Title XXVII: On Sentence and a Matter Adjudged

Latin source headnote: A sentence rendered contrary to laws or canons does not bind, nor is it necessary to appeal from it. Panormitanus.

Gregory.

A sentence pronounced contrary to laws or canons, although it is not suspended by an appeal, nevertheless cannot subsist by the law itself. But after, by way of superabundance, it is established that an appeal was also extended to you, we marveled why you did not even send men who could have rendered an account of your right.

Latin source headnote: Litigations ought to be terminated quickly.

The same.

To terminate the controversies of disputants by a swift sentence [without doubt] accords both with equity and with rigor. [Therefore, because, etc.]

Latin source headnote: A priest is not to be deposed without just cause.

The same.

A concordant sentence of priests cannot remove anyone from the priestly grade except for just causes. [We exhort, etc.]

Latin source headnote: Someone justly petitions that a sentence be confirmed by the Pope if it was rendered justly and reasonably.

Pope Leo.

Let the things that have been defined justly and reasonably according to ecclesiastical custom be strengthened also by our sentence. [Given on the fourth day of August, in the current year, 446.]

Latin source headnote: A judge appointed over execution of a sentence admits an exception of fraud or nullity of the sentence, not to the effect that he pronounces upon it, but that he transmits the matter to the superior who judged, if he finds it probable. This it says notably.

Alexander III, to the Archbishop of York.

For the rest, know that, if we command that a sentence rendered by us be put into execution by someone and fraud has intervened, the executor does not have faculty to take cognizance of the whole matter, but it will be necessary that the questions that arise be brought to the Apostolic See.

Latin source headnote: For a defendant condemned to delivery of possession, it does not suffice to deliver a pledge in place of possession itself.

The same, to the Bishop of Norwich.

When possession has been adjudged to certain persons, it does not suffice that pledges be given to them unless they enjoy corporal possession.

Latin source headnote: A sentence rendered against a marriage never passes into a matter adjudged; hence it is revoked whenever the error is established.

The same, to the same and V., Archdeacon.

W., bearer of the present letters and your parishioner, showed us by his notification that, when in the face of the Church he had lawfully betrothed a certain woman, a widow named A., and carnal union followed, scandal arose between them, on occasion of which the aforesaid man withdrew the conjugal debt from her. But the blood relatives of the already-mentioned woman, taking this ill, moved a question before you, proposing that he had taken the woman as wife when unwilling and resisting, and not existing at an age suitable for marriage. And because the same man, as is proposed to us, desired to lead a dissolute life, at length, through the intervening effort of either, they were separated less than reasonably. Therefore, unwilling that marriages canonically contracted be dissolved through a certain levity, by commanding through apostolic writings, we order your discretion that, if it is established to you that they were not lawfully separated by a judgment of the Church and that the Church was deceived, you shall cause them to remain together as man and wife, contradiction and appeal ceasing.

Latin source headnote: A sentence rendered against a church under pretext of an iniquitous custom is retracted.

The same, to T. and the Clerics of Saint Anastasia of Verona.

When the cause being conducted between you and the laymen G. and A. concerning a certain house sold to them by your archpriest had been brought to the examination of our beloved son I., cardinal priest of the Basilica of the Twelve Apostles and then legate of the Apostolic See, after an appeal had been interposed to us and delays received, because within the term fixed for you, son T., to prosecute it you had not set out on the journey of coming to us, he, pronouncing sentence against you, took care to adjudge the aforesaid house to the aforementioned G. and A. according to the custom of the city of Verona. Then, when the cause had been brought to us by appeal, the Bishop of Brescia, delegated by us, promulgated a sentence against you according to the same custom, with the form of the canons spurned, as the aforesaid legate had done. But we, when at length either party had presented itself to our sight, more diligently considering that, although the authority of usage or custom is not small, nevertheless it never prejudices truth or law, revoked the aforesaid sentence by the common counsel of our brothers and, absolving you from their claim, adjudged the aforesaid house to you and your church by apostolic authority.

Latin source headnote: An iniquitous sentence is retracted by a superior, although the cause was committed with appeal removed. But if it contains manifest iniquity, it is null. This it says on the understanding that it sets forth two cases.

The same, to the Archbishop of York.

Among the other—(And below: [cf. c. 2, On the Office of a Delegated Judge, I.29.]) Likewise, when some cause is committed with appeal removed and an iniquitous sentence is rendered, it is necessary that it be annulled; nor ought one to stand by it if it contains manifest iniquity.

Latin source headnote: A sentence rendered against an absent person who is not contumacious is not valid in a matrimonial cause. This it says on the understanding that this woman was not contumacious. Panormitanus.

Clement III.

The tenor of your letters transmitted to us shows that, when in the archpresbyterate of Saint Germanus a matrimonial question was being conducted between R. and the woman M. and had been committed to our venerable brother the Bishop of Chieti, because that land was then disturbed by the death of the king, the woman, taking precaution for herself against the evident danger of the roads, could not present herself to the judge, by whom she had now been cited a third time, although she transmitted a messenger with an excuse; nevertheless, the same bishop afterward absolved R., while the woman was absent, from her claim. But the same woman, coming to our presence, obtained letters from us to you that you should take cognizance of the cause and terminate it with its due end, since it could not be decided before the aforementioned bishop because of the disturbance of the land. But the said R., summoned by you to the cause, did not attend, putting forward illness. But because on the following night he presumed to join another woman to himself, you promulgated a sentence of excommunication against him. Afterward, absolved from it and coming to you in his own person, he showed the letters of the aforementioned bishop, by which it appeared that he had been absolved on this account from her disturbance, because the woman did not approach the presence of the bishop.

Therefore, because, as you propose, the same woman daily cries after you with tears and offers her witnesses to prove that the same R. publicly betrothed her with a betrothal ring, you humbly petition to be instructed as to what you ought to do concerning these things. We therefore respond to your inquiry in this way: notwithstanding such unlawful absolution that the bishop made, you shall proceed in the cause, with the impediment of appeal removed, and decide it with its due end, strictly prohibiting the same R. under penalty of excommunication from approaching the woman whom he superinduced before the cause has been decided. Moreover, you shall not reject the witnesses whom the aforesaid M. shall determine to produce from her own kindred, or others, provided that they are otherwise suitable, since blood relatives are accustomed to know their own kinship better than strangers, both through charters, witnesses, recitation of their elders, or other arguments.

Latin source headnote: A sentence of separation duly rendered in a matrimonial cause is not revoked solely upon the confession of a spouse asserting the contrary, but in the meantime one stands by it until the contrary is lawfully shown. Thus Panormitanus summarizes it, so that it contributes something new.

The same.

