Title VIII: On Granting a Prebend and a Church Not Vacant

Latin source headnote: One knowingly instituted into the benefice of a living person is to be deposed.

Pope Gelasius I, to the Romans.

Those who are placed in the position of living priests are by that very fact, according to the canons, to be driven from ecclesiastical communion, because they permitted themselves to be appointed as successors to living priests.

Latin source headnote: Benefices not vacant ought not to be granted or promised; and, when they become vacant, they ought to be granted within six months. When these have elapsed, collation devolves from the bishop to the chapter, and conversely, and finally to the next superior.

From the Lateran Council.

Let no ecclesiastical ministries, or even benefices or churches, be bestowed upon or promised to anyone before they become vacant, lest someone seem to desire the death of his neighbor, into whose position and benefice he believes that he will succeed. For since [this] is found to have been forbidden even in the laws of the gentiles, it is [exceedingly] shameful and full of the chastisement of divine judgment if expectation of a future succession should have a place in the church of God, when even the gentiles themselves took care to condemn it. But when ecclesiastical prebends or any offices in some church happen to become vacant, or if they are even now vacant, let them not long remain in suspense, but within six months let them be conferred upon persons who are able worthily to administer them. But if the bishop, where it pertains to him, should delay conferring one, let it be ordered by the chapter. But if it pertains to the chapter and it has not done this within the prescribed term, let the bishop execute it according to God with the counsel of religious men. Or if perhaps all have neglected it, let the metropolitan dispose of them according to God without their contradiction. [Furthermore, etc. (cf. c. 4, On Prebends, III. 5.)]

Latin source headnote: Vacant benefices are conferred notwithstanding the appeal of those to whom they had been promised before they became vacant.

Alexander III, to the Archbishop of York.

It has been reported to our ears that certain clerics, possessing revenues of one hundred or two hundred marks in ecclesiastical benefices and alleging that the first churches to become vacant had been promised to them by monks or canons or others having the right of patronage, issue the voice of appeal so that others may not be instituted in those churches when they become vacant, and so that meanwhile they may be able by some artifice to fulfill their purpose. We answer your consultation in this manner: since promises made concerning churches not vacant were annulled in the Lateran Council, it ought not, under pretext of the appeal of those who rely upon the aforesaid promises, to be omitted that churches, when they become vacant, be ordered concerning suitable persons.

Latin source headnote: If a rescript is written to him to whom collation pertains, with an executor appointed to provide, by presentation of the letters made to the collator the prebend is so affected that a collation made to another is not valid. This it says according to the true understanding. See chapter If to the chapter, under the same title in the Sixth.

Innocent III, to the Provost and Chapter of Cambrai.

T. the priest, our beloved son, proposed to us that, when Pope C. of good memory, our predecessor, after the requests that he had extended to you for receiving him as a brother and assigning to him the prebend next to become vacant in your church, which pertained to your donation, had sent you an apostolic mandate, with the Dean of Reims appointed executor, the dean himself, finding you contumacious and rebellious in the execution of the apostolic mandate, invested him by apostolic authority with the first prebend to become vacant in your church that pertained to the donation of the chapter, [commanding you that, receiving him as a canon and brother, you confer upon him a stall in the choir and a place in the chapter; entrance into churches was interdicted to you if you delayed beyond three days to fulfill what he commanded. But you neither wished to execute his mandate nor refrained from entrance into churches; rather, in evasion of the apostolic mandate, you appealed to the same dean as a means of escape.] But when the dean himself, overtaken by death, could proceed no further in that business, and the prebend that pertained to your donation became vacant in the church of Cambrai, you assigned it to another, [promulgating a sentence of excommunication against that priest because he had retained the letters of the same dean as testimony for himself.] But that same predecessor of ours, wishing what had been done by the same dean to be held valid, wholly annulled the collation of the prebend made by you and, [after absolving the priest from the bond of excommunication,] invested him with it by his own hand through a ring. Although it is not our intention to hold valid investitures made concerning things to become vacant contrary to the statutes of the canons—we who, according to the plenitude of power, can by law dispense above the law—nevertheless, attending that the same priest was invested by our predecessor not with a thing to become vacant but with a vacant thing, inasmuch as it was understood to be vacant after the annulment of the grant made by you, by apostolic writings we command your discretion and order that, removing any holder from that prebend, you confer it upon T., every delay, excuse, and appeal being set aside, and permit it to be possessed peacefully by him; and assign to him a stall in the choir and a place in the chapter with the fullness of canonical honor. [Otherwise, etc. Given at Rome at Saint Peter's. 1198.]

Latin source headnote: The six-month period fixed by law for electing or conferring does not run against one lawfully impeded, nor does it begin to run except from the day of knowledge of the vacancy. This it says, and the text is very frequently alleged and of daily application.

The same, to P., Cardinal Deacon of Saint Mary in Via Lata, Legate of the Apostolic See.

