Title XXXVI: On Religious Houses, That They Be Subject to the Bishop

Latin source headnote: If it is doubtful in whose diocese a basilica to be consecrated is situated, that bishop who previously exercised episcopal rights in that place will consecrate it.

Gregory, to Victor, Archbishop of Naples.

But now, concerning this basilica that is to be dedicated, this ought to be investigated: who—that is, the bishop of which city—before the basilica that has recently been constructed was founded, baptized the inhabitants, and to whose confirmation they resorted with annual devotion. For it is not fitting that these things be determined by boundaries or places, but that the diocese be made his who is described above, so that it may be established by whom the inhabitants were cleansed through the laver of regeneration. And therefore, dearest brothers, all ambiguities having been removed and every circumlocution set aside, it is fitting that you investigate these things by every means, so that he especially may be called to the consecration to whom it is established that permission ought to be granted by the method we have written.

Latin source headnote: No right is lost by the bishop in whose diocese a church is situated when the Pope unites that church to a church of another diocese. And it is an everyday case.

The same, to Abbot Agapitus.

Because the monastery situated on the Marcian estate in the province of Campania is said, through the action of hostility, to have been [so] utterly desolated [of its community] [that not even one monk remained from it who ought to apply any solicitude or care there,] we have considered it useful that it be united to your monastery with all its things and the actions that belong to it, [so that you may have free and wholly unquestioned license to hold its things or vindicate them from those detaining them. Let it also belong to your diligence to depute monks there who, at a time when there is a respite from the enemy, ought both to celebrate the work of God there and to serve fittingly. Nor may you presume to neglect it under any pretext, since it is committed to your care for this reason, that you ought to apply solicitude there.] Nevertheless, know that we have committed that monastery to your ordering in such a way that jurisdiction there is to be held not by the Bishop of Sorrento, in whose city your monastery is situated, but by the Bishop of Nocera, whose diocese it is. For we dispose the ordering of this place in such a way that nevertheless we preserve inviolate for each bishop his own rights.

Latin source headnote: All pious places are subject to the bishop, and through his solicitude they ought to be ordered for the use for which they were destined.

From the decrees of Pope Eugenius.

Concerning hospices and other similar places, through the solicitude of the bishops in whose dioceses they exist, let them be ordered toward those same useful purposes for which they were established.

Latin source headnote: A place deputed by authority of the bishop to the use of hospitality is religious and ought not return to worldly uses.

Urban III, to the Bishop of Rimini.

To these things, concerning what was asked of us—whether a hospital house can be changed to a secular condition—we respond to your inquiry in this way: if that place was destined by authority of the pontiff for the use of hospitality and the provision of the poor, as is customary, since it is religious it ought not be deputed to worldly uses, just as ancient custom unquestionably observes concerning vestments and wooden vessels and other utensils deputed by the pontiff to the cultivation of religion, and the sanctions of the venerable Fathers teach.

Latin source headnote: A religious place ought to be reformed with religious persons only, not with secular persons, unless religious persons are lacking.

Innocent III, to the Patriarch of Constantinople.

Among four (And below: [cf. c. 8, On Majority and Obedience, I. 33.]) Concerning also the monasteries of the Greeks to be converted into secular canonries, we respond to your fraternity in this way: As long as the monasteries can remain ordered through regular men, whether Greeks or Latins, they are not to be transferred to secular clerics. But if regulars are lacking, secular clerics will be able to be ordained in them because of their deficiency. [Furthermore, etc. Given at Ferentino, on the fourth day before the Nones of August, in the ninth year. 1206.]

Latin source headnote: A church situated in the diocese of a bishop is bound to answer to him in episcopal rights unless they appear to have been lawfully remitted; and the bishop, when remitting episcopal rights, can retain a payment for himself.

The same, to the Abbot and Brothers of Grottaferrata.

