Title XIV: On Sentence and a Matter Adjudged

A judge who, through favor or sordid gain, does anything in a judicial proceeding contrary to justice and conscience to the grievance of a party is to be condemned to the injured party in the assessed value of the litigation and is suspended for one year, and perpetually if in the meantime he intrudes himself into divine services, unless the Pope dispenses him. John Andrew.

Innocent IV at the Council of Lyons. Since the tribunal of the eternal Judge does not hold as guilty the person whom a judge unjustly condemns, as the Prophet bears witness—“nor will he condemn him when judgment is given against him”—let ecclesiastical judges take care and prudently attend that in the proceedings of causes hatred vindicate nothing, favor usurp nothing, fear be banished, and reward or expectation of reward not overturn justice. Rather, let them bear the scales in their hands and suspend the pans with equal balance, so that in all things to be done in causes, especially in conceiving and pronouncing sentences, they may have God alone before their eyes, imitating the example of him who, after entering the tabernacle, referred the complaints of the people to the Lord so that he might judge according to his command.

But if any ecclesiastical judge, ordinary or delegated, prodigal of his reputation and a persecutor of his own honor, does anything in a judicial proceeding contrary to conscience and justice, through favor or sordid gain, to the grievance of one party, he is to know himself suspended from executing his office for one year and nevertheless to be condemned to the party whom he injured in the assessed value of the litigation. He is to know that if during the suspension he damnably intrudes himself into divine services, according to the canonical sanctions he will entangle himself in the snare of irregularity, from which he can be freed only by the Supreme Pontiff, saving the other constitutions that introduce and inflict penalties upon judges judging badly. For it is fitting that one who presumes to offend in so many things be chastised with a manifold penalty.

The Pope can depose the emperor for legitimate causes. This is what it says, according to Paul.

The same, with the sacred council present, for perpetual remembrance. To the apostolic dignity—(And below:) Indeed, since the harsh commotion of wars had for too long afflicted certain provinces of Christian profession, we judged that special envoys and men of great authority should be sent to Frederick, the principal secular prince and the author of dissension and tribulation of this kind, who had been bound by our predecessor Pope Gregory IX of happy memory with the bond of anathema for his excesses: namely, our venerable brothers P., Bishop of Albano, and H., Bishop of Sabina, and our beloved son William, Cardinal Priest of the Basilica of the Twelve Apostles, who zealously sought his salvation.

Through them we caused it to be proposed to him that we and our brothers, so far as lay in us, desired in every respect to have peace with him and also with all men, being ready to give peace and tranquility to him and even to the whole world. And because the restoration of the prelates, clerics, and all the others whom he held captive, and of all clerics and laymen whom he had captured in the galleys, could be greatly conducive to peace, we caused him to be asked and petitioned through those same men to restore them, since both he and his envoys had promised this before we were called to the office of the apostolate.

It was further to be proposed that those same men were prepared on our behalf to hear and treat of peace, and also to hear the satisfaction that the prince wished to make concerning all the things for which he was bound by the bond of excommunication. They were moreover to offer that if the Church had injured him in anything contrary to what was due—which it did not believe—it was prepared to correct it and reform it to its due state. And if he himself should say that he had injured the Church in nothing contrary to justice, or that we had injured him contrary to justice, we were prepared to summon kings, prelates, and princes, ecclesiastical as well as secular, to some secure place where they might assemble personally or through solemn envoys. The Church was prepared, with the counsel of the council, to make satisfaction to him if it had injured him in anything, and to revoke a sentence if it had pronounced any against him unjustly; and with all meekness and mercy, so far as this could be done with God and its honor, it wished to receive satisfaction from him concerning the injuries and offenses inflicted by him upon the Church and its people, to place all his friends and adherents in peace, and to have them enjoy full security so that they could never undergo any danger on this occasion.

But although we thus took care to press him for peace with paternal admonitions and the gentleness of prayers, nevertheless, imitating the hardness of Pharaoh and stopping his ears in the manner of the asp, he despised prayers and admonitions of this kind with exalted obstinacy and obstinate exaltation. On account of this, unable any longer to tolerate his iniquities without grave offense to Christ, we are compelled, our conscience urging us, justly to proceed against him.

And, to be silent for the present concerning his other crimes, he has committed four most grave ones that can be concealed by no tergiversation. For he has perjured himself many times by rashly violating the peace formerly reformed between the Church and the Empire. (And below:) He perpetrated sacrilege by causing cardinals of the Holy Roman Church, and prelates and religious and secular clerics of other churches, coming to the council that our same predecessor had determined to convoke, to be captured. (And below:) He is also held suspect of heresy by arguments not doubtful and slight, but weighty and evident. (And below:) Besides these things, he has already reduced the Kingdom of Sicily—which is the special patrimony of blessed Peter and which the same prince held in fief from the Apostolic See—to such depletion and servitude among clerics and laymen that, with them having almost nothing at all and nearly all honorable persons having been expelled from there, he compels those who remain there to live as though under a servile condition and in many ways to offend and hostilely attack the Roman Church, whose men and vassals they principally are. He could also deservedly be reproved because for nine years and more he omitted to pay the annual pension of one thousand squifati in which he is bound to the Roman Church for that kingdom.

