Title XXXVII: On Penalties

Latin source headnote: A criminal is to be punished as often as he repeats the offense.

From the Council of Toledo.

Things that are repeated by frequent transgression are to be condemned by frequent sentence.

Latin source headnote: One who kills a priest is to be punished, and part of the penalty is distributed to the church over which he presided, and the other part for his soul.

From the Council of Tribur.

The composition for a slain priest is to be paid to the bishop to whose diocese he belongs, in such manner namely that the bishop shall assign half of his wergild to the uses of the church over which he presided, and shall justly distribute the other half in alms for him, because no one seems to us a nearer heir of his than the one who joined him to the Lord.

Latin source headnote: Prelates ought not to exact money for tolerating criminals, nor, even for the sake of correction, to impose a monetary penalty from cupidity.

Alexander III, to the Archbishop of Canterbury.

Although, according to the Apostle, we ought to reprove, entreat, and rebuke, nevertheless we ought so to correct the excesses of individuals that we are proved to seek not the things that are ours but those that are Jesus Christ's, and that we are seen to preserve moderation and maturity in making correction. We have however received that the archdeacons of the bishopric of Coventry, for correcting excesses and punishing crimes, exact a monetary penalty from clerics and laymen, and in the ordeal of fire and water presume to demand thirty denarii from a man and a woman; and for an annual exaction of money they sometimes suspend persons [and] place churches under interdict; they do not fear also to exact twelve denarii from vicars so that they may permit them to sing in churches; and they do other things that oppose the institutes of the canons and appear to proceed from the root of cupidity and avarice. Therefore, because it is incumbent upon our solicitude to provide with pastoral diligence that nothing be done by the ecclesiastical persons of your province that is subject to reproach or blackens ecclesiastical honor, by apostolic writings we command your fraternity, by way of precept, that you more strictly prohibit this to the archdeacons of the aforesaid bishopric on our part and yours; but if they presume with rash boldness to act contrary to your prohibition, you shall compel them by ecclesiastical censure, with every occasion and appeal ceasing, and cause that sentence to be inviolably observed until worthy satisfaction.

Latin source headnote: The defeated party is condemned in expenses to the victorious party who is present, even in pecuniary cases; and it excepts one case.

The same, in the Council of Tours.

By condemning in expenses, and by another manifold remedy, the imperial enactment restrains the calumny and audacity of those litigating rashly. Therefore, since it is recognized as consonant with the sacred institutes, we command that henceforth in pecuniary cases the defeated party be condemned in expenses to the victorious party, unless perhaps, as has been provided, sentence is rendered for one absent.

Latin source headnote: A cleric who furnishes cause or assistance for war is to be deposed.

Innocent III, to the Archbishop of Nidaros.

In matters of doubt (And below: [cf. c. 30, On the Sentence of Excommunication, V. 39.]) But because priests who steer ships into battle, those who personally engage in the conflict of battle, and those who incite others to fight, all indeed sin enormously, we believe that according to canonical rigor they are to be deposed. [These moreover, etc. (cf. c. 8, On Renunciation, I. 9.) Given at the city of Castella, on the sixth day before the Ides of October, 1198.]

Latin source headnote: A cleric is to be deposed for a great crime committed by him and thrust into a monastery to do penance.

The same, to the Bishop of London.

The prudence of your discretion (And below:) To that moreover which you asked of us in the third place—how clerics detected in robbery or other great crimes ought to be punished—we respond that, degraded from their orders, they ought to be thrust into strict monasteries to perform penance. [But, etc. Given at the Lateran, on the sixth day before the Ides of November, in the fifth year of our pontificate, 1202.]

Latin source headnote: If each of the contracting parties acts contrary to the contract, each can exact the penalty mutually promised by the agreement.

The same, to the Abbot and Brothers of Grottaferrata.

Having been constituted in our presence (And below: [cf. c. 6, On Religious Houses, III. 36.]) Although in the instrument of the aforesaid bishop's grant there was expressed a certain penalty that the party not observing the contract would pay to the one observing it, nevertheless, since each party is convicted by its own confession of having acted contrary to it—for your party withheld the pension from the Bishop of Lavita, while the bishop exacted a procuration from the same church, as the aforesaid steward proposed—we render each party absolved from it.

