Simony.

Simony holds the chief place among all crimes. Simony -- what it is and whence it arises: in how many ways it is contracted, who is admitted to accuse or to testify — see the cross-references.

Capitulum I.

Definition of simony.

Simony is the deliberate will or desire to buy or sell something spiritual, or something annexed to a spiritual thing. I said “will or desire,” because spiritual things cannot be sold: yet from the mere will to sell or buy, even without any external act, simony is committed. A bishop or his ministers commit simony by accepting anything temporal for conferring orders. Whether the bishop’s notary may lawfully accept anything temporal without the sin of simony on account of his writing up the names of those ordained. Simony is committed if anyone accepts anything temporal for spiritual things, even if it is given spontaneously. Whether the scribes of papal bulls in the Roman curia who receive payment incur simony.

Whether simony applies in the Roman curia.

If the Roman curia observes a certain practice, we too should observe that custom, even if a contrary statute has been enacted among us.

Whether the pope is implicated in the crime of simony.

An ordinary [i.e., a bishop] has the power of binding and loosing in habit [i.e., as a potentiality], but not in act. A priest can neither absolve nor bind the parishioner of another, nor anyone at all unless that person falls under his parish. If young men are excommunicated by a constitution of the bishop, they incur excommunication even if they associate with the bishop, although the bishop himself does not incur it, because he cannot be bound by his own constitution.

On ordination.

For the conferral of an order, neither the ministers nor the notaries ought to exact anything temporal. And there are two points in the text, at the words “for ordination.” The literal case is as follows: It was proposed in a general synod whether anything could be accepted for ordination. And it was determined that no one should accept anything for ordination, nor should the person ordained give anything. From the text [it follows that] where the principal act must be gratuitous, all accessory and attendant acts must likewise be gratuitous. Accordingly, the prohibition extends not only to the bishop who confers the order — forbidding him to receive anything for the order — but also to all other ministers who are accessory to and assist the bishop in the celebration.

On the gloss at the word “archdeacon.”

If this is understood as referring to the colloqui-

um — and in all those who administer [the sacrament] — this chapter extends [the prohibition]. Two matters must be examined here. The first: whether the notary [is liable to] penalty. And if an agreement had been made for a fixed penalty with a formal inscriptio [i.e., a formal accusation requiring the accuser to accept the same penalty if the charge fails], the notary could lawfully take something for his labor. The second: whether the offering of something temporal, spontaneously given, may lawfully be received without sin. On the first point, conclude briefly, following the gloss: either the notary receives a salary from public funds — that is, from the bishop — and then this first limitation properly applies; or he does not receive a salary, and then either his office is so necessary to the ordination that unless he writes, the order cannot be said to have been properly conferred — in which case, since his office pertains to the conferral of the administration, he may exact nothing. I, however, do not see how the office of a scribe could be of such a nature that it is necessarily required for the legitimate conferral of an order, and therefore it can simply be said that, so long as he does not receive a salary from public funds, he may rightly exact payment for his labor. And according to Innocentius, this chapter intended to abolish the custom of certain places in which all officials and ministers demanded money. On the first point, conclude that for spiritual things themselves, nothing else should be conferred, not even if freely given — as is clear from this text at the end, where the person to be ordained is forbidden to give. But if something is conferred spontaneously, not principally for the spiritual things themselves but out of a certain charity, it may lawfully be received, as in the chapter Ubi quaestiones and the opinion of others against the text [arguing] that the notary may indiscriminately receive — [yet] crimes ought not to go unpunished. And through this you have the understanding and the rationale of this chapter; keep it in mind.

Whether simony applies in the Roman curia.