We, therefore, after diligent deliberation concerning the foregoing and very many other nefarious excesses of his with our brothers and the holy council, since, though unworthy, we hold the place of Jesus Christ on earth, and it was said to us in the person of blessed Peter, “Whatever you bind upon earth will be bound also in heaven,” show and denounce that the aforesaid prince—who has rendered himself so unworthy of the Empire, the kingdoms, and every honor and dignity, and who because of his iniquities has been cast away by God so that he may neither reign nor command—is bound by his sins, cast away, and deprived by the Lord of every honor and dignity; and nevertheless by sentence we deprive him. We perpetually absolve all those who are held bound to him by an oath of fidelity from an oath of this kind, strictly prohibiting by apostolic authority that anyone henceforth obey or attend to him as emperor or king, and decreeing that any persons who thereafter furnish him counsel, aid, or favor as emperor or king are subject by that very fact to the sentence of excommunication. Those to whom the election of an emperor in that Empire belongs are freely to elect a successor. We will take care to provide concerning the aforesaid Kingdom of Sicily with the counsel of those same brothers of ours, as we shall see to be expedient.

One who seeks a definite thing with a cause expressed loses if he does not prove that cause, although he proves another cause, especially one arising afterward. John Andrew.

The same, to the Preceptor of the Hospital of Saint John of Jerusalem in Spain, and to the Commander and Brothers of the House of Curvaria of the same Hospital. Indeed, the abbot—(And below:) The Abbot of Bonefac., proposing for himself and his convent that the place of Rosellis belonged to the aforesaid monastery by right of ownership or quasi-ownership, and that with its boundaries it pertained to that monastery by grant of the King of Aragon, petitioned that the place itself be adjudged to that monastery and that you be removed from it.

It was alleged on your behalf that the donation made to you concerning the aforesaid property was valid, although at that time it was under the power of the Saracens, because it was donated not simply but under a condition, namely, if it should come into the hands of the faithful. In that case the grant could and ought to have force, because the nature or quality of the things donated did not stand in the way of the donation itself, and it was indeed salutary and laudable to await and look forward to the time when they would be subjected to the dominion of Christians. Therefore, as soon as they came to them, they were wholly devolved upon you.

It also made a great difference whether the donation had been made by the same king to the monastery of Bonefac. or to the aforesaid monastery of Populetum. For although it was clear that the property had been conferred by the king himself upon the aforesaid monastery of Populetum, and by that monastery upon the abbot and convent of Bonefac., it was nevertheless not established on that account that the said king had donated it to the monastery of Bonefac. itself or had commanded it to be donated. Nor, because he willed and established that a monastery be built there, could or ought it to be understood that he donated the aforesaid property, or any of it, to the monastery being constructed, since his intention appeared rather to be that, because he was enriching the aforesaid monastery of Populetum with the grant of so many and such great goods, its abbot and convent should be bound to construct a monastery for his salvation and that of his people; especially because no donation could be made to a monastery that did not yet exist.

The aforesaid grant made to the monastery of Bonefac. by the abbot and convent of the monastery of Populetum appeared to furnish it absolutely no assistance, most especially because it had been made after joinder of issue and the progress of the judicial proceeding, as was clearly apparent from the aforesaid instrument. Hence, since it had by no means brought into the judicial proceeding whatever right belonged to the monastery of Bonefac. in the aforesaid property from such a grant, because that which happened afterward cannot be seen to have come into the proceeding, judgment concerning the things petitioned could not be pronounced from that grant.

On the other party’s behalf, however, it was said that since the king himself, by his probity and zeal, had conquered the above-mentioned places from the infidels, the donation of his grandfather or father previously made concerning them for the time when they should come to the worship of the faith could not bind the same king as regards things thus afterward acquired through him, since they had become his own property and appeared separated from the other hereditary goods.

Moreover, the aforesaid grant made to the monastery of Bonefac. by the monastery of Populetum, although it intervened after the judicial proceeding had been accepted and the cause had progressed, nevertheless ought to assist and be valid, since for a plaintiff it appears sufficiently to suffice that his right is apparent from a suitable cause, although one supervening, and to be sufficient if, just as is observed in the case of a defendant, his interest exists at the time the sentence is to be pronounced.

But to these things your party responded that, since both the above-mentioned donation of the grandfather and the acquisition of the aforesaid places were made in the name of the kingdom, the said king was bound to observe a donation of this kind. Furthermore, the aforesaid grant of the monastery of Populetum could not assist the monastery of Bonefac. in this regard. For when someone has brought an action from some definite and special cause, and afterward either another cause or one similar to that which he set forth arises, that cause cannot be seen to have come into the judicial proceeding, since the judge ought then carefully to foresee and attend whether the plaintiff’s intention is founded upon entirely the same cause that was previously expressed, as one that also belonged to him at that time.