The blood relatives of E., bearer of the present letters, as you intimated to us by your letters, having produced witnesses at law under your examination, lawfully proved spiritual co-parenthood between her and her husband in such a way that you pronounced a sentence of separation between them. But when the aforesaid E. afterward confessed to you that in truth she had not been his co-mother before the sentence, but that after the separation she contracted spiritual co-parenthood with him, she at length hastened into a second marriage. Therefore, because, now recognizing her guilt, she awaits our counsel concerning this, and you also sought a response from us in this matter, by the present page we respond to your fraternity that one is not to withdraw from a sentence reasonably promulgated by a judgment of the Church because of the confession of the woman alone, unless perhaps the contrary were lawfully proved. Finally, you shall impose upon the same woman, who confessed her delict to you, that penance which, according to the quality of the person and the quantity of the excess, you see should be imposed upon her.

Latin source headnote: If the Pope, contrary to his own pronouncement, confers a benefice while concealing this, the collation is said to be surreptitious and does not bind.

Innocent III, to the Archdeacon and Sacristan of Maguelone.

When formerly, [as we have learned,] the Bishop of Maguelone of good memory, [having obtained the assent of the beloved sons P. de Agrifolio, archdeacon, and B., claustral prior,] nominated our beloved son P. of Castelnau to the vacant archdeaconry of the same church, while the provost prohibited by interposed appeal that anyone be instituted there unless a double vote had first been granted to him, the bishop [both because he said that it was contrary to the ancient custom of the Church of Maguelone and the common law of the canons for anyone to claim for himself the vote of two persons in the same church, and because from an indulgence of Pope Celestine, our predecessor of happy memory, which he caused to be read in the chapter while the provost was present, he proved that it was granted to him that he should confer a vacant archdeaconry or sacristy, notwithstanding contradiction or appeal, if nothing reasonable and canonical could lawfully be objected and proved against the person nominated by him,] invested the said P. with the archdeaconry through his ring, placing him corporally in the office of archdeacon. But the provost, agitated by the goads of indignation, [afterward] presumed to nominate another person to the same archdeaconry.

When, on occasion of this act, both the provost and the aforesaid P. presented themselves to the apostolic sight, [and received as auditors in their questions us, then established in a lesser office, and our beloved sons B., cardinal priest of the title of Saint Peter in Chains, and M., of good memory, cardinal priest of the title of Saints John and Paul, the provost objecting that the institution by the bishop ought to be annulled because it was made after appeal, contrary to the definition of Pope Alexander, our predecessor of happy memory, and by one suspended, the aforesaid P. responded, as he asserts, to each point in this manner: namely, that it was established that the appeal itself was of no moment, both because an appeal had been made by a suspended person—which he said that he wished to prove immediately—wherefore it was not his concern to appeal, and because an appeal interposed contrary to the said indulgence did not bind; and because in the form of appeal he expressed a cause prohibited at law, namely that of a double vote or dignity, which according to the canonical sanctions ought to be committed to no person, however experienced. Hence he proved from a consultation of Pope Alexander of happy memory that deference was not to be given to such an appeal. He firmly asserted that the constitution of Henry, formerly Bishop of Albano, under pretext of which the provost had usurped the dignity of senior prior, could not protect him, since in it it is expressed more clearly that henceforth there should be no senior prior in the Church of Maguelone. Hence it followed that neither the provost nor another could in any way claim that dignity for himself, especially since it is expressly contained there that the provost ought not to have the dignity of prior but only care concerning correction of excesses and errors. For if he had wished a dignity to be understood where he placed “care,” he would have expressed the term “dignity,” as he said could be proved from a consultation of our aforesaid predecessor Pope Alexander. From the words of the constitution itself, however, he showed that the provost ought to have received the said care from the hand of the bishop. Moreover, from the letters of the bishop complaining concerning this, it was clearly evident that the provost, not called by God as Aaron was but arising from himself, had shamelessly assumed honor for himself. Hence, since one who abuses power permitted to him deserves to lose his privilege, he petitioned that perpetual silence concerning this be imposed upon him both in the name of the bishop and in his own, proposing that by law and the ancient custom of the Church of Maguelone the aforementioned dignity was to be conferred only upon one discharging priestly office. He insistently affirmed that the provost could not be promoted to the priesthood because weakness as well as deformity of body impeded him, saying that the party of the bishop, as the greater and sounder part, deservedly prevailed according to the Lateran Council, notwithstanding the appeal of one person. He further alleged that the provost had voluntarily renounced the appeal interposed. For since he had appealed in such a way that no archdeacon ought to be instituted unless a double vote were granted to him, and he himself attempted to proceed to the institution of another, he was convicted by a contrary act, according to a consultation of Pope Urban, our predecessor of good memory, of having withdrawn from the office of appeal. But to the article of the definition he responded in this way, asserting that the bishop proceeded reasonably according to the tenor of the definition, adding also that the provost, by retaining the Churches of Saint Firminus and Maurinus, had acted manifestly contrary to the definition itself and therefore could not invoke its aid at law. To the objection of suspension, he said in opposition that the bishop had first lawfully appealed and therefore was in no way bound by the sentence afterward rendered, proposing also that the sentence of interdict had been rendered conditionally and for a time, namely until he obeyed the apostolic mandates. Hence, since before the said institution he had obeyed the commands of the Apostolic See, he had without doubt been absolved by the censure of both civil and canon law, especially since the person who had suspended him did not at all doubt to communicate with him in all things as one fully absolved. Finally, he concluded that, even if the aforementioned bishop truly were suspended, nevertheless this could not be objected against him by the provost, because, since the provost had been marked by a sentence of suspension for the same matter, every hearing against the bishop ought to have been denied to one laboring under a similar disease, especially since he had often communicated with the bishop himself both in the ecclesiastical sacraments and in institutions of churches, and therefore could not object against him the mark of suspension. Finally, if none of these things supported the party of the bishop, he said that this could suffice to deny the provost a hearing: that from the letters of the bishop it appeared most clearly that the provost was bound by the bond of excommunication both through the sentence of the ordinary judge and by the law itself.]

At length C., our predecessor, annulled by sentence what had been done by either party according to its own will, pronouncing that he would write to certain persons of the province that they should admonish both the bishop and the persons to ordain the archdeacon concordantly and, if perhaps their admonitions were not admitted, should not delay executing this by apostolic authority. But after this our said predecessor, as we believe deceived, conferred the archdeaconry itself, contrary to his own pronouncement, upon G., who had not yet been promoted to the office of the diaconate, without the knowledge of the aforesaid Peter, proctor of the bishop, then staying at the Apostolic See.