Because diversity of minds often follows diversity of bodies, lest the plenitude of ecclesiastical jurisdiction, distributed among many, grow cheap, but rather, conferred upon one, remain vigorous, the Lord conferred upon the Apostolic See in blessed Peter the mastership and primacy of all churches and of all the faithful of Christ. Retaining for itself the plenitude of power, for the more praiseworthy fulfillment of the pastoral office that made it a debtor to all, it called many into a share of its solicitude, so distributing its burden and honor to others that it subtracted nothing from its own right nor diminished its jurisdiction in anything. But since, by the office of the authority it has received, it neither can nor ought, as the mother of individuals, to deny justice to individuals justly petitioning, since justice and judgment are the preparation of its seat, we, who, although insufficient, have been assumed to its governance, cannot fail to assist our brothers and fellow bishops crying out to us in justice, or fail to hear what they have justly requested, lest, if perhaps we should be found remiss in exhibiting justice to them, they too should be found negligent in rendering the rights of their subjects, and should execute less praiseworthily the part of our solicitude committed [to them] if—which may it not be—they see us either turn aside from right or fail to hear those petitioning for justice. Therefore, diligently moved by this reason, we benignly received at the Apostolic See our venerable brother [G.,] the Archbishop of York, who came there, and took care to hear his manifold complaints. Among other things the Archbishop of York complained [that,] since the collation of prebends in the church of York and in his other churches pertains to him, during the time of his suspension and afterward certain persons intruded themselves into them apart from his authority, and in this and other matters derogated not a little from his right. Certain persons also had crept into certain abbeys of the diocese of York after an appeal had been interposed to us, and had requested from him neither the gift of confirmation nor the grace of benediction. Wishing, therefore, that provision be made for the same archbishop through the industry of your solicitude, by the counsel of our brothers, by apostolic writings we [strictly] command—we command you that, after previous admonition, you induce those who accepted prebends or dignities of the church of York or of other churches pertaining to his donation apart from his authority to resign them, since they cannot retain them with a safe conscience. But if perhaps they should be unwilling to acquiesce in your admonitions, compel them to this, through a sentence of excommunication and the withdrawal of their other benefices, notwithstanding a confirmation obtained from the Apostolic See under the common form, which confirms benefices and prebends as they are justly and peacefully possessed, appeal being removed, unless perhaps some obtained them either by a special mandate of the Apostolic See or by authority of the Lateran Council from the York chapter. Yet let the time of suspension in no way be computed within the six months, since that constitution of the Lateran Council was promulgated only against the negligent and slothful, and then, even if the archbishop himself wished, he was nevertheless unable to use his own power in conferring prebends. And although he was suspended from that power by his own fault, the donation of prebends did not by reason of that fault devolve upon the chapter itself, but during the time of his suspension the donation of prebends pertained to him who, apart from his sloth and negligence, could donate the prebends. Nor is the time during which he journeyed to the Apostolic See, remained there, or departed from it in any way to be computed within the six months. Moreover, we wish the six-month period to be computed not from the time of vacancy of the prebends, but rather from the knowledge of the archbishop himself and from the admonition made to his person by the chapter, since mention is made in the privilege that the same chapter is said to have obtained from our predecessor of a canonical admonition to be sent beforehand. But we regard as altogether frivolous the claim, if perhaps some say that they obtained certain of those prebends by royal donation, as if the royal highness could by its own authority confer those prebends during the archbishop's suspension. But canonically punish the aforesaid abbots if, after an appeal [to us] was lawfully interposed, they received the benefit of confirmation and benediction, lest by their example others assume the haughtiness of pride against their prelates. [Given on the fourth day before the Kalends of May. 1199.]

Latin source headnote: Letters obtained for a benefice are not valid when they make no mention of another's colorable possession in fact. This it says according to the true and common understanding; the text is very frequently alleged, has matter of daily application, and was a very subtle decision.

The same, to the Bishop of Basel and the Abbot of Saint Mary.

