Title XXVIII: On Appeals, Recusations, and References

Latin source headnote: A collation of a benefice made after an appeal interposed from a probable and plausible cause is null by the law itself.

Alexander III, to the Bishop of Exeter and the Dean of London.

Our beloved sons, the prior and clerics of Giseburn, transmitted a grievance very grave and difficult for us: that our venerable brother R., Archbishop of York and legate of the Apostolic See, suspended that prior after an appeal made to us, and interdicted his churches, and declared the canons excommunicated if they obeyed him as prior. (And below:) Concerning all of these things, if, after the truth has been solicitously inquired into through suitable persons and the reputation of the locality, you find that grants of the churches were made in such manner, unless the prior and canons maliciously deferred arranging them insofar as it pertained to them, you shall revoke those grants as invalid, by our authority, notwithstanding any appeal, causing the churches themselves to be restored to the prior and canons and compelling both the vicars and those who swore to their canons to observe the oath rendered, unless it was unjustly extorted by the prior. Being provident, etc. [Cf. c. 6, On Judgments, II. 1.]

Latin source headnote: A general appeal with respect to a cause is not valid.

The same, to the Archbishop of Reims.

Among the other things concerning which you wished to consult us—what you ought to do concerning those who appeal from you and do not prosecute the appeal—we respond thus: that you ought to compel them within a suitable term to prosecute the interposed appeal or to submit to justice before you. But concerning the fact that the Abbot of Saint Apollinaris in the cloister interposed before you a general appeal concerning every cause that could be moved against him at any time, we reproved him thereupon and determined that an appeal of this kind was not to be admitted. But if someone specifically appeals from you to us, we do not have power to remit him to your examination.

Latin source headnote: No appeal is made from lawful correction unless the measure is exceeded. This it says, when the intention of the letter is inspected.

The same, to the Abbot of Saint Peter.

You should know that it has reached our hearing that, if at any time you wish to correct and chastise your subjects for their excesses according to the Rule of blessed Benedict and the institution of your order, they flee to the remedy of appeal so that they may be able more freely to exercise their malice. But because the remedy of appeal was not invented for this purpose, that it ought to exhibit protection in his wickedness to someone deviating from observance of religion and order, through apostolic writings, by way of precept, we command your discretion that, if at any time any one of your subjects has flown to the remedy of appeal lest you correct and chastise him for his excesses, you shall no less on that account correct and chastise him according to the tenor of the mandate contained in the aforesaid rule and the institution of the order.

Latin source headnote: If an appellant does not prosecute the appeal within the term established by the judge from whom he appealed or by himself, he is compelled to stand by that judge's sentence or judgment.

The same, to the Bishop of Norwich.

You shall fortify the parsons of the churches situated in your diocese by your authentic writings and those of the lords of the estate in such a way that, when it should happen that any of them dies, the son or vicar of the deceased, or anyone else, cannot by any cunning forestall your course of conferring the parsonship of the vacant church upon a suitable man. But if any of such persons appeals to our hearing for the sake of frustrating delay and fixes a protracted term for his appeal, you shall assign him a day within which he can suitably approach the Apostolic See. If he contemns to come to it, you shall then strictly compel him to stand by your judgment concerning those things that are in question, without any contradiction, every excuse and appeal ceasing. But if anyone fixes a suitable term for his appeal and nevertheless has not prosecuted the cause by the day of appeal, you shall no less constrain him thenceforth to obey your sentence, with appeal removed, as we said concerning the other. But if, etc. (Cf. c. 20, On Witnesses, II. 20.)

Latin source headnote: An appellant has a year for prosecuting and, for cause, two years, unless the judge moderates the period. And if he does not prosecute within that time, the sentence remains ratified, or he returns to the first judge if he appealed before sentence. This it says. § 1. One who is assailed concerning a crime can appeal unless the crime is notorious. This it says.

The same, to the Archbishop of Reims.

Since the most holy Roman Church has been constituted by the Lord's ordering as the head and mistress of all churches, and consultations and questions are deservedly referred to it from the diverse parts of the world, we rejoice that you have consulted it concerning various questions of law and not undeservedly commend your prudence. Hence it is that by the present writing we have determined that a worthy response should be made to your fraternity: that, if an appeal has been made for the sake of frustrating delay or even necessarily before sentence or afterward, a year is granted to appellants of this kind, or, from a necessary and evident cause, two years, unless perhaps the judge from whom the appeal was taken has moderated a shorter time according to the distance of the places and provinces and the quality of the persons and business. If, within that time, the person who appealed has not prosecuted the cause of appeal, the sentence will hold. If he appealed after sentence, he also appears to have fallen from his cause, nor will the appellant be heard further concerning the same business. But if an appeal was taken from a grievance and before entry into the suit, an appellant of this kind will be heard, since the sacred canons allow appeals everywhere even outside judgment; appeals of this kind are not customarily called appeals but provocations to a cause. But if someone appealed before sentence, he is compelled to stand by the judgment of the person to whom he is known to have appealed.

§ 1. Moreover, if the person who appeals is a ravisher or otherwise a violent detainer of another's thing, an appeal of this kind made in judgment before ecclesiastical persons is customarily heard, unless perhaps he is a manifest ravisher or fornicator, like the man whom the Apostle excommunicated while absent and without being required. [To these things, etc. Cf. the following chapter.]

Latin source headnote: Before the judge from whom I have appealed in one cause, I can be convened in another, unless I recuse him as suspect.

The same, to the same.

To these things: if someone appeals in one cause and, while the appeal is pending, commits some crime, or is said previously to have committed one, or is now even accused, or is convened concerning another matter about which no appeal has been taken, and it happens that it is brought to the hearing of the judge from whom he [also] appealed in another business, he can, if he wishes, avoid him as suspect; otherwise he will be obliged to stand by the judgment of the person from whom the appeal was taken, especially if he is his ordinary judge. [Likewise if to two persons; cf. the following chapter.]

Latin source headnote: If, from a lower judge, one person appeals to the Pope and another to an inferior judge, the person appealing to the Pope is bound to appear upon the citation of the inferior judge, at least to allege his appeal; otherwise the process before the lesser judge will be valid, unless he knew that an appeal had been interposed to the Pope. § 1. No appeal is made to the Pope from a civil judge who is not of the temporal jurisdiction of the Church. This it says up to the end.

The same.

If, while two persons are litigating before their own judge, one appeals concerning the same business to our hearing and the other to the hearing of his own judge, and the person who appealed to his own judge, coming on the day of appeal, proposes that he appealed to him—being silent concerning the fact that his adversary had appealed to the hearing of the Roman Pontiff—if that adversary, lawfully cited, neither comes nor sends any representative, or otherwise even contemns to obey, and the judge renders a sentence of excommunication against him, the sentence of excommunication promulgated against him for contumacy will [certainly] hold, unless the judge knew that he had appealed to the hearing of the Roman Pontiff.

§ 1. Finally, as to what you ask at the end of your questions: if an appeal has been taken from a civil judge, before judgment or afterward, to our hearing, whether an appeal of this kind holds—it indeed holds in the case of those who are subject to our temporal jurisdiction; but in the case of others, although it holds by custom of the Church, according to the rigor of law we believe that it does not hold. [Given at Tusculum, on the eleventh day before the Kalends of April.]

Latin source headnote: The lapse of two years does not prejudice an appellant so as to prevent him from being heard for a lawful cause, at least through the benefit of restitution in full. This it says according to the fuller understanding.

The same, to the Parish Priest and Clerics of Saint Nazarius of Albia.

From reason—(And below:) But if, after two years had elapsed, you did not prosecute the appeal interposed from the sentence that had been pronounced against you concerning the controversy that you had against the Church of Solaria, provided it is established that you omitted prosecution of the appeal through inability, we will that it ought not to generate in any way prejudice to your justice.

Latin source headnote: If the defendant went to the Curia after citation or notice of the letters, the delegate shall proceed in the cause; otherwise not. This it says, together with c. It Was Suggested, below, under the same title.

The same, to the Bishop of Worcester.

We remember—(And below: [Cf. c. 3, Clerics or Those Vowed, IV. 6.]) But when it happens that some cause is committed to you with appeal removed, and the adverse party after the citation has been made enters upon the journey of coming to the Apostolic See, you will nonetheless be able to proceed in the business according to the form of law; but certainly, if he entered upon the journey before the citation was made, there is no proceeding in any way.

Latin source headnote: Proceedings are stayed, on account of the article in which an appeal was taken, even concerning the principal cause, if it cannot be dispatched without that article. This it says, by adhering to the letter. § 1. Notwithstanding an appeal interposed from a false cause, the judge can proceed to further acts. This it says.

The same.

Concerning the matter about which your solicitude inquired from us—whether a sentence ought to be suspended through an appeal that often happens to be made from an incidental question, although the cause had been committed with appeal removed—we have determined that a response should be made to your prudence: that, if a question arises concerning some exception and it happens that an appeal is taken therefrom, proceedings are deservedly to be stayed concerning that exception; and if the principal cause cannot be terminated without it, proceedings are no less to be stayed concerning the principal cause. § 1. But if the adverse party broke forth into an appeal concerning suggestion of falsehood, the sentence is not to be deferred concerning this, if by the letters of commission the obstacle of appeal is prohibited. [On Appeals, etc. (Cf. the following chapter.)]

Latin source headnote: An appeal can be taken even for lesser or lighter causes.

The same.

But concerning appeals interposed for the smallest causes, we will you to hold that deference is no less to be given to them, for whatever and however slight a cause they are made, than if they were made for greater causes. But if they contemn to prosecute their appeal, you shall strictly compel them either to prosecute the appeal or, with appeal removed, to stand by your judgment.

Latin source headnote: According to the canons an appeal is made even before sentence; according to the laws it is not, except in certain cases. This is the first point. And appeal and recusation are made equivalent in this: that just as a reasonable cause is required in an appeal, so also in a recusation. This is the second. And the time assigned to a judge for deciding a cause begins to run from the time of presentation of the rescript. This is the third, according to the true understanding.

The same.

Concerning the matter that sometimes delegated judges are recused by one of the parties as suspect, let this become known to your prudence by the present letters: that, since the sacred canons grant to individuals the faculty of appealing both before and after joinder of issue, in the pronouncement of sentence, and after sentence, but the secular laws do not admit an appeal before sentence except in certain cases, in ecclesiastical causes also, where the remedy of appeal is removed, both remedies are denied; and therefore, just as no deference is to be given to an appeal, so [also] none is to be given to a recusation in any way. But if a suit is committed to certain persons to be decided within a certain time, in such a way that it is contained in the letters that the cause, after receipt of the letters, [and] within a certain term, ought to be terminated, the term begins to run from the time when it happens that the judges to whom the suits are delegated receive those letters.

Latin source headnote: A person convened concerning an injury to a cleric or concerning adultery can appeal unless he is notorious. This it says together with the following chapter.

The same.

It has reached us that, when priests and other clerics complain that they have been wounded by some persons or have otherwise been gravely injured, and frequently produce witnesses to prove what they assert, those who are assailed appeal to the Apostolic See, but contemn to prosecute the interposed appeal or to avoid the fellowship of men. Hence, because you desire to be made more certain through our letters concerning what you are to do thereupon, by authority of the present writing we command your fraternity that, if their excess is not public and notorious, you shall compel those who appeal for such a cause, contradiction and appeal ceasing, by ecclesiastical censure, to prosecute the interposed appeal within a suitable time. But if their excess is public and notorious, under pretext of an appeal, if they have interposed any to foster their iniquity, you shall not omit to declare them excommunicated, inasmuch as [from] the very laying of hands upon clerics they incurred a sentence of excommunication, and shall cause them to be more cautiously avoided as excommunicated until they make satisfaction to those who suffered injury and present themselves to the apostolic presence with your letters.

Latin source headnote: It is summarized above in the immediately preceding chapter.

The same, to the Archbishop of Toledo.

Your fraternity consulted us whether deference is to be given to appeals when an appeal is made for the cause of frustrating delay and they do not prosecute the interposed appeal. Concerning this, indeed, we have determined that a response should be made to your consultation: that if at any time some persons who are manifestly and notoriously known to detain another's wife or to have laid violent hands upon a cleric appeal, no deference is to be given to their appeal in any way. But since many things are called notorious that are not, you ought to provide lest you appear to hold as notorious what is doubtful. But those who appeal from your presence you ought to compel, within a suitable time, to prosecute the interposed appeal or, with appeal removed, to obey your judgment.

Latin source headnote: This chapter is summarized above, under the same title, in the chapter We Remember.

The same.

