Title III: On Rescripts

A rescript obtained by an excommunicated person is invalid by law itself, as is anything that has followed from it, unless it concerns the matter of the excommunication or of an appeal.

Gregory IX.

A rescript, or a proceeding conducted by means of it, shall have no validity by law itself if it was obtained by an excommunicated person concerning a matter other than the article of his excommunication or appeal.

By the clause “certain others,” only four persons can be convened, whose names are to be expressed in the first citation, lest there be room for variation. John Andrew.

Innocent IV, at the general Council of Lyons.

Since indefiniteness is disapproved in many articles of law, we have providently judged that it should be established that by that general clause, “certain others,” which is frequently inserted in our letters, no more than three or four persons are to be drawn into judicial proceedings. The petitioner is to express their names in the first citation, lest perhaps room for fraud be left if he can vary them freely.

If a plaintiff obtains letters against a defendant concerning several personal actions, directed to different judges, the letters and the proceedings under them are invalid, and the plaintiff shall be condemned to pay the defendant’s costs. The same applies to a defendant who, during the same proceeding, sues or countersues the plaintiff. John Andrew.

The same, at the same council.

Wishing to restrict, by the expedient of equity and with such care as we can exercise, the expenses of lawsuits, we enlarge the statute issued concerning this by our predecessor Pope Gregory IX of happy memory and decree that, if anyone wishes to bring several personal actions against another, he is to take care to obtain letters concerning all actions of this sort not to different judges, but to the same judges. Anyone who does the contrary shall lack every benefit of the letters, and proceedings conducted through them shall have no validity; if he has cited or harassed the defendant through them, he is to be condemned to pay the defendant’s lawful costs. A defendant also, if during the same proceeding he considers the plaintiff obligated to him, must pursue his right before the same judges by the benefit of counterclaim—or of an action, if he prefers to obtain letters against him—unless he can challenge them as suspect; if he acts contrary to this, he is to be punished by a similar penalty.

A person received by letters granting a faculty, if reception pertained to those receiving him, is understood to have been received by their authority and not by the Pope’s, unless something else was expressed in the letters. But if reception did not pertain to them, he is then said to have been received by apostolic authority. John Andrew.

Boniface VIII.

When by our letters we grant certain persons the faculty of receiving someone as a canon of a church, notwithstanding the privileges, customs, or statutes of that church, confirmed by oath, apostolic confirmation, or any other guarantee: if the reception of canons in that church otherwise does not pertain to those to whom letters of this sort are directed, but they receive the power of reception from the force of those letters, the person received is known to have been received by apostolic authority. But if the reception of canons otherwise pertains to those same persons, he is deemed to have been received not by apostolic authority but by that of the recipients, unless our letters provide expressly that they receive him by our authority.

A papal rescript that grants to a person promoted the retention of his former benefices until the Pope’s good pleasure expires when the Pope dies; it is otherwise if it says, “until the good pleasure of the Apostolic See.” Nor is such a rescript understood to concern benefices not previously held canonically. This is what it says. John Andrew.

The same.

If it is graciously granted to you by the Roman Pontiff that you may retain until his will’s good pleasure the benefices that you held at the time of your promotion, a grace of this sort expires by that very fact upon the death of him through whom his good pleasure is altogether extinguished. It is otherwise, however, if the aforesaid grace is granted until the good pleasure of the Apostolic See. For then, because the See itself does not die, it will endure perpetually unless revoked by a successor. But under the pretext of such a concession—which, because it is ambitious, ought to be restricted—you can licitly retain only those benefices that you hold canonically.

Vacancy by death and vacancy by resignation are different; therefore, in letters obtained for benefices, when one is expressed, the other is not included.

The same.

You cannot fulfill a mandate received from the Apostolic See that, after receiving from someone the resignation of the benefice he holds, you confer and assign it to another, if, before resigning, he is taken from human affairs, since it became vacant not by resignation but by death—unless a different intention of the mandator should appear expressly. If two persons obtain letters concerning the same benefice, the first alleging that it became vacant through the death of the one who held it and the second that it became vacant through his resignation, the second must be preferred to the first in obtaining it when the benefice became vacant by resignation, not by death.