It does. For in the Roman curia, notaries exact money for bulls; therefore, in other places too, notaries may lawfully receive payment — by analogy with c. In causis [Extra, de re iudicata]. For the practice of the curia itself ought to serve as our instruction, just as we say of the actions of Christ, in c. Significasti [Extra, de electione]. Some doctors say that in the Roman curia the notaries do not have a salary, and therefore they lawfully exact payment. Alternatively, the title de simonia does not apply in the Roman curia. And similarly, in the court of the prince, the lex Iulia de ambitu does not apply — and this is true. Hostiensis [draws a distinction]: in those matters that are simoniacal because prohibited [by positive law], it is otherwise than in matters prohibited because they are simoniacal [by divine law], as the gloss says in c. Ex parte [Extra, de officio delegati]. Hostiensis says that although the pope is not bound by his own constitution in those matters that are simoniacal because prohibited, he ought nevertheless, more than all others, to abstain [from such conduct]. A toleration [of the practice] has resulted in a fixed schedule of fees, [specifying] how much should be paid for each bull.

Whether the pope [can commit simony].

I have found this question examined by the doctors. Only Zabarella here simply says that the pope does not commit simony, as if inferring this from the foregoing, since the title to a benefice is a matter of positive law and the pope may use that law and in such matters is not bound, as in c. Proposuit [Extra, de concessione praebendae]. But I have always held the opposite view, and in my repetitio on the paragraph Quod vero in c. Extirpandae [Extra, de praebendis], I set forth the following resolution: whenever a benefice carries with it the administration of an order or the exercise of the power of the keys, even the pope would be implicated in the vice of simony [if he sold it]; but it is otherwise if the benefice does not carry with it the administration of an order or the exercise of the keys — as is the case with hospitals or certain temporal administrations. I prove this, first, by reason: for although the title to a benefice is a matter of positive law, nevertheless the exercise of an order or the power of the keys is a matter of divine law. For the order existed already in the Old Testament, and to sell the exercise of an order would be to sell the order itself and the grace of God — and these things are simoniacal in themselves and therefore prohibited [C.1 q.1 c. Qui studet]. Hence one should know that when a person is ordained, he receives the powers of loosing and binding in habit but not in act [XII q.1 c. Ecce sufficienter, etc.]. This is why no one can absolve or bind the parishioner of another, however much he may be a priest. But if a benefice is conferred upon him, then he is given the actual exercise of his order — and that exercise is a matter of divine law. For ordination was [already ordered toward] the exercise of an order, and to sell it would be to sell the order itself and the grace of God. And these things are simoniacal in themselves. And therefore in the conferral of a bishopric there is no doubt that the pope would commit simony [C.1 q.1], since they find that the episcopate is an order. And since these things are burdens [of office], it is no excuse to say that one receives money for the temporal elements, because when one of two connected things is sold, neither is left unsold [C.1 q.1 c. Si quis obicerit]. But in the case of other benefices that do not carry with them the exercise of an order, the pope would not commit simony — because on this question, which Abbas discusses here, see all the authorities in c. Ut altaris [Extra, de officio, in Sexto]. Nevertheless he ought to abstain, for the reasons stated above. And I think that in all cases, one who sells for an agreed sum of money to the pope is not safe as regards the office [of the benefice], nor can he administer in the benefice without sin. And in the case where the pope would not commit simony, since there existed a prohibitive constitution, the subordinate falls under the penalty — just as, in a similar dispute, Johannes Andreae discusses the question of a bishop’s statute under which anyone who gambles with dice is excommunicated: whether one who gambles with the bishop himself incurs the excommunication. And he concludes that he does, even though the bishop himself is not excommunicated, because he could not be bound by his own constitution. So he argues

in the rule Cui est [Regulae iuris, Liber Sextus], in the Mercuriales. And so likewise, in our case, where the pope would not commit simony, this does not by agreement suspend the prohibitive constitution. But one who [pays] the money commits the vice of simony; and accordingly the recipient may do penance while retaining the benefice, as in c. Inquisitionis, in the opening paragraph [Extra, de accusationibus]. And I pursue this point at greatest length in the aforementioned repetitio.

Capitulum II.

[In this case] the deposition should proceed by way of inquisition. Some, however, wish to understand this chapter as if the proceedings were by way of accusation, but the first view is more correct, since the text speaks without distinction. And [the accused] committed these two offenses: for he succeeded to the place of a living [incumbent] and committed the crime of simony — on which, see c. Inquisitionis, in the opening paragraph [Extra, de accusationibus].