We therefore, adhering to the footsteps of our predecessors, who say that a sentence of the Roman See, when something has been obtained by surreption, can be altered for the better, revoke as void, by the [common] counsel of our brothers, what was done concerning the aforesaid G., notwithstanding the donation that he is recently said to have received from the same bishop in mockery of the apostolic donation; and, imposing perpetual silence upon him concerning the said archdeaconry, although absent, since the surreption is clearly established, by authority of the present letters and by commanding, we order you that, notwithstanding any contradiction or appeal, within the space of one month after receipt of these letters, you shall take care to ordain the often-mentioned archdeaconry with a person against whom none of the canonical institutes stands, with the full concord of all of you who shall be present in the church intervening. [Otherwise, etc. Given at Rome, on the sixth day before the Ides of June, 1198.]

Latin source headnote: A sentence rendered against the right of a litigant is valid if an appeal was not made from it within ten days. Or otherwise thus: through a sentence from which no appeal was made, a church can be subjected to a prelate inferior to a bishop or made to belong to another church.

The same, to the Abbot and Convent of Saint Zeno of Verona.

When a question was being conducted between you [on one side] on behalf of your church and Musetus, archpriest, and the clerics of Saint Proculus, in the name of their church, concerning subjection of the same Church of Saint Proculus and many other articles, [while you, son Abbot, and the archpriest himself were established in our presence, we appointed as auditors our venerable brothers P., Archbishop of Compostela, and Odo, Bishop of Tortona, then staying at the Apostolic See. But when the bishop himself departed from the regions of the City while the litigation was pending, we took care to substitute in his place the beloved son M., our subdeacon and chaplain. In their presence,] it was proposed on your behalf that the said [Church of Saint Proculus] ought to be subject with full right to your monastery, namely in institution, destitution, or investiture of the archpriest; his fealty; the obedience of him and the brothers; correction; presentation to orders; tonsure; reception of chrism; litanies; and other similar things through which full subjection is declared.

To prove this, your party produced in the midst the public instrument of the grant of B., formerly Bishop of Verona of good memory, which grant his successor T. held ratified and also confirmed. Concerning these matters it also introduced privileges and confirmations both of Roman Pontiffs and of the Patriarchs of Aquileia. One of them, namely Godfrey, expressly stated concerning full subjection in his privilege that this had been done and completed under the testimony of R., formerly Bishop of Verona, who had been archpriest of the same church, and in it he commanded that the prior of the Monastery of Saint Zeno subscribe in his place, as is contained in the public instrument. Your party also added that in the course of time a controversy arose between B., formerly abbot of the same monastery, and Sicherius, Archpriest of Saint Proculus, and his brothers concerning fealty and manual obedience; they denied that they were bound only to those two things, and witnesses were produced concerning them. At length the aforesaid T., Bishop of Verona, the arguments of either party having been heard and learned, following a certain cardinal by whom it had been adjudged that either the archpriest should leave the church or promise obedience to the abbot, and also believing that the witnesses who had given manifest testimony concerning fealty had deposed true things before him, himself likewise defined it by sentence, as we perceived to be contained in the public instrument.

Since his sentence had been suspended by no appeal, it passed into a matter adjudged, which your party asserted could be attacked by no remedy of law. From its pronouncement until the present times, a space of fifty years elapsed, through which it proved by witnesses and instruments that the Monastery of Saint Zeno possessed the aforesaid church with full right; that the aforesaid archpriest and his brothers, past and present, made obedience to the Abbots of Saint Zeno; [that they received tonsure from them and furnished them services in the other matters that we have premised; and thus it firmly asserted that the monastery was in possession until the time of the recently arisen litigation, complaining that the Church of Saint Zeno was unduly molested by the named archpriest concerning certain of the foregoing. It therefore proposed that its assertion was fortified principally by three arguments: namely, confirmation of privileges, authority of the sentence, and length of time, so that a threefold cord is dissolved with difficulty. But in opposition, the aforementioned archpriest denied that all the foregoing belonged to the monastery, responding to the foregoing arguments in this way: because the instrument of the grant of the aforesaid Bishop B. had not been drawn up by a public hand or secured by an episcopal seal and appeared prima facie suspect on account of certain erasures, it neither could nor ought to generate prejudice against his party. And thus neither could the other proofs of the abbot, such as confirmations and privileges dependent upon that donation, since, resting as upon a sandy foundation and a reed staff, and the principal not being valid, the accessories had no firmness. He said that the sentence of the aforementioned T., Bishop of Verona, did not harm his party for this reason also: because it contained neither absolution nor condemnation, since it had been pronounced under an alternative, as was the sentence of the cardinal, which, since it could not be produced in the midst, could neither profit nor harm, especially since he altogether denied that it had been pronounced. Against it, even if it had been pronounced and not suspended by appeal, an action of falsity could nevertheless be brought, since it had been rendered from the instrument of the aforesaid B., Bishop of Verona, falsified through the vice of erasure. Nor are the witnesses said from the tenor of the sentence to have deposed under oath, wherefore no faith was to be given to them. He also said that length of time or prescription could not harm his church, because the adverse party had in no way proved continuous or frequent subjection, but only that an abbacy at some time presided over the Church of Saint Proculus. Moreover, to assert his intention, the party of the aforesaid archpriest produced a public instrument of the above-mentioned B., Bishop of Verona, older than that which had been produced by the already-mentioned abbot. In it, the same bishop, when the archpriest and clerics of Saint Proculus lamentably petitioned him, firmly promised under penalty of excommunication that he would never subject the named church to another, after the archpriest and clerics of the Church of Saint Firmus had heard from the bishop that it was to be subjected. The said T., his successor, confirmed his act by his letters. They would in no way have acted contrary to these letters if the aforesaid abbot, when he obtained from them the letters of subjection that we premised, had disclosed the things that had been done. Therefore, he said that the rescripts of the abbot were obtained through suppression of the truth with fraud employed. The same archpriest, also wishing to show the liberty of the church, lawfully proved by the depositions of witnesses that he, together with his clerics and without the abbot’s permission, had leased and withdrawn leases, and had ordered the chapels of Saints Vitus and Maximus, placing lay sisters and other persons in them; that he had freely instituted cellarers and other officials in his church; and that he had sometimes received chrism from the cathedral church and sometimes from the named monastery. But the party of the abbot, in order to refute the response of the adverse party that said the instrument of donation lacked force, produced other instruments of that time, so that from comparison with them, although they had not been drawn up by a public hand, its instrument might appear authentic, since the simplicity of the people of that time did not require such things. But the adverse party disqualified both it and the others. Furthermore, the party of the abbot said that the instruments of the adverse party, which it proposed bore the mark of falsity, even if they were true, could harm it in no respect, since they had been exhibited in the former judgment, where both these and other things that the adverse party could object—whether committed or even alleged—ought not to be heard further, lest litigations become immortal; they ought in no way to be renewed under pretext of an instrument afterward discovered. Also, a complaint of falsity, which the adverse party wished to propose, does not exceed a space of twenty years; and since forty years and more had elapsed from the time of the sentence rendered, and three years from the time litigation was moved, a complaint of falsity could no longer be brought.]