When it was formerly intimated to our ears that the provostship of the church of Lausanne had been vacant for so long that, according to the statutes of the Lateran Council, its donation had devolved upon us, we, wishing to exhibit a special grace to our venerable brother the bishop and our beloved sons the canons of Lausanne, and thereby to acquire merit for them from ourselves, commanded them by writings that they confer that provostship, without any difficulty, upon our beloved son B., our subdeacon, the treasurer of Lausanne, certain executors being appointed concerning this; and that, when he had been assumed by them as provost, they assign the treasury of that church, whose assignment was alleged to pertain by law to the same bishop and canons, to a suitable person. But lest the benefit of apostolic provision should remain in any respect imperfect, we commanded our beloved sons the Abbots of Hauterive and Fontaine-André and the Prior of Val-de-Travers that, if the aforesaid bishop and canons neglected to fulfill our mandate, they themselves, every obstacle of contradiction and appeal being removed, should not delay to execute it if they relied upon the truth of the premise, restraining by ecclesiastical censure, appeal being removed, those who rashly chose to oppose our mandate. But the aforesaid bishop and canons, upon receiving our letters, said that the aforesaid provostship was not vacant, because, although the man who had been provost had been assumed as bishop, he had nevertheless, after his consecration, again been elected by the canons themselves to that provostship and possessed it as before. The aforesaid executors, saying that this was contrary to law unless it had been specially granted to them by the Apostolic See, therefore assigned the provostship itself, vacant by law, to the aforesaid treasurer, by the apostolic authority with which they appeared to be supported, to be corporeally possessed, interdicting entrance into the church to the canons themselves unless within eight days they humbly obeyed him as their provost. (And below:) When the aforesaid and other things had been related in his presence by the messenger of our said subdeacon, the messenger of the opposing party proposed that, after his lord the Bishop of Sion, who had been Provost of Lausanne, was consecrated bishop, the Lausanne chapter again conferred and granted that provostship upon him to have, attending in this to the utility and necessity of their church and also to ancient custom. The Bishop of Lausanne, seeing that he was exceedingly useful and necessary to his church, approved what had been done concerning this by his canons, and honor was rendered to him as provost by the canons and even by the treasurer himself. But afterward the aforesaid treasurer, approaching the Roman Church and suppressing everything that had been done both by the bishop and by the said canons, suggested to us that the provostship was vacant. Therefore he obtained from us letters concerning its assignment to him; the messenger alleged on many grounds that they had been obtained through suppression of the truth and suggestion of falsehood, alleging on behalf of his lord of Sion the utility, custom, and necessity that the aforesaid treasurer had suppressed. (And below:) Conversely, the messenger of the opposing party alleged, and endeavored by many reasons to show, that the provostship was vacant and had, while vacant, been granted to the treasurer of Lausanne by authority of the superior to whom its donation had devolved according to the statutes of the Lateran Council. He also endeavored by manifold reasoning to show further that the said Bishop of Sion could in no way have been elected after his consecration to the provostship of Lausanne, from which he had been assumed to the governance of the episcopate, since the statutes of the sacred canons opposed him concerning this. He also said that the provostship was vacant for another reason: those whose donation it was presumed, after he had been assumed as bishop, to grant it to him, since according to the statutes of the aforesaid council both he who received what he accepted contrary to the sacred canons ought to lose it, and he who gave it ought to be deprived of the power of granting. He also showed by many assertions that the utility, custom, and necessity that his messenger had alleged in support of the cause of the Bishop of Sion in no way aided him, since these appeared rather to be begged supports than true supports for his cause. Hence the messenger himself petitioned that we deign to confirm by apostolic authority what had been done by the aforesaid judges and to remove the Bishop of Sion from the provostship itself. Therefore, an auditor appointed by us concerning this decreed by our mandate that what had been done by the aforesaid executors under color of our letters be held null and void, namely because they had been obtained by suggestion of falsehood and suppression of the truth, since that provostship was not vacant in fact, because such possession has more of fact than of law. But we, holding valid the sentence of the same cardinal, by apostolic writings command you that, unless the aforesaid Bishop of Sion sufficiently shows that the aforesaid provostship was granted to him after his consecration either by a special indulgence of the Apostolic See or for another just and necessary cause, you compel him to resign it, if he should be unwilling to do so voluntarily, by ecclesiastical censure, appeal being removed, and thereafter take care diligently to admonish and induce the Lausanne chapter on our behalf to confer it upon the aforesaid treasurer.

Latin source headnote: Where it is established that a benefice was conferred by one having power, possession ought not to be delayed by an exception of abjuration and renunciation.

The same, to the Archdeacon of Richmond.

After the election and confirmation of our venerable brother [Eustace,] Bishop of Ely, when the Archdeaconry of Richmond, which he had held, became vacant, the Archbishop of York granted it to you by his own liberality, giving a mandate to the York chapter by his letters that they take care to receive you as archdeacon, as is customary. They were unwilling to obey his mandate for reasons of this kind, because, among other things that Pope Celestine of good memory, our predecessor, is known to have granted to the dean and chapter of York by his privilege, he also decreed that the ordering of canons or persons should be free, as had been observed until then from the very foundation of the place, namely, so that a suitable and honorable person upon whom the archbishop himself should determine to confer a vacant prebend or dignity in the church of York would, according to the ancient custom of that church, be presented to the aforesaid dean and chapter; [and, received by the chapter as a canon through the book and bread, he ought to be invested in the chapter by the hand of the dean; afterward, received with the kiss of the brethren, he would interpose the customary and due oath concerning preserving fidelity to the church itself, defending its liberties and customs consonant with law to the best of his ability, and not disclosing the secrets of the chapter; and then, by the mandate of the dean and chapter, as is customary, he would be installed by the hand of the cantor;] and if anyone were introduced into that church by someone contrary to this ancient and approved custom, he would be held neither as a person nor as a canon. But if the archbishop should not confer a vacant prebend or personate in that church, within the term of the Lateran Council and according to the prescribed form, after a canonical admonition had been sent beforehand, upon a suitable person, it would be lawful for the dean and chapter, by apostolic authority, notwithstanding any contradiction or appeal, to confer it according to the statutes of that council. Therefore, since no mention of the dean had been made in the archbishop's letters directed to the chapter, by whose hand you ought to have been invested in the chapter, his mandate rightly met contradiction, [and also for this reason: when that same predecessor of ours took care to invest I. of Saint Lawrence with the chancellorship of York by his own hand through a ring, commanding his messenger to assign in his name a stall in the choir and a place in the chapter and procession, together with the entirety of the revenues and everything pertaining to the chancellorship, you, because you presumed to retain those proceeds in contempt of the apostolic mandate, were ensnared in the bond of excommunication by the dean and chapter of York; hence you were not in the meantime to be admitted to a dignity. Moreover, this reason opposed you: before receiving investiture from the chapter, you intruded yourself into the archidiaconal office. Hence, according to the tenor of the privilege, you ought not to be held as a person, especially since homicides, sacrileges, arsons, and many other grave and enormous acts were objected against you, which, while striving to usurp that archdeaconry for yourself by armed force, you did not fear to perpetrate.] Therefore, when your institution had been rejected by the chapter for the foregoing and other reasons, they, lest they sustain loss of their right, understanding also that donation of that archdeaconry had devolved upon them both by authority of the Lateran Council and by the privilege granted to them, having taken the counsel of prudent men, unanimously conferred it upon our beloved son R. of Saint Edmund, investing him with it, as is customary, and solemnly installing him. But in the course of time, after the aforesaid archbishop returned from the Apostolic See into Normandy, and after the resignation and abjuration made by you and received by him, he conferred the aforesaid archdeaconry upon the same R., who petitioned that the archdeaconry itself, assigned to him with reason by virtue of both the first and the second grant, be confirmed by the Apostolic See.