Capitulum III.

A Catholic is to be admitted to bring an accusation of simony. [The text states that] anyone is to be admitted without [regard to] sin: [the Lord] gave permission to accuse even to a most wicked Jew, when he said, “If I have spoken evil” [John 18:23]; and all the more so, no Catholic ought to be rejected — indeed, he should rather be encouraged to assert the truth in order to repel the simoniacal corruption. And the text provides an argument that a superior can be accused by an inferior, citing c. 15 and c. Zachariae.

And the rule is that a non-Catholic is not admitted to make an accusation, not even on a charge of simony. And [this provides] an argument that a witness who has been solicited by a party through entreaties to give testimony is not for that reason suspect.

Regarding the Jew: but Johannes Andreae [says] that these consequent words were not spoken to Judas but to that servant of the high priest who struck Jesus, saying, “Do you answer the high priest so?” And Christ replied, “If I have spoken evil,” etc. [John 18:22--23]. So too the following gloss should be corrected. Hostiensis says the text can be understood [as referring to] that other authority: “Which of you convicts me of sin?” [John 8:46], etc.

And this latter authority speaks properly of the accuser; the former of the witness. The second can be applied to the text at the word “accusing”; the first can be applied literally at the words “to assert the truth.” These authorities are straightforward on their surface, because in truth the sense of that authority is that Christ could be accused or convicted by no one.

A Catholic is admitted to give testimony, etc. — this is not true without qualification. Therefore, say that either the law admits anyone [to testify], and then the same [conclusion follows], etc. And note in c. ... whether and on what terms anyone is admitted to accuse — say as is fully stated in c. ... [Extra, de accusationibus].

A simoniac [may testify] concerning simoniacs, saying c. Dilecto Valle, in the gloss. And this text could be understood, following Johannes Andreae, [to mean] that first the witness should be entreated — that is, compelled — by the parties to speak. And note, first, that it is lawful for a party to entreat [a witness to testify].

Capitulum IV.

A simoniac, while an accusation of simony is pending, is prohibited from the administration of divine offices.

The pope ought to observe the judicial order by his ordinary power; it is otherwise [when he acts] by his absolute power.

While a suit is pending, the defendant is not deprived of his property — for instance, his benefice — unless the suit concerns some grave crime, in which case the person is suspended from his property until the case is concluded.

Whether a simoniac, even if occult, is and when he is suspended — both as regards himself and when [others who associate with him] sin.

A person is not called a simoniac who holds a benefice for the obtaining of which another gave money without his knowledge; but when he learns of it, he is bound to relinquish it.

Whether and when a simoniac can be prohibited from celebrating.

Whether one excommunicated by law can also be excommunicated by a [human judge].

Whether one excommunicated by law can in addition be suspended.

[The text discusses] the judicial order and should be understood [as referring] to ordinary power, not absolute power, as in c. Proposuit [Extra, de concessione praebendae]. The second case, in which a person is deprived of quasi-possession of his benefice and office while the suit is pending, should be understood [as applying] when the acc-

used was defamed for simony — as the gloss [explains]: on account of the atrocity of the crime, when infamy concurs, suspension takes effect until the case is concluded, as in c. Inter [Extra, de purgatione canonica]. And the same applies in other grave crimes when infamy concurs. See what Johannes Andreae notes in c. Inter.