Latin source headnote: If a witness is imprisoned because of vacillation, he does not incur infamy.

The same, to the Prior of Saint Fridianus and Master B., Canon of Pisa.

Concerning those things about which you wished to consult us (And below: [cf. c. 16, On Accusations, V. 1.]) [We wish you to know concerning this that, in our presence, the case had been begun concerning the business for which you sent us your letters.] But the cleric who, because he had varied and vacillated before you, was captured and detained at our mandate does not incur infamy. But, etc. (cf. c. 8, On Compelling Witnesses, II. 21.) [Given at the Lateran, on the third day before the Ides of February, in the fifth year of our pontificate, 1203.]

Latin source headnote: One bound to pay a certain quantity on a certain day under a penalty is not bound to the entire penalty if he pays part within the term.

The same, to the Bishop of Spoleto.

G. and A., rectors of the clerics of the parish of Saint Fortunatus, transmitted their complaint to us that, when they had been condemned to you by a certain arbitration for forty pounds, and a penalty of thirty pounds had been imposed upon them if they did not pay those pounds to you within the appointed term, after thirty-three pounds had at last been paid in that term, on account of the seven remaining pounds, by means of certain letters of ours obtained with the truth suppressed, you obtained that they be condemned to you for the aforesaid thirty pounds by the delegated judge, our beloved son Paul, our subdeacon. Therefore, because it does not become you to forget episcopal moderation to such an extent that, panting after dishonorable gains, you desire to be enriched with another's loss, we command [and strictly enjoin] your fraternity by apostolic writings that, content with payment of the aforesaid seven pounds, you do not henceforth trouble the aforesaid rectors concerning the penalty of thirty pounds, as was judicially determined by our beloved son G., cardinal deacon of Saint Nicholas in the Tullian Prison. [Given at Rome, at Saint Peter's, on the third day before the Ides of January, in the ninth year, 1207.]

Latin source headnote: Those who kill a prelate are deprived of the benefices and fiefs that they have from the church over which that prelate presided; they shall not be restored to them or to their heirs, nor ought any others newly to be granted to them. And today similar penalties have been increased for one killing, capturing, or placing a bishop under ban; concerning these, see the Clementine Si quis suadente, under the same title.

The same.

It reached the ears of our apostolate that, when certain of your parishioners had wickedly slain with diabolical boldness I., the late Bishop of Vicenza of good memory, your predecessor, the fiefs and benefices that they held from the Church of Vicenza had been taken from them by sentence after much deliberation. Therefore, since they are to be punished with an even greater [indeed] penalty, we, adhering to the footsteps of Pope Celestine of good memory, our predecessor, by apostolic authority prohibit both you and your successors from restoring the aforesaid benefices [further] to them or their heirs, or from newly conferring any others upon them. [But if anyone, etc. Given at the Lateran, on the twelfth day before the Kalends of April, 1198.]

Latin source headnote: One who breaks out against a judge is punished at the judgment of the superior.

The same.

The beloved son James, Bishop-elect of Saint P. at Montes, coming to the Apostolic See, a grave complaint against the beloved sons, the Abbot of Molesme and I., Archdeacon [of Châlons], set forth, asserting that they [against him] had proceeded wrongly in his case, which had been committed to them. And when the beloved son T., a cleric, had come to our presence with their letters containing the proceeding of the case, and the same James endeavored to impugn that proceeding in many ways, asserting that their report was false in certain matters, we, because the aforesaid cleric had no mandate except to contradict or to impetrate, for greater caution thought that the proceeding itself ought neither to be confirmed nor quashed, [commanding you by apostolic writings that, having summoned the parties and heard what is proposed on both sides, if you find that the aforesaid judges proceeded reasonably, you confirm their proceeding and cause it to be firmly observed through ecclesiastical censure, with the obstacle of appeal removed. Otherwise, having annulled it as shall be just, you are to proceed in the same case according to the form of the former letters, causing what you decree to obtain due firmness. But if you find any of the monks bound by the bond of excommunication on this account, you shall absolve them according to the form of the Church, enjoining upon them what shall by law be enjoined.] But because it often happens that, against the false assertion of an unjust judge, an innocent litigant cannot prove a true denial, since by the nature of things there is no direct proof of a negative fact, lest falsity prejudice truth or iniquity prevail over equity, it seems necessary and equitable that, when someone proposes a lawful exception, prepared to prove it either to decline the judgment or to repel the claim of the other, if perhaps by word or deed he withdraws from it, or does not prove it within a competent term to be fixed by the judge, the restrained judge should not proceed before applying the suitable precaution of instruments or witnesses concerning this, through which, if necessary, the truth can be established, so that, if a dispute arises against his report or proceeding, the assertion of the judge himself may be strengthened by proofs of this kind; so that, with this moderation applied, deference is so given to honest and discreet judges that the justice of the innocent is not injured through imprudent and unjust ones. And, lest judicial authority vanish, when the litigant's dishonesty has been established, one rashly breaking out against the assertion of the judge can be punished with a worthy penalty according to the judgment of the superior. [But the witnesses, etc. Given at the Lateran, on the Nones of January, in the thirteenth year, 1211.]