To his objections you replied in order as follows: although mention of the dean was not expressly made in the archbishop's letters directed to the chapter, he nevertheless could not or ought not on that account to appear excluded, as the opposing party alleged; rather, he was contained in the chapter, just as a part is contained in the whole, of which the dean is an honorable part, while the archbishop is the head, nor does it happen that in one body [without] a monstrous prodigy two heads are found. [You endeavored to show in many ways that the sentence of excommunication issued by the dean and chapter did not bind you: both because you had by no means received the fruits of the chancellorship, since you had been constituted by the archbishop proctor only of the spiritualities; and because neither you nor another could be coerced on occasion of a simple mandate, by which coercion is committed to no one, especially since that sentence, whatever it was, had been promulgated after an appeal interposed by you. Hence our venerable brother the Archbishop of Canterbury, then legate of the Apostolic See in England, having shared the counsel of many fellow bishops and other prudent men, pronounced that you were not bound by a sentence of this kind, as you endeavored to show from the rescript of the legate himself. Moreover, since you were absent at that time, you did not intrude yourself into the administration of the archdeaconry; but when you later saw investiture denied to you by the chapter contrary to justice, you entered the archdeaconry by mandate of the superior and began to minister in it as pertained to your office. But you wholly denied that homicides or other such things were perpetrated there by you, or that you had renounced or even abjured the archdeaconry, asserting that, at the time when the opposing party said that you had renounced or abjured it and that the archdeaconry had been conferred upon him, the archbishop regarded you as archdeacon and your adversary alike as excommunicated and as an intruder. Hence, by authority of our letters, at the mandate of our beloved son P., cardinal priest and then legate of the Apostolic See, before our venerable brother the Archbishop of Rouen and his fellow judges in Normandy, and thereafter before the Bishop of Lincoln of good memory and his fellow judges in England, that same archbishop drew your adversary into litigation concerning his intrusion; and we recall that we received the attestations taken concerning that business.] You further added that, even if you had done those things, they nevertheless could not effectually be objected against you by your adversary. Rather, silence should be imposed upon him concerning the archdeaconry itself and, your institution having been approved, restitution should be made to you; this you endeavored to show from the confession made in judgment and repeatedly reiterated by the opposing party. For Roger himself, when questioned by us in law as to the time from which the Archdeaconry of Richmond had been assigned to him by the chapter, answered that around the next feast of the Ascension three years would be complete. Therefore, since it was established from the date of our letters that at that time the archbishop was staying at the Apostolic See, and in them the ancient law had been declared by us, so that the time during which he approached the Apostolic See, [and] remained there, or departed from it was not to be computed within the six-month period, you said that it was plainly established that that period had by no means run against the archbishop. But even if four years had elapsed, as the opposing party, repenting of its earlier response, proposed in the last place—which on your behalf was said not to be possible in law—since even then he had begun the journey to come to the Apostolic See, although he had not pursued it continuously, having been delayed by manifold impediments, the interpretation of our rescript pertained also to a time of this kind; moreover, prescription could not harm one placed in exile. But the act of the chapter could not excuse that same R., because, since the institution made by the archbishop had preceded it, the chapter as inferior could not reject what the superior had ordered, for, even if you had not been admitted contrary to the statute of the privilege, they nevertheless could not proceed against you—especially while absent and not contumacious—because they had neither been constituted executors of the privilege nor could they be judges and actors at the same time. Therefore, if anything was to be proposed by them against the archbishop's act, a question of this kind was to be brought to the superior tribunal so that it might be ended by its authority. Consequently, while your institution made by him was pending—by him to whom it pertained both by common law and by authority of the aforesaid privilege, by which collation of personates and prebends was reserved to the archbishop—the same R. ought not to have crept into the place of a living person. [For blessed Gregory says: “We depose from the honor of that archdeaconry the man who consented to be advanced to another's archdeaconry contrary to the rule of justice; and if he should presume thereafter to minister in the same place, let him know that he is deprived of participation in holy communion.” By the authority of this decree, therefore, you asserted that your adversary was to be deposed from the office of the archdeaconry that he had received badly, especially since he vehemently insisted upon that first surreption and endeavored through an institution of this kind to prove his purpose; and you humbly petitioned that the archdeaconry itself be restored to you.]