Although a person who was ignorant that a benefice had been conferred upon him made no mention of it when petitioning for another, the letters are valid; nevertheless, he shall choose one of them if they cannot by law be held simultaneously. John Andrew.

The same.

The grace that you state you obtained from the Apostolic See concerning a benefice ought not to be regarded as defective, although you made no mention of another benefice previously conferred upon you in your absence and without your knowledge by your bishop, since you did not know of it at the time of the petition. Nevertheless, if the benefices are such that they cannot by law be held simultaneously, you cannot have both; but you are to choose which of them you prefer to retain.

If someone is restored to a revoked grace, he is understood to have been restored without prejudice to another; hence he ought not to be preferred to another who petitioned before the restoration. John Andrew.

The same.

Although a person whose grace—by which it was commanded that provision be made for him in a certain church from the next benefice to become vacant—had been revoked by us is restored by us anew to that grace, nevertheless he ought not to be preferred, unless we expressly say this, to one to whom a similar grace was granted in the same church after the aforesaid revocation and before the restoration, since a restoration of this kind, where nothing else is expressed, is understood to be made without prejudice to another’s right.

In letters obtained for benefices, the date is considered. Hence, by those letters a person cannot obtain a benefice with cure of souls if, although he is now of age, he was underage at that time. John Andrew.

The same.

If, at the time when we commanded that provision be made for you from a benefice with or without cure of souls, you did not have an age suitable for obtaining a benefice with cure of souls, provision cannot in any way be made for you by the authority of letters of this sort from a benefice having cure of souls, although you have now attained lawful age, since at the time of their date you were not yet suitable. But because you then had an age sufficient for a benefice without cure, you can licitly obtain one through them.

A general grace does not prejudice a special one, and it must make mention of a preceding privilege, custom, or statute. This is what it says. Zenzel.

The same.

If, for the payment of your debts, we grant to you by special grace for a five-year period the fruits of the first year of benefices that will become vacant in your diocese, notwithstanding any customs, privileges, or statutes through which our concession could be impeded, it is in no way our intention that, if fruits of this sort are perhaps owed to the fabric of your church, to another use, or to any individual person by a special custom, privilege, or statute, any prejudice should be generated for them by the concession itself, unless this is expressly provided in it.

Cases should be committed by the Apostolic See or its legate to persons holding a dignity or a canonry of a cathedral church. Nor should they be conducted except in cities or notable places. This is what it says as far as § “But when.” — §1. When the plaintiff and defendant are of the same diocese, the case should not be committed outside it except in six cases; even in these, however, the person shall not be drawn beyond one day’s journey, and, unless in the last two cases the petitioner establishes their truth by oath, he shall be repelled by the judge and condemned in costs. This is what it says as far as § “But when.” Dominicus. — §2. A plaintiff against a defendant of a different diocese ought to obtain a delegate either in the defendant’s diocese or in another diocese that is not the plaintiff’s own and is not more than one day’s journey distant. Dominicus. — §3. Without the express consent of the parties, a delegate can neither cite the parties nor hear the case outside the place of his commission, nor can he subdelegate to places or persons other than those expressed here. John Andrew. — §4. A delegate should receive nothing from the parties except food and drink freely offered that can be consumed within a few days, or moderate expenses, if they are not poor, when for necessity or utility, and not maliciously, he travels outside his residence. Dominicus. — §5. Unless he needs one, a delegate is not to assume an assessor; otherwise he is to provide for him from his own property. If he needs one, he shall assume a person not suspect to the parties, with a moderate salary payable by the parties. — §6. A delegate ought to assess the salary of notaries, and ought not to share with them or with assessors in the salary. Dominicus. — §7. A delegate receiving anything contrary to the prohibition of this chapter is bound to restore it, notwithstanding the remission of the giver. John Andrew. — §8. A delegate ought not to summon witnesses unless the state of the case requires it, and the party producing them ought to provide their expenses in coming, remaining, and returning. Dominicus. — §9. Acts done contrary to this decretal are invalid by law itself. This is what it says, and it is not divided.