Therefore, when the aforesaid auditors had prudently and faithfully reported these things that we have premised and many similar things to us and our brothers, we, having communicated the counsel of our brothers, although perhaps one should not rely greatly upon the said instrument of donation or upon the confirmations or privileges that took cause and origin from it, nevertheless, considering that, as far as the litigants themselves are concerned, a right was made from the sentence after it passed into a matter adjudged—even if it had been rendered contrary to the right of a litigant, since it was not rendered expressly contrary to the law of a constitution, the truth of the acts prevailing over words, which is presumed to have been duly celebrated in all respects—we establish and by sentence define that the Archpriest of Saint Proculus who shall be in office for the time being shall furnish fealty and obedience to the Abbot of Saint Zeno. [And because, etc. Given at Rome at Saint Peter’s, on the thirteenth day before the Kalends of July, 1198.]

Latin source headnote: A sentence rendered against a claimant, containing nothing iniquitous, is to be confirmed in a cause of appeal, although through the attestations it appears that proof was made for the claimant, provided that presumptions concur for the sentence. These are in the letter here, and according to this understanding the case here is very singular.

The same, to the Canons of Novara.

The cause being conducted between you and the beloved son A. Siccus, a cleric, concerning a prebend of the Church of Novara that formerly belonged to our venerable brother the Bishop of Novara, with which the same Albert said that he had been invested by a ring by Pope C., our predecessor of good memory, after it had been examined before us for a rather long time, at length, with the consent of the parties and appeal removed, we committed it to our venerable brother the Bishop of Lodi to be terminated. He, as we learned from his letters, having more fully understood the arguments of either party, promulgated a definitive sentence for you against the said A., from which an appeal was made to our hearing. Therefore, when the said Albert and Masters I. and V., proctors of your church, were established in our presence on this account, the same Albert endeavored in many ways to prove that the sentence itself had been rendered iniquitously and for this reason ought not undeservedly to be retracted, while your said proctors defended the sentence and petitioned that it be fortified by the protection of our confirmation. We therefore, having heard the things proposed on either side and understood them more diligently, having held [also] a diligent deliberation with our brothers concerning this, although it had been proposed on behalf of A. himself that the said bishop promulgated the sentence contrary to the form of our mandate, as he endeavored to prove through the attestations, nevertheless, because the mind of a judge is not always inclined to one kind of proof; because the sentence itself contained nothing iniquitous; because the cause had been committed to the same judge by the common assent of the parties with appeal removed; and because he had been requested by either party to render sentence after examination of the cause, we took care to confirm the sentence itself by apostolic authority and by the counsel of our brothers, and through our venerable brother the Bishop of Porto we defined that it was to be observed [etc. Given at the Lateran, on the sixth day before the Ides of December, 1198.]

Latin source headnote: If a sentence commands something to be done at a certain term, the period of ten days for appealing runs from the time of the sentence, not from the day when the term ended. This is the first point. The period of four months that is granted by law to those condemned in a personal action can for cause be shortened by the judge, and one who willingly receives the shortened term cannot appeal after ten days, even though it is not established that the judge shortened the term for cause. This is the second. An appeal is not made from execution of a sentence unless the manner is exceeded in execution. This is the third point, extracting the core of the chapter according to Panormitanus.

The same, to the Bishop of Constance.

As to the consultation—(And below:) Because you similarly asked us whether deference is to be given to the appeal of a cleric who, receiving without contradiction a purgation prescribed to him by sentence and a suitable term for receiving it—say twenty days or more—and coming on the day afterward appeals, expressing no cause for appealing, although there is no place except for undertaking the purgation and executing the sentence, and more than ten days is said to have elapsed from its pronouncement and the purgation enjoined, we have determined to respond in this way: since after a space of ten days a sentence passes into the authority of a matter adjudged, one who does not have recourse to the aid of appeal within that time has denied himself an approach to appeal, since through this he appears by interpretation of law to have obeyed the sentence rendered, especially where no cause for appealing is rendered. Nor is it fitting on that account that execution of the sentence itself be retarded, although a period of four months is regularly established for doing this, because it can sometimes be shortened by the person sitting in the middle and also extended. And it can and ought to be imputed to one who from the beginning willingly receives a shorter term, since from this he appears to have contemned a greater benefit. Hence such a person will not be heard when appealing, unless perhaps the canonical manner of execution is exceeded against him. [Given at the Lateran, on the third day before the Ides of January, 1199.]

Latin source headnote: A sentence can be proved through witnesses, although they do not depose concerning the causes that customarily move the judge to give sentence.

The same, to the Dean, Chancellor, and C., Canon of London.

As you intimated to us by your letters, when the cause being conducted between H., a subdeacon, and B., priest of Saint Clement, concerning five measures of grain to be paid to the subdeacon himself each year had been committed to you by our delegation, and, the parties being established in your presence, the aforesaid subdeacon petitioned that restitution be made to him, the adversary responded that he was not bound to this, since on another occasion he had been convened before a judge concerning this and absolved by sentence, which he wished to show through the testimony of two priests. From their depositions it was established to you that Master A., by authority of our venerable brother the Bishop of London, absolved him by judgment from the claim of the aforementioned subdeacon. But because their testimony had been put forward as if naked, since they said that they knew nothing concerning the causes that customarily move a judge to pronounce sentence, there was disagreement among the learned in law from whom you sought counsel, some asserting that such testimony was not valid and others thinking that it was. Hence in this ambiguity, you determined that the Apostolic See should be consulted as to what is to be held. But since in very many places in which there is an abundance of prudent persons, the custom exists that all things that move the judge are not expressed in pronouncing sentences, we respond to you in this way: since from the depositions of the aforesaid witnesses it was established to you that a sentence was pronounced by his judge, it ought to be presumed, on account of judicial authority, that all things proceeded lawfully. [Given at the Lateran, on the second day before the Kalends of April, 1199.]

Latin source headnote: Not only a defeated defendant but also a third party whose interest is involved can appeal from the same sentence; and the sentence can be confirmed as regards a defendant showing nothing of his right, but invalidated with respect to a third party reasonably appealing.

The same, to the Bishop of Astorga and the Abbot of Saint Isidore of León.