We therefore, having heard and more fully understood these and the other things that the parties wished to propose in our presence, because it was established to us that the aforesaid archdeaconry had first been granted to you by the Archbishop of York [and] that, the institution made by him not having been rejected according to the order of law, an archdeaconry not vacant could not and ought not duly to be transferred to another, thought that silence should be imposed concerning it upon the aforesaid R., who consented to be advanced to another's archdeaconry contrary to the rule of justice, decreeing by sentence that the institution made concerning you by the Archbishop of York take effect. But thereafter, if anyone who wishes and is able should determine to propose anything against you concerning the renunciation, abjuration, or any of the foregoing matters, he will be able to try it by judicial order. [Therefore let no one, etc. Given at the Lateran, on the Kalends of June. 1202.]

Latin source headnote: Once a person has been received as a canon, the chapter is bound to provide for him as soon as the faculty presents itself.

The same, to C., Canon of Tortona.

When, concerning the question of a prebend of Tortona that was disputed between you on the one side and our venerable brother the bishop and our beloved sons the canons of Tortona on the other, you and the proctors of the other party were constituted in our presence, we appointed for you as auditor our beloved son Hugh, cardinal priest of the title of Saint Martin. Before him it was alleged on your behalf as follows: when Odo, Bishop of Tortona of good memory and your paternal uncle, having returned from the Apostolic See, earnestly requested the canons of Tortona to receive you as a canon and brother, they, cheerfully assenting to his requests, received you, no mention being made of a first or second [prebend.] From that time until now you have had a place in the choir and chapter like the other canons, have read lessons in the church and sung responsories, and houses in the canonry had been assigned to you by the aforesaid bishop [in the name of a canon;] you possessed and possess them in quiet. And since, of those canons in that church of Tortona who possess no prebend in it, you were the first instituted and received, and now a benefice in it is vacant, you humbly petitioned us that we deign to give a strict mandate to the canons of Tortona that they assign the vacant benefice to you, every difficulty being set aside, and cause you to enjoy peaceful possession of it. But the proctors of the other party answered to the contrary that, since a fixed number of canons had been instituted in the church of Tortona and confirmed by writings of the Roman Pontiffs, and the canons were bound by an oath given to observe that constitution, we gave them a mandate by our letters to receive our beloved son B., our subdeacon and chaplain, as a canon and brother and assign him a prebend as to one of the other canons. But because the established number of canons was then full in that church, they could not put our mandate into execution. After no small time, however, the aforesaid O., formerly bishop, pressed the canons of Tortona by persuasions, threats, and terrors to receive you as a canon for the prebend next to become vacant, steadfastly promising them that he would free them both from the petition of the citizens of Tortona and from execution of the apostolic mandate that they had received for the reception of our same subdeacon; and thus, fraudulently circumventing them, he caused you to be received for the prebend next to become vacant. [But when our beloved son R., cardinal priest of the title of Saint Peter in Chains, was exercising the office of legation in the regions of Lombardy, he caused our same subdeacon to be instituted as a canon of the church of Tortona through a certain cleric of his, assigning to him a stall in the choir and a place in the chapter, in the presence of the aforesaid former bishop, who made no mention of your reception. But the aforesaid canons, although because of the insolence of the clerics they did not show it publicly, held wholly valid the institution made concerning B. When, around the past Easter, the said former bishop paid the debt of the flesh, and the aforesaid bishop who now exists—who had been Archdeacon of the church of Tortona—was substituted for him, those same canons unanimously decreed that the vacant prebend be conferred upon our aforesaid subdeacon, as we perceived was contained in their letters; and the proctors of the chapter itself granted the aforesaid vacant prebend to him in our presence. Hence it was humbly petitioned of us that, wholly annulling your institution as attempted contrary to the Lateran Council and absolving the church of Tortona from your impetition, we deign to confirm by apostolic authority the grant of the aforesaid prebend made to our same subdeacon.] We therefore, made more certain by the aforesaid cardinal of those things that were proposed on either side, holding valid by the counsel of our brothers the grant made by the aforesaid canons to our aforesaid subdeacon concerning the aforesaid prebend, thought that it should be confirmed by apostolic authority. But since it is established both by your assertion and by the confession of the other party that you were received as a brother and canon of the church of Tortona, although the opposing party alleges that your reception was made contrary to the Lateran Council, nevertheless, because this was not proved, the other party wholly denying it, and the canons themselves did not appear able by law to object this against you, since they confess that they received you contrary to the statutes of the aforesaid council, we decree by sentence that a prebendal benefice be conferred upon you in the church of Tortona as soon as the faculty presents itself, since, from the time you were received as a canon, you ought not to lack a prebend. [Willing, moreover, etc. Given at the Lateran, on the seventh day before the Ides of July. 1202.]