It has been suggested to our ears that, when those oppressed and aggrieved have recourse to the protection of the Apostolic See and, an appeal having been made, enter upon a journey, their adversaries, knowing of the interposed appeal, neither approach our presence nor transmit a representative for themselves; but when they perceive that those persons have returned and have brought back our letters, they break forth into the voice of appeal and enter upon the journey of coming to us, so that they may thus elude the solicitude of those by whom they are assailed. But because no one's fraud ought to protect him, and things that are known to contain in themselves the vice of cunning and fraud are to be cut away by the sickle of apostolic moderation, we respond to your consultation in this way: if anyone is discovered to do this from fraud or malice, you shall not defer to his appeal, nor on that account postpone terminating with a suitable end the cause committed to you, because you are to know that we issued the decretal letter with which such persons appear to be fortified not to suppress anyone's justice, but to remove an unjust grievance.

Latin source headnote: An excommunicated person can, while cognizance of the appeal is pending, be absolved as a precaution; and if it appears that he appealed lawfully, he is not punished because in the meantime he celebrated divine services.

The same, to the Archbishop of York.

When R., a priest, came to our presence, we committed your cause and his to the Bishop of Tusculum and P., Cardinal of Santa Susanna, to be heard. At your objection, although R. the priest was not excommunicated by law, they nevertheless caused him to be absolved in fact. But because we will that what is known to have been established in this part by our brothers be changed for no reason, through apostolic writings, by way of precept, we command your fraternity that you in no way trouble the aforesaid priest because, after the excommunication made contrary to the appeal, he sang divine services, but, the appeal ceasing, restore all things to that status in which they were at the time the appeal to the Apostolic See was sent forth.

Latin source headnote: If an appellant is disturbed in the possession concerning which the appeal was taken, the judge from whom the appeal was taken can reform that possession for him, while the appeal remains in its state. This it says according to the common understanding.

The same, to the Archbishop of Canterbury.

Since we are bound to respond to the consultations of individuals insofar as the Lord shall have ministered, we wish to impart a response to you the more gladly, the more we love your person with more abundant charity. Since, therefore, you wished to consult us whether, if the possession of those who appeal to our hearing has been disturbed, it is lawful for you to reform it for them, setting aside that concerning which the appeal was interposed, we respond to your prudence in this way: if a complaint thereupon has reached you, it will be lawful for you to do this in judicial order.

Latin source headnote: A general and vague appeal with respect to any grievance whatever is not valid, but one restricted to a certain cause is. Thus.

The same, to the Bishop and Archdeacon of Bologna.

Your devotion consulted us that we should make your prudence more certain through our letters whether an appeal interposed from every grievance holds, and therefore we respond to your consultation in this way: that if perhaps someone were generally to interpose an appeal from every grievance that could happen to him, an appeal of this kind ought not to hold. But if someone before some judge were to interpose the obstacle of appeal concerning every grievance that could be inflicted upon him in one cause, although a general appeal has been interposed, nevertheless deference is to be given to his appeal by the same judge. But concerning the fact that you say some persons appeal for purposes of frustration so that they may avoid canonical punishment, and do not prosecute the interposed appeal, we will this to become known to you: that if, because they have appealed from you, you ought to compel them within a suitable and competent time to prosecute the appeal or, concerning those things about which the appeal was taken, with appeal removed, to obey your judgment.

Latin source headnote: A frivolous appeal does not excuse an inferior from being bound to obey a superior and from being punished for contempt, unless he purges his innocence in another way. This it says, and it is a noteworthy case in that it is said that this man is to be punished.

The same, to the Bishop of Zamora.

When we were prepared kindly to admit and efficaciously hear the petitions that you presented to us through your messenger, our beloved son I., cardinal deacon of Santa Maria in Cosmedin, formerly legate of the Apostolic See, proposed to us with constant assertion that, when he had called you to his synod and you had contemned to approach at his summons, he promulgated a sentence of excommunication against your person, after which excommunication you caused yourself to be consecrated as bishop by one who was discharging our place. And when our beloved son N., canon of Saint James, firmly asserted that you were on a legation of the king and therefore could not have approached at the summons of the aforesaid cardinal, the cardinal asserted in opposition that his messenger found you not on a legation of the king but in the Church of Salamanca, and told you that he was not going to require you in another church. And when it was again proposed on your behalf that, when our venerable brother the Archbishop of Compostela appealed, you also interposed your appeal, the cardinal added that that appeal could in no respect have protected you from being bound to approach at his summons. But we, considering that it was not fitting for you, under pretext of an appeal, to contemn coming at the summons of the legate, admonish and command your fraternity that, either in your own person or through suitable messengers, you present yourself to the apostolic presence, to show your innocence and immunity, if you can.

Latin source headnote: If a mandate made to one who swore to stand by the judgment of the Church exceeds the limits of the oath and of a lawful promise, he will be able to appeal; otherwise it is different. This it says compendiously, according to the Abbot.

The same, to the Archbishop of Canterbury.

To these things—(And below:) Moreover, concerning those who render an oath that they will stand by the judgment of the Church and afterward appeal, the oath having been rendered, let your solicitude provide that you compel them to observe what they swear, or within forty days after the appeal has been interposed to enter upon the journey to prosecute it.

Latin source headnote: The summary is as above, in the immediately preceding chapter.

The same, to the Bishop of Chartres.

To the question [however] that you ask—whether deference is to be given to the appeal of one who, as is customary, merits to be absolved after rendering an oath, and, before anything is commanded to him, has appealed, or if, after receiving a mandate, he appeals for the sake of evasion—we respond thus: that, after he has sworn, no deference at all is to be given to his appeal that ought to derogate from his oath; but he is immediately to be reduced to the same sentence, which ought to be firmly observed until he has received the mandate and, to the extent of [his] ability, has prosecuted what was received.

Latin source headnote: One who appeals from an ordinary can afterward be punished by that ordinary for an offense committed by him. This it says; but supply to the text that the same applies to offenses committed before, if he is now accused concerning them, as in c. To These Things 1 above under the same title, and c. He Proposed below under the same title.

The same, to the Bishop of Winchester.

Moreover, concerning those who appeal to the Apostolic See and afterward, committing grave and enormous things, protect themselves with the appeal when they are convened, we have determined that this response should be made: that, if after the appeal they commit grave things, and so publicly and manifestly that others are gravely scandalized and the seemliness of ecclesiastical honor is deformed, the appeal ought not to protect them in their wickedness and iniquity so as to prevent their excesses from being punished by canonical censure. Moreover, concerning those who, bound by a sentence of excommunication, swear to stand by ecclesiastical judgment and immediately, having forgotten it, break forth into the voice of appeal, we signify to your affection that you ought through excommunication to compel them to pursue the appeal made within a suitable time or to stand by the judgment of the Church.

Latin source headnote: One who did not defer to his adversary's appeal cannot raise an exception against him concerning his own later appeal in the same matter.

The same, to the Patriarch of Grado and the Cardinal Priest of San Vitale.

When our beloved sons M., Abbot of Saint Felix, and the priest R., and [V.,] canon of Saint Mark, were established in our presence for the controversy that arose concerning the election of the Church of Torcello, through the envy of the malignant enemy—(And below:) Therefore, through apostolic writings, by way of precept, we command that, coming together as one, you summon both parties before your presence and, after diligently inquiring into and learning the truth of the matter, if it is established to you that the aforesaid archdeacon, after the appeal made to us and after denunciation also of excommunication, proceeded to the nomination of the often-mentioned C., and that the primicerius with the canons, and the parish priest with the assent of the [whole] clergy of the bishopric, or of the greater and sounder part, elected the aforesaid I. as bishop and pastor, then, notwithstanding the appeal or prohibition of the aforesaid archdeacon, if he himself did not defer to the appeal made earlier, you shall confirm by apostolic authority, with appeal and excuse removed, the election made concerning the aforesaid I.; and you, brother patriarch, shall impart to him the office of consecration. But if the matter was otherwise, after summoning the suffragans of the patriarchate of Grado and associating with yourselves other discreet and honorable men, you shall hear the cause and, with the obstacle of appeal removed, terminate it with its due end.

Latin source headnote: One who appeals from an ordinary in one cause is bound to respond before him in others; he can nevertheless recuse him as suspect, unless he is convened concerning a manifest crime in which no excuse or suspicion has place, as when a penalty of law arising from the act itself is imposed. This it says according to the understanding.

The same, to the Archbishop of York.

M., your cleric, proposed to us that it often happens that, when someone appeals concerning some cause, he utterly refuses and declines to respond in other causes in which no appeal has been taken. Concerning this, we respond to your consultation in this way: although on account of that appeal he is no less bound to respond in other causes concerning which no appeal has been taken, nevertheless the judge from whom the appeal is made, because he is altogether suspect to him, ought not in the preceding cause to compel him to respond concerning other causes, unless for a crime so grave and manifest that by the act itself he is held guilty and is deservedly to be condemned.

Latin source headnote: An excommunicated person is absolved after security has been received, although the adversary or the excommunicator appeals lest he be absolved. This it says according to one understanding, which nevertheless must be limited to when the excommunication was not rendered for manifest contumacy or offense, because then he ought not to be absolved unless satisfaction has preceded, as in c. On Behalf 1 below, On the Signification of Words.

The same, to R., Archbishop of Canterbury.

With what countenance you are able to consult us concerning articles of law we do not see, since in those things that are known and clearly manifest you are said to pervert the order of law and evidently to oppose ecclesiastical liberty, for which that glorious and illustrious martyr Thomas, your predecessor, did not fear to undergo martyrdom. For now you are said to confirm elections of bishops, contrary to the due order of law and contrary to the dignity of the pontifical office, not in a church, as is canonical and honorable, nor even in a palace, nor in your chamber, but in the very chamber of the king. But lest we appear to deny our assent to your petitions, concerning those things about which you wished to consult us we respond to you as the Lord shall have given to us.

Indeed, if anyone is held bound by interdict or excommunication for contumacy or any other cause and offers himself to justice concerning those things for which he received the sentence itself, the judge will be able to absolve him lest he die in excommunication, even if the adverse party interposes the obstacle of appeal lest he be absolved—sufficient security nevertheless having been received from him before absolution, that he will obey the equity of law either in the presence of the Roman Pontiff, to whose hearing the appeal is made, if the adversary should prefer, or before the judge to whom the Roman Pontiff shall delegate the cause. Concerning those also who complain that they have been subjected unreasonably to excommunication or interdict, we say the same thing, even if those who pronounced a sentence of this kind have determined to appeal to the Apostolic See. But concerning the fact that, when someone has died, sometimes religious persons, sometimes ecclesiastical persons, and sometimes secular persons demand that debts owed to them, which the deceased himself owed, be paid, and, if they are not paid, send forth the voice of appeal lest the body of the deceased be delivered to burial, we have determined that this response should be made to your fraternity: unless sufficient security concerning payment of the debts, provided the estate is solvent, is given to them by the heir or relatives of the deceased, his body is not to be delivered to burial after the appeal.

Latin source headnote: A prelate ought not to suspend or excommunicate a subject unless admonition has preceded, nor can a subject appeal against ecclesiastical discipline, especially if he is religious. And the judge from whom the appeal is made sets a term for the appellant to prosecute the appeal; if he does not prosecute within it, the judge from whom the appeal is made reassumes jurisdiction. But an appellant who does not prosecute his appeal is condemned in expenses, when the appellee prosecutes it.

The same, in the Lateran Council.

A very reprehensible custom has grown strong in certain regions: that, when our brothers and fellow bishops, or even archdeacons, think that certain persons will appeal in their causes, without any admonition at all having preceded, they render against them a sentence of suspension or excommunication. Others also, while they dread the sentence of a superior and canonical discipline, raise an appeal without any grievance and usurp for the defense of iniquity what is recognized to have been instituted for the protection of the innocent. Wherefore, lest either prelates be able to aggrieve subjects without cause, or subjects at their mere will be able under pretext of appeal to elude the correction of prelates, by the present decree we establish that neither shall prelates pronounce a sentence of suspension or excommunication against subjects unless canonical admonition has preceded, unless perhaps the fault is such that by its own kind it induces the penalty of suspension or excommunication; nor shall subjects break forth into the voice of appeal against ecclesiastical discipline before entry into the cause.

But if anyone believes that he must appeal for his necessity, a competent term shall be set for him to prosecute the appeal; if perhaps he neglects to prosecute within it, then the bishop may freely use his authority. But if in any business someone appeals, and, when the person appealed against comes, the one who appeals neglects to come, if he has anything of his own, he shall make to the other a suitable recompense of expenses, so that, terrified at least by this fear, someone may not easily appeal to the grievance of another. But we will this to be observed especially in religious places, lest monks or any religious persons, when they are to be corrected for some excess, presume to appeal against the regular discipline of their prelate and chapter, but shall humbly and devoutly receive what has been usefully enjoined upon them for their salvation.

