through which you and your predecessors exacted oaths of fealty from the Judges of Cagliari, nor are you fortified by any prescription; since, according to your confession, neither the Church of Pisa nor you were in quasi-possession of the right to exact an oath of this kind, which you confess was received from those judges for the Apostolic See. Through this it is established that the Roman Church was always in quasi-possession, since the oath was exacted and furnished on its behalf through the ministry of you and your predecessors, and one is also said to possess in whose name possession is held.

But if it should be said that the oath was exacted in your name and that of your predecessors, and not in our name and that of the Roman Church, it could be inferred that the oath furnished concerning preservation of the right and honor of the Apostolic See had been violated. Hence what had knowingly been obtained contrary to an oath of this kind could not be lawfully retained, because even according to this prescription could have no place, since in prescription of ecclesiastical property good faith and a just title are required. And even if prescription could have had a place, we do not believe that a hundred-year prescription, which alone runs against the Roman Church, can be proved. [But because, etc. Given at Rome at Saint Peter’s, on the second day before the Nones of May, in the ninth year, 1206.]

Latin source headnote: An abbot can prescribe episcopal rights in chapels; nevertheless, he prevails only in those rights that he has prescribed. This it says as regards the title.

The same, to the Bishop of Lucca.

When formerly, brother Bishop, litigating in our presence with the beloved sons, the abbot and monks of Saint Saviour of Fucecchio, concerning the parish church of Salamazana and its adjacent chapels, you claimed institution [of clerics] in them and other matters belonging to episcopal right, to establish your intention you principally alleged the common law, by whose authority you said that all spiritual things in the aforesaid places, which are situated in your diocese, belonged to you as diocesan bishop. You further alleged the award concerning this promulgated by the Bishop of Pistoia of good memory and by the archpriest and primicerius of Lucca, who had been elected by the parties, which had been commonly approved by either party. [In it it is expressly contained that, after any professed religious in the same parish church has been elected as plebanus by the abbot, he shall be presented to the Bishop of Lucca to receive from him the favor of confirmation and promise to the same bishop, together with his priests, manual obedience under this form: that he shall go with his people to the synod, chapter, and also the litanies at the Church of Saint Martin; answer to the bishop in an annual procuration and concerning the fourth part of the tithes; when necessary, supply him aid; and observe his sentence of interdict rendered against the people of Fucecchio; and, if the plebanus or his priests should perhaps offend the Church of Lucca in the matters contained in the award, and the abbot, having been required once or twice, did not cause the offense to be amended within twenty days, it should be permitted to the Bishop of Lucca to judge them for that fault as his own priests.]

But in order to refute your intention, the aforesaid abbot exhibited the privilege of Pope Gregory VII, our predecessor of happy memory, which appeared to precede the aforesaid award by much time and through which both the Fucecchio monastery and the aforesaid parish church and chapels appeared to have been endowed with liberty. [For in it is contained that our already-mentioned predecessor instituted the Church of Salamazana with the adjacent chapels granted to the aforementioned monastery, so that no archbishop or bishop should dare to molest the place itself or the aforesaid parish church and chapels, or to excommunicate or even judge the priests established there by the abbot then in office, but that, existing under the protection, immunity, and judgment of the Roman Pontiff, they should take care to serve almighty God securely.] The said abbot also used privileges of other Roman Pontiffs, namely Urban, Paschal, Calixtus, Eugenius, Anastasius, Adrian, Alexander, and Lucius, obtained after the award was promulgated, who appeared to grant him privileges of liberty. [For this is found among other things in the privileges of each: “We also decree that it shall be permitted neither to any bishop or archbishop nor to their ministers to excommunicate or place under interdict the place itself”—namely the Monastery of Fucecchio—“or its monks, or the adjacent churches of Salamazana with their chapels, or the priests established there by the abbot, without the cognizance of the Roman Pontiff.”]

The said abbot further proposed that, even if the aforesaid matters belonged to you by common law, nevertheless it was established that both he and his monastery were fortified concerning them by lawful prescription. Through his own witnesses and those of your party, who by our mandate had been produced on either side before the beloved son, the Prior of Saint Fridianus of Lucca, he said that it was proved that his monastery had enjoyed peaceful possession of all the foregoing for forty years and more. He further alleged that no prejudice could have been generated against the monastery through the often-mentioned award, both because the greater and sounder part of the chapter of the same place in no way consented to the aforementioned submission to arbitration and because it was not at all proved that the authority of the Roman See, to which the monastery and churches belonged, had acceded.