[Extra, de purgatione canonica] and in c. 1 [Extra, de accusationibus, Liber Sextus]. And in the first gloss at the word “however occult he may be,” consider this carefully, because the gloss seems to contradict itself: for here it says that a simoniac in orders, however occult he may be, is suspended; but below, at the word si vero, it says that if he is occult he is not suspended as regards others. And so that you may have this point more clearly, attend to two things. First, whether the simoniac is suspended. Second, whether he can be prohibited from celebrating mass. On the first point, say that either he is simoniacal in respect of orders, and however occult he may be, he is suspended both as regards himself and as regards others — because others too sin by hearing divine offices from him [dist. 32, paragraph Verum], and note what Innocentius says in c. Tanta on this point. And so understand this part of the gloss. But if the simony concerns a benefice: if the simony is manifest and notorious, the person is suspended both as regards himself and as regards others, by analogy with the aforecited paragraph Verum, and note Innocentius in the aforecited c. Tanta — unless the sin of simony was committed without his knowledge, as when a father or another gave money [on his behalf] without his knowing it [C.1 q.5 c. Presentifi]. But once he learns of it, he must relinquish the benefice. If, however, the simony is occult, then he is suspended as regards himself but not as regards others — just like any sinner: he himself sins by celebrating, but others do not sin by hearing him. And so the gloss speaks at the end, and so the doctors hold here.

On the second point, say that either it is notorious that the person is simoniacal, and then he ought to be prohibited — indeed, deposed — according to what is read and noted in c. Inquisitionis [Extra, de accusationibus]. Or else the simony is neither notorious nor is the person defamed, and then he ought not to be prohibited. Or else he is defamed, and then he ought to be prohibited, as here. Nor does the objection of the gloss stand — namely, that this person is already suspended by operation of law, [and so] the text does not say that he “ought to be suspended” but that he “ought to be prohibited.” For although he is suspended, he could still celebrate in fact; therefore he must be prohibited — the prohibition, as it were, relates to fact, whereas the suspension relates to law.

And as Johannes Andreae says, a person can be properly suspended [by a judge] even though he is already suspended [by law]. For just as one excommunicated by a canon can be excommunicated by a human judge — as in c. Ita quorundam [Extra, de Iudaeis], and what the gloss notes there — so too one suspended by law can also be suspended by a human judge.

Capitulum V.

Simony, on account of the enormity of the crime, is called heresy:

it is not, however, that it actually is heresy. See the next chapter below.

The pope can be accused of heresy, but not of simony — unless three conditions concur, on which see the cross-references.

And the present chapter says the same as the preceding one, except that the former chapter speaks of accusation, while this one speaks of the simoniac in general terms: that one [speaks] of [a specific type of] law.

And to both [chapters] each authority can be applied literally.

And in the gloss here: whether and how many witnesses can be compelled [to testify] in a criminal case.

Whether homicide is a more horrible crime than simony.

Capitulum VI.

The literal case.

The question was raised concerning the penalty to be imposed on a simoniac. And the second part [of the text states] that, just as the pestilence of simony by its magnitude surpasses all other diseases, so, after some final delay, once the simony has been established, [the simoniac] ought to be removed and expelled from the church. And note, first, from the text, that simony is here called a pestilence: for just as a pestilence infects one person and then many, so too does simony infect, because it renders the person incapable of exercising his office. And so great is the desire to obtain benefices that it infects many, just as a pestilence does.

Note, secondly, a special rule here: in a grave and most grave crime, the proceedings may go forward on the basis of signs alone — that is, on the basis of circumstantial evidence. For as a general rule, in criminal cases the proofs must be clearer than light [lex Sciant cuncti, C. de probationibus]. But in this crime of simony, out of hatred for it, presumptions are admitted — and likewise in the crime of heresy, on which see

Capitulum VII.

The crime of simony is more serious — or simony is a graver offense — with respect to the tainting of sacramental character. I therefore think the matter should be stated as follows: either a person believes that the grace of God can be acquired with money, in which case, since such a person becomes a heretic, he sins more gravely, as I said in the preceding chapter; but where heresy is not at issue, homicide is the graver offense with respect to the one who commits it and the one against whom it is committed. Yet with respect to the tainting of sacramental character, simony in holy orders is a graver offense than poisoning.

A simoniac may be accused by persons of any criminal status whatsoever, even those otherwise disqualified — for instance, by a prostitute or by his own slave.

If persons of criminal status are called to perform some legal act contrary to the rules of the common law, a prostitute is not included unless special mention is made of her.

Cardinals who lease benefices entrusted to them under a fixed pension, receiving a fixed sum of money, do not commit simony if the sum is to be paid by the person being instituted [in the benefice].