Latin source headnote: If one having a prebend in the same church receives a dignity with a prebend, or another prebend, the first becomes vacant. And although it is confirmed to him by a superior, nevertheless an impetration of it made by another is valid, even when the other's possession is not mentioned, because that possession is not colorable. This it says according to the true understanding. Panormitanus.

The same, to the Bishop and Master P., Canon of Hildesheim.

We have received your letters, by which you took care to signify to us that, when we wrote to you on behalf of our beloved son D. the cleric, that you should take care to invest him by apostolic authority with the vacant prebend of Saint Willehad at Bremen, which he said had devolved upon our donation according to the statutes of the Lateran Council, if the canons to whom we wrote concerning this did not take care to execute it; and when Herbert the provost and certain canons of that church, together with Daniel himself and Master B., a canon of that church, were for this reason constituted in your presence, it was proposed before us concerning the fact that the same H. the provost, formerly a simple [existing] canon of the same church, had been elected from that church as a canon in the greater church, and afterward, when the space of one year or a year and a half had elapsed, was assumed as provost in that church of Saint Willehad, nevertheless retaining the former prebend that he then had in that church; and concerning this the parties agreed, saying to one another that these things stood thus. It was also proposed by one party that the provost himself had, in addition to that prebend, another prebend annexed to the provostship, which the same provost and his supporters denied to be a prebend. Furthermore, it was alleged in law that, from the time when the same provost had been called from the lesser church to the greater, the former prebend had begun to become vacant by law according to the statutes of the canons. Then it was alleged on behalf of the cleric that the first ordinance of that church had been that there should be thirteen persons in it, namely the provost with twelve brothers; this would in no way be observed unless that prebend were said to be vacant. But the provost alleged to the contrary that it was almost of general custom that one man should have several prebends in the same church, and that, when the Archbishop of Bremen invested the provost himself with the provostship in full synod, he confirmed to him both that provostship and the prebend with the common assent of the canons, binding with the bond of excommunication those who should trouble him concerning this. Hence it was objected against the aforesaid cleric that on this account he had incurred the sentence of excommunication; but he denied that such a confirmation had intervened, and asserted that, even if it had intervened, it was not valid by law, because that thing which cannot be obtained by law could reasonably be confirmed to no one. He also said that he had never been bound by a sentence of excommunication on this account, since he proceeded concerning these matters by authority of a superior. Hence, because it appeared doubtful to you whether, when someone is elected from one prebend to another, the former at once begins to become vacant, or whether it ought to be adjudged away from him by sentence, or whether, on account of the confirmation of this kind that is expressed above, that prebend ought to be said not to be vacant, you wished to consult us before you should determine anything concerning this. Therefore, since, if it is thus, that prebend, even if not in fact, is nevertheless known to be vacant by law, by apostolic writings we command your discretion that, after previous admonition, you compel the aforesaid provost to resign that prebend without difficulty, by ecclesiastical censure, appeal being removed; and when it has become vacant in fact, take care, supported by our authority and with the obstacle of appeal removed, to confer it upon the aforesaid cleric, inducting him into its corporal possession and defending him once inducted; but restrain by ecclesiastical censure those who rashly determine to oppose themselves. [But if, etc. Given on the fourteenth day before the Kalends of June. 1205.]

Latin source headnote: In churches without a fixed number, vacancy of prebends or canonries is not possible, nor does devolution to the superior occur there from six months' negligence in not providing the church with ministers. This it says, and it is a notable case.

The same, to the Bishop and Archpriest of Pavia.

It was intimated to our ears on behalf of the church of Asti that, when certain prebends in it had been vacant for four years and more, our venerable brother the Bishop of Asti diligently admonished his canons to order the church. When they did not admit his admonition, the bishop instituted certain persons there, believing this to be lawful for him by the Lateran Council. But those instituted, knowing that an institution of this kind was not firm, had recourse to our venerable brother the Archbishop of Milan, who ordered them as canons of the church of Asti and inducted them into corporal possession of the prebends, with the chapter of that church furnishing assent, except only three, who took care to oppose themselves to an institution of this kind. Those three said that the election ought to be annulled because neither the bishop nor the aforesaid archbishop could by the grant of the Lateran Council have ordered the aforesaid church, since each had been negligent and remiss in that ordering during the time granted to them by the canon. But the other party said to the contrary that, although the bishop's institution was not valid, nevertheless the archbishop's ordering was valid by law, because the time granted to him by the canon did not run except from the time when it had been made known to him; to prove this it introduced manifold reasons. When these things had been proposed on either side, finally both parties confessed in agreement that in the aforesaid church there were no distinct prebends, nor was the number of canons fixed. We therefore, having diligently heard these and the other things that were proposed on either side, clearly understood that the statute of the Lateran Council concerning benefices vacant beyond six months had no place at all in this matter, since, even if perhaps the church of Asti suffered a deficiency of canons, nevertheless no prebends were vacant in it, since in it neither are there distinct prebends nor is the number of canons determined. Hence the institution made by the archbishop or bishop on occasion of the aforesaid council ought to lack the strength of validity. But because the whole chapter, except only three, approves and desires the reception of the aforesaid persons, and nothing reasonable has been objected and shown against them by those three, by apostolic writings we command your discretion that, after diligently inquiring into the truth, if the resources of the church of Asti suffice, you cause the aforesaid clerics, with every obstacle of contradiction and appeal removed, to be held as canons according to the custom hitherto observed. [As for contradictors, etc. Given at the Lateran, on the seventeenth day before the Kalends of July. 1204.]