Latin source headnote: The judge from whom the appeal is made takes cognizance of the cause notwithstanding the appeal if the appellant does not prosecute. This is the first point. And a judge recused as suspect can commit the cause to another. This is the second.

The same.

To these things, we have determined that it should be granted to you by the present letters that, when an appeal has been taken from you concerning some cause, it shall be lawful for you, with the appeal ceasing, to compel the appellants either to prosecute the interposed appeal or to obey the equity of law before you. Or, if either of the parties holds you suspect, at your insistence they shall choose a judge who may be able to decide the question proposed between them. [But, etc. (Cf. c. 5, On Judgments, II. 1.)]

Latin source headnote: If a canon, admonished to residence, appeals, a term is established for him to prosecute the appeal, and meanwhile the benefice is served through a vicar to be sustained from the fruits of the benefice. And if he does not prosecute the appeal or make residence, he is deprived of the prebend.

The same, to the Bishop of Salisbury.

It has reached us that, when you admonished Roger, son of G., a canon of your church, that he should make due residence in it, he broke forth into an appeal to our hearing and prescribed as the term for his appeal the approaching feast of blessed Luke. But since the said canon appears to have appealed for the sake of frustrating delay, through apostolic writings, by way of precept, we command that you diligently and earnestly admonish him to make due residence in the same church, all delay set aside, or, within the term, to enter upon the journey of coming to us to prosecute it. Meanwhile, however, you shall commit his place in the aforesaid church to some honorable person to be executed, and, with appeal ceasing, assign to him from the benefices of that canon the means by which he can be suitably sustained. But if the aforesaid G. neglects to fulfill either of these, you shall then, every contradiction and appeal set aside, deprive him of his prebend, and, no appeal being admitted, grant and assign it to another suitable person.

Latin source headnote: No appeal is made from a judge executing jurisdiction.

The same.

Your fraternity consulted us whether deference is to be given to appeals interposed by our dearest son in Christ L., [the illustrious] King of the Franks, on behalf of the Jews, so that they may retain Christian slaves, and whether you ought to tolerate their establishing new synagogues where they had none at all. [We therefore wrote to the aforesaid king that he should desist from defending the Jews in this part, and concerning this we also caused him to be admonished through others; and we believe that he will acquiesce in our admonitions, because it would not be right that what was recently established by the holy Fathers in council should be negligently observed.] Hence, it is not fitting that on account of appeals of this kind you ought to abstain from observance of the decree. [The Jews, etc. (Cf. c. 7, On the Jews, V. 6.)]

Latin source headnote: One who sent a messenger to the Pope before citation or notice of the letters can appeal so that the delegate does not proceed; it is otherwise if afterward.

The same, to the Archbishop of Genoa.

To these things: as you assert, sometimes concerning a cause that is committed to a judge with appeal removed, one party appeals, asserting that he has sent his messenger to the Apostolic See for the same cause. To this we respond thus: that the judge, if it is established to him that the appellant, before the parties were cited or the delegation of the cause reached the person who interposes the obstacle of appeal, had sent a messenger to the Apostolic See, ought to defer to the appeal made; but if the messenger was sent after the citation, he can sufficiently execute what is commanded.

Latin source headnote: One who did not defer to an appeal interposed to the Pope is sent to the Curia with the ordinary's letters to be punished.

The same.

Concerning the prior who, not deferring to our protection and to the appeal made to the Apostolic See, caused a certain canon of his to be stripped of all his garments down to his shirt, and compelled him to renounce the accusation and appeal because he murmured concerning his own and certain brothers' enormities, we have determined to intimate this to your solicitude: after diligently inquiring into the truth of the matter, if you find that the aforesaid canon appealed to avoid discipline, you ought on that account to inflict no penalty upon the same prior, since the most holy Roman Church is not accustomed to admit an appeal of this kind, lest audacity for offending be furnished to monks or regular canons. But if the aforesaid canon appealed the prior to the Apostolic See on account of his manifest enormities, which render him notorious, and he contemned to defer to such an appeal, you shall compel him to come to the Apostolic See with your letters containing the truth, to make satisfaction for so great an excess. But upon his accomplices in this wickedness you shall inflict such a penalty that others hearing of it shall not dare to perpetrate similar things.

Latin source headnote: An appeal does not defend a religious against regular constitutions.

The same.

Because the Lord chose us for an inheritance for himself and looked out from afar on high, desiring to provide for your peace and tranquility insofar as divine grace grants, by apostolic authority we concede and grant you that abbots of your order who have been publicly bespattered by, or convicted of, some public infamy, and who, after being admonished by the abbots and afterward in the general chapter, are unwilling of their own accord to yield their prelacy, shall not have the faculty of appealing to the Apostolic See, defending their guilt through an appeal. [Given at Benevento, on the fourth day before the Nones of July, in the second indiction, 1169.]

Latin source headnote: The judge from whom the appeal is made can set a term for the appellant to prosecute the appeal; when it has elapsed, the judge reassumes jurisdiction.

The same.

It has reached our ears through your intimation that, when sometimes we delegate causes to you or others with the remedy of appeal removed, one of the parties, so that he may avoid the examination of the delegated judge, opposes incidental questions and, although the remedy of appeal has not been reserved in the principal cause, nevertheless breaks forth into the voice of appeal, fixing no term for his appeal, and thus causes the other party to remain suspended without prosecution of the appeal. Therefore you petition that it be granted to you and other judges, where causes are committed without the remedy of appeal, to terminate incidental questions with their due end, with appeal set aside. But since incidental questions are often not undeservedly judged prejudicial, we have not determined that assent should be given to your petition in this part; but lest either party be afflicted longer by frustrating judgments, a suitable term shall be set for the appellant to prosecute the appeal; if he has not prosecuted the appeal within it, from that time he shall be compelled to stand by the judgment of the delegated judge, with appeal set aside, both concerning the incidental questions and concerning the principal cause, in such a way that neither shall the common remedy be withdrawn from one, nor shall the other be able to be wearied by frustrating delays.

Latin source headnote: If, after a grievance has preceded, someone submits himself to the protection of a superior, he is held as an appellant, provided that he has observed those things that are necessary in an appeal.

The same, to the Bishop of Ávila.

You should know that it has reached our hearing that, when the Bishop of Zamora multiply molested G., priest of the Church of Saint James of Zamora, which belongs properly to the Church of Compostela, at length the same priest, to avoid his grievances, subjected himself and his church and parishioners to our protection and that of the Roman Church. But the aforesaid bishop, perhaps because he did not expressly appeal, after the protection of the Apostolic See had been invoked, and even contrary to the privilege granted to the Church of Compostela, promulgated a sentence of excommunication against him. Although the aforesaid priest perhaps did not express the word of appeal from simplicity, nevertheless, because after he had subjected himself and his things to our protection he ought not to have been condemned by any sentence without cognizance of the cause, through apostolic writings we command your fraternity that you inquire more diligently into the truth concerning this, and, if it is thus established to you, declare that the sentence that the aforesaid bishop rendered against the same priest does not hold, with contradiction and appeal ceasing. But afterward, if the aforesaid bishop perhaps wishes to act against the priest, you shall hear the cause and decide it with its due end. You shall also more earnestly admonish and induce the same bishop to desist altogether from the molestations and grievances of the Church of Compostela, and so to be content with his own right that he shall in no way presume to usurp those things that belong to the aforesaid church.

Latin source headnote: A cause is not to be remitted to the judge from whom the appeal was taken while the appeal has not yet been justified, unless by consent of the parties.

The same, to the Archbishop of Tarragona.

Having received the complaint of the canons of Pamplona that the beloved son the Duke of the Navarrese had despoiled them of their goods, at their petition we determined that the cause itself should be committed to your fraternity and terminated with a canonical end. But because they were silent to us that an appeal had been taken from your hearing to the Apostolic See, and we would not have committed the cause itself to your examination if this had been established to us, since a cause ought not to be remitted to those from whom it is known that an appeal was taken unless the parties have consented to this, through apostolic writings we command and more strictly prohibit your fraternity from proceeding in any way in execution of that business on occasion of our letters.

Latin source headnote: Even a delegate appointed with the clause “with appeal removed” can be recused if he is a blood relative of the impetrant or if he was his advocate in that cause.

Lucius III, to Walter, Bishop of Lincoln.

Finally, by the present letters we intimate to your fraternity that, if some cause has been delegated to someone who is a blood relative of the person who impetrated the letters, or has discharged the office of advocate in the same business, or is suspect from any other just cause, a delegate of this kind will not undeservedly be able to be recused, although the business was delegated to him with appeal removed.

Latin source headnote: A sentence of interdict is not suspended through a subsequent appeal.

The same, to the Bishop of Norwich.

To these things: because some persons established under interdict appeal and afterward contemn to observe it, you wished to consult what is to be observed in this case. You should know, therefore, that, just as they cannot be excommunicated after an appeal, so they cannot avoid an interdict to which it is established they were subjected before the appeal.

Latin source headnote: The judge of appeal remits the appellant and the cause to the first judge unless it is established to him that an appeal was taken from a grievance or an unjust sentence.

Clement III.

Since in the [Church of God, according to the diversity of orders and honors, the jurisdiction of those presiding sometimes varies among subjects, and our venerable brothers the bishops exercise the power conceded to them in rendering the rights of subjects and peoples, it happens that, considering not justice but the liberty of their own will, seeking the things that are their own, not those of Jesus Christ, they avoid the judgment and power of the bishops themselves, usurping the refuge of appeal, whose aid, to be interposed justly for the protection of the innocent, is recognized to have been instituted.] But we received a complaint through the grievance of our venerable brother the Bishop of Lincoln transmitted to us that certain clerics of Gual., not compelled by necessity of grievance nor burdened by the weight of any oppression, but under the sole pretext of casting off from themselves the yoke of ecclesiastical discipline, so that they may more freely rage in the liberty of their error and iniquitous purpose, send forth the voice of appeal from his hearing and, on occasion of your judgment, which they boast that they wish to observe, avoid without reasonable cause the cognizance of the Bishop of Lincoln, their ordinary judge.

Hence, [because both canonical and civil laws introduced the refuge of appeal not for the defense of iniquity but as a remedy for the oppressed and those unjustly condemned, according to the statutes of the Lateran Council an appeal of subjects of this kind is not to be admitted, which is not extended except where the worthy correction of prelates may be eluded; and it is recognized to concern all who, by the Lord's ordering, are called into a share of the solicitude of the churches that each person's rights be preserved inviolate,] through apostolic writings we command your discretion that, if at any time it happens that any of the aforesaid clerics appeals from the aforesaid bishop to your hearing, you shall neither provide him a hearing nor admit his appeal before it is established to you that it was extended either from a grievance or from an unjust condemnation; otherwise you shall remit him to the hearing of the aforesaid bishop, with appeal removed, to obey his judgment in the just examination of his discussion. For thus the contumacy of the wicked will be restrained, and the honor due to fellow bishops, through observance of fraternal reciprocity, will remain in its liberty.

Latin source headnote: If an appellant who does not prosecute returns to the judge from whom the appeal was taken and is again aggrieved, notwithstanding the first abandonment he can appeal again. This it says, and it is a noteworthy case, according to Panormitanus.

The same.

Your letters directed to us showed that, when a cause concerning a certain marriage was being treated in your presence, in which the man's party objected a bond of consanguinity, and the woman's party had appealed to the Apostolic See and had not prosecuted her appeal by the appointed term for its prosecution and for receiving the apostoli when the term arrived, afterward, when she renounced the appeal that she had made, you, proceeding in cognizance of the cause, received testimony concerning the kinship. But because the woman's party appealed again, you petition us to be instructed whether you have power to proceed to the calculus of sentence. We respond, therefore, that, although according to the decree of the Lateran Council, after an appellant has not prosecuted his appeal within the term established for prosecuting the appeal, you can freely use your authority, nevertheless, because she appealed again, since according to the laws it was lawful for her to appeal twice in the same cause, she made herself exempt from your jurisdiction—especially since here the man's intention proceeds toward separation of a marriage, which is a favorable matter, and nothing is to be done unless it lacks suspicion and is judged irreprehensible by law. But another judge will be able to terminate the same cause, according to God and the enactments of the canons, according to the statements of the witnesses who were rightly admitted after renunciation of the first appeal, and other things, if any, that can still be produced in the same cause.

Latin source headnote: A sentence of excommunication, suspension, or interdict rendered under a condition is suspended if an appeal was taken before the occurrence of the condition. This it says by adhering to the words of the letter, so that it may thus satisfy every reading. And it is a subtle and very much allegeable decision.

Celestine III.