When, concerning the controversy being conducted between our venerable brother the Bishop of Orense on one side and the Monastery of Celanova on the other concerning its status, various sentences had been rendered for the same bishop, O., archdeacon and messenger of our venerable brother the Bishop of Oviedo, approaching the Apostolic See, complained that through them the Church of Oviedo was gravely injured, to which he proposed that that monastery belonged. (And below:) Therefore, after the aforesaid cardinals faithfully reported these and similar things to us and our brothers, because it was established to us through the letters of the legates that two had proceeded when the third was unable to participate, as we also understood from the assertion of that third person established at the Apostolic See; and against their sentence, since nothing reasonable was proposed and shown on behalf of the monastery why the sentence promulgated for the bishop ought to have been invalidated, we determined, after communicating the counsel of our brothers, that it was to be confirmed as regards the monastery itself, imposing perpetual silence upon it in this part. But because we could not elicit the truth concerning the appeal of the Church of Oviedo, we have determined to commit the cause itself to your examination; through apostolic writings we command that, if it is established that an appeal was reasonably interposed on behalf of the Church of Oviedo and that its messenger was sent to prosecute it within the lawful time, execution of the sentence shall be deferred, lest the Church of Oviedo incur detriment concerning the same possession. Otherwise, it shall be put into execution, as law postulates, without prejudice to the Church of Oviedo, to which the foregoing does not prejudice its ability to obtain its right, since a matter transacted between some persons does not regularly harm others according to canonical and civil constitutions.

Latin source headnote: If one cited for sentence did not appear for a lawful cause unknown to the judge, the sentence rendered in his absence holds, but is retracted when he proves the lawful cause of his absence. But if the impediment is proved not fully, the sentence is not retracted unless he first demonstrates its injustice. This it says, and this is the true and noteworthy understanding according to Panormitanus, which other doctors did not elucidate so clearly.

The same.

When Berthold, a knight, had obligated his manor or estate in Westhusen formerly to P., a knight, as a pledge, after that P. had been taken from the midst, A., his nephew, who succeeded him, of the diocese of Strasbourg, while the church of the same place in Westhusen was vacant, asserting that the right of patronage had passed to him with the whole estate, presented D., a cleric of the same diocese, at the entreaties of C. of good memory, Bishop of Strasbourg, to the archdeacon of the same place for the aforesaid church; and the archdeacon, with the consent and will of the bishop, instituted him in it, causing him to be inducted into corporal possession. But the aforesaid B., lord of the estate, asserting that he had expressly retained the right of patronage for himself when he had obligated the estate to the creditor, presented T., a priest, to the aforementioned bishop, but the bishop did not admit him, at the judgment of his own will. But when the aforesaid bishop had entered the way of all flesh, the said T. lodged a question against the aforementioned D. concerning the aforesaid church before the substitute of the bishop-elect, and the Bishop of Reims, legate of the Apostolic See, delegated the business to judges. When afterward they had remitted to him the attestations received on both sides through the parties, and, while the aforesaid D. approached with his attestations, the said T. took no care to appear either through himself or through a suitable representative, the bishop, after carefully inspecting the attestations of the aforementioned cleric, as we perceived to be contained in his letters, rendered him absolved by sentence from the impetition of the often-mentioned T., imposing silence upon that T. concerning the aforementioned church.

Afterward, however, that priest, approaching the presence of the same archbishop with his attestations within a short time, alleged a just cause of absence. The archbishop, by his letters, commanded the aforesaid Bishop-elect of Strasbourg and the beloved sons, the Abbots of Haute-Seille and Tudebernon, that, if he showed a just cause of absence before them, they should declare the aforesaid sentence to be of no validity and, after carefully inspecting the attestations of both parties, should terminate the cause itself with its due end; otherwise they should cause the sentence that he had rendered firmly to be observed. But when the said bishop-elect and the aforesaid abbots committed their places to others, those subdelegates received witnesses concerning the aforesaid article, from whom the said cleric sent forth the voice of appeal to us.

Although, when each party had approached our presence with the attestations sealed with the seals of the aforesaid judges, the priest had proved a just cause of absence less than sufficiently, nevertheless, lest opinion prejudice truth, wishing to proceed in truth, since Christ is truth, we granted to them as auditor our beloved son R., cardinal deacon of Santa Maria in Domnica. When he had fully and faithfully reported to us all things that had been proposed before him, we, after carefully inspecting the attestations of both parties and the sentence of the aforesaid bishop, found that the same archbishop had been circumvented by the tenor of his sentence: both because it was contained in it that it had been sufficiently proved through the attestations of that cleric that the aforesaid A. had been in possession of the right of patronage when he presented the same Bruno to the aforesaid church, although through those attestations nothing else concerning this had been shown except that, for a certain right customarily rendered from that church to the patrons, the aforesaid P. and A. received ten solidi annually, which the parish priest of the same place nevertheless always resisted providing; and also because it is said in the same sentence that the said T. utterly failed in proof, although it appears manifestly through his attestations that he sufficiently proved his intention; and also because he did not receive the cause sufficiently instructed, since he received the attestations of only one party, which contributed little to the cause.

Hence we have determined that the sentence itself should be invalidated, adjudging the aforesaid church to the aforementioned T., since it has been established to us evidently through the attestations that he was presented to the often-mentioned church by the true patron, imposing perpetual silence upon the adversary concerning it; wherefore, through apostolic writings, [by way of precept,] we command your discretion that, supported by our authority, you cause our sentence to be observed inviolably, inducting the aforesaid T. into corporal possession of the same church and protecting him after induction. [Contradictors, etc. Given at Rome, at Saint Peter's, on the Ides of March, 1205.]

Latin source headnote: The Pope observes the order of law in the sentences that he pronounces.

The same.

In causes that are decided by the judgment of the Supreme Pontiff, both the order of law and the force of equity are to be subtly observed, since in similar cases others are bound to judge similarly, unless perhaps, upon considering a cause of necessity and utility, he has determined by way of dispensation that something is to be established. [Therefore, some time ago, etc. (cf. c. 22, On Election, I. 6.) Given at the Lateran, on the fifth day before the Ides of April, 1203.]

Latin source headnote: A second sentence, rendered in a different instance contrary to the first, holds by mere law; nor ought it to be infringed, even if it is unjust, since no appeal was taken from it—especially if the first sentence was not shown to the second judges. This it says, according to Panormitanus.

The same, to the Convent of Saint Leodius.

A question was some time ago agitated between the Monastery of Saint Audoen of Rouen and yours concerning the manner of electing an abbot in your said monastery, [*on account of which, when the parties approached the Apostolic See, we gave them as auditors our venerable brother Octavian, Bishop of Ostia, and our beloved son G., cardinal deacon of San Giorgio in Velabro. In their presence it was proposed on behalf of your monastery that, when that abbey was formerly vacant of a pastor, you, coming together as one, assumed for yourselves as abbot by canonical election Richard, a monk and religious man, from the bosom of that church, according to the Rule of blessed Benedict and the liberty of the church, also strengthened by apostolic privilege, presenting that abbot-elect to the diocesan bishop for obtaining the office of benediction. The bishop, being prohibited by the beloved son Geoffrey, abbot of the aforesaid Monastery of Saint Audoen, did not grant what had been requested. Therefore, seeing that your purpose was being retarded, lest anything be done to the prejudice of your monastery, you appealed to the Apostolic See, from which afterward, through your messengers, you obtained letters of commission to our venerable brother Henry, bishop, and the beloved sons Henry, cantor, and R., archdeacon, of Bayeux, under this tenor: that, the parties having been called to their presence, after inspecting the privilege and all the reasons that they should determine to propose on each side, they should terminate the cause itself, with appeal removed, by concord or judgment, notwithstanding any letters obtained from the Apostolic See without mention being made of these. But if all could not participate, the bishop with one of the others should nevertheless execute these things.