A simoniac in orders, even a secret one, must be avoided: it is a sin to hear the divine office from him. A tolerated excommunicate need not be avoided in divine services, though in secret one may avoid him so that he may be shamed [into repentance]. A simoniac in orders is suspended both with respect to himself and with respect to others, and he cannot be restored except by the pope alone. Whether and when a simoniac in a benefice is suspended [is discussed below].

The Literal Case

The question was raised whether, in a case involving the crime of simony, witnesses should be received from any person whatsoever for its proof. The ruling is that, on account of the enormity of the crime of simony, slaves are admitted against their masters, and persons of any criminal status are admitted to bring an accusation against simoniacs. Likewise, every sinner may celebrate Mass except a simoniac, whom anyone — even a prostitute — may accuse, so as to remove him from an order he has wrongly obtained.

Note the first of three cases in which a slave may appear in court, even to accuse his own master — and this one is specific to the crime of simony. Ordinarily, slaves do not have standing in court, on which see Digest, de iudiciis [D.5.1], l. vir certis; ff.q.no.c. Observe that under a general provision admitting persons of criminal status to the exercise of some legal act, a prostitute is not included unless specific provision is made for her — which is clearly implied by this text. For the text first stated that all persons are admitted, even criminals, and then added prostitutes separately. Although she herself is indeed a criminal, nevertheless because of her base condition she is generally excluded from lawful acts, and special provision is required concerning her capacity, by analogy with l. quam Alexandrum, Codex, de adulteris [C.9.9], and l.q. adulter. This text is relevant to statutes that speak of criminals: “if the accused has been defamed.” But limit this to a case where a cleric is accused by a lay criminal, for in that case it is required that the accused cleric be of ill repute. It is otherwise where a layman accuses a layman, or a cleric a cleric, on which I treated fully in the chapters cited above, in the gloss, and in c. per inquisitionem [Extra, de electione]; and see c. de confessis [Extra].

In the gloss: this first solution, although it may appear true at first glance, does not in fact hold. For a simoniac in orders is likewise cut off from the Church. Therefore this text would establish nothing peculiar regarding a simoniac. The subsequent solutions of the gloss could also be challenged. I therefore conclude briefly, following Innocentius [IV], that other sinners — even those cut off from the Church, if they are tolerated — we are not bound to avoid, even in divine services. For we may lawfully hear the divine office even from a tolerated excommunicate, and on this point see c. cum non ab homine [Extra, de sententia excommunicationis]. We may, however, avoid them in secret so that, being put to shame, they may do penance, by analogy with c. vestra [de cohabitatione clericorum et mulierum]. But a simoniac in orders, however secret, we are bound to avoid in divine services, as stated in the Decretum [dist. 22]. And so understand that a sinner — even one foreknown [to be damned] — if tolerated in the Church, can celebrate validly with respect to others, though he himself sins by celebrating. But a simoniac in orders, however tolerated, can neither celebrate Mass with respect to himself nor with respect to others. In the gloss at the words “unless he renounce the benefice,” etc.: I conclude more broadly, drawing on certain statements of Innocentius, that a person is either a simoniac in orders or a simoniac in a benefice. In the first case, he is suspended with respect to himself and with respect to others, nor may he renounce the benefice, nor may anyone dispense him except the pope alone [q. 1, c. gratiam]. If, however, he is a simoniac in a benefice, then if the simony is secret he is not suspended with respect to others but only with respect to himself. And if he renounces the benefice, he may exercise his orders after performing penance; but while retaining the benefice in which the simony was committed, he cannot do penance, as in c. inquisitionis in the beginning [Extra, de accusationibus]. If, however, the simony is manifest, then he is suspended also with respect to others; and even though he renounce the benefice, he still requires a dispensation, just as any notorious criminal does, as in c. final. [de temporibus ordinandorum]. But a dispensation may be granted in this case by the bishop, provided that bishop is not the one who committed the simony, as noted in q. 5, c. presentium [C. 3]. Likewise, a notorious simoniac may be dealt with by the pope, and in that case, if the person in the benefice is suspended with respect to others, this holds true insofar as the simony was committed with his knowledge. It is otherwise if he was ignorant of it — for example, if the simony was arranged by his parents or friends — in which case he is not suspended with respect to others, but he may not lawfully retain that benefice without a dispensation, as in the aforesaid c. presentium. And note what is stated in c. sicut and c. nobis on the same point.