Moreover, we were asked: if some judge has pronounced sentence thus, “Unless you make satisfaction to Sempronius within twenty days, know yourself to be excommunicated, suspended, or interdicted,” and the person against whom [such] a sentence is rendered, appealing in the intervening time, has made no satisfaction by the appointed day, whether he is bound by such a sentence or remains protected by interposition of the appeal? It appears to us that the obstacle of appeal ought to impede a sentence of this kind. [Given at the Lateran, in the third year, 1193.]

Latin source headnote: If several connected articles are committed by a rescript and appeal is removed in one, it is understood to be removed in the others also. This it says. § 1. The cause of suspicion is to be proposed before the judge who is recused and proved before arbiters. This it says.

The same.

Second, you ask: when several articles have been placed in one commission, and only in one does it happen that appeal is expressly prohibited, whether an appeal holds if an appeal has been taken concerning the others? Concerning this we respond to you that, since according to blessed Gregory words serve intention, and this is our intention—that concerning all the articles that are placed in our commission justice shall attain its effect notwithstanding appeal—appeal is understood to be interdicted in all. For it makes no difference whether [appeal] is prohibited first or second, in the middle or at the end, since, as the express arguments of each law teach us, both those things that are at the beginning of rescripts often happen to be referred to the middle and the end, and those that are in the middle to the end and the beginning.

§ 1. Third, you petition to be instructed whether, when someone recuses a judge as suspect, he ought to allege a cause of suspicion and is bound to prove the cause, unless it is manifest, before the same judge; and also whether the judge can proceed in that judgment and business if the person who objects the suspicion is unwilling or unable to prove its cause in law. We respond to your consultation in this way: when someone proposes that he holds a judge suspect, he is bound to allege the cause of suspicion before that judge, lest anyone else be able, at the decision of his own will, frustratingly to avoid any judgment whatsoever. But the parties, through that judge who is named as suspect, ought to be compelled to agree upon some one judge or upon some persons not very remote. If the cause of suspicion is not proved before him or them within a competent term, then at length the judge shall use his authority. But if the cause of that suspicion is proved before those upon whom agreement is made, the recused judge will be bound to stay cognizance of the cause.

For reason itself dictates, and it is proved by very many examples, that suspect and hostile persons ought not to be judges, since, as a decretal constitution asserts, no one can give anything more welcome and pleasing to an enemy than if he has committed to him for assailing the person whom he intends to injure and damage. Moreover, you propose in the fourth place this other question: whether a judge can take cognizance by his office whether an appeal was taken for purposes of frustration or from a reasonable cause, and, if the appellant has not objected a reasonable cause of appeal or has not proved the one he objects, whether the judge is bound under pretext of this appeal to cease from cognizance of the cause. Here it does not please us to define otherwise than has been defined by our predecessors and those skilled in each law. For it is provided in the law that, when an appeal has been interposed, whether it has been received or not, nothing ought to be altered in the intervening time. Canonical constitutions no less hold that those who wish, or for whom it is necessary, to flee to the Roman Church as to their head may appeal without any impediment, to which indeed it is granted that they may go freely without any calumny, custody, excommunication, or despoiling; it permits appeals everywhere according to the sanctions of the holy canons. Therefore, when a judge has before him a cause that he recognizes has thus been suspended through an appeal, he shall abstain as quickly as possible from cognizance of the cause. [Therefore, fifth, etc. (Cf. c. 21, On the Office of a Delegated Judge, I. 29.) Given at the Lateran, on the fifteenth day before the Kalends of July, in the third year of our pontificate, 1193.]

Latin source headnote: Neither the judge nor the adversary is bound to defer to an appeal to which the appellant did not defer.

The same.

You determined to consult us through your messengers whether deference is to be given to the appeal of one whom his adversary is prepared to convict immediately of a despoiling committed against him after an appeal had been lawfully interposed. We respond therefore that, since one is to be punished in that in which he offended, one who neglected to defer to an appeal renders himself unworthy of the benefit of appeal, whence we judge that deference is not to be given to him when appealing either.

Latin source headnote: It has two understandings. According to the first it intends this: a mere executor is not recused, nor is an appeal made from him, unless he exceeds the measure, especially if he is appointed with the clause “with appeal removed.” According to the other understanding, this it says: there is no withdrawal from a suspect judge through appeal unless he exceeds the measure.

Innocent III, to the illustrious King of the Franks.

He who is ignorant of nothing knows—(And below: [Cf. c. 7, On the Office of a Legate, I. 30.]) Moreover, the cardinal himself did not issue the said sentence of interdict but rather published it; nor was he its author, but more truly its executor. Hence, since according to canonical and civil law no appeal can be taken from executors unless perhaps they exceed the measure in executing, and we also took care in the letters directed to him concerning this to prohibit the obstacle of appeal, no deference was to be given to the appeal interposed from him. But concerning the objection of suspicion, although we believe that he was deservedly not suspect to you, nevertheless, even if he had been, he ought not on account of the appeal interposed to have desisted from that to which he proceeded not by his own motion but rather by our precept.

Latin source headnote: If an appeal is received by the judge or approved by the party, the term fixed for prosecuting it obtains the place of a peremptory citation, so that proceedings are taken against the absent person as though he had been cited peremptorily; nor can such a term be anticipated by either party.

The same.

It often happens that, when an appeal is made to our hearing, suits that could easily have been terminated remain undecided on account of the default of one party who prosecutes the interposed appeal neither through himself nor through a suitable representative, or perhaps through the malice of a representative who afterward conceals his procuratorial mandate, although frequently a question of law is moved, for which necessary proofs to the contrary do not exist before us, and sometimes also a question of fact could lightly be proved with the parties present. Hence, although it was established in the Lateran Council that, if in any business someone appeals and, when the person appealed against comes, the person who appealed neglects to come, he shall make to the other a suitable recompense of expenses, so that, deterred at least by this fear, someone may not easily appeal to the grievance of another, nevertheless, because questions are no less prolonged on this account, wishing that an end be imposed upon suits and that fraud and deceit support no one, by the counsel of our brothers, by the present decree we establish that, if an appeal of this kind has been either received by the judge or approved by the party, after the term fixed for the appeal it shall obtain the force of a peremptory edict, in such a way, namely, that from then proceedings shall be taken against the absent person just as if he had been called to judgment peremptorily.

But if perhaps the interposed provocation was maliciously neither received nor approved, when it is established that a lawful provocation was made, we will that it no less obtain force, saving the constitutions promulgated concerning those provoking after sentence: if they take no care to prosecute their appeals, after the term fixed for prosecuting the appeal the sentence that had been suspended by the appeal remains ratified. But whatever could be proposed by an absent person against a peremptory citation may be alleged against an appeal of this kind. But if anyone, anticipating the term of appeal and concealing the truth, has impetrated letters, he shall both lack the letters impetrated and not escape the penalty of contumacy. We will this, however, to be observed in conducting suits or judgments.

Latin source headnote: When an appeal has been abandoned through the appellant's negligence, the judge can proceed by office in cases in which his office abounds. And it is a very noteworthy case.

The same, to the Bishops of Limoges and Cahors.

Established in our presence, the beloved son G., Archdeacon of the Church of Clermont, explained to us that, when formerly the deanery of Clermont was vacant, the abbot, the cantor, and certain canons of Clermont transferred their votes to the venerable brother, the Bishop of Clermont, and the bishop, with certain others expressly consenting, conferred the deanery upon the same archdeacon, although only eleven canons had first appealed that no one should be assumed as dean without the assent of all, while [other] twenty-five consented to his election, partly through themselves and partly through the mediation of the bishop. And when the beloved son P., cardinal priest of the title of San Marcello, then legate of the Apostolic See, made his passage through those regions, not so that he might derogate from the appeal interposed to us but so that he might transmit the instructed cause to us, he delegated its examination to the beloved sons, the Abbots of Saint Giles and Saint Andrew, and commanded them to cite to himself the party contradicting the election of the dean, to show in his presence the cause of its contradiction. When, therefore, the aforesaid cardinal had faithfully reported to you the things proposed before him, it was therefore understood through the assertion of the aforesaid G., Cardinal of San Marcello, that an appeal had been made under this form—namely, lest proceedings be taken in the election of the dean without the assent of all—and that the appellants had not prosecuted the appeal within a year, nor was there a reason that two years should be granted to them, since, just as twice within the lawful time they sent a simple messenger to the Apostolic See, so they could have sent a suitable proctor at least once.

Nevertheless, lest we appear to pass over in silence the peremptory exceptions proposed on their behalf, through apostolic writings we command your fraternity that you inquire more diligently into the truth concerning these things; and, if it is established to you that the archdeacon voluntarily renounced the bishop's act upon which he relies, or that the aforesaid bishop proceeded to his election while omitting the aforesaid things without which it is proposed that it had been agreed that he should not proceed in that transfer of votes upon which the archdeacon relies, you shall impose silence upon him concerning that deanery; otherwise you shall declare by our authority, with the obstacle of appeal removed, that the nomination or election thus made concerning the other person, and whatever followed from it, is invalid and empty.

Latin source headnote: Against a person elected or confirmed, who awaits no other right, an exception or appeal is not regularly admitted, especially a frustrating one to impede the effect of election or confirmation; but, after possession has been obtained, he will be able to be accused or denounced. This it says, and according to this it is a noteworthy case.

The same, to the Chancellor of Metz.

When the beloved son I., Dean of the Church of Saint-Sauveur, and the beloved son E., Cantor of Metz, and D., scholasticus of the same church, your proctors, were established in our presence, we took care to grant them a kindly hearing. But it was proposed to us on your behalf, as also our venerable brother the Bishop of Metz intimated to us through his letters, that, when the provostship of Saint-Sauveur was vacant and the day for the election had been fixed, the aforesaid D. bishop, understanding that the votes of the brothers were divided into two parties—(And below:) through the Father and the Son and the Holy Spirit, in virtue of obedience and under peril of their souls, adjured the canons that, according to God and according to their conscience, they should elect only one of the two toward whom the parties already appeared to have extended their eyes, the one whom they deemed more useful and suitable for the church. But the dean with two deacons and three subdeacons nominated the said cantor, his kinsman of the greater church, as provost. But the cantor himself, who discharges the priestly office, and the custodian with the scholasticus and Master B., priests, two Levites, and five subdeacons concordantly elected you; and the aforesaid bishop, since the honesty of your person was established, confirmed your election as made by the greater and sounder part of the chapter. And when he wished to extend to you the house and investiture, as is customary, the dean appealed to the Apostolic See, alleging only inability against you.

Although the bishop did not believe that deference was to be given to an appeal of this kind, since Pope Alexander of happy memory, our predecessor, established in the Lateran Council that, unless something reasonable has been objected and shown by the fewer and inferior persons, with appeal removed, what was instituted by the greater and sounder part of the chapter shall always prevail and attain its effect, nevertheless, humbly and devotedly deferring to us, he ceased from the investiture. But it was proposed in opposition that the dean, who obtains the greater place in the aforementioned church, with the two more senior deacons and three subdeacons from among the elders of the church, understanding that the provost ought to exercise the administration of temporal things, and that therefore he is more useful for this who is deemed more powerful, with good zeal nominated the aforesaid E. as provost, a man knowing how to provide for the church and powerful to protect its rights and possessions, if necessary, with a strong hand and an outstretched arm. Hence, when the other party, although greater in number, nevertheless inferior in authority, nominated you as provost, proposing that you were, as it were, utterly powerless in those regions in which the possessions of the provostship exist, both on account of this and because it held the bishop suspect by law, it appealed to the Apostolic See, adding that it would object other things to you in our presence, which it was then unwilling to explain in the presence of the suspect judge; but the bishop, not deferring to the appeal, nevertheless confirmed the nomination made concerning you.

We therefore, having heard these and other things that had been proposed on this side and that, because it was evidently established that the cause of appeal that was set out and expressed was not reasonable, but the dean then neither objected nor expressed another, although he said that he wished to object another before us, by the counsel of our brothers decree that the effect of your confirmation ought not to be impeded by the things that were proposed. Nevertheless, if he should determine to propose anything against you not in the manner of an exception to impede the effect of the election and confirmation, but in the manner of denunciation or accusation, after you have obtained peaceful possession of the provostship itself, we do not deny him license to propose it.

Latin source headnote: An appeal can be taken if a place not safe for the parties is assigned, even if “with appeal removed” is written.

The same, to the Bishop of Worcester.

