Title VII: On Institutions

Latin source headnote: The number of clerics ought to be established in collegiate churches according to their resources.

From the Council of Arles.

Let no more be received into a monastery of monks or clerics, or even of girls, than can maintain themselves from the goods of the church without impoverishment of the church.

Latin source headnote: Laypersons cannot be instituted as canons.

Eugenius.

As has become known to us, you have taken care jointly to establish a certain number of canons in your church and to fortify your institution by the binding force of an oath. Hence, because, with that number diminished in the course of time, you call into doubt whether you can fill that number by the institution of canons, counting the laypersons who are named by the title of canons in your church, and whether the established number is filled, so that this ambiguity may be removed from your hearts, it seems to us that, since laypersons ought not to be counted among the number of canons, you ought not to delay to fill the established number, confirmed by an oath taken, with other suitable clerical persons as canons. For your intention is not thought to have been other than that you unanimously take care to find such persons to fill the number when it should be necessary, through whom God may fittingly be served in divine offices through ecclesiastical orders. Furthermore, we more strictly forbid you henceforth to admit laypersons as canons.

Latin source headnote: The institution of benefices pertains to bishops or their officials.

Alexander III, to the Archbishop of Canterbury and his Suffragans.

From the frequent complaints of persons, we have learned quite manifestly that in your regions an exceedingly depraved and enormous custom, contrary in every way to the constitutions of the holy Fathers, has grown strong for many past times: namely, that clerics, led by blind cupidity, receive churches and ecclesiastical benefices without the consent of the bishop of the diocese or of his officials who can do this by law, thinking less solicitously than is fitting how alien this is from the statutes of the holy Fathers and contrary to ecclesiastical honorable conduct. Hence, since you, brother archbishop, wish, as you ought, by the office committed to you, to root out so iniquitous a custom from your province, you pronounced a sentence of excommunication both against those clerics who knowingly retain churches or ecclesiastical benefices henceforth occupied in such a way, and against those who should henceforth presume to occupy churches or ecclesiastical benefices in such a way, as we understood from your letters. We therefore, holding that sentence ratified and firm and confirming it by apostolic authority, through apostolic writings and by way of precept command that each of you, renewing the sentence in his episcopate at least four times a year, cause it to be inviolably observed, contradiction and appeal ceasing, and that you in no way presume to absolve the clerics themselves who have incurred or henceforth incur that sentence unless they have made fitting satisfaction and wholly desisted from their presumption.

Latin source headnote: No one ought to be instituted beyond the resources of a church against the will of its clerics.

Clement III, to the Clergy of Constantinople.

By the authority of the Apostolic See and the duty of our office, we are compelled to regard ecclesiastical men with a more benign eye and to provide for them with pastoral solicitude, lest they be burdened by molestations. Therefore, induced by this reason, we forbid by apostolic authority that any of you be proceeded against by anyone in a civil or criminal business except in an ecclesiastical forum, or be in any way committed to prison or bonds through a secular person unless he has been cast out of clerical order by his archbishop, or without a reasonable and manifest cause suffer a burden from anyone in his office or his right. We also forbid the king's vicar or any person exercising the place of secular power to presume to inflict injury upon you in your houses or other property; rather, both in these and in other things we wish the privileges granted to you by kings or archbishops upon pious consideration to be preserved inviolate. We establish further that no one be instituted in your churches against your will beyond what their resources can sustain.

Latin source headnote: When outsiders must be instituted in churches, clerics of only a certain origin ought not to be instituted, but from wherever they may be, provided that they are suitable.

Innocent III, to the Cardinals of Saint Marcellus and Saint Susanna, Legates of the Apostolic See.

It is known to pertain to the adornment and advantage both of the Church of Hagia Sophia and of the other churches constructed in the city of Constantinople that learned men conspicuous for honorable conduct, coming from any parts of the world, ought to be instituted in them. But, as has been suggested to our ears, our venerable brother the Patriarch of Constantinople, unmindful of those things that we suggested to him by living voice and afterward commanded through writings, if nevertheless our letters reached him, scorning clerics of other nations, strives to place only Venetians in the churches of Constantinople, not considering that in every nation one who does justice is acceptable to God, nor is it fitting that the sanctuary of God be possessed by hereditary right. Wherefore, through apostolic writings [by way of precept] we command your discretion that you admonish him not to postpone instituting in the aforesaid churches, and especially in the greater church, men who are religious, honorable, and learned, and otherwise suitable, from wherever they derive their origin; otherwise he will render himself unworthy for you to compel clerics of other nations to his obedience, especially since because of this they have thought that they should appeal to our hearing. Nor can you dissemble from intimating this to our ears, so that from this very thing we may be able to conjecture whether what he is said to have promised the Venetians concerning this is true. But if any clerics have been instituted by you or one of you in the aforesaid churches, cause them, with appeal set aside, to enjoy peaceful possession, and cause those removed to be restored to the same churches, as shall be just, by ecclesiastical censure, with appeal removed. [But if not. Given, etc., at Ferentino, on the eleventh day before the Kalends of July, in the ninth year, 1206.]