To these things, however, it was responded on your behalf that faith was not to be given to the privilege of Pope Gregory, as manifestly suspect. For it was found erased in that part of itself in which the force of the question existed, namely, where mention is made of the chapels. You further proposed that the same abbot ought to receive no advantage through the other privileges, since they appeared obtained by surreption because they make no mention of the aforesaid award, approved by the parties, which had passed into the authority of a matter adjudged. You added that you could not be repelled by the objection of prescription by the adverse party, because, although certain witnesses depose that they remember from a time of forty years and add that they saw the monastery enjoy liberty in the aforesaid places concerning those matters that belong to episcopal right, nevertheless, through depositions of this kind, faith is not made concerning continuous possession for forty years, since these two things can sufficiently concur: that the witnesses remember from a time of forty years and saw the monastery in possession of the aforesaid matters only for the last ten years.

But the other party, considering this frivolous, responded that, even if some witnesses thus use doubtful words, nevertheless there are several witnesses who openly testify that they saw the aforementioned monastery in continuous possession of all the aforesaid matters for forty years and beyond. Against this your party proposed in replication that, although forty-year prescription were established, nevertheless the time of the schism that was shown through witnesses to have intervened in the Church of Lucca ought deservedly to be subtracted from the computation. The other party responded in opposition that, although faith had been made concerning a schism that intervened, nevertheless, since it was in no way shown how long it lasted and it could have lasted for a short time, the objection of prescription could not on this account be effectively impeded, especially since prescription of forty-five years was proved through several witnesses.

We therefore, having perspicaciously understood these and the other things proposed on either side before us, because the aforesaid abbot sufficiently showed that his monastery was fortified by lawful prescription concerning the institution, destitution, and ordination of the plebanus and clerics; baptism; penance in lighter faults; burial; receipt of tithes; celebration of divine offices in both the parish church and the aforesaid chapels; excommunicating, placing under interdict, and also absolving—we determined, by the counsel of our brothers, that the abbot himself was to be absolved from your claim concerning the already-mentioned articles, imposing perpetual silence upon you concerning them; but concerning all other matters known to belong to episcopal right, we condemn the same abbot by sentence as regards the aforesaid parish church and chapels, according to the tenor of the award. [Let no one therefore, etc. Given at Ferentino, on the second day before the Kalends of November, in the eleventh year of our pontificate, 1208.]

Latin source headnote: One who, after prescription has been completed, obtains a contrary privilege and uses it renounces the prescription. If the prescription was not completed, he has bad faith and therefore does not prescribe.

The same.

Coming to our presence, the beloved son [G.,] Abbot of Saint Martin of Pannonhalma, [showed us by his complaint that our venerable brother the Bishop of Veszprém exempted conditional persons, who furnish certain services to him, from full payment of tithes and, although he has jurisdiction over them, does not compel them by pontifical authority to pay the aforesaid tithes to him in full and to make fitting satisfaction concerning those withdrawn; and that he refuses to furnish him counsel and aid in expenses and other things against woodland people dwelling at the outermost boundaries of the aforesaid parish, who withdraw themselves from payment of tithes. Wherefore he humbly petitioned that we should deign to enjoin the same bishop by apostolic authority not to attempt this henceforth. He petitioned further that the same bishop should prohibit the priests of that parish from admitting to divine offices certain persons who do not pay tithes to him as they are bound, with a servile condition falsely objected as their excuse, or bell-ringers and funeral attendants delinquent in the same article, or receiving from them any part of the tithes, while furnishing him fitting satisfaction for the things withdrawn. He humbly supplicated that, if the said bishop did not take care to effect this, we should command it to be done through judges delegated by us, compelling the bishop to make fitting satisfaction for the aforesaid matters if the said chaplains presumed to attempt this by his authority. He petitioned, moreover, that the same bishop should not permit parishioners of his chapels to be received into other chapels as to spiritual jurisdiction and the fourth part of tithes, making satisfaction to him for the things withdrawn if anything in this had hitherto been presumed by his authority. Otherwise, he should cause fitting satisfaction concerning these matters to be exhibited to him by his chaplains; and, lest any doubt arise concerning the parishioners, he petitioned by distinguishing thus: that the aforementioned bishop should not withdraw the parishioners of the villages of Fajsz and Görbe from the Chapel of Táp; but should not withdraw from the Chapel of the Swineherds the parishioners of the estate of Dominic de Mogh, of the king’s udvornici, and of the village of those who give martens to the king; prohibiting priests from receiving any caps or cubuli of wine from the conditionarii of the king or queen, who are commonly called royal servants, while permitting the abbot himself to receive them; and also compelling the king’s archers and Bisseni to pay the tithes in full.]

