Title XIV: On the Office and Power of a Delegated Judge

A conservator defends against manifest injuries and does not exercise judicial inquiry.

Innocent IV. We decree that conservators, whom we frequently grant, can defend against manifest injuries and acts of violence those whom we commit to them to be defended. They cannot extend their power to other matters that require judicial inquiry.

In coercive measures and penalties deference is shown to pontifical dignity.

Alexander IV. Because it is fitting that great deference be shown to those endowed with pontifical dignity out of reverence for the sacred office that they exercise, and that they be honored more than others, when some coercive measures or penalties are to be proceeded to against them by judges or conservators deputed by the Apostolic See, a gradation and moderation is to be observed in a proceeding of this kind. Thus, after they have been sustained with a certain fitting reverence, entrance into the church or priestly ministry is first to be forbidden to them; then they are to be suspended from office; and afterward ecclesiastical censure is to be aggravated against them, unless perhaps the excessive insolence of their contumacy or fault counsels that it be done otherwise.

When a delegate proceeds with two persons subdelegated not in full, an appeal ought to be made to the Pope, not to the co-delegates. This is what it says. John Andrew.

Boniface VIII. If two of three persons delegated by the Apostolic See have subdelegated their functions, not in full, to two others, and those subdelegates have proceeded in the delegated cause with the third delegate, if an appeal is made from them, the appeal ought to be made not to the co-delegates but only to the original delegator.

He establishes three cases in which a ground of suspicion is not treated before arbiters. The first is when one of the delegates given with the clause “But if not all” is challenged. The second is when a bishop’s delegate is challenged. The third is when an official is challenged. John Andrew.

The same. If a legitimate ground of suspicion is proposed against one of two judges delegated by the Apostolic See with the clause, “But if both cannot be present, one of them is to proceed in the cause,” that ground of suspicion ought to be proved before the co-judge who has not been challenged—to whom, by force of the aforesaid clause, cognizance of the cause itself ought to pertain—and be expedited by him. But where the said clause is not in the rescript, recourse ought to be had to arbiters concerning this. When the bishop’s delegate himself is challenged, the ground of challenge is to be proved before the bishop. The same applies if that bishop’s official is challenged, although an appeal cannot be made to the bishop from that official.

He distinguishes three times for knowing whether a judge suspected can make a commission. Either no challenge has been proposed, and then a commission in full made by him holds; or it has been proposed, but a pronouncement has not yet been made concerning it, and then he can make a commission if the challenger wills, but otherwise not; or it has already been pronounced that he is suspect, and then he cannot make a commission even if the challenger wills. John Andrew.

The same. A judge given by the Apostolic See, although he can legitimately be challenged as suspect, can lawfully commit his functions before a challenge is proposed against him. If he has committed them in full, he cannot thereafter be challenged, nor can the commission made by him be attacked; it could be attacked if he had reserved some jurisdiction to himself. After a challenge has been proposed, he cannot make a commission unless it proceeds with the challenger’s assent; but if the challenger wills it, he can do so even if that challenge has already been proved, provided a pronouncement has not been made concerning it. For from the time of such a pronouncement, when he has wholly ceased to be a judge, no commission can be made by him even with the challenger’s assent.

A delegate who subdelegates, even in full, will be able to reassume the cause while the matter remains intact. This is what it says. John Andrew.

The same. Although you are known to have committed in full to someone your functions in a cause delegated to you by the Apostolic See, nevertheless, if, before he has exercised jurisdiction, a commission of this kind is revoked from him by you, or it happens that he is removed from human affairs, you will be able to resume the cause itself, since jurisdiction is not judged to have passed effectively to him when he had not exercised it.

If a delegate subdelegated “whenever he should be absent,” or “until he should revoke,” and has died after the matter ceased to be intact, the subdelegate proceeds. An appeal must always be made from the subdelegate to the delegate who reserved some jurisdiction to himself, even after sentence. This is what it says. John Andrew.

The same. If a delegate has committed his functions to you whenever it happens that he is absent, after he has been removed from human affairs you will be able freely to decide the business committed to you—since even then he is judged to be absent—provided that you began to exercise jurisdiction while he was living. You will be able to do the same when he committed his functions to you also under this form: “until he should determine that they are to be revoked.” For such a commission, through which even pronouncement of sentence is judged to be committed unless it was previously revoked, by no means expires through the death of the person making the commission once the matter has ceased to be intact. An appeal also ought to be made to the person who commits his functions until he revokes them, or who reserves to himself only execution of the sentence or anything else of jurisdiction, and not to the original delegator, even if an appeal is to be made after sentence.

Each of several delegates with full power has cognizance. When one takes cognizance, the others do not intermeddle except for cause. The perpetuation made by one perpetuates jurisdiction as regards all. This is what it says. Zenz.

The same. When it happens that several judges or executors are deputed by the Apostolic See under the form, “that all, or two, or one of them execute the apostolic mandate,” or another similar form, each of them can freely fulfill the mandate enjoined. Moreover, once one of them has begun the business committed, the others cannot thereafter intermeddle in it, unless it happens that he is impeded by illness or another just cause, or unless he is unwilling or maliciously refuses to proceed in it. When jurisdiction has been perpetuated during the mandator’s life by one of the delegated judges in a case in which he can do so, it is understood to have been perpetuated as regards them all.

An executor given by the Pope concerning a grace granted executes the grace after the Pope has died, even while the matter remains intact. John Andrew.