The same.

Since certain provisions contained in the statute that we recently issued concerning judges to be deputed by the Apostolic See—provisions thought to have been introduced for the common benefit—are known, as experience has taught, to tend toward harm, we have judged, at the persuasion of utility, that the statute should be reformed for the better by the present enactment, which we command to be inviolably observed. We therefore decree that henceforth cases are to be committed by the authority of letters of the Apostolic See or of its legates to no persons except those invested with a dignity, holding a personatus, or canons of cathedral churches; nor are they to be heard anywhere except in cities or notable places where a supply of learned persons can conveniently be had.

§1. But when the plaintiff and defendant are of the same city or diocese, a case is not to be committed outside that city and diocese, nor is either of them to be convened outside them, unless an action is to be directed by a bishop against someone of his diocese, by someone against the bishop, against his chapter, or against the corporate body of a city, town, or castle; or unless a plaintiff, not daring to enter that city or diocese, or reasonably fearing the power of his adversary, cannot safely convene him within them. In these cases a case can indeed be committed outside the said city and diocese against the aforesaid persons; nevertheless, none of them may be convened more than one day’s journey from the boundary of his diocese. But in the last two cases the judge is in no way to proceed in the case unless the petitioner first establishes before him, at least by his own oath, the aforesaid fear—which he is bound to express in the letters of commission. Rather, dismissing the parties from his jurisdiction, the judge is to condemn that petitioner to pay the other party’s lawful costs.

§2. But when the plaintiff and defendant are of different cities and dioceses, if the plaintiff refuses to have a judge in the defendant’s city or diocese, he may freely obtain one not in his own but in another city or diocese, and draw the defendant there, provided that the place to which he has drawn him is not more than one day’s journey distant, as was premised in the other case.

§3. In none of the aforesaid cases is the judge to cite the parties or hear the case committed to him outside the city or diocese in which he was deputed, unless their express consent to this has been given. Nor is he in any way to commit his functions elsewhere than within those places, or to persons other than those designated above.

§4. Furthermore, so that the judicial proceeding before him may proceed gratuitously and with complete purity, he is not to presume in any manner to receive from the parties any gift or anything else, except perhaps food or drink offered out of pure liberality that can be consumed within a few days; or, when it happens that on account of the case committed to him he must travel outside his residence, moderate expenses. He is to provide attentively that he in no way exceed due measure in those expenses, that he exact no more from one party than from the other, since he conducts the common business of both, and that, where the utility or necessity of the case committed to him does not require it, he not assume an occasion for traveling outside his residence for the sake of obtaining expenses. Moreover, where the litigants are notably poor, he is to exact absolutely nothing from them even for expenses.

§5. He is by no means to join an assessor to himself, as some sometimes fraudulently do, unless he needs one—which is left to his conscience; otherwise he is bound to provide for him from his own property. But if he needs one, he is to assume a person suspect to neither party and cause the parties jointly to provide him with a suitable salary, providently moderated by the judge.

§6. The judge is prudently to restrain the notary or notaries writing in the case committed to him, who very often exceed the bounds of reason in demanding a salary, as pertains to his office; nor is he in any way to share gain with them or with the aforesaid assessor.

§7. If he receives anything contrary to the present constitution, he is bound to make full restitution of it, and no remission by those to whom restitution is to be made shall benefit him in any way.

§8. Nor, for the giving of testimony—under pretext of which some sometimes fraudulently procure others to be summoned by judges, so that they may weary them with labors and expenses or extort something from them—is he to summon anyone at all unless the condition and state of the case require it. Even then, however, he is not to do so unless he causes suitable expenses for coming, remaining, and returning to be supplied by the producing party to the person summoned to give testimony.

§9. Whatever is attempted contrary to the foregoing provisions or any one of them shall be invalid and void by law itself.

The mere fact that the second petitioner first presented his letters and was received as a canon in the same church does not exclude the first petitioner from a prebend vacant at the time of his reception, or becoming vacant afterward, or vacant before his reception or presentation; and this is so if it had been affected for the first petitioner by the proceeding of his executor or by the interposition of a decree, unless by fraud or negligence he was excluded from it. This is what it says. Dominicus.