Latin source headnote: Institutions and custodianships can by special right pertain to one who is not the bishop, and while litigation with the diocesan is pending he is defended in possession. This it says. Or thus: if one to whom it does not pertain by common law possesses the right of instituting, while judgment concerning ownership is pending he is defended in possession.

The same, to the Bishop of Ely and the Archdeacon of Norwich.

When the beloved sons Master Honorius, Archdeacon of Richmond, and Master Columbus our subdeacon, I. of York, R. Avenel, and the proctors of our venerable brother the Archbishop of York came to the Apostolic See, we thought that they should be heard in our consistory. On behalf of the aforesaid archbishop it was proposed that the institution of persons and custody of vacant churches pertain to him in his diocese both by common law and by general custom. But certain of his predecessors personally committed both institution and custody to certain archdeacons of Richmond, retaining them to themselves at the time of someone and freely using them, as pertained to them, in such a way that the archbishop who now presides over the church of York granted them by special grace to W. de Chimili, formerly Archdeacon of Richmond, at the requests of Richard, King of the English of illustrious memory, and, when he was afterward elected bishop, retained them for himself as his own. [And when he intended to assign that archdeaconry to the aforesaid master, both before its grant and in the grant itself he expressed that he reserved to himself both the institutions and custodianships. The archdeacon himself answered him that he would act against God and derogate from canonical law if he presumed to usurp for himself the institutions of churches, which belonged to the archbishop alone. Then, renouncing those liberties, he reduced his renunciation to writing and, for greater caution, fortified it with his own seal, and finally took a bodily oath that he would in no way involve himself in them.] But among other things the archdeacon himself answered that, when Henry I, King of England of illustrious memory, wished a new episcopal see to be created at Carlisle, because the Archdeaconry of Richmond was harmed by this, the king himself humbly petitioned T., Archbishop of York of good memory, that, in compensation for a certain part that was withdrawn from the aforesaid archdeaconry, he grant it the aforesaid dignities; and the archbishop, assenting to the requests of the petitioner, gave both the institutions and custodianships, not personally to the archdeacon who then existed, but perpetually to the archdeaconry, by a real and free grant with the consent of the York chapter. But since the archdeaconry itself had existed in continuous possession both of these and also of other liberties in the times of many archbishops, kings, and archdeacons, and the often-mentioned archbishop had granted it to him without any condition, after the grant he asserted that he had granted it with all its liberties except the institutions and custodianships of vacant churches. But he, [fully knowing the custom of the same archbishop, namely that, just as he would give easily, so he was accustomed lightly to repent, and] fearing that, if he expressly denied this, since he had not yet obtained possession as archdeacon, the archbishop would either wholly impede his act or it would be delayed longer, answered that he would do what pleased him not only concerning that but concerning all his revenues. [But afterward, having entered possession of the archdeaconry, he freely used those liberties as his predecessors had been accustomed to do. Subsequently, when the archbishop had despoiled him of the archdeaconry itself contrary to justice and he could in no way obtain its restitution unless by charter he renounced the aforesaid liberties, he, knowing that his right endured, while still despoiled gave the archbishop himself letters of renunciation fortified with his own seal; but, as was proposed in opposition, he in no way abjured them. Indeed, after obtaining the benefit of restitution, he used the same liberties as before, although the same archbishop manifoldly burdened him and his clerics concerning them and other things after an appeal had been lawfully interposed. Hence, since the grant of the aforesaid liberties was not made to the person but rather as a real grant to the personate, they were not specially granted to anyone by grace but were rather delivered as owed together with the archdeaconry, to whose integrity they undoubtedly pertained as compensation by way of dowry. On this account, even if some archbishop perhaps used them while he retained the archdeaconry in his hands, no prejudice was generated thereby against the archdeaconry, since they are understood afterward to have been granted in it. Furthermore, since in the Council of Tours divisions of prebends, dignities, and benefices are forbidden, and the Lateran Council, where it forbids new assessments to be imposed and adds that old ones are not to be increased, says, “Let no persons presume to appropriate a portion of the revenues for their own uses,” it is apparent that the archbishop neither ought nor was able to mutilate the archdeaconry of its dignities and liberties. Nor is it to be believed that, before the grant or in the grant itself, it was arranged that the archbishop should retain the aforesaid liberties for himself, because, if he had perhaps wished thus to usurp another's property for himself, he would seem to have committed simoniacal depravity. But the renunciation could not harm the archdeacon, since he renounced while despoiled, and Pope Alexander of good memory, our predecessor, asserted that a renunciation of this kind was not valid. Moreover, although collation of the archdeaconry should have come by surreption to the aforesaid archbishop, its integrity nevertheless pertains to the dignity of the church of York, and neither archbishop nor archdeacon could, apart from the assent and without the counsel of the York chapter, harm to such an extent the dignities or liberties of the archdeaconry itself.] Upon these matters the opposing party replied that, even if the renunciation or abjuration did not harm the archdeaconry, nevertheless by these the faculty of seeking recovery was taken away from the archdeacon. But the archdeacon answered that he was not seeking recovery of those liberties, since he freely used them, as before, when he began his journey to come to the Apostolic See and enjoyed possession of them. But against this they replied again that the same archdeacon would not have petitioned to be instituted by the archbishop in a certain church of his archdeaconry if such institution pertained to him and he then enjoyed possession of those liberties. To this the archdeacon himself answered that he petitioned not to be instituted by the archbishop but rather to be confirmed, although it seemed unfitting that he should institute himself. We therefore, having heard and more fully understood the things proposed on either side, declared by interlocutory decision that the archdeacon is to be protected in full possession of the liberties of the same archdeaconry until it has lawfully been proved in opposition that those liberties were personally granted to the archdeacons by the archbishops, since in this case both before and after, and even in the grant itself, the archbishop could lawfully have retained them for himself as his own, or until it has lawfully been proved that the archdeacon abjured those liberties. But in this case, if that grant was real, no right or utility would accrue to the archbishop, because either at the petition of the church of York or by ourselves we shall make provision concerning this for the same archdeaconry. Therefore, if either of these has been lawfully [both proposed and] proved, let silence be imposed upon the archdeacon concerning those liberties; if neither, upon the archbishop. [Therefore strictly, etc.]