On your behalf it was proposed before us that, since there are manifest enmities between the English and the Welsh, and passage to those regions is dangerous for the English because of the dangers of the roads and the war that is recognized to be frequent or continual between those peoples, many who distrust the merits of their cause sometimes strive by authority of our letters to draw you or your men before judges established in Wales, so that thus you may abandon even the most just causes undefended or undergo a settlement equally unjust and damaging. Since, therefore, we will the causes that we commit to be terminated with their due end in such a way that neither party is aggrieved contrary to justice, to your fraternity by the present page we respond [thus:] that, since one who, although cited, cannot come safely to the presence of delegated judges is honorably excused, whenever it happens that you or your men are summoned before judges to whose presence it is dangerous for you to go, you will freely be able to appeal to the Apostolic See, even if in the letters of our commission the remedy of appeal has been closed, unless the same judges assign you a suitable and safe place. [Given at the Lateran, on the tenth day before the Kalends of May, in the fifth year of our pontificate, 1202.]

Latin source headnote: A defendant lawfully appeals if he is not heard when objecting that the claimant's proctor does not have a sufficient mandate, or that he was previously convened through other letters of which no mention is made in the second. This it says with regard to the title.

The same, to the Bishop, Dean, and Precentor of Hereford.

The beloved son John, master of the Hospital of York, signified to us that, when P., formerly rector of that hospital, had closed his last day, our venerable brother the Archbishop of York, to whom and to whose predecessors the ordering of the same hospital had belonged from antiquity, unwilling that it should sustain loss from the want of a rector, placed over it as rector the said I., a priest of the same house unanimously elected by his brothers, hoping that the house itself would receive increase through him both in temporal and spiritual things. But in the course of time, the dean and chapter of the Church of York, as though the ordering of the same hospital belonged to them, wishing to remove the master himself from the office of his administration, impetrated apostolic letters concerning this to the Dean of Lincoln and his fellow judges, by whose authority they caused both the archbishop and the rector to be called into law. Therefore, when the parties were established before those judges on the day peremptorily assigned to them, the judges committed their places to others, reserving only definitive sentence to themselves.

Furthermore, the Chapter of York, by authority of certain letters on whose seal was contained the seal of the chapter only for citations, although that chapter is known to have another seal, constituted through it a certain person as claimant. But although the same master alleged that the same person ought not to be admitted as claimant on occasion of those letters, and additionally added that, by authority of certain letters obtained by us concerning this to other judges, he had been convened earlier and ought not to have been convened through later letters in which no mention was made of the former, nevertheless the judges were unwilling to admit exceptions of this kind; on account of this he sent forth the voice of appeal to us. Wherefore, through apostolic writings we command your discretion that you inquire more diligently into the truth concerning the foregoing, and, if it is established to you that an appeal was taken to our hearing on account of the said causes or one of them, after revoking as invalid whatever you know was done after an appeal of this kind, you shall summon the parties to your presence and diligently hear, with appeal removed, the things that they determine to propose on this side and that. [Given at the Lateran, on the second day before the Ides of May, 1284.]

Latin source headnote: A defendant lawfully appeals if he is not heard when petitioning that the thing sought in the libellus be declared.

The same, to Master G., Archdeacon, and Wnormannus, canons of Soissons.

Through the signification of the brothers T. and R. it was declared to our apostolate that, when a question concerning a certain land was being conducted before delegated judges between them on one side and V. on the other, since they had several lands, they petitioned the judges that the land concerning which the question was being conducted should be shown to them. When the judges refused to do this, they provoked to our hearing. Wherefore we command that, if it is so, after restoring to the due state whatever, if anything, you know was attempted after the appeal, etc.

Latin source headnote: The judge from whom the appeal is taken cannot establish a term for finishing the appeal; but if he does so, he is understood to have established it for presenting oneself.

The same, to the Bishop of York and the Abbots of Luc. and Mont-Molli.

From the intimation of the beloved sons, the prior and canons of Saint Barbara, it became known to us that, when a question concerning a certain manor was being conducted before an ordinary judge, not by our delegation, between them on one side and V., chamberlain of Tangar. in the Diocese of Rouen, on the other, and the same chamberlain appealed from that same judge to our hearing, fixing no term for his appeal, the said judge—who appeared to favor his cause because a certain cleric, a table-companion of his, had been advocate in the same cause for the already-said chamberlain—deceitfully and contrary to custom fixed this term for the appeal: that by the feast of the Purification of blessed Mary each party was to have returned from prosecution of the appeal. Yet he could not impose a law upon us that we should be bound to dispatch it within the said term, since also, according to lawful sanctions, a suit that is expected to be introduced in the prince's consistory remains untouched without detriment from delay until he causes it to be introduced and decided by the nobles according to custom. Meanwhile, however, the messenger of the aforesaid chamberlain, anticipating their messenger and not waiting for him until the lawful term, impetrated letters and withdrew. But because fraud and deceit ought to protect no one, through apostolic writings we command your discretion that, if it is so, after summoning the parties, you shall hear the cause and, after hearing the things proposed on this side and that, terminate the cause concerning them by means of justice, with appeal removed. [Given at Rome, on the fourth day before the Ides of February, 1205.]

Latin source headnote: One who appeals outside judgment from plausible and probable causes lest he be molested in possession, if he is afterward despoiled, is restored before all things to the state in which he was at the time the appeal was sent forth. This it says by adhering to the words of the letter and so that accommodation may be made for every reading, according to Panormitanus.

The same, to the Bishops of Rochester and London.

When O. de Camera of good memory, parson of the Church of Faversham, entered the way of all flesh, the beloved son the Abbot of Saint Augustine of Canterbury, first through certain monks and second through himself, entered possession of the same church, which he asserts belongs to him, and more than once sent forth to us the voice of appeal lest anyone presume unduly to molest him concerning possession of that church. And when he had peacefully possessed the aforesaid church for some time, certain laymen of the Diocese of Canterbury, rashly laying violent hands upon that abbot and the monks within the same church, even to the shedding of blood, violently cast them out of possession of the church itself.

[*We therefore, hearing of the savagery of the aforesaid laymen and wishing with paternal solicitude to provide for the abbot and monks concerning so great an injury inflicted upon them, firmly commanded our venerable brother the Bishop of Ely and his fellow judges that, if the matter stood thus, with appeal removed, they should publicly declare those laymen and their accomplices excommunicated and command them to be more strictly avoided by everyone until they made suitable satisfaction to those who suffered the injury and presented themselves to the apostolic presence with the testimony of their letters. By our authority, under threat of anathema, they were also more strictly to prohibit anyone from presuming, in the cities, towns, villages, and other places to which it should happen that they came, to celebrate divine services in their presence, except baptism of infants and penances of the dying, or to exchange anything with them under the appearance of any contract whatsoever. We added no less in the mandate that, after removing any unlawful detainer from that church, notwithstanding anyone's precept and with the obstacle of appeal removed, they should reduce and preserve the aforesaid abbot and monks in that state in which they had been before the violence was attempted.

Meanwhile, however, when the dean of the place obtained possession of the same church through induction by the laymen who had violently cast out the monks, the beloved son the Archdeacon of Canterbury afterward began to possess the same church, and, converting its fruits to his own utility, still perseveres in the same possession, as is said. Therefore, when in the presence of the aforesaid judges the proctor of the aforementioned abbot insistently petitioned for restitution of the said church, after the archdeacon had been removed from it, so many exceptions were opposed on this side and that, so many delays were granted, and so many byways of escape were invented that, after a very long space had elapsed from the time the commission was made, since the cause did not have its due process, the abbot and the often-mentioned monks took care to impetrate other letters from us. In them, reproving those judges because they had deferred so much to frustrating appeals and frivolous exceptions that the cause had not yet been able to have process under their examination—wherefore the abbot and monks had been compelled to undergo, besides great injuries and losses, no less grave labors and expenses—we strictly commanded those judges that, all favor and fear set aside and the obstacle of any contradiction and appeal removed, they should through ecclesiastical coercion compel the party adverse to them immediately to join issue. They were to take care to receive and examine within two months after joinder of issue the witnesses whom either party should determine to produce concerning both the principal matter and any incidental matter, in such a way that, if they could not participate personally, they should nevertheless execute this through others, from whom no appeal would in any way be lawful. But after the attestations had been received, they were to fix for the parties a competent term at which they should present themselves to our presence to receive sentence.

Therefore, after receiving the later mandate, the same judges, advancing the business according to its tenor, when witnesses had been admitted after joinder of issue, at length, after the attestations had been published, established for the parties a day on which they should appear in our presence to receive sentence concerning this. They transmitted to us the attestations and acts and also other things that appeared to contribute to the cause, enclosed under their seals, as they had in mandate. Therefore, when the beloved son ..., a monk and proctor of the Abbot and Monks of Saint Augustine, approached the Apostolic See at the appointed term and by our mandate waited for the proctor of the other party for almost three months, and at length both were established in our presence, the aforesaid monk proposed that, when the abbot and monks, as was aforesaid, enjoyed peaceful possession of the Church of Faversham, after an appeal had more often been lawfully interposed to us they were violently cast out of it. On that account he petitioned more insistently that, after any unlawful detainer had been removed from it, we deign to restore to them possession of the church itself, with the fruits both received and to be received, also to be calculated from the time of the ejection.

He also sought the expenses of forty marks and more that the abbot and monks were compelled to incur on occasion of certain exceptions that the archdeacon's proctor had proposed for purposes of frustration, and of the competent delays for proving them, since that archdeacon or his proctor afterward did not prove those exceptions. For since the aforesaid O. de Camera possessed the said church in another's name, inasmuch as he rendered for it a certain pension each year to the Abbot and Monks of Saint Augustine, and since it was also proved through several witnesses that, after O. Medicus had been taken from the midst until the substitution of O. de Camera, the Abbot of Saint Augustine had custody of the aforesaid church, after the death of the aforesaid O. de Camera that possession was continued, since it was apprehended by the monks immediately after his death. Furthermore, since an appeal was made by that abbot while he possessed the church itself, both before the ejection and afterward, nothing ought to have been altered while the appeal was pending. He said that it was no obstacle that the archdeacon is alleged to have done this for the sake of preserving his right, because, since a question concerning this had already been moved and it was denied on behalf of the abbot that he had jurisdiction of this kind, through the denial the matter was made doubtful. Hence he could not be judge, since he had already become adversary; and therefore, since he presumed to pronounce law for himself in his own cause, he deservedly ought to suffer detriment from his act, and it is fitting that the matter be recalled to its former state.*]

But the proctor of the aforementioned archdeacon proposed in opposition that, when a parson of a church dies, only its custody is given; indeed, the Canterbury archdeacons who existed for the time being had always used this right, both by common law and by the general custom of the Province of Canterbury, as much in that church as in all others of the same diocese. As had been sufficiently proved, such restitution in no way belonged to the monks, nor did he appear to do them injury by using his own right. Furthermore, since the aforesaid O. de Camera possessed the same church in the name of the archdeacon, inasmuch as each year he paid him one procuration and five solidi in the name of that church, *when the same O. had been taken from the midst, possession in intention is recognized to have remained with the archdeacon; it is not lost unless the archdeacon thought that he could be repelled or unless, upon coming, he had not been admitted. Thus, therefore, the possession of the monks ought rather to be called clandestine detention, since the archdeacon did not lose that possession. And thus the monks could not have it, since two persons cannot possess anything wholly. Therefore, since the archdeacon could enter possession by his own right and cast out the de facto holders, all the more could he, when no one was there and no one resisted in any way, reserve his own right for himself, since the execution of a right is recognized to contain no injury.

To these things, the monks cannot in any way call away the possession of the archdeacon, even if it were established that they had it, because, since he in no way cast them out of possession, and this was neither proved nor confessed in law, they have nothing to object against an external detainer, especially since they themselves entered possession by their own authority and, doing injury to another,* [for the monastery] were unable to acquire any right. The appeal also that the monks allege they interposed was utterly null, since an appeal ought to be made only from a present, past, or future grievance. But the archdeacon had neither previously aggrieved them nor aggrieved them after the appeal, since he is known to have undertaken custody of a vacant thing that he has a right to guard—indeed, which by office he is bound to guard. Finally, no deference at all was to be given to the monks' appeal because, even if the same church belonged to them, they ought [nevertheless] not to have entered possession of it by their own authority, especially since they knew, or rather ought to have known, that custody of vacant churches belonged to the archdeacon and that, if the same archdeacon had then been present, he would have denied it to them and retained it for himself, as pertained to his office. Since, however, their possession was clandestine, they could not be held as true possessors, since no injury concerning possession can be done to a clandestine possessor.