The same. If executors have been deputed concerning a grace granted to someone by the Apostolic See, we judge it equitable that, just as the grace itself is not extinguished by the death of the grantor even though its execution has not yet been proceeded to, so too the power given to the executors is not extinguished while the matter remains intact. As accessory to the aforesaid grace, it is fitting that this power follow the nature of the principal, lest it happen that the same grace is at some time rendered wholly useless, or its effect is deferred for a longer time to the loss of the person to whom it was granted.

He establishes two cases in which an appeal is made from a subdelegate not delegated in full to the original delegator, namely when the delegate has been excommunicated or has died. He establishes other cases below, under the same title, in the chapter “Si a subdelegato.” John Andrew.

The same. If one to whom a cause had been delegated by the Apostolic See, although his own name was not expressed, subdelegated his functions not in full to someone, we will that, if it happens that the delegate himself is excommunicated or removed from their midst, an appeal be made from such a subdelegate to the same See while such an impediment endures, lest the litigants be prejudiced or the cause prolonged beyond what is due by awaiting his absolution or successor.

An appeal is made to the Pope from arbiters of law. John Andrew.

The same. If they cause a grievance, an appeal is to be made to the Apostolic See from arbiters who, according to the form of law, are chosen to take cognizance of a ground of suspicion proposed against a judge, or who are chosen by the parties to settle a dispute of this kind when there is doubt concerning the revocation of letters and the judges cannot agree upon one opinion.

An executor appointed by the Pope to provide for a person subdelegates if he is appointed to provide for a church; if no person is expressed, he does not subdelegate unless he has a special mandate. This is what it says, and he gives the reason. John Andrew.

The same. One to whom it is committed by the Apostolic See to make provision for a definite person from a benefice in a definite church, diocese, or province can lawfully commit his functions to another. But if, no definite person being expressed, it is committed to him that he ought to provide some suitable person for a definite church or benefice, he cannot entrust to another the provision committed to him, because his industry is then seen to have been selected for choosing the person, unless the form of the commission contains a provision that he can expedite it through himself or another.

One to whom it is committed that something be expedited in a definite place will be able for a just cause to expedite it outside that place. This is what it says. John Andrew.

The same. We decree that one through whom the Apostolic See commands that an inquiry be made, or anything else expedited, in a definite place is to choose another suitable and secure place for executing it if, because of the power or malice of the person against whom inquiry or proceedings are to be made, or of his supporters, he cannot execute it securely in that place, lest that person report an advantage from his deceit or fraud. He is to do the same if another reasonable cause exists on account of which what is commanded cannot conveniently be completed in the place decreed, lest it happen that the apostolic mandate is impeded or delayed under such a pretext.

When an appeal is made from a subdelegate not delegated in full because he does not admit an exception by which it is denied that even the delegate has jurisdiction, the appeal will be made to the original delegator. This is what it says. John Andrew.

The same. If an appeal is to be made from a subdelegate to whom the delegate had committed his functions not in full because the subdelegate refused to admit an exception proposed before him—that before either he or the delegate himself had proceeded in anything, the delegator had entered the way of all flesh—the appeal ought to be made not to the delegate, since it is denied that he has jurisdiction, but rather to the delegator. The same will be done in other cases in which it is denied that the delegate has jurisdiction. Otherwise, if an appeal had to be made to him, the appellant, who would thus be seen to admit that he has jurisdiction, something he had previously denied, would be contrary to himself.

He establishes here who can be conservators, where they can take cognizance, whether and to whom they can delegate, how long their power endures, and concerning the expenses of such persons. This is what it says. Zenz.

The same. By this constitution, to remain in force perpetually, we decree that henceforth conservators, who are frequently granted to certain persons by the Apostolic See so that they may protect them from manifest injuries and acts of violence, cannot be deputed unless they are bishops or their superiors, abbots, or persons holding dignities or personatuses in cathedral or collegiate churches. Nor can anyone be the conservator of a conservator deputed to himself. Henceforth no one—excepting only kings and queens, whom it is fitting, just as they excel in the height of dignity, also to prefer by a prerogative of grace—is to have as conservator someone who is situated under his own ecclesiastical or temporal jurisdiction, dominion, or district.

Conservators of this kind are not to presume to proceed against anyone outside the cities or dioceses in which they were deputed, or to draw any persons beyond one day’s journey from the boundary of those dioceses. They also cannot commit their functions to anyone—excepting only citations and denunciations of sentences, which they may exercise through others—unless this belongs to them by benefit of the letters; and even then only within the cities or dioceses in which they were deputed and only to persons expressed above.

Moreover, so that conservators may diligently observe through fear of penalty the limits of the power handed to them, which they frequently exceed, we decree that if they knowingly intermeddle in matters other than manifest injuries and acts of violence, or extend their power to other matters requiring judicial inquiry, they are by that very fact suspended from office for one year. The party that procures this to be done incurs the sentence of excommunication, from which it cannot be absolved unless it first makes full satisfaction for expenses to the person whom it has thus unduly wearied.

We will that the office of any conservators expire by the law itself, as regards business not begun, upon the death of the grantor. Concerning fees and expenses, assessors and notaries, and persons to be summoned for the purpose of testimony, we command that those provisions be observed in every respect for conservators of this kind that a constitution issued by us concerning these matters decreed were to be observed for delegated judges. We decree wholly void and empty whatever it happens is attempted contrary to the foregoing provisions or any one of them.