Capitulum VIII.

In What Matters Simony Is Committed

Whatever is given or received [for entry] into a religious house,

or anything given as though a benefice were being conferred [constitutes simony].

Nuns who receive a woman as a sister ought not to demand anything from her or from her relatives. But the relatives themselves may voluntarily offer something to the monastery, or they may tell the woman wishing to enter to bring something with her for her sustenance. They must not, however, make a bargain, for that would be simony. From this it appears that one can infer that prostitutes are not admitted to testify in a simony case, because no legal texts specifically say that prostitutes are to be admitted to accuse. It does not follow, however, that they may also testify, because greater suitability is required for testifying on account of the dangers involved — although the gloss here, and Aleranus in Consilium 6, beginning “concerning the first doubt,” in the first volume, hold the contrary.

Those who hold reserved benefices and give the surplus revenues as an annual pension do not commit simony; but it is otherwise if they renounce by the title of the concession — they do not commit simony. One who has been instituted in a benefice and pays a fixed pension to a cardinal — which pension was imposed on the benefice — stands sufficiently [accused] against simoniacs as lawful; and [the same applies] for entry into religious life.

Concerning Priories and Chapels

Concerning priories or chapels to be conferred by prelates for the purpose of institution; concerning the granting of burial; concerning chrism, holy oil, and the nuptial blessing or other sacraments — no contrary custom avails. It is divided [as follows]: for first the text sets forth a threefold prohibition stated disjunctively, calling the transgressors and those who consent simoniacs. Second, it sets forth conjunctively another threefold prohibition with no contrary custom, and gives the reason. Third, beginning “concerning burial,” the literal meaning. In this chapter it is forbidden that any money be demanded from those who enter religious life, nor shall any priory or chaplaincy be committed to anyone for a price. Whoever acts contrary to this — whether the one who gave, the one who received, or the one who consented — commits simony. Nor shall any exaction be attempted for any spiritual thing, notwithstanding any custom, because the passage of time does not diminish sin but rather increases it, as in c. final. and c. idem [Extra]. And entry into religious life pertains to the spiritual. Hence no temporal thing ought to be exacted for it, or else simony is committed, as here — on which the matter will be treated fully in c. quam on the same title, where these nuns are discussed.

Note that simony is equally committed whether, from the time of institution, some temporal thing is given by agreement, or whether an annual portion of the revenues is assigned; for it amounts to conferring a benefice on account of that annual revenue, which is something temporal — on which I shall touch upon something further below.

The ruling is that both the one who receives a temporal thing for a spiritual one, and the one who consents, as well as intermediaries, are all implicated in the vice of simony, as this chapter [teaches]. Custom does not excuse in these matters; rather, it aggravates the sin — which should be understood as meaning that the sin persisted for a long time under the pretext of custom, on which see the following chapter.

In the gloss at the end: two good theoretical and practical methods of drafting the instrument. The first practical method is that [the instrument should state that] not from a bargain but rather, out of pure devotion, the girl herself or her father should offer something to the monastery. The second practical method is this: if the situation arises from a deficiency of the monastery’s resources and revenues, and by way of a certain protection or intimation, one may tell the woman wishing to enter to bring something with her by which she can live. But this must not be reduced to a bargain. And so I understand Innocentius in c. tua on the same title, where he disagrees with this rule of the de institutionibus. The same [is held] by Joannes Andreas in c. qui on the same title.