Latin source headnote: One having the power of conferring can by law deliver to another the power of conferring the first benefice that shall become vacant.

The same, to the Bishop and Chapter of Laon.

Constituted in our presence, our beloved son H., subdeacon [of ours] and canon of your church, humbly intimated to us that you, brother bishop, gave him power to confer the sacerdotal prebend that should first become vacant in your church, and that W., Archbishop of Reims of good memory, then legate of the Apostolic See, strictly commanded you, sons of the chapter, by our authority, as appears through his letters directed to you, which were read before us, that, when that prebend in your church became vacant, you receive to it, without the interposition of another person, that person upon whom the same H. should wish to confer it, and take care to invest that person with it without any difficulty. The same subdeacon [also] asserted that, when he was about to approach the Apostolic See, he, taking precaution, appealed lest you, brother bishop, if perhaps meanwhile some sacerdotal prebend happened to become vacant, confer it upon anyone, or you, sons of the chapter, receive anyone presented to it except one whom the aforesaid subdeacon should determine to present. Therefore, by apostolic writings we command your discretion that you admit without any contradiction that person upon whom the aforesaid H., when the sacerdotal prebend happens to become vacant, should determine canonically to confer it; and meanwhile you, brother bishop, are not to presume to confer a prebend of this kind upon anyone contrary to the form of your grant. Otherwise, know that we have commanded our beloved sons the chancellor and Helvin and Adam, canons of Paris, to compel you to this by ecclesiastical censure, appeal being removed, reducing to invalidity anything that they learn was attempted, after the appeal lawfully interposed to us by the aforesaid subdeacon, contrary to the grant made to him concerning the sacerdotal prebend. But because such grants, if drawn into a precedent, could be made in fraud of the canonical sanction by which ecclesiastical benefices are forbidden to be granted or promised before they become vacant, we do not wish that, on occasion of a mandate of this kind, which contains a personal grace, license be granted to those wishing to employ fraud. [Given at the Lateran, on the tenth day before the Kalends of July, in the seventh year. 1204.]

Latin source headnote: The Lateran Council concerning benefices vacant beyond six months is not extended to bishoprics.

Innocent III.

Our beloved son Master G., your canon, formerly suggested to us that, when your bishop of good memory entered upon the way of all flesh, the greater and sounder part of you had agreed upon him and proposed to elect him as bishop, but, because the noble man the Count of Crotone impeded it, the election was not celebrated. Afterward the same count, investing Madius his chaplain with that bishopric, enjoined you either to depart from his land or to elect that M. as pastor. When our venerable brother the Archbishop of Santa Severina, then elect, heard this, he summoned the aforesaid William to his presence and, asserting that authority to elect had devolved upon him because of your negligence, elected him as your bishop. [But after this became known to the aforesaid count, he caused you, summoned to his presence, to be detained in custody until you elected the aforesaid Madius in common. Approaching the presence of our beloved Gerard, cardinal deacon of Saint Adrian and legate of the Apostolic See, he obtained the benefit of confirmation from him. But afterward the aforesaid William, having gone to that cardinal, appealed to our hearing lest he cause him to be consecrated; and finally, constituted in our presence, he proposed that the same Madius had betrayed a certain castle, had received investiture from a lay hand by means of money, and even before obtaining confirmation had wasted many goods of the church by dissipating them. Hence we commanded our venerable brothers the Archbishop of Cosenza and the Bishops of Bisignano and Strongoli to compel you and others who might happen to be named to tell the truth concerning all these things, and, if they found the election concerning the aforesaid Madius irregularly celebrated, to declare it null and void, compelling him by means of justice to restore the things of the church, and afterward, after carefully inquiring into the truth concerning the election of the aforesaid William, to establish what was just, appeal being removed. As we perceived was contained in their letters, when they had peremptorily cited once, twice, and a third time both the aforesaid Madius and you, and also the abbots of the church of Gerace, the said Madius, though awaited for four months, neither approached them nor permitted you or the abbots to approach. But when, because of suspicion of dissipation, they suspended him from administration of the episcopal goods, and he nevertheless presumed to administer, they pronounced a sentence of excommunication against him; contemptuously disregarding it, he did not cease to celebrate. Hence, since it was established to them through the statements of sworn witnesses that the same Madius had received investiture of the bishopric from a lay hand, had incurred perjury, and had manifoldly perpetrated treason, homicides, and also simony; and that his election had been extorted, and his consecration attempted not only after an appeal but also otherwise contrary to the canons; finally, having taken the counsel of prudent men, they annulled by sentence what had been done concerning him.] We therefore, [having diligently heard these and the other things that were set forth to us concerning that business,] attending that the canon of the Lateran Council, issued by Pope Alexander against the negligent, is not accustomed to be extended to an archbishopric or bishopric, but to be restricted to other personates and lesser ecclesiastical benefices, annulled an election of this kind, [not because of the guilt of the person, but] because justice required it. [The said person also, etc. Given at San Germano, on the sixth day before the Ides of July, in the eleventh year. 1208.]