Latin source headnote: He to whom the collation of dignities pertains cannot institute himself.

The same, to the Bishop of Troyes and the Archdeacon of Paris.

When it [had formerly come to our hearing that a certain dignity in the church of Péronne, which is commonly called the custodianship, had remained vacant for two years and more contrary to the statutes of the Lateran Council, we recall that we gave in command to our venerable brother the Archbishop of Tours, then Archdeacon of Paris, and our beloved son the Dean of Saint-Quentin that, if the matter stood thus, since the donation of that dignity had devolved upon us, they, supported by our authority, should assume it into their custody and should disclose the truth to us by their letters, so that, made more certain by them, we might confer the dignity itself upon a suitable person. But they peremptorily cited both the dean and chapter and also Matthew, abbot of the church of Péronne, who also conducted himself as custodian of that same church. And when the said archbishop, because he could not be present on the appointed day, had excused himself by his letters, the proctor of the aforesaid abbot appeared before the said dean, proposing that our letters directed to them were suspect for many reasons: both because in their salutation the name of the archdeacon had been placed before that of the dean, and the small mark that is customarily appended for the identification of the person obtaining the letters had not been written on the back but rather in the margin of the letters; and because the capital letter S in this word “salutem” was extended too far lengthwise on its rear part; and because in the same letters an adversary, accuser, or even denouncer had not been designated by name—all of which he alleged to be contrary to the custom of the Apostolic See. The same proctor also, alleging that it was necessary to proceed in that business according to judicial order, insistently requested a delay so that the said abbot might be able to be present personally in the same cause, interposing the obstacle of an appeal if the requested delay were denied him. But the said dean, treating the aforesaid allegations with contempt as superfluous, wholly denied the delay and assumed the aforesaid custodianship into his care, appointing suitable providers both in external and internal matters. And so that he might make us more certain about the truth of the business, he compelled the dean and certain canons of the church of Péronne to bear witness to the truth concerning that business; he sent their depositions, enclosed under his own seal, to our presence. We therefore, reviewing more diligently the proceeding of that dean, although we regarded certain exceptions proposed by the proctor of the aforesaid abbot as frivolous and empty, nevertheless, because according to lawful enactments, even if not cognizance but execution is committed, it is still necessary to inquire into the truth of the petitions, especially since that clause, namely, “if the matter stands thus,” had been inserted in our letters, thought that the proceeding of the same dean—who assumed the custodianship into his care before he inquired into the truth—should be annulled. By apostolic writings we command your discretion that you restore the abbot himself to the aforesaid custodianship, since it is established that he was removed contrary to the form of the apostolic mandate, and then take care to proceed according to the tenor of the same mandate, nevertheless attending to this: unless the said abbot shows a reasonable cause why he can have the custodianship and the abbacy together in the same church, you, after removing him, are to assume the often-mentioned custodianship into your care, the obstacle of appeal having been removed, and are to keep it until you fulfill the apostolic mandate concerning it.] But we do not wish you to be ignorant that, after the same M. was made abbot, he could not by law obtain the aforesaid custodianship, because, since by reason of the abbacy the donation both of the custodianship and of the other dignities, and also of the prebends in the church of Péronne, pertains to him, he could not receive the custodianship itself from himself, since there ought to be personal distinction between giver and receiver; nor could he receive it from another, since another did not have the right of conferring it. [Given at Viterbo, on the twelfth day before the Kalends of July, in the tenth year. 1207.]