Constituted in our presence, our venerable brother the Bishop of Albano sought episcopal right from you on two grounds in the church of the castle called Paul's, in which he acknowledged the right of patronage to your monastery: first, because it was situated in the diocese of Albano and therefore by common law was bound to answer to him in episcopal rights; second, because in many privileges of the Roman Pontiffs distinguishing the boundaries of the diocese of Albano, among the other churches in which he exercises jurisdiction, this church is confirmed to the church of Albano by apostolic authority. But your administrator proposed to the contrary that, although the church was situated in the diocese of Albano, and its name had been inscribed in the privilege of that bishop not without the vice of surreption, it nevertheless was not bound to answer to him in anything, since Alberic, formerly its founder, with the assent of Pope B. of happy memory, our predecessor, had conferred the often-mentioned church upon the monastery of Grottaferrata. Furthermore, Dominic, Bishop of Labico, concerning whom there was no contention between the parties, who had been Bishop of Albano, granted in emphyteusis to your monastery, under an annual payment of eight current denarii—which the public instrument names “annatas in capite”—all the churches pertaining to your monastery that were situated in his diocese, and whatever right he had both in your Grottaferrata monastery and in those churches; namely, so that it would be lawful for the abbot and brothers of the same monastery to obtain from whatever bishop they wished both the ordination of clerics and the consecration of altars in the monastery itself and the aforesaid churches. In them he also granted you a third part of the mortuary dues; and Pope C., our predecessor, confirmed by his privilege what had been done by him, and from certain knowledge established that it was to be observed perpetually. But, even if that church had at some time been subject to the church of Albano, your monastery nevertheless could defend itself by lawful prescription, since it had possessed it peacefully for forty years, which the same administrator endeavored to prove through witnesses.

The administrator of the aforesaid bishop, however, responded to the objections that the grant of the founder did not harm the church of Albano, since the founder had granted only the right of patronage to the aforesaid monastery, and he himself was not moving a controversy against you concerning the right of patronage. But he said that the grant of the Bishop of Labico was not valid, as containing simoniacal depravity. For since he had granted the same monastery a third part of the mortuary dues and had granted it full liberty both in the ordinations of clerics and in the consecrations of altars—namely, so that it could obtain them from whatever bishop it wished without anyone's contradiction—there is no doubt that, since these things are spiritual, by the very fact that he received for them the recompense of a fixed payment he committed the vice of simony. Hence a contract of this kind, as simoniacal, obtains no firmness. Moreover, the confirmation of the Apostolic See had been obtained concerning this through surreption, since no mention of the payment was made in it.

(And below:) Since, however, it is neither unusual nor new that, when bishops have granted some churches in both spiritual and temporal matters to pious places, they reserve something for themselves in them under the name of a payment, we also, when we grant either the privilege of liberty or the protection of defense to some churches, gratuitously receive a payment gratuitously offered, and in our letters, for the memory of our successors, express the payment and also its amount. (And below:) We therefore, after hearing these and other things proposed on both sides, by definitive sentence condemn the administrator of your monastery to the administrator of that bishop, in the name of the church of Labico, for payment of the aforesaid pension according to the proportion that falls upon the aforesaid church and for restitution, according to the same proportion, of what was withheld for forty years; and we absolve the same administrator of yours from the prosecution of the administrator of that bishop concerning the other matters, imposing perpetual silence upon him. Although a fixed penalty that the party not observing the contract would pay to the party observing it was expressed in the instrument of grant of the aforesaid Bishop of Labico, nevertheless, since each party is proved by its own confession to have acted contrary to it—since your party withheld the payment from the bishop, and the bishop exacted a procuration from the same church, as the aforesaid administrator proposed—we absolve each party from it.

Latin source headnote: A bishop seeking a church as to temporal and spiritual matters prevails in spiritual matters by the very fact that he proves it to be in his diocese, if it does not appear to be exempt; but in temporal matters he loses unless the other party establishes his right. And in this last point it is a notable case.

The same, to the Abbot and Convent of Farfa.