The same.

You obtained from us a grace in the church of Bourges, with a certain executor granted to cause you to be received as a canon and to provide you with a prebend if any was then vacant in that church, or otherwise from the next to become vacant. Another person subsequently obtaining a similar grace in that church, although he presented his letters and was received as a canon before you, ought not to be preferred to you in a prebend vacant at the time of your reception or becoming vacant afterward, since it had not been conferred upon another before your reception.

The same is true if a prebend became vacant before your reception as a canon through the proceeding of your executor, who had notified the person to whom collation of the prebend pertained that he wished to confer it by authority of this kind, or had forbidden him to confer it, or had reserved it to his own collation—especially when it was affected by the interposition of a decree. For then a prebend of this sort ought to be assigned to you and not to the other person. Indeed, even if the prebend became vacant before your reception and even before your presentation, the same is to be judged if, in the grace of this sort granted to you, we had decreed invalid and void whatever might happen to be attempted against it.

Therefore, in the aforesaid cases you ought to obtain the vacant prebend in preference to the last petitioner, provided that fraud or notable negligence cannot be imputed to you.

If it is first mandated conditionally that provision be made for one person, and a second person, petitioning unconditionally, obtains the canonry from the Pope or his executor before the condition occurs, the second is preferred to the first in obtaining the prebend. John Andrew.

The same.

If our writing was directed to someone on your behalf, that he provide you by apostolic authority with a canonry and prebend of the church of Bourges if the assent of the bishop and chapter of the aforesaid church should be given to this, and another person, petitioning later, obtained a canonry of Bourges by collation of the Apostolic See or by the provision of an executor deputed for this before the assent of the aforesaid bishop and chapter was given to the provision to be made for you, that person is deservedly preferred to you in a vacant prebend, although you were afterwards, upon the intervention of their aforesaid assent, received as a canon of that church by authority of the said earlier mandate.

This is a solemn decretal and was subtly glossed by John Andrew. According to him it can be summarized thus: if priority between two petitioners is not apparent. This decretal distinguishes two branches and makes a further distinction within the second. Its parts are clear according to John Andrew, although the first gloss summarizes it more broadly.

The same.

When two persons obtain from us on the same day letters concerning similar provision to be made for them in the same church, with certain executors deputed to them, if it is not apparent which of them petitioned first, the one upon whom we conferred the canonry is to be preferred in the prebend to the other, who did not obtain a canonry from us, although the latter presented his letters before the other to those to whom the reception of canons and collation of prebends pertain and was received by them as a canon.

But if we conferred the canonry upon neither or upon both of them, then, because they are equal in grace, the person who presented first shall be stronger in right to the prebend. But if perhaps both concur simultaneously in presenting, those to whom, as premised, the reception of canons and collation of prebends pertain—or the greater part of them—are bound to choose whichever one of them they wish. Once he has been chosen, the other shall altogether lack what he petitioned for, unless it appears expressly from the tenor of his letters that we willed provision to be made for both of them.

All indulgences granted by Boniface or his predecessors to clerics for the perpetual receipt, while absent, of the fruits of their benefices are revoked. And the Pope declares that he will not grant them in the future. John Andrew.

The same.

Because, through the ambitious importunity of petitioners, both we and certain of our predecessors, the Roman Pontiffs, have granted to many persons perpetual indulgences for receiving the fruits of their benefices—with daily distributions alone excepted—whether they were in the schools, resided in another of their churches, remained in the Roman Curia, were in some other definite place, or even were anywhere whatsoever; and because from this arise an insolent disposition to wander, material is prepared for dissipation, divine worship, which we desire to be increased, is diminished, and the office for which an ecclesiastical benefice is generally given is omitted: we, wishing to amend things past and, insofar as we can, to take precautions against things future, revoke altogether all indulgences of this kind and similar indulgences given to persons, not to churches or dignities, and will that their concession be banished from our times. What we do not permit ourselves to do, we indicate to our successors.