It is otherwise when he has brought an action or petitioned in general, making mention of no definite or special cause, because perhaps he generally proposed that someone was bound to him or that some thing pertained to him by right of ownership or quasi-ownership. For then the judge is principally to inspect whether the plaintiff’s right or intention is or is not sufficiently established. Hence, if this is clear from a cause arising even afterward, the judge can and ought to inform his mind from it, even if it appears that the action was brought less justly at the beginning. For although the thing had been unduly petitioned, the judicial proceeding that followed was nevertheless not for that reason any less valid and effective, nor were its acts or transactions for that reason any less valid; nor could the judge himself, the truth having thus become known, pronounce to the contrary with a free and secure conscience. Nor would it greatly benefit the defendant if perhaps condemnation were not then pronounced against him from a supervening cause of this kind, since, as soon as another judicial proceeding was instituted, he would deservedly be condemned from it.

Hence, although it suffices for a plaintiff to have founded his intention upon a supervening cause when he brought an action without a special cause being expressed, it is otherwise if he appended a definite and special cause to his petition, unless afterward he founded his intention entirely upon the same cause that he previously expressed and that then also belonged to him. Therefore, since the aforesaid abbot of the monastery of Bonefac. proposed that the often-mentioned place of Rosell. with its boundaries pertained to that monastery by grant of the aforesaid king, and did not prove any grant concerning this made by that king to the monastery itself, but showed a donation of these things formerly made to it by the abbot and convent of the monastery of Populetum—a donation that had neither been expressed in his petition nor made before it—he certainly ought to report no advantage from it.

Accordingly, the aforesaid cardinal, after diligently hearing all the foregoing matters and the others proposed on each side, and weighing the merits of each party in the equal balance of justice, prudently considered that the proposition made by the aforesaid abbot and convent of Bonefac.—namely, that the plaintiff’s intention could be founded upon things arising after joinder of issue and that those things ought to come into the judicial proceeding—has application, as was fittingly alleged above, when the action was not brought specially from a definite and expressed cause.

For when a special cause was set forth, the judge’s mind neither ought nor can be informed for pronouncing sentence by things that arise after the judicial proceeding was begun. Since mention was made of a definite cause, such as donation, sale, or another special cause, it is necessary to attend to the time the judicial proceeding began, so that it may be clearly known whether the plaintiff’s interest then existed by reason of the things that accompany a special cause and must necessarily be present, such as place and time and matters of this kind, which are to be carefully considered and without which the cause would be judged empty and invalid.

But when a thing is petitioned in general without a declaration of any cause, it is not necessary in the same way to inspect the time the judicial proceeding was accepted, because accompaniments of this kind are neither required nor opportune and cannot be considered in this case. And although it may perhaps appear otherwise to certain curious persons who often dispute about things that are not greatly expedient when an action was brought upon some unexpressed cause, nevertheless it appears more useful that business be expedited by such compendium than prolonged with great loss through a certain exact subtlety, especially since certain things are known to be tolerated for the common utility, from the mildness of equity, contrary to the harshness of law.

Hence the same cardinal, considering that the abbot and convent of Bonefac. did not prove that a royal grant concerning these things was lawfully made to them—from which grant they appeared specially to attack you—determined by sentence, at our command and after taking the counsel of our brothers, that you were to be absolved from an attack of this kind by that abbot and convent. Therefore, holding valid the sentence of that cardinal, we confirm it by apostolic authority.

If one of several judges or arbiters, while the others are present and direct it, pronounces sentence in words of the plural number, the sentence holds; an election, however, is to be pronounced in singular words. This is what it says. John Andrew.

Boniface VIII. When a written sentence is recited by one of the arbiters or judges while the others are present and direct it, it is held just as if it had been recited by all together. Nevertheless, the person reciting must use not words of the singular number but of the plural, so that he says: “We, such judges or arbiters, pronounce or establish in this manner.” It is otherwise observed in an election, in which, so that it may more evidently be judged one and common, whether the procedure is by compromise or scrutiny, the pronouncement of the election is to be made by one person in the place of all through words of the singular number.

He establishes three cases of nullity of a sentence and excepts one case from the first. This is what it says. John Andrew.

The same. Although a definitive sentence, after it has been written, ought to be pronounced by the judge, not another, through recitation of the writing—otherwise it merits neither to have the name of a sentence nor is it necessary to appeal from it—nevertheless, it will be lawful for a bishop, whom it is fitting on account of the prerogative of dignity to shine with more ample honor, to have a sentence to be pronounced by him recited through another, after the likeness of illustrious persons. A sentence that it happens the judge issues to the litigants in writing but does not recite, or that he pronounces while standing rather than sitting, is absolutely of no moment.