When our venerable brother I., Bishop of Sabina, before our beloved sons Roger, cardinal priest of the title of Saint Anastasia, and Pelagius, cardinal deacon of Saint Lucia at Septisolium, whom we granted as auditors to him and to Richard, your proctor, had sought the church of Sant'Angelo de Cauceia with its appurtenances and possessions, asserting that it pertained to him in both spiritual and temporal matters, [advancing first the possessory and afterward the petitory action,] he alleged before all else the common law: because, since it was constituted in the diocese of Sabina, as he said, it ought to stand under his power [according to the canonical sanctions. But when it was denied on your side that the same church was constituted in the aforesaid diocese, the same bishop, in order to prove this, exhibited before them a privilege of Pope Anastasius of good memory, our predecessor, in which Mount Tancia is set down as a boundary of the bishopric of Sabina, and the same church of Sant'Angelo is numbered among the other churches of the diocese of Sabina and is said to have been constructed on the aforesaid mountain. He showed this same thing through a public instrument that your proctor was using, in which it is said that the said church is situated in the territory of Sabina, since the diocese of Sabina extends much farther than the territory of Sabina.]

The same bishop also endeavored to show that the said church pertained to him in temporal matters through a public instrument in which it was expressly contained that I., Bishop of Sabina, had leased the said church with its appurtenances to H., Abbot of Farfa, and to two persons after him, for an annual payment of four Pavia solidi, to be paid on the Assumption of the Blessed Virgin. But your party proposed that no faith at all should be placed in the aforesaid instrument because of interlinear writing and an erasure made [in] a suspicious place, namely where the notation of the time is recited. It was furthermore proposed on the bishop's side that, since for a long time a fixed payment had been paid from the church of Sant'Angelo in the name of your monastery to the church of Sabina, it was manifestly clear that [the aforesaid church] belonged by proprietary right to that same church by which the lease had been made. [Furthermore, since Pope Lucius of good memory, our predecessor, had enjoined the people of Sabina to labor for the recovery of Tancia, which you held at that time, and through them both Tancia and the church of Sant'Angelo had been restored to Peter de Bono, then proctor of the bishopric of Sabina, and you afterward caused the same church to be occupied, restitution of it had to be made to the same bishop, as that bishop asserted that all these things had been proved by suitable witnesses.]

To these things the aforesaid proctor responded that, even though certain witnesses deposed that they had seen the church of Sant'Angelo pay a payment of four solidi to the Bishop of Sabina, nevertheless no prejudice could thereby be generated against your monastery, since it does not appear that the payment itself was made on behalf of the monastery; and although the witnesses also assert that they had seen the specified payment discharged many times, it is nevertheless not shown to have been furnished for so much time that it extends to lawful prescription. Likewise, just as a lease made is not sufficient for ownership of the thing, neither is payment nor receipt of a payment. [Although the same Pope Lucius, our predecessor, had also given the above-written mandate to the people of Sabina after having been misled, believing, as had been suggested to him, that the aforesaid place and church pertained to the bishopric of Sabina, and the monks of Farfa, repelling the injury inflicted by those people of Sabina, took care to retain the aforesaid church, restitution on this account was not to be made to the bishop, especially since he would immediately suffer an adverse judgment in the petitory action, and he who seeks what he is going to return is known to act fraudulently, as is contained in the civil laws. The same bishop also vindicated for himself in that church half the special offerings of certain days, which the proctor of your monastery plainly acknowledged to him.]

Therefore, after these and other things that each party took care to propose before the aforesaid cardinals had been understood, because it was established for us that the aforesaid church of Sant'Angelo was constituted in the diocese of Sabina, with the counsel of our brothers we adjudged episcopal right in all spiritual matters in it to the same bishop, only those things excepted that are known to have been withdrawn from him through authentic writings, [this being expressed for caution: that he is to receive annually in the same church half the offerings of the aforesaid days, which, as was said, the aforesaid proctor acknowledged to him.] But because we recognized the aforesaid instrument, through which the bishop intended to vindicate [for himself] the aforesaid church as to temporal matters, to be invalid for producing proof concerning this, as being suspect at law because of the aforesaid matters, we held that you were to be absolved by sentence from his prosecution as to the temporal matters of the same church, imposing silence upon him concerning this. [Let no one therefore, etc. Given at Viterbo, on the second day before the Nones of August, in the twelfth year. 1209.]

