Question I

GRATIAN. That restoration is to be given to any persons whatsoever is proved by many authorities. For Pope Gaius says, [sole letter to Bishop Felix, c. 3]:

To bishops despoiled of their property or cast out of their own sees, all things which were taken from them are to be restored under the laws, because no crime can be alleged against them before this has been done.

Likewise Pope Fabian, [letter II to the Eastern Bishops]. If bishops have been expelled from their own sees or churches without the authority of the Roman Pontiff, their own place and all their things are to be restored before they are summoned to a synod. For no reason permits anything to be alleged against them while their goods, or those of their church, and their property are held for a time by rivals or by any persons whatsoever. Nor can anyone among greater or lesser persons allege anything against them while they lack their churches, property, or powers.

GRATIAN. But it is to be noted that a sentence of restoration alone does not suffice unless all things are restored actually by the office of the judge, so that one who has been cast out or despoiled may also receive natural possession, whether by his own intent and another's body, as through a procurator, or by his own intent and body. All things which had been taken from him under whatever condition are also to be brought back to the same place from which they had been carried away. Hence John, Bishop of the city of Rome, writes to Archbishop Zacharias, [letter I]:

All things are to be restored actually, by the ordinance of pontiffs, to bishops who have been despoiled or cast out, and are to be brought back entirely to the place from which they had departed, under whatever condition of time, captivity, deceit, or violence of evil persons, and through whatever unjust causes they are known to have lost the property of the church or their own property, that is, their own substances.

Likewise Eusebius, Bishop of the Apostolic See, to all bishops. All things are to be restored to bishops who have been despoiled or cast out, etc., as far as “are to be brought back entirely,” in the same manner as above.

Likewise Pope Alexander, [letter II, at the beginning]. No one doubts that the good are always persecuted and troubled by the evil. On this account, we ought to be humbled under the mighty hand of God, so that he may free us in the time of tribulation. For the devil does not cease to go about, seeking whom he may devour and seeking which of the faithful he may destroy, and especially those whom he has found more ardent in the service of the Savior and familiar with him. I call familiar those whom he wished to be consecrated and constituted in the order of the apostolate. For they intercede for the people and eat the sins of the people, because by their prayers and offerings they wipe away and consume them. And below: But anyone of your college who has withdrawn himself from your aid will be proved to be a schismatic rather than a priest. “Behold,” says the Prophet, “how good and how pleasant it is for brothers to dwell as one.” But those who withdraw themselves from the assistance of their brothers do not dwell as one, or, what is worse, those who lay ambushes or snares for their brothers. And below: Those who persecute the Lord in his priests crucify him, because cross is named from torment. But one who suffers violence sustains great torment.

Likewise Pope Fabian, [letter II to the Eastern Bishops]. Therefore, brothers, God foreordained you and all who perform the highest priesthood for this purpose: that you remove injustices, cut off presumptions, assist those laboring in the priesthood, and give no place to their reproaches and calamities, but bear aid to the one who suffers calumny or reproach; and cut off the one who commits calumny or reproach, and bear assistance to the Lord in his priests.

GRATIAN. It is evident, therefore, that the despoiled are first to be actually restored before they are summoned to a case. But it is objected: where there was no lawful institution, there cannot be restoration. For one who was never established is not proved to have been removed, and therefore he cannot demand restoration. Therefore, those whose election is vitiated, who were not elected by the clergy or sought by the people, or who crept in through simony are not to be held among bishops; and therefore, if they have been expelled from the sees which they appeared to hold, they cannot seek restoration before they are summoned to a case. Hence above in the tract concerning persons to be ordained: “If anyone by money or human favor, or by a popular or military tumult, etc.” But this is understood only in the case in which the Apostolic See is occupied through violence, in which case no judge is found by whose office that apostate can be excluded. But it has no place in other cases, since violent possession cannot be taken away from a violent possessor except by the sentence of a judge. But if the true lord, by war not continued but renewed, has cast him out of possession by force, he will, by authority of the judge, restore possession to the robber. Therefore, if bishops have been violently cast out from the sees which they appeared in any manner to hold, not by a judge, they are to be restored after the expulsion before a regular summons to a synod.