When, therefore, the parties, established in the presence of the aforesaid bishop and precentor of Bayeux—their colleague the archdeacon being excused for a certain and necessary cause—could not be recalled to concord, your party wished to produce witnesses greater than every exception to prove that the election had been canonically celebrated according to the tenor of the privilege of Pope Lucius of good memory, our predecessor, granted concerning the election to be made. R., a monk and proctor of the said Abbot of Saint Audoen, presented to them the open letters of our venerable brother the Archbishop of Rouen, the Bishop of Évreux, and the beloved son R., Archdeacon of Évreux, prohibiting them from proceeding in the cause on the ground that they said they had received an apostolic mandate concerning discussion of the same cause. But because the tenor of the mandate had not been inserted in those letters, and the proctor, although more often required, was unwilling to show the original or rescript, setting their prohibition aside, they decreed together more than once that the proof you offered concerning the canonical election was to be admitted.

But the aforesaid proctor, striving to oppose the proof, said that in the preceding election the Monastery of Saint Audoen had been despoiled of possession of a certain right of its own, which it had obtained without disturbance up to the creation of the last abbot of that place, who had been petitioned and elected from the congregation of Saint Audoen by the monks of La Croix. Therefore, when he wished to prove this, they received your witnesses concerning the canonical election, but those of the proctor concerning the alleged spoliation. When, after diligent examination, they were preparing to publish their depositions, at the instance of the said proctor they assigned another day for a second production of witnesses, with which he said that he would be content.

And when the parties came together on the day and at the place, the proctor, being required by the judges themselves concerning the witnesses to be produced, as though renouncing the production of witnesses, delivered to them letters of the beloved sons the Abbots of Bellebec and Mortemer and the Prior of Bellebec, prohibiting them from proceeding in the cause. For they said that they had undertaken a mandate prejudicial to the first, the tenor of which they joined to their letters. But when the first judges, after diligently inspecting the rescript, recognized that it had been obtained through suggestion of falsehood and concealment of the truth—since in the second no mention was made of the apostolic privilege, as in the first, from which the election drew its principal firmness, and the judges themselves were said in the second letters to be suspect to the monks of Saint Audoen for a certain reason, which the proctor could not show—after alleging certain sufficiently frivolous causes of suspicion, he withdrew contumaciously from them without waiting for any interlocutory decision.

Therefore, considering that a recusation of this kind and the allegation of the said suspension had been late and superfluous, especially after the suit had been commenced and witnesses produced on each side—an allegation that perhaps could have had some color before entry into the suit—and also considering that the same mandate had made mention of the former not fully but perfunctorily, they were unwilling to acquiesce in the prohibition of the later judges, just as they had not in that of the former, wishing rather to obey apostolic commands than to exhibit undue reverence to the mandates of inferiors. Many learned in law who were present agreed with them that, since the often-mentioned Abbot of Saint Audoen first obtained letters to the former judges, of which no mention was made in the second, he ought to lack the benefit of both; or, if one mandate ought to prevail over the other, the first was to be obeyed rather than the second, in which there was no mention of the former, since neither did the first, obtained by the same Abbot of Saint Audoen, make mention of that which the other party had obtained.

Moved, therefore, by the foregoing reasons and using the counsel of discreet men, and the attestations of the parties also having been published and their reasons and allegations subtly understood, by authority of our mandate they held the aforesaid election ratified and firm, imposing perpetual silence upon the abbot and monks of Saint Audoen concerning that molestation of the abbot-elect. They also condemned them in expenses of one hundred Angevin pounds, although the other party wished, after giving oath, to declare concerning two hundred. Your party therefore petitioned us that the act of the delegated judges be confirmed and the office of benediction be imparted to the abbot-elect.

But the other party proposed in opposition that your often-mentioned monastery had from the beginning of its construction been made subject to the other by consent of the diocesan bishop to such an extent that no one was to be assumed there as abbot from anywhere other than the Monastery of Saint Audoen, provided that someone suitable for this could be found in it. The correction of the monks and of the Abbot of La Croix also, if he were negligent, was reserved to the Abbots of Saint Audoen, and thus it had obtained from times so long that no memory of them exists. And this institution and the use itself, indeed, are alleged to have been confirmed by Pope Alexander of good memory, our predecessor. Hence, when at one time the monks of Saint Leufredus had elected a certain abbot from somewhere other than the bosom of Saint Audoen, the Abbot of Saint Audoen, learning these things, appealed; and through a sentence of delegates of the Apostolic See the abbot-elect was obliged to renounce the abbey. When, after making profession to the Abbot of Saint Audoen, he had resided for several days in that monastery, through the abbot's grant he was given as abbot to the aforesaid monks.

But while the last abbot still held the monastery—from which, compelled by fear of the king, he withdrew for a time—and while the monks wished to vindicate themselves into liberty and proceed to an unaccustomed election, the Abbot of Saint Audoen, foreseeing this, appealed to the Apostolic See, as Richard, then your abbot-elect, confessed in judgment, adding nevertheless that he had appealed first. But the often-mentioned monks, nevertheless electing him as abbot, obtained an apostolic rescript to the already-said Henry, Bishop of Bayeux, and his colleagues. The Abbot of Saint Audoen, desiring to avoid their judgment as suspect, obtained letters of revocation to the aforesaid abbot and prior. After the prohibition of the former judges, who intimated to them the tenor of the apostolic mandate through their letters, and after the abbot's proctor presented the authentic instrument to them, those former judges asserted that the letters had been obtained through suggestion of falsehood because no mention of the privilege of the adverse party was made in them; and, even after the appeal interposed by the same proctor, they nevertheless proceeded in the cause. On behalf of the Monastery of Saint Audoen they petitioned that their act be revoked as invalid.*]

Therefore, these and similar things that the already-said bishop and cardinal prudently and faithfully reported to us and our brothers having been more fully understood, since it was established to us that the first commission had not been revoked through the last—both because the causes of suspicion proposed in law appeared frivolous, which they ought also to have raised as dilatory before entry into the suit, and which they seem to have renounced by undergoing judgment before the same delegates; and also because nothing was said in the second letters concerning privileges of the Apostolic See and the process of the business up to the publication of witnesses before the first judges, which, if it had been expressed, they could by no means have obtained them—notwithstanding the sentence that was said to have been rendered for the Monastery of Saint A., which nevertheless was not shown to us, since, if it had been shown to the aforesaid judges, they would have set it aside and established the contrary; otherwise, it is the case that it is to be imputed to those raising it, since suits ought not to be renewed under pretext of new instruments: after communicating the counsel of our brothers, we hold the act of the first judges ratified and firm, and, confirming their sentence, we ourselves took care that the office of benediction be exhibited to the abbot-elect by you afterward, saving the right of the diocesan bishop. [Therefore, let no one, etc. Given at the Lateran, on the third day before the Nones of June, 1199.]