Latin source headnote: A monastery is subject to the bishop in whose diocese it is situated unless it is proved exempt. This it says with regard to the title.

The same.

When our beloved son [F., Dean of Orense, messenger of our venerable brother the Bishop of Orense, and Master Robert, monk of Celanova and messenger of his abbot, had approached the Apostolic See, we granted them our beloved son P., cardinal deacon of Santa Maria in Via Lata, as auditor. Before him it was proposed on the bishop's side that, when the same bishop had summoned to the synod the abbot who was subject to him by diocesan law, the abbot not only did not come to him but even prohibited the priors of Saint Peter and Saint Columba and the archpriest of Cauci, constituted in the diocese of Orense, from attempting to come to that bishop's synod, although they too were summoned. And when the said bishop, so that he might at least humbly recall the abbot to the good of obedience and overcome evil with good, had commanded him to await him in the monastery at an appointed time, although the bishop came there as he had promised, he did not find the abbot, found the gates of the monastery closed, and was granted no access to the monks. On this account he suspended the abbot and placed the monastery under interdict. But when the abbot himself did not even on this account withdraw from his purpose of contumacy or observe the sentences rendered against him and the monastery, he promulgated a sentence of excommunication against him, which the said bishop's messenger petitioned us to confirm. But the messenger of the opposing party proposed that his petition was not to be admitted because, although the monastery itself was constructed within the boundaries of the diocese of Orense, it had nevertheless always been free and exempt from every jurisdiction and yoke of the church of Orense from the time of its foundation. Furthermore, if the bishop had any jurisdiction in it—which was not true—the same messenger asserted that the sentence subsequently rendered against him and the monastery obtained no firmness, because the abbot had previously appealed to the Apostolic See from every grievance. The same messenger also complained on behalf of the chapter of Celanova that the said bishop had so circumvented their abbot that, without their knowledge and contrary to the immunity of that church, he promised obedience to him anew.] We therefore, instructed concerning the aforesaid matters through the aforesaid cardinal, because that cause could not be terminated in our presence, inasmuch as the messenger of the monastery did not have letters concerning procuration or ratification, held that it should be committed to your examination, commanding your discretion through apostolic writings that, if it is established for you that the same abbot lawfully appealed concerning this to the Apostolic See before the bishop rendered sentences of suspension or excommunication against him and of interdict against the monastery, or that the monastery is exempt from the jurisdiction of the same bishop—notwithstanding that the abbot, circumvented by him, as is said, promised obedience to him anew without the assent of his brothers, since fraud and deceit ought not assist him—you are to judge, all appeal having been entirely removed, that those sentences are not valid; otherwise, through ecclesiastical censure, you are to cause them to be inviolably observed until suitable satisfaction.

But if perhaps the same abbot fails in proof of exemption and cannot defend himself by lawful prescription, although he proves that he appealed before the aforesaid sentences, you are nevertheless to judge that the same monastery is subject to the church of Orense, in whose diocese it was founded. Similarly, if he fails in proof of the appeal, but exemption or lawful prescription is established for you, you are to absolve both the abbot and the monastery entirely from the prosecution of the same bishop and of that church, [and cause what you decree, etc. Given at the Lateran, on the seventh day before the Kalends of April. 1198.]

Latin source headnote: It is not lawful to establish a new religious order without the authority of the Roman Pontiff, nor can anyone be an abbot or monk in different monasteries. Thus it is principally summarized, although it contains several statements.

The same, in the general council.

Lest excessive diversity of religious orders induce grave confusion in the church of God, we firmly prohibit anyone henceforth from devising a new religious order; rather, whoever wishes to be converted to religion is to assume one of the approved orders. Similarly, whoever wishes to found a new religious house is to receive a rule and institution from the [religious orders] approved. We also prohibit anyone from presuming to hold the place of a monk in different monasteries, or one abbot from presiding over several monasteries.