The same abbot afterward [also] sought from us and humbly petitioned that the Bishop of Veszprém should not impede, or cause to be impeded, all those who dwell in the parish or county of Somogy from paying him tithes from all the things they possess, as is more fully contained in the privileges of Pope Paschal, our predecessor of happy memory, and of the holy King Stephen. But the aforesaid bishop, established in our presence, on the contrary petitioned that we cause the tithes of the county of Somogy situated within the boundaries of his diocese, which the same abbot retains, to be restored to him, unless the said abbot showed by some special right that he justly possessed them, commanding that, when he visits the said county, the bishop be furnished procuration in its churches by the same abbot. [He further petitioned that the fourth part assigned to building be restored to him for repairing churches; sought that the chapels in the village of the swineherds and Saint Ladislaus of Fizgoi be destroyed as constructed without the authority and consent of the diocesan bishop; and sought back the Church of Keurishyg, in which the said abbot usurps spiritual jurisdiction for himself, and also the Church of Táp, in possession of which the same abbot had confessed that he was. Asserting that reconciliation of penitents and ordinations of clerics belonged to him, he humbly petitioned that the chaplains and people of Saint Martin situated in the Diocese of Veszprém should receive chrism, holy oil, and the other ecclesiastical sacraments from him as their diocesan, leaving cognizance of spiritual causes to him.]

But we, having understood through our venerable brother [Hugolinus,] Bishop of Ostia, whom we granted to the parties as auditor, the things that had been proposed before him, decree that the objections proposed by [the] bishop against the privileges of the aforesaid Pope Paschal and the holy King Stephen, to which the abbot sufficiently responded, are invalid, so that, notwithstanding them, the privileges themselves shall be reckoned valid if the authentic instrument of the aforesaid king shall have been found to be such as the transcript thereof presented to us under the bull of our dearest son in Christ, the illustrious King of the Hungarians; but how far it avails to establish the intention of the abbot, we shall decree at the opportune time. [Meanwhile, nothing shall be altered concerning the status of the monastery according to the receipt of tithes that the same monastery possesses.]

But chrism, holy oil, consecrations of altars or basilicas, and ordinations of clerics who are to be promoted to holy orders, the clerics of the churches or chapels of the monastery itself, which is situated in the Diocese of Veszprém, shall seek from the Bishop of Veszprém, provided that he is Catholic, has the favor [and communion] of the Apostolic See, and wishes to exhibit them freely and without any depravity; otherwise, they shall have free faculty to receive them from another Catholic prelate whom they prefer, as we perceived to be contained in the privilege of the said Paschal and of Pope Alexander, of good memory, our predecessors, notwithstanding the privilege of Pope Clement of happy memory, through which the privileges of his predecessors were not derogated, since he made no mention of them, especially since Clement himself granted that privilege saving the institutions not only of the Roman Church but even of its legates.

Nor could the prescription that the same abbot opposed in his own support obstruct, because, if the prescription was completed when the Abbot of Saint Martin obtained the privilege from Pope Alexander, he appears to have renounced the right of prescription, especially since before us he used that privilege, which contradicts his intention as to this article. But if the prescription was not yet completed but was in the process of prescribing, after a privilege of this kind had been obtained he did not have good faith, and therefore according to the canons he did not prescribe. [Moreover, the interdicted persons, etc. Given at the Lateran, on the fifth day before the Nones of March, in the fifteenth year of our pontificate, 1212.]

Latin source headnote: In neither the canonical nor the civil forum is prescription with bad faith valid.

The same, in the general council.

Because everything that is not from faith is sin, by synodal judgment we define that no prescription, either canonical or civil, shall be valid without good faith, since every constitution and custom that cannot be observed without mortal sin is generally to be derogated. Hence it is necessary that one who prescribes have no consciousness at any part of the time that the thing belongs to another.