Latin source headnote: Patrons, advocates, or vice-lords who claim for themselves more in churches than the laws permit are restrained by ecclesiastical censure; and if, by themselves or through others, they kill the prelate or a cleric of the church, they lose what they have from the church, and their descendants to the fourth generation are not admitted to the clergy or placed over religious houses.

The same, in the general council.

In certain provinces the patrons, advocates, or vice-lords of churches have raised themselves to such insolence that not only, when vacant churches ought to be provided with suitable pastors, do they introduce difficulties and malicious obstructions, but they also presume to dispose according to their own will of possessions and other ecclesiastical goods; and, what is horrible to say, they do not fear to break out into the slaughter of prelates. Therefore, because that which was devised as an aid for defense ought not to be turned back to the harm of oppression, we expressly prohibit patrons, advocates, or vice-lords from henceforth usurping more concerning the foregoing things than is found permitted in law; and if they presume to act contrary to this, let them be most strictly restrained by canonical severity. Nevertheless, with the approval of the sacred council, we decree that, if patrons, advocates, feudatories, vice-lords, or other beneficiaries of any church presume with nefarious boldness, by themselves or through others, to kill or mutilate the rector or another cleric of that church, the patrons shall entirely lose the right of patronage, the advocates the advocacy, the feudatories the fief, the vice-lords the vice-lordship, and the beneficiaries the benefice. And lest the memory of vengeance be prolonged less than that of the excess, not only shall none of the foregoing things pass to the heirs, but the descendants of such persons to the fourth generation shall in no way be admitted into the college of clerics, nor shall they attain the honor of any prelacy in houses of regulars, unless they have been mercifully dispensed with.

Latin source headnote: While a lord remains excommunicated, his subjects do not owe fidelity; and if he has persisted in it for a long time and, having been admonished, has not obeyed the Church, they are absolved from their obligation to him.

Honorius III, to the Provost, Archdeacon, and H., Canon of Soissons.

We received the grave complaint of the beloved sons of the chapter of Lund that, when the nobleman, the Count of Register, had been bound by the bond of excommunication by judges delegated by the Apostolic See for the many injuries that he had inflicted upon them, he, now persisting in excommunication for two years and more, stubbornly refused to obey the law, contemning the keys of the Church to the loss of his own salvation and the scandal of many. Therefore, although obstinacy of this kind is not free from the suspicion of heretical depravity, nevertheless, wishing to spare the nobility of the aforesaid count if perhaps, returning to his heart, he recovers from his error, we command your discretion that, if the aforesaid count, after having been diligently admonished by you, within fifteen days after your admonition has not fully obeyed the law, you, causing the sentence of excommunication delivered against him, as it was reasonably pronounced, to be inviolably observed until worthy satisfaction, and placing all his land and the places in which the same count shall have stayed under ecclesiastical interdict, shall absolve the churches in which he is known to have some right from their obligation to him, with the obstacle of any contradiction and appeal removed, and shall announce that his faithful men, for as long as he persists in excommunication, are wholly absolved from their oath of fidelity to him. But if perhaps even thus vexation does not give him understanding, he will not without reason be able to fear lest his obstinacy drive him into the infamy of heresy, which, when he wishes, perhaps he will not easily be able to avoid.