Therefore, after diligently inspecting the foregoing, we decree that the aforesaid abbot and monks are to be reduced to that state in which they are known to have been at the time the appeal, lawfully interposed to us from plausible and probable causes, was made, saving the right of either party concerning ownership; and we judge that the fruits received in the intervening time are likewise to be assigned to them. Wherefore, through apostolic writings, we command your discretion that, with the obstacle of any contradiction and appeal removed, you reduce the aforesaid abbot and monks to that state in which they are known to have been at the time of the appeal, and cause all the fruits of the intervening time likewise to be resigned to them, restraining contradictors, if there are any, or rebels, after admonition has preceded, through ecclesiastical censure, with appeal set aside. [Given at Rome, at Saint Peter's, on the eleventh day before the Kalends of December, 1205.]

Latin source headnote: Entering upon a journey has the force of an appeal if those things that ought to be observed in an appeal are observed. This it says according to one intrinsic understanding.

The same, to the Priors of Saint Augustine and Saint Gregory.

The beloved sons I. and H., messengers [of the beloved sons] the prior and monks of the Church of Canterbury, humbly reported to us that, when they were sent by the said prior and monks to the Apostolic See for the cause being conducted between the prior and monks themselves and our venerable brother the Archbishop of Canterbury concerning the chapel of Lamede, as was proposed to them, the same archbishop, after they entered upon the journey, promulgated a sentence of excommunication against them. But since it is more to provoke to the Apostolic See by deed than by word, and, when they came to the Roman Church on account of the said cause, a provocation to the Apostolic See is understood to have been made, through apostolic writings we command your discretion that, if it is so, you declare that the said I. and H. are not bound by the bond of excommunication, with appeal set aside. [Given at Perugia, on the third day before the Ides of September, 1198.]

Latin source headnote: Through the clause “with appeal removed,” every appeal that is not expressly granted by law is prohibited. This it says up to § But. § 1. Although an excommunicated person appeals from the excommunication, he can nevertheless be denounced and despoiled of the revenues of a benefice. This it says.

The same, to the Bishop of Ely.

The diligence of the pastoral office—(And below: [Cf. c. 28, On the Office of a Delegated Judge, I. 29.]) You asked, also diligently, whether, when appeal is prohibited in a rescript, only a frustrating appeal appears to be prohibited, so that it is lawful to appeal from every grievance, or every appeal appears to be excluded, except only in cases expressed by law. We therefore, considering that a business ought not to be impeded through a frustrating appeal even if it had not been prohibited, respond briefly to your diligence that every provocation is understood to be removed that is not expressly granted by law; but if an appellant has been unjustly aggrieved, a grievance of this kind will be able to be amended by a superior.

§ 1. But because frequently someone is for a time exempted through a lawful appeal from the power of his judge with regard to some certain article, you consulted us whether, if someone bound by a sentence of excommunication, before its denunciation, has taken care to provoke from it as less than reasonably promulgated, in a case in which an appeal before sentence would have obtained force, on the ground that through the interposed appeal the jurisdiction of the excommunicator appears to have lain dormant, he can denounce that person and for a time despoil a cleric of ecclesiastical benefices, since through a provocation made in such manner the excommunication is not deprived of its effect. We therefore respond to your inquiry that, since excommunication brings execution with it, and the excommunicated person is not bound more fully through denunciation, you can not undeservedly denounce him as excommunicated, so that he may be avoided by others. And ecclesiastical revenues are indeed deservedly withdrawn from him to whom the communion of the Church is denied. [But when, etc. You petitioned, etc. (Cf. c. 29, On the Right of Patronage, III. 38.) Given at Rome, at Saint Peter's, on the fourteenth day before the Kalends of January, 1204.]

Latin source headnote: If an appellant to a superior appears before an inferior judge concerning matters touching the appeal itself, he appears to renounce that appeal. But if he protests that on this account he does not intend to renounce the appeal, he is not to be heard as one alleging contraries, unless it is notorious that the act concerning whose amendment he approached the inferior was unjust. This it says, and it is a good case.

The same, to the Bishop of Paris.

You execute the solicitude of the pastoral office prudently when you petition to be instructed by a response of the Apostolic See concerning doubts of law. Indeed, when, as we received from your intimation, while two persons were litigating before their bishop, one of them appealed to the Apostolic See, the bishop, not deferring to the interposed appeal but reckoning the appellant contumacious, bound him with the bond of excommunication. Before his metropolitan, he petitioned that justice concerning this be exhibited to him concerning the bishop, asserting that after an appeal had lawfully been interposed to us the bishop excommunicated him and caused him to be publicly denounced as excommunicated, and petitioning that he be reduced by the metropolitan to that state in which he had been at the time of the appeal—namely, that he be declared absolved—adding also that he did not renounce the objected appeal but wished to prosecute it. Hence your fraternity asked us whether the metropolitan has power to take cognizance of a complaint of this kind, and, if he finds that the man lawfully provoked, whether he ought to declare him absolved, and whether, if the bishop appeals before the archbishop lest the person who had been excommunicated by him be absolved, deference is to be given to an appeal of this kind.

We therefore respond to your inquiry thus: just as the metropolitan has altogether no power to take cognizance of an appeal interposed to us, so neither does he have power concerning those things that had been altered after that appeal, provided that cognizance cannot be taken of them unless cognizance is taken [also] of the appeal at the same time, or of those things that are recognized to touch the cause of appeal. In that case, if the metropolitan should perhaps presume to interpose his part for taking cognizance, the bishop certainly could fly to the benefit of appeal. For it pertains to the office of the person who is to take cognizance of the appeal prudently to correct the things that he finds attempted contrary to it. But if it perhaps were notorious that the bishop's mandate had been indiscreet or unjust, which the subject was not bound to obey, and consequently it was evidently clear to him that the subject lawfully provoked, the archbishop can by metropolitan authority declare that the subject was unreasonably struck by the sword of anathema.

But when the excommunicated person who had appealed lodges a question against the bishop before the archbishop according to the prescribed form, namely, that he take cognizance of the injury inflicted upon him by the bishop, the metropolitan himself can interpose his part to take cognizance of the cause, since that person appears tacitly to renounce prosecution of the appeal. But if by word or deed he protests that he wishes to prosecute the appeal, as is expressed above in the proposed case, he is not to be heard as one petitioning adverse things and contrary to himself. [Given at Rome, at Saint Peter's, on the second day before the Ides of December, in the tenth year, 1207.]

Latin source headnote: Through an appeal lawfully interposed, the principal matter with its accessories is transferred to the judge of appeal, and sentences of excommunication and interdict rendered after the appeal do not hold.

The same, to the Bishop and Cantor of Troyes.

When the beloved sons the Dean of Auxerre and Master R., proctor of our venerable brother the Bishop of Auxerre, were established in our presence, the same master proposed before us that, when the said bishop caused R., a priest of the House of God [of Mont-Attrito,] in which the same bishop is recognized to obtain provision and full administration, to be detained and committed to chains because he refused to restore certain goods of the same house that he had furtively taken away—on account of which he had also been bound by the same bishop with the bond of excommunication—and the aforesaid dean admonished the bishop that he should restore to him, or at least provisionally release to him, the aforementioned priest, whom he firmly asserted belonged to his jurisdiction, [the same bishop, alleging several reasons why he said he was in no way bound to this, utterly refused to restore or provisionally release the same priest. He proposed that concerning this he was prepared to exhibit justice to the same dean in his own court, since the dean was his vassal, or before arbiters to be chosen in common, or even before the metropolitan. But the dean, altogether refusing these things, began gravely to threaten that he would do something that would displease the bishop. On account of this,] the bishop, fearing lest the dean attempt something to his prejudice, subjected himself and his men and the status of his church and city to the protection of the metropolitan and appealed to his hearing, fixing the recently past feast of Saint Mary Magdalene as the term for the appeal.

But after a short time the dean, having summoned the canons of Auxerre, promulgated an interdict of this kind, although they contradicted, that, while the bishop was present in the city, divine services should cease in the Church of Auxerre. But afterward, when on the day fixed for the appeal the parties appeared before the official of the Court of Sens, the dean alleged that he had determined not to defer to the appeal interposed by the bishop because the aforesaid priest was still held in chains when he sent forth to us the voice of appeal. The official, however, judged invalid the interdict promulgated by the dean after the bishop's appeal interposed to the metropolitan see, [*and enjoined upon the chapter of the Church of Auxerre that it should in no way observe that interdict. And when afterward, while the bishop was present, the dean firmly prohibited singing in the church and, binding G., the bishop's chaplain who was singing there after an appeal had been interposed to us, with the bond of excommunication, impeded divine office in the church, and, although admonished more often by the bishop, did not desist from disturbing the office, at length the bishop struck him, as contumacious and incorrigible, with the sword of excommunication. Afterward our venerable brother the Archbishop of Sens publicly declared that he was to be avoided. Hence the proctor himself petitioned us that, judging the aforesaid sentence of interdict invalid, we should cause the sentence of excommunication rendered by the bishop to be observed inviolably until worthy satisfaction.

But the dean proposed in opposition that, when the bishop caused R., a priest belonging to his jurisdiction, to be detained in chains, and he himself had been gravely reproved by both clerics and laymen of the city as though he neglected to defend a right belonging to him—he who was bound to observe the customs of the church by an oath rendered concerning this—he admonished the bishop through himself to restore the priest himself to liberty, being prepared sufficiently to show that the same priest belonged to his jurisdiction, and at length caused the same bishop to be admonished through several others that he should render or provisionally release the priest to him, or at least place him in sequestration. And when the bishop could not be inclined to any of these, after summoning the chapter the dean, with its connivance, placed an interdict of this kind upon the church: that while the bishop was present in the city there should be an utter cessation from divine services in the church. He nevertheless suspended execution of the sentence until he should have a discussion concerning this with the archbishop, who was soon to come into the city, through whom he hoped that concord could be reformed.

But although afterward, when the archbishop was present, he admonished the bishop to accept one of the aforesaid modes for liberation of the priest, he could accomplish nothing with him; rather, the bishop appealed to the hearing of the metropolitan see, fixing the aforesaid term for his appeal. Hence the dean, returning to the chapter, enjoined upon all the canons that they should observe the interdict as it had been placed by him. But on the day fixed for the appeal, the dean, appearing before the official of Sens with the bishop's proctor and fearing that a grievance threatened him, appealed to the Apostolic See, establishing Laetare Jerusalem as the term for his appeal and subjecting himself and his status and that of the Church of Auxerre to the protection of the Apostolic See. But when, after these things and while the bishop was present, the dean publicly declared G., a cleric of the same bishop, excommunicated because he had violently seized two clerics, and commanded the clerics to observe the sentence of interdict rendered by him, the bishop promulgated a sentence of excommunication against the dean himself, declaring him excommunicated to the often-mentioned archbishop and the Chapter of Sens. On that account the archbishop, by the counsel of certain persons, publicly declared him to be avoided, although certain canons of Sens, led by sounder counsel, did not avoid communion with him.*]

From these things, therefore, and others that were proposed before us on each side, we understood evidently that, although the bishop would have provided prudently and usefully if he had provisionally released the often-mentioned priest to the dean, to cut away altogether every material of scandal, nevertheless, because the same bishop, as was premised, expressed diverse modes according to which he was prepared to exhibit justice to the dean concerning the seizure of the priest, and appealed to the metropolitan see, the dean could not after this render a sentence of interdict. And therefore, by the counsel of our brothers, we decree invalid and empty the sentence itself promulgated by him after the appeal had been lawfully made, notwithstanding that which the dean, as though varying, proposed before us for his excuse: that, before the bishop appealed, he himself had rendered the sentence, whose effect he had nevertheless determined should be suspended for a time, since in the meantime, after the appeal was interposed, he ought not to have proceeded to execute the sentence.

We judge temerarious, however, the process of the official who, after the appeal to the Apostolic See had been interposed, decreed that such a sentence of interdict was invalid and empty and commanded that it be observed in no way, since, after an appeal had been interposed to us, nothing ought to have been altered. Furthermore, although at first appearance the sentence of excommunication promulgated against the dean by the bishop appeared to have been rightly rendered, because, when it had been prohibited through the already-said official that the interdict be observed in the church, the same dean, by prohibiting celebration in the church, appeared to disturb divine office, nevertheless, because through the appeal interposed to us on behalf of the dean, to which the official also determined to defer by granting the apostoli, not only the principal business but also the accessories were referred to our examination, we decree that the same sentence promulgated after an appeal of this kind lacked force, and that the dean himself was not bound by it.

But although the archbishop, circumvented by the counsel of certain persons, after the aforesaid appeal, which had become known to him through the letters of his official, declared that the dean was to be avoided, nevertheless we judge inculpable the canons of Sens who, led by sounder counsel, communicated with him, so that they deferred more to the appeal interposed to us than to the denunciation made by the archbishop. [But because, etc. Given at Rome, at Saint Peter's, on the fourth day before the Ides of January, in the tenth year, 1207.]