Latin source headnote: A sentence rendered contrary to a privilege, whether shown or not shown, holds if no appeal or supplication was made from it.

The same, to the Bishop, Dean, and Chancellor of Paris.

When a matter of question had some time ago arisen between our venerable brother the Bishop of Meaux and the Monastery of Arras concerning the subjection of the monastery itself, and the proctors of the parties were litigating before us, because it was established through the confession of the adverse party that the same bishop had had a quasi-possession of obedience in the same monastery, we decreed that he was to be restored to it. But because a privilege of Pope Innocent of happy memory, our predecessor, expressed the full liberty of the monastery, we commanded [the beloved son Master G.,] Dean of Soissons, and his fellow judges that, when the [aforementioned] bishop had been restored to the quasi-possession of obedience, unless within six months after his restoration he objected and proved something reasonable against the privilege, they should take care, with the obstacle of appeal removed, to impose upon him perpetual silence concerning the subjection of the aforesaid monastery. [*We strictly prohibited him from daring thereafter to molest the same monastery concerning the liberty of the privilege. But if it were the will of the parties, after sufficiently instructing the cause and remitting it to our presence, they were to set for them a suitable term at which they should present themselves before us to receive sentence.

Therefore, when the parties were afterward established in the presence of those judges and the same bishop had had a copy of the privilege, he wished to accuse it of falsity on the ground that, when the bull of that privilege was compared with other bulls, it appeared, as the bishop proposed, smaller than and dissimilar to the others. He also alleged the authority of a matter adjudged to evacuate the force of the privilege, asserting that Pope Alexander of happy memory, our predecessor, as he showed through Alexander's letters, had promulgated a sentence against the monastery concerning this. The same bishop additionally introduced privileges of the said Pope Alexander and Pope Honorius of good memory, our predecessors, in which it is expressly recognized to have been established that canonical obedience should be rendered to him by the Abbot of Rebais.

But the abbot of the aforesaid monastery proposed in opposition that he ought to enjoy full liberty by authority of the aforesaid privilege, and indeed also for another reason: namely, because Saint Faro, Bishop of Meaux, had determined that a most liberal privilege should be granted to it, as he said was manifestly contained in the legend of that saint. The same abbot added that, until that day, he had never heard any mention of the aforesaid sentence that the bishop alleged for his own party; but even if the sentence were genuine, there had been a tacit withdrawal from it through the amicable settlement that followed. For, as he said, such a settlement intervened between B. of good memory, Abbot of Rebais, and Stephen, Bishop of Meaux, that the same abbot would render obedience to him on this condition: that if the privilege of liberty, which he did not have at hand, were found, the same abbot would enjoy liberty and would be bound in no way to exhibit obedience to that bishop. The same abbot asserted that he would prove this settlement and certain other things that he had proposed.

Therefore, a day having been assigned at Paris, the dean and succentor received the witnesses of the aforesaid abbot, because the third judge could not participate, and at Rebais they examined the same witnesses and certain other elderly and infirm persons. At length, when your party, to make greater faith concerning Alexander's sentence, presented to the judges the letters of certain cardinals and others, the abbot's party objected that, since a period of six months was comprehended in our letters, within which you had the faculty of proving what you wished, after that time had elapsed you could not exhibit instruments on your behalf or other proofs. But since the approach to proving was not closed to you, it requested that an oath be received, which the chapter of Rebais commanded to be rendered under peril of their souls, namely, that they had never seen before the sentence that you determined was to be exhibited.*]

But when the judges remitted the instructed cause, because we recognized the bishop's reasons to be more efficacious, we adjudged to him the subjection of the aforementioned monastery, so that there he may have free power as diocesan bishop, yet in such a way that no prejudice is generated thereby to the Apostolic See, whereby, at the lawful time, if it wishes, it may prosecute its justice. For indeed, if the privilege of the aforesaid Innocent was presented to Alexander in judgment and he rendered sentence against it, he is understood to have disapproved it. But if it was not exhibited before him, the aforesaid sentence ought not to be retracted under pretext of a newly found privilege. Wherefore, through apostolic writings, we command your discretion that you cause what has been defined by us by sentence to be observed reasonably, with appeal removed, [constraining contradictors, if there are any, etc. Given at Viterbo, on the seventeenth day before the Kalends of July, in the tenth year, 1207.]

Latin source headnote: A sentence from which an appeal was taken is retracted if it is established that the witnesses, upon whose statements alone it was rendered, were conspirators and were received over the party's contradiction.

The same, Alexander III, to the Abbots of Saint Mary in Cagi and of Valsecrète.

When I. and A., canons of Saint Denis of Reims, revealed to our apostolate on behalf of certain canons of the same church that their abbot was multiply defamed concerning dilapidation, perjury, simony, and certain other things, and when concerning these and other matters they had litigated for a long time at the Apostolic See with the proctor of the abbot himself, we afterward commanded our venerable brother the Bishop of Châlons and his colleagues that, personally approaching that church, they should correct, both in head and members, the things to be corrected, with appeal set aside, and establish the things they should see were to be established. [Afterward, when both the abbot and the canons were established before them, the same abbot appealed lest the judges proceed in that business against the order of law; and when the judges required from the abbot and canons alike an oath concerning speaking the truth about the status of the church, the abbot, asserting through his advocate that he had been despoiled, petitioned from them the benefit of restitution. Thereupon] the judges, [with the will of the parties, restored the abbot himself to the administration of spiritual things and committed the care of temporal things to certain discreet and faithful men. After these things,] receiving the oaths of the abbot and canons, [they examined certain of them on the same day, establishing another day for examining others, which each party received gladly. But on the appointed day, while the abbot did not appear before them at all, the Abbot of Saint James of Provins, his maternal uncle, presented himself with open letters concerning ratification. While he in no way contradicted, the judges proceeded in that examination; and when on the following day they were prepared to promulgate sentence, the aforesaid proctor exhibited before them letters in which it was expressly contained that he renewed the appeal that he had interposed on the first day. But the judges, considering that the same abbot had tacitly renounced the aforesaid appeal by rendering the oath and undergoing their judgment, especially since the obstacle of appeal was closed off by our letters and an irreparable collapse of that church was feared,] after taking the counsel of prudent men, removed the aforementioned abbot from the administration of the church itself by sentence, deferring the correction of the members, which they could not then dispatch.