Latin source headnote: A promise of a benefice that will become vacant is not valid.

The same, to the Prior of Hastings and the Superior of Saint Frideswide.

From the tenor of your letters we have received that, when the cause that was disputed concerning provision for I. the cleric on the one side and the abbot and convent of Battle on the other (And below:), after joinder of issue the said cleric exhibited before you a certain charter of those monks, expressly containing that they would assign to him the first church pertaining to their donation worth ten or fifteen marks, nevertheless proving through suitable witnesses that, after a promise of this kind, although they were able, they had been unwilling to provide for him, though they had been admonished concerning this; wherefore he insistently petitioned that the said abbot and monks be compelled to assign him a revenue of at least ten marks. But to these things it was answered in opposition that he could not sue them by reason of the promise, inasmuch as it was made contrary to the statutes of the Lateran Council, which it appeared was proved through the charter exhibited, especially since mention was made in the letters not of any church but only of a promise. Therefore, when this had been disputed at length on either side before you, some asserting that they could be sued and others holding the contrary opinion, you, doubting what the law was in this matter, were unwilling to proceed further in the business until you received concerning this the good pleasure of our will, humbly supplicating us that we deign by our letters to make you more certain what was to be done in this regard. We therefore, attending that the aforesaid promise is not valid, inasmuch as it was attempted contrary to the statutes of the Lateran Council, by apostolic writings command your discretion that, imposing silence upon the aforesaid cleric concerning this, you absolve the said abbot and monks from his impetition. [Given at the Lateran, on the second day before the Ides of December, in the eleventh year of our pontificate. 1208.]

Latin source headnote: A prelate who promises to provide when he is able is bound.

The same.

Approaching the Apostolic See, our beloved son R. the cleric showed us by his intimation that, although you promised that you would provide for him in an ecclesiastical benefice when you were able, as clearly appeared through the letters of the delegated judges drawn up concerning it, you have thus far not taken care to effect this, alleging before the aforesaid judges that such a promise in no way bound you, since it appeared to have been made contrary to the statutes of the Lateran Council, which forbids the promise of a benefice not vacant. But we, considering that it is one thing for a prelate to promise the collation of a benefice when he is able, and another when it becomes vacant, since in many cases a faculty could present itself in which collation should not be deferred in expectation of a benefice that will become vacant, by apostolic writings command you that, when you are able, you assign an ecclesiastical benefice to the aforesaid R.; [otherwise, we have commanded by our letters the Abbot of Saint John and the Dean of Soissons to compel you to this by ecclesiastical censure, appeal being removed.]

Latin source headnote: If the power of conferring pertains to the chapter and the prelate as prelate, it does not pass from one to the other by lapse of time; it is otherwise if the prelate participates as a canon, because then it passes from the chapter to the prelate, unless he commits fraud. This it says, and the text is very frequently alleged.

Innocent III.

You petitioned to be instructed by the Apostolic See whether, since the donation of the prebends of your church pertains to you and your archbishop together, the donation of a vacant prebend remains with the archbishop himself if you have neglected [together] to order it within the six-month period. To this we briefly answer you that, if you and the same archbishop have been negligent concerning this within the prescribed time, just as the power of conferring does not devolve from him to you, so neither does it devolve from you to him; rather, according to the statutes of the Lateran Council, the donation of those prebends passes to the superior, unless perhaps the archbishop has the right of conferring with you, not as prelate but as canon. And in this case, when he has perhaps fraudulently impeded it, fraud ought not to assist him. [Given at the Lateran, on the fourth day before the Ides of January, in the fourteenth year of our pontificate. 1212.]

Latin source headnote: Just as a patron cannot promise that he will present someone to a benefice that will become vacant, so neither can he give the power of presenting before the benefice becomes vacant.

Honorius III, to the Bishop and Provost of the Chapter of Cambrai.

Since our beloved daughter in Christ, the noble woman Joan, Countess of Flanders, overcome by the importunate requests of certain persons, has made unlawful promises concerning benefices of churches not vacant in which she holds the right of patronage, and has placed their donations in the hands of others, as has been intimated to our ears, we command your discretion that, decreeing this invalid, you forbid her by our authority to presume to attempt similar things henceforth.