Latin source headnote: After the Pope recalls some cause to himself, a process afterward made by a lesser judge is not valid, just as it would not be valid if a lawful appeal had been taken from him. This it says, so that every reading may be satisfied.

The same, to the Archbishop of Milan.

That our judgment may go forth from the countenance of God—(And below: [Cf. sole c., That Ecclesiastical Benefices, III. 12.]) We commanded the judges that, if even after the second mandate, through which we recalled cognizance of the whole business to our judgment, they learned that delivery of the seal to the said H. had been made by you, they should declare it invalid and empty, prohibiting him from presuming to use it in any manner, since it is more for the Roman Pontiff to recall some business to himself than for anyone to provoke to him concerning some business. But we tolerated, etc. (Cf. sole c., That Ecclesiastical Benefices, III. 12.) [Given at Perugia, on the ninth day before the Kalends of October, 1198.]

Latin source headnote: If the other party anticipates a term established by a person for prosecuting an appeal, impetrating letters while concealing this, the letters are not valid; but even the appellee can anticipate the term of law, provided that he does not run too far ahead. And where danger threatens from delay, even when neither party prosecutes, the judge to whom the appeal is taken can supply the defect by compelling the parties to prosecution.

The same, to the Abbot of Saint Felix and G., Canon of Bologna.

Your letters offered to us contained that, when certain judges to whom the cause being conducted between the parish churches of Sambro and Rinocor. had been committed by the Apostolic See without the remedy of appeal pronounced sentence for the parish church of Sambro, and its proctor appealed to us without a term on behalf of the parish church of Rinocor., and neither had deference been given to the appeal nor had a term for prosecuting it been assigned to the parties by the judges, the parish priest of Sambro impetrated our letters to you concerning observance of the aforesaid sentence, as it had been reasonably rendered. Afterward the other party impetrated from us other letters of commission to other judges concerning invalidating [or confirming] the same sentence, no mention of the former letters having been made in the later. Hence, recalled into doubt whether the later judges or you ought to take cognizance of it, you wished to consult us concerning this, [*adding nevertheless that it had been proposed by certain wise men on behalf of the appellant that, since in such an article he has by benefit of law a year within which he can execute the suit by himself or jointly, in the intervening time he could prosecute the same appeal at his own decision whenever he wished, nor ought he to be compelled to it before the same space of time had run. Therefore they asserted that the first letters were of no validity, even though no mention of them had been made in the second.

But on behalf of the other party certain other learned men in law were said to have maintained that, since it was in that party's interest that the sentence should not remain suspended for so long and its confirmation be deferred, and the judges who pronounced it determined that the aforesaid appeal was not to be admitted, both because it had been prohibited by us and because it appeared frivolous, the party appealed against could lawfully have impetrated letters of this kind in the meantime—especially since, if it were said otherwise, churches would sometimes sustain grave loss, since in ecclesiastical causes according to the canons it is lawful to appeal whenever a grievance or another just cause occurs. Hence it could happen, if in this way a year were given to everyone provoking, that a cause would not attain its due effect for six or eight years. Certain others were additionally of the opinion that the first letters, not the second, were valid, but that the party who had appealed was not bound to prosecute his appeal within a year.*]

Therefore, although a year is granted by law to one lawfully appealing from a sentence, or [even] two years from a just cause, to prosecute the interposed appeal, nevertheless, because a term of this kind can be restricted not only by the person provoking but also by the judge from whose sentence the provocation is made—since it was established for this purpose, not that the term itself cannot be anticipated, but lest it be capable of extension—we believe that a distinction is to be made as to the case in which letters are impetrated. And indeed, when a certain term is fixed by the appellant or judge for prosecuting the appeal, if the appellee, concealing it, impetrates letters, letters of this kind, as surreptitiously obtained by concealment of the truth, ought to obtain no firmness. But if no certain term has been fixed by the judge or appellant, the party appealed against will be able, within the term established by law, provided that he does not run too far ahead so as to supplant the appellant in impetrating the commission, to impetrate letters of commission, by whose authority lawful proceedings shall be taken in the cause of appeal, in such a way that, if the appellant wishes to proceed in the cause of appeal, he will be obliged to act under the judge thus obtained, unless he can lawfully recuse him.

But if the appellant is unwilling to act, the appellee can nonetheless prosecute the cause itself, especially if he perceives that a grievance threatens him from the delay. The superior judge also, if he sees that danger threatens from delay, can and ought, when neither party prosecutes the appeal, to intervene so that the danger may be avoided. For example, if a provocation was made from a sentence rendered concerning confirmation of some bishop-elect, and each party wishes to defer prosecution of the appeal even [up to] a year, the superior judge to whom the appeal was taken certainly can—indeed, ought—to moderate the term providently, lest the Lord's flock long lack the care of a pastor. From these things, therefore, you should know that a response has been made to your consultation: through the later letters no derogation is made from those first lawfully impetrated, through which proceedings can be taken, with reason preceding, to confirm or invalidate the sentence. [Given at Viterbo, on the seventh day before the Ides of July, in the twelfth year, 1209.]

Latin source headnote: When the other party is contumaciously absent, the judge of appeal can define even the principal business if the appeal was taken after joinder of issue.

The same.

Through your letters you asked us whether, if an appeal has been made to the Apostolic See under someone's examination after sentence was rendered, or at least after the depositions of the witnesses were published and read, those who are delegated by us concerning these things can, if one of the parties is unwilling to present himself to their sight, terminate by judicial calculus the cause delegated to them. We therefore respond to your consultation in this way: since issue concerning the same business was lawfully joined before the first judges, the delegated judges, when the person convened absents himself through contumacy, will be able, when the merits of the cause are clear to them, to define the business committed to them.

Latin source headnote: A noteworthy and famous chapter, having many new sayings limiting each law; and, in sum, this it says, by adhering simply to the words of the letter: one appealing before sentence is bound to express a reasonable cause before the very judge from whom the appeal is taken, nor is an exception admitted that he had previously sent a messenger to the Apostolic See or that he had impetrated letters that have not yet been presented to the judge.

The same, in the general council.

That due honor may be deferred to judges and that provision may be made for litigants concerning labors and expenses, we establish that, if someone convenes an adversary before a suitable judge, the latter shall not provoke to a superior judge before sentence without reasonable cause, but shall prosecute his justice before that judge, notwithstanding that he says he sent a messenger to the superior judge or even impetrated letters from him before they were assigned to the delegate. But when he believes that an appeal is to be taken from a reasonable cause, after a probable cause of appeal has been set out before the same judge—namely, such a cause as, if it were proved, ought to be reputed lawful—the superior shall take cognizance of the appeal. And if it is established that he appealed from that judge less than reasonably, the superior shall remit him to the inferior and condemn him in expenses to the other party; otherwise the superior himself shall proceed, saving the constitutions concerning greater causes to be referred to the Apostolic See.

Latin source headnote: If the judge from whom an appeal is taken from a grievance revokes it, he can proceed in the principal cause.

The same, in the same council.

Since, when a cause ceases, its effect ceases, we establish that, whether an ordinary or delegated judge has pronounced something by threatening or by interlocutory decision by whose execution one of the litigants would be aggrieved, and, using sound counsel, has desisted from the effect of an interlocutory decision or threat of this kind, he shall freely proceed in cognizance of the cause, notwithstanding that an appeal was taken from such a threat or interlocutory decision, provided that he is not lawfully suspect from another cause, lest the process of the business be retarded by frivolous occasions.

Latin source headnote: One wishing to recuse a judge ought to propose the cause of suspicion before that judge and prove it before arbiters to be chosen in common. If it is not proved, the judge uses his jurisdiction in the principal matter; but if it is proved, he remits the business to the superior or commits the cause with the consent of the recusing party. (Moreover, etc.:) In notorious matters an appeal is not admitted. In doubtful matters a probable cause is to be expressed before the judge that ought to be reputed lawful; if the appellant does not prosecute it, the judge from whom the appeal was taken shall proceed in the cause. It is the same if he prosecutes and does not prove. This constitution, however, is not extended to regulars. This it says.

The same, in the same council.

Since it is provided by a special prohibition that no one shall presume to promulgate a sentence of excommunication against anyone unless competent admonition has preceded, wishing also to provide lest perhaps the person admonished be able under pretext of a frustrating recusation or appeal to avoid examination by the person admonishing, we establish that, if he alleges that he holds the judge suspect, he shall assign before the same judge the cause of just suspicion, and he with the adversary—or, if perhaps he has no adversary, with the judge—shall choose arbiters in common; or, if perhaps they cannot agree in common, without malice he shall choose one and the other another, who shall take cognizance of the cause of suspicion. And if they are unable to agree upon one sentence, they shall call a third, so that what two of them decree shall obtain the strength of firmness. And they should know that they are bound to execute this faithfully by the strict precept enjoined by us in virtue of obedience under attestation of divine judgment.

But if the lawful cause of suspicion is not proved before them within a competent term, the judge shall use his jurisdiction. But if it is lawfully proved, the person recused shall, with the assent of the recusing party, commit the business to a suitable person or transmit it to the superior, so that proceedings may be taken in that matter according to what is to be done. Moreover, when the person admonished flies to the obstacle of appeal, if his excess is manifest by the evidence of the matter, by his confession, or by another lawful mode, since the remedy of appeal was instituted not for the defense of iniquity but for the protection of innocence, no deference is to be given to a provocation of this kind.

But when the excess is doubtful, lest the appellant impede the judge's process by the refuge of a frivolous appeal, he shall set out before the same judge a probable cause of appeal—namely, such a cause as, if it were proved, ought to be reputed lawful. And then, if he has an adversary, within a term to be moderated by the same judge according to the distance of places, the quality of the time, and the nature of the business, he shall prosecute the cause of appeal. If he takes no care to prosecute it, from that time the judge himself shall proceed notwithstanding the appeal. But when no adversary appears, since the judge proceeds by his office, if the cause of appeal is proved before the superior, the superior shall execute the office of his jurisdiction. But if the appellant fails in its proof, he shall be remitted to the person from whom it is established that he appealed maliciously. But we will that these two foregoing constitutions not be extended to regulars contrary to their special observances.

Latin source headnote: If a judge wishes to hold as joinder of issue an advocate's confession revoked on the same day, or ratifies a process made by a subdelegate of a subdelegate, a lawful appeal is taken.

Honorius III, to the Dean, Chancellor, and Cantor of Lincoln.

When, while the proctors of both parties were established at the Apostolic See, we committed to our beloved son R., cardinal deacon of Sant'Angelo, to be heard the cause being conducted concerning the Church of Holiseth between the beloved sons the abbot and brothers of the Valley of Saint John of Croston, of the Premonstratensian Order, on one side, and the prior and canons of Newstead in the Diocese of York on the other, P. and B., proctors of the aforesaid abbot and brothers, established in his presence, insistently petitioned that, approving the process of the Abbots of Rievaulx and Bellalanda and the Prior of Malton, to whom the cause itself had been delegated by Pope I. of good memory, our predecessor, we deign to terminate by sentence the cause itself, which had already lasted for so long. But W., proctor of the aforesaid prior and canons, proposed in opposition that issue had not been joined before the aforesaid judges, but they had proceeded wrongly and abruptly. For when, on the appointed day, the same man, appearing before the subdelegates of the delegated judges, petitioned for delays to propose dilatory exceptions, because his advocate, led by error, responded that the Church of Newstead had peacefully and quietly possessed that church concerning which the question was being conducted for forty years and more, although on the same day he corrected the advocate's error and, lest through it any prejudice be capable of being generated against him because dilatory exceptions are to be proposed before joinder of issue, revoked before the same judges the advocate's response, which appeared to contradict his petition. Nevertheless, the judges, believing through an erroneous response of this kind by the advocate that issue had been joined, proceeded not only rashly to the reception and examination of the witnesses of the other party, but also, adding grievance to grievance, when they had delegated the examination of certain witnesses to the Prior of Vellebeum and his fellow judge, who subdelegated their places to others contrary to canonical sanctions, they less providently approved the reception and examination of witnesses made by those persons in fact, although they were unable to do it by law. On account of these grievances an appeal was taken to the Apostolic See on behalf of the aforesaid prior and canons. Hence the same proctor insistently petitioned that we declare the process of the aforementioned judges invalid and empty. But because full faith concerning the foregoing could not be made to us, with the assent of the proctors of both parties, we command your discretion that, if the said prior and canons of Newstead, within three months after receipt of the present writing, lawfully prove before you that the advocate's response was revoked on the same day by their aforesaid proctor W., because thus by consequence issue was not joined, since the proctors of the other party also acknowledged that issue had been joined in no other way than through the response of the said advocate alleging prescription of time, or that the first delegates, namely the Abbot of Rievaulx and his colleagues, approved the witnesses received by the subdelegates of their subdelegates, as is proposed by the other party, although, according to canonical and lawful sanctions, no one except a person delegated by the prince has power to delegate a cause to another, then, provided that these things were expressed in the appeal itself, you shall declare invalid and empty whatever was done by them after their appeal.