When the aforesaid proctor appealed from that sentence as iniquitous to our hearing, [on the ground that the delegates had declared by interlocutory decision that, for the aforesaid causes, there had been a withdrawal from the appeal; moreover, when the aforesaid abbot and the proctor of the canons recently came to the Apostolic See on account of this, before our beloved son John, cardinal deacon of Santa Maria in Via Lata, whom we gave to them as auditor, the same abbot proposed many things] through which he said that the said sentence was deservedly to be disapproved: [both because those letters by whose authority the judges proceeded had been obtained by suppression of the truth, since the canons through whom they were obtained had made no mention of the threefold sentence of excommunication with which they had been bound by him because they were dice players, frequently entered taverns, and were disobedient to him;] and because [after the appeal interposed to us, in the inquiry itself—although a charitable admonition had in no way preceded the denunciation, while he had not yet been restored—and] the judges proceeded in that business without joinder of issue; and also because, receiving the oaths of conspirators against him, the judges presumed to proceed to sentence when the depositions had in no way been published before the parties or shown to him.

[*To these things the other party responded that the aforesaid canons could in no way be repelled under pretext of an excommunication of this kind, since, even if that excommunication were established, the same abbot had communicated with them in divine things not only through his proctor, who received common letters with them, but also through himself. Nor could the aforesaid appeal have impeded the judges' process; for when the abbot appealed lest the judges proceed against the order of law, and the judges proceeded according to the order of law in all things, it appears evidently that nothing at all was attempted contrary to that provocation. But even if an admonition had not preceded the denunciation, it is the case that it can be imputed to the abbot if he neglected to allege this at the beginning. The aforesaid party also added that the same abbot ought not to have been restored to temporal things, although he was restored to spiritual things, since a question concerning dilapidation was being held; rather, in such a case, according to the rigor of law, even if he had been found in possession of the administration, he could not undeservedly have been removed as suspect.

Furthermore, it was not necessary that joinder of issue be made before those judges, since long ago issue had been joined at the Apostolic See through the proctors of both parties concerning the same articles, especially since that subtlety is not to be observed in inquiries so that joinder of issue is necessarily required. And this one thing could have sufficed against the preceding citations: that he voluntarily underwent the judgment of inquiry. Although it were also established that the judges received the oaths of conspirators, nevertheless their process ought not to be invalidated from this, since it is not established that they pronounced the sentence by following those persons' statements—especially since the statements of confederates could be received in those matters that in no way touched the abbot. Nor could the depositions of the witnesses be published before the parties or a copy of them be made for the abbot, since he had absented himself through contumacy and the aforesaid proctor had not been sent for defense of the cause but only for renewing the provocation. When, therefore, that cardinal faithfully reported to us these and other things that were proposed before him,*] because full faith could not be made to us concerning the article of conspiracy, [through apostolic writings, we] command your discretion that, after more fully inquiring into the truth, if it is established to you that those whose oaths it is established were received by the judges were conspirators, and that this very thing the abbot wished to prove before them, and that the judges, following only their statements when those matters had not been proved through others, pronounced the sentence, then, with appeal removed, invalidating their process, you shall proceed in that business according to the aforesaid form comprehended in the former letters.

But if he is unable to prove that they were conspirators, or, although this were established, it nevertheless appears that they deposed nothing concerning those things for which the same abbot was removed, or, even if they deposed something concerning them, those things nevertheless had been sufficiently shown through the statements of others, you shall confirm the process of those judges, with the obstacle of appeal removed. For although conspirators ought not to have been admitted against the abbot, their oaths concerning speaking the truth about the status of that house could nevertheless have been received, so that faith might be had through their statements concerning other things that in no way touched the abbot, especially since at that time it had not been proved that they were conspirators. [Moreover, we will and command, etc. Given at the Lateran, on the fifteenth day before the Kalends of April, in the eleventh year, 1208.]

Latin source headnote: One condemned in an action for injuries is infamous and can be restored to reputation by the Pope. This it says, as it is commonly summarized.

The same, to H. of Castro Guarti.

When you had been convened by Bartholomew in an action for injuries because you said that your horse was not of less value than his hairs, [Jacob of Guarino and L. of Vico,] the judges who were taking cognizance concerning this, condemned you in ten solidi. Fearing that their sentence would mark you with infamy, you implored from the Apostolic See the benefit of restoration to reputation. But we, considering that [almost] no injury, or only a minimal one, was done, will [and grant] that you shall not be marked with infamy through the aforesaid sentence. [Given at Segni, on the seventh day before the Ides of September, in the fifteenth year of our pontificate, 1212.]

Latin source headnote: When a sentence has been revoked because of a defect of jurisdiction—as because one of the judges was publicly excommunicated—or because the order of law was not observed, inquiry is made again concerning the principal matter.

The same.

To prove that the proctor of the lady—(And below:) Meanwhile, however, take cognizance of the sentence of confirmation that was rendered by the delegated judges concerning the election of the custodian, so that you take care to confirm or invalidate it, as ought to be done by law; in such manner, indeed, that, if it is established that the same sentence is to be invalidated because one of the delegated judges who pronounced it was publicly bound by the bond of excommunication when the sentence was rendered, as is asserted through the metropolitan's letters, or for another just cause, after it has been quashed you shall take cognizance again concerning the election of the custodian herself, and, hearing the things that have been proposed and shown both as to the act and as to the person, if the election is found canonical, confirm it by our authority; otherwise, after invalidating it utterly, give the sisters the faculty of freely electing, and confirm by apostolic authority, with the obstacle of appeal removed, the election of the woman whom they have determined is regularly to be elected as their abbess, and cause provision to be made for the aforesaid custodian from the goods of the church for legitimate expenses incurred.

Latin source headnote: A matter adjudged between some persons does not harm others. This fails in the case of one who allowed him to litigate to whom an action or defense belonged in the second place, or from whom he derived his cause in the matter adjudged.

Gregory IX.

Although regularly a matter adjudged between some persons does not harm others, nevertheless prejudice is generated for one who, when an action or defense concerning that matter belonged first to him, allowed a subsequent person to act, and also for one who allowed the person from whom he derived his cause to litigate.

Latin source headnote: If two ordinaries pronounce contrary sentences, the sentence for the defendant holds. This fails in the four cases contained here and similar ones. But if delegated judges disagree, the delegator is to be approached; if arbiters disagree, neither sentence holds.

The same.

When two judges, as we have received, pronounce differing sentences, if they proceeded from ordinary jurisdiction, the sentence for the defendant, not for the claimant, holds, unless in a favorable cause—for example, marriage, liberty, dowry, or testament—it was promulgated for the claimant. But if they proceeded from delegated power, each sentence depends upon the decision of the delegator. But if they proceeded from a compromise, neither ought to have force.