Latin source headnote: It does not suffice for an appellant to show that he opposed a lawful and true exception and appealed unless he shows that he appealed because the exception was not admitted. This it says, and it is a noteworthy and everyday case.

The same, to the Dean and Treasurer and P., Canon of Saint Peter, of Zamora.

When our beloved son G., our chaplain, was granted by us as auditor to D., a priest, and I., proctor of the bishop, and G., proctor of the Chapter of Salamanca, the proctor of the chapter, for himself and the proctor of the bishop himself, proposed before him that, when the said priest impetrated from us executory letters concerning his reception in the Church of Salamanca to the Archdeacon of Ciudad and his colleagues, and the parties were established before them as executors, it was alleged on behalf of the bishop and chapter that, since in that church there was a certain number of canons confirmed by oath, of which no mention was made in the letters directed to them, they ought not to proceed against them through those letters; and, lest they do otherwise, an appeal was taken to our hearing, certain other lawful causes having been assigned. But those executors, having contemned an appeal of this kind, pronounced a sentence of excommunication against the bishop and chapter. Wherefore the aforesaid proctor petitioned that the sentence itself be declared invalid and that the said priest be restrained concerning this from the vexation of the same bishop and chapter. (And below:) Therefore, although through the confession of the priest himself made before the aforesaid auditor it was established that the Church of Salamanca had a certain number of canons confirmed by oath, and that an exception of this kind had been proposed before the aforesaid executors, and also that an appeal had been taken from them, nevertheless, because it was not established that an appeal had been taken on account of the nonadmission of an exception of this kind or another lawful cause, we command your discretion that, if it is established to you that the aforesaid exception concerning such a certain number of canons confirmed by oath, or other lawful exceptions, had been proposed before those executors and not admitted, and that for this reason the party of the bishop and chapter appealed, you shall declare the process of those executors invalid and empty.

Latin source headnote: An appellant who fixes a term for the appeal, if he sends a proctor only for impetrating and contradicting, and the appeal was received by the judge or approved by the party, is condemned in expenses to the adversary lawfully prosecuting. This it says according to the common understanding, although the gloss thought otherwise.

The same, to the Archdeacon of Saint Andrew and Master Canon of Melten.

When Nicholas, a knight, and Brother E., a monk of the Monastery of Saint Mary of Drundanian, of the Cistercian Order in the Diocese of Whithorn, were established at the Apostolic See, we granted them as auditor our beloved son S., cardinal deacon of Saint Africanus. In his presence, since the said monk had been constituted proctor only for impetrating and contradicting, as was evidently established from the letters of the said abbot and convent, the same knight humbly supplicated that we ought to proceed against them as contumacious, and to command certain persons that, lawfully condemning them to repair his damages and expenses because, while he personally prosecuted the appeal sent forth, they sent a less suitable proctor to prosecute it, after he had first been restored as should be just, they should hear those things that the aforesaid knight should reasonably determine to propose against the aforesaid abbot and convent. But because full faith concerning the foregoing could not be made to us, with the assent of the knight and the aforesaid monks, we command your discretion that, if it is established to you that the said abbot and convent fixed a term for their appeal and did not send a sufficient proctor to prosecute it, while the aforementioned knight personally prosecuted it, you shall condemn them to restore to that knight the expenses incurred from the time of the appeal; and, after he has first been restored as shall be just, you shall hear the cause and terminate it with its due end, with appeal removed.

Latin source headnote: It is not lawful for the same person to appeal a third time from the same sentence.

The same, to the Bishop of Mantin. and P., Canon of Tuscania.

R., tutor of the children of the late B., a citizen of Tuscania, showed us by his petition that, when a question concerning a certain sum of money and other things was being conducted before R., then judge of the county of Tuscania, not by apostolic delegation, between him on one side and F. for himself and Peter Campumallus, tutor of B., the late son of B., their fellow citizens, on the other, the same judge promulgated definitive sentence for that R., which was twice confirmed by judges delegated by the Apostolic See. But although Peter Picheta, Canon of Tuscania, to whom we are said to have committed execution of the sentence itself, lawfully inducted him into possession of certain houses and other things, because the other party, which had appealed once and a second time from the cognizance of other delegates, sending forth the voice of appeal to us a third time contrary to lawful sanctions, obtained from us that cognizance of the sentence itself be delegated to the beloved son P., Canon of San Severino in Tuscania, and his colleague, they, as they were more than duly hostile toward him, cast him out of the aforesaid possession contrary to justice. And when our beloved son R., cardinal deacon of Santa Maria in Cosmedin, appointed by us as auditor to each party concerning the appeal sent forth to us a third time, declared by interlocutory decision that they could not by law appeal a third time, by our letters we commanded the aforesaid P. of San Severino and his colleague that they should in no way attempt to proceed in that business.

Latin source headnote: An appeal interposed with the intermediate judge omitted does not devolve the cause when an exception is opposed. This it says according to the common understanding.

The same, to Master G., Archdeacon, and the Official of Limoges.

The beloved sons the prior and convent of Lac-Rouge showed us by their transmitted petition that, when a question concerning a certain wood and other things was being conducted before Master A., Canon of Clermont, not by apostolic delegation, between them on one side and F. of Hambaro, a knight of the Diocese of Clermont, on the other, the same knight, frustratingly sending forth the voice of appeal to our venerable brother the Archbishop of Bourges, obtained that the cause concerning these things be delegated to the Official of Bourges. Before him, it was proposed by way of exception on behalf of the said prior and convent that, since an appeal had been taken to the same archbishop with the diocesan bishop omitted, to whom appeal should have been made by degrees, he could not and ought not by law to proceed in the cause itself. But because the said official of the archbishop refused to admit an exception of this kind by them, they appealed to our hearing. But he, contemning their appeal, rendered sentences of suspension and interdict against them. Wherefore we command your discretion that, if you find that the said sentences were rendered against them after an appeal of this kind, you shall declare that they utterly do not hold.

Latin source headnote: If one who has ceased to be a tutor is unwillingly convened in the name of the pupil, he will be able to appeal.

Gregory IX, to H., Master of the Scholars, and G. de Rupe, Canons of Saint-Audomarus in the Diocese of Thérouanne.

On behalf of M., Lady of Colb., a complaint was offered to us that, when a woman, the Lady of Bellebron., drew her into a cause before judges by our authority concerning certain lands in the name of her sons, she caused an exception to be made in the presence of those judges: that, since the things concerning which proceedings were being conducted in judgment, and the aforesaid sons, remained in no way under her power and tutelage, since she had already passed to second vows, she was not bound to respond concerning these things in their name, whose tutor she had ceased to be. But because the said judges, neglecting this exception, nonetheless compelled her to this, she, perceiving herself aggrieved, appealed to our hearing. And therefore we command that, if it is so, after revoking as invalid whatever you find was attempted after an appeal of this kind, you shall hear the things proposed on this side and that, etc.

Latin source headnote: If a judge doubting concerning the law wishes to consult a superior, he ought to give the parties a copy of the consultation; otherwise faith is not given to his words of consultation.

The same, to the Master and Brothers of the House of Moriensis.

You intimated—(And below:) Moreover, the Hospitallers being ignorant and no copy of the process of inquiry having been made for them, they are known to have transmitted a reference to us, although according to lawful sanctions, whenever any judge promises that he will make a reference, he is bound immediately to give the litigants a copy of the consultation among the acts.

Latin source headnote: If, before joinder of issue, a judge alters something concerning the principal business or anticipates without cause the day assigned, a lawful appeal is taken. And if a proctor appointed to impetrate concerning the appeal did not observe the form of the mandate, the appellant is heard even after a year.

The same, to the Archbishop, Archdeacon, and G., Canon of Tours.

You should know that we received, through the signification of the Bishop of Orléans, that, when the dean and Chapter of Meung convened him before judges by apostolic authority concerning the fact that, as they said, butchers ought not to sell meat anywhere other than in the stalls of the aforesaid dean and chapter, and at length the named dean and chapter, petitioning by imploring the office of the judges that, since the same bishop after citation caused meat to be sold in other stalls, they should recall to its former state what had been done by him concerning this, it was proposed on his behalf that, since issue especially had not been joined concerning the business, an imploration of this kind had no place. He added that, since by consent of the parties a certain day had been established before the said judges for litigating concerning the business itself, and the session of those judges had been adjourned until that day, they ought not without the parties' consent to anticipate that day and hear the adverse party in such an imploration. And because they did not hear him concerning these things, he appealed to our hearing.

And although within a year he sent his proctor to prosecute an appeal of this kind, nevertheless, because the said proctor, circumvented, as is believed, contrary to the prohibition of the bishop himself impetrated our letters concerning this to certain judges suspect for a certain reason, the said bishop was unwilling to use the letters thus obtained, petitioning to be admitted to prosecution of the appeal notwithstanding the lapse of the year. And therefore we command that, if the prohibition of this kind and the foregoing causes of appeal, or one of them, are established, after revoking as invalid, etc., up to: what was attempted in the already-said business according to the contents of the former letters, etc.

Latin source headnote: A famous and very much allegeable chapter, and this it says: to justify an appeal interposed from a cause, it is necessary to prove the truth of the cause before the judge to whom the appeal is taken, unless it was offered and rejected before the judge from whom the appeal was taken. This it says uniquely up to § To the Same. § 1. If an appeal was not received by the judge or approved by the party, it suffices for the appellant to send a proctor for impetrating and contradicting, although the party appealed against is prepared to prosecute in the Curia. This it says up to § Finally, He. The Sicilian Abbot. § 2. Before prosecution of an appeal has begun, the appellant can, if he wishes, petition, even against the will of the appellee, that he be remitted to the judge from whom the appeal was taken; but he will be condemned in the expenses incurred by the adverse party in that appeal. This it says up to § Indeed. The Sicilian Abbot. § 3. The article of an appeal interposed from a grievance is discussed by the judge to whom the appeal is taken, when the party is absent through contumacy, even when issue has not been joined in the appeal or principal cause. This it says. The Sicilian Abbot.

The same.

When an appeal has been interposed from a probable cause, it does not suffice for the appellant to prove that he provoked from a cause of this kind unless he shows that it is true, unless, when offering to prove this, he was not admitted.

§ 1. It is also permitted to him, if his appeal is not received by the judge nor approved by the adversary, to impetrate letters concerning prosecution of the appeal through a proctor constituted for impetrating and contradicting, although the other party, through himself or a suitable proctor, is prepared to receive judgment concerning this at the Apostolic See.

§ 2. Finally, one who sent forth the voice of appeal, cognizance of which has not yet been delegated to another at his petition, is by law remitted to the person from whom he provoked, notwithstanding the contradiction of the other party; nevertheless he is to be condemned to the adversary in the lawful expenses that it is established the adversary incurred on this account.

§ 3. Indeed, when someone is prepared to prove the grievance on account of which he determined that an appeal was to be made, and the adverse party contumaciously absents himself, proceedings can be taken concerning this without joinder of issue, although joinder of issue has not yet been made in the article of appeal itself or the principal business, because, since in this case the injustice of the first judge is principally accused, the rigor of law from which perplexity of the cause could follow is not to be required.

Latin source headnote: The clause “with appeal removed,” placed in the middle of letters, looks to the foregoing matters to which it is annexed, not the following, unless it is repeated at the end of the letters. And this applies if the businesses are separate.

The same.

We respond to your inquiry in this way: whenever a clause through which the remedy of appeal is removed is placed in the middle of letters, if there are several businesses in no way touching one another, it embraces only the foregoing, unless perhaps the aforesaid clause is repeated at the end of the letters.

Latin source headnote: It is brief, but in other words it is summarized thus: the appeal of one profits another if they are helped by a common right, the business is the same, the cause of defense is the same, and they were condemned by the same sentence; otherwise it is different.

The same.

When several persons have been condemned by one sentence, if one alone flies to the benefit of appeal, his victory by common law supports the others, if they are helped by a common right and the business is the same and the cause of defense is the same.

Latin source headnote: Just fear excuses to such a degree that one who does not appeal is held as an appellant if he has protested and determined that the causes of appeal were to be expressed.

The same.

If just fear excuses you from appealing, you are reputed to have flown to the benefit of appeal, provided that, within the time in which a provocation is lawfully made, after a protestation concerning this has been proposed before the judge from whom you had wished to appeal—or, if you were unable to have access to him, in the presence of good men—you determined that the causes of appeal were to be expressed.