In the gloss: that churches or chaplaincies ought not to be granted under an annual rent. The question arises whether religious to whom certain churches have been granted for their own use may lawfully retain an annual pension for themselves while conceding all the revenues. The doctors here conclude that they may, nor does c. prohibemus or c. significavit [Extra, de censibus] stand in the way, because the rule is that a census ought not to be imposed on churches, but revenues that are owed to someone may be sold or leased, as in c. vestra [de locato]. On this point, note what is stated in c. de monachis liberis in the Clementines [de iure patronatus]. These considerations bear on the everyday question whether cardinals may grant benefices entrusted to them under an annual pension. On this matter, conclude as follows: either they wish to lease the commenda while it remains in their possession — and they may do so, just as any benefice-holder may sell or lease the revenues of his benefice, as in the aforesaid c. vestra (though spiritual things ought not to be leased, on which I shall speak in c. quam, c. final., and Omne, concerning prelates and their obligations) — or they wish to renounce the title of the commenda so that the benefice may pass to another, with a prior agreement to receive a fixed sum of money. In this case there is no doubt that simony is committed, and all the more so because the cardinal himself confers nothing but merely renounces the commenda and receives money by agreement — for that renunciation is simoniacal, as noted by the gloss in c. ex parte [Extra, de officio legati]. But a safeguard could be employed, provided there is no prior private bargain: the pope might, by his own authority, induce

the cardinal to renounce, and afterward impose a fixed pension on the vacant benefice, to be paid annually to the cardinal by the person being instituted. This would pass without the taint of simony, by the best analogy in c. concerning the status and life of the religious, because these pensions are imposed on churches fivefold — and all the more so for the sustenance of cardinals, by whose counsel [the pope] governs. This would, without doubt, more wisely provide for the universal Church by imposing such pensions rather than granting churches to them in commendam, because in this way the churches are deprived of their own rector, and this harms the churches themselves in both spiritual and temporal affairs.

Custom

Custom, even if base and dishonorable, excuses from temporal punishment.

Capitulum IX.

Whether Simony Can Be Committed in Connection with the Sacrament of Matrimony

If an ignoble husband gives something to a noble wife in compensation for her lineage, he gives lawfully, and such a gift is valid. A remunerative gift between husband and wife is valid even without awaiting the death of either spouse, because it is not a simple gift. A priest ought rather to give the said money than to leave the baptism unperformed. Zacharias: one who has the will to be baptized is regarded as having been baptized. Baptism conferred even by a layperson is valid. One who is compelled by necessity to give money for a spiritual thing does not commit simony. One who borrows money at usury out of necessity does not commit simony. Simony is not committed if someone gives or promises money to a pagan so that he may become a Christian, unless that pagan would become a Christian only on account of that money. Simony is not committed on the part of the recipient if he accepts money in order not to confer spiritual things simoniacally.

[A corrupt] custom can be called a law of death. It is called a “law” because it is observed by the impious as though it were a law or privilege. Therefore it must be rooted out swiftly and utterly, as [stated in] dist. [8]: a bad custom is called a law of death because it brings eternal death. But as regards temporal punishment, many are excused, as noted in dist., c. denique, and in c. cum venerabilis [de successione]. Secondly, from this same point I gather that a continuing sin is graver and must be punished with a heavier penalty than one that is momentary, [for custom] binds or chains the soul temporally and invisibly, just as chains hold the body visibly. And finally, note that all spiritual things may in a broad sense be called sacraments, as is gathered from the words “or other sacraments” [in the text]; but properly speaking there are seven sacraments, concerning which see c. veniens [de transactionibus], as stated by SLE. In the gloss at the end: this rule proceeds by the civil law. But by canon law, a custom whereby something temporal is given for something spiritual is not valid. Whether and when some custom may be introduced regarding promotion, I shall discuss in c. ad apostolicam. At the words “nuptial blessings” and the passage concerning grace, Nicolaus on the sacrament [of marriage] determines the matter by saying that grace is also conferred in matrimony. And to c. connubia, cited in support: in the nuptial blessings the grace of the Spirit [is present]; but in the matrimonial act itself — namely, the carnal union — it is not fitting for the Holy Spirit to be present on account of the repugnance [of the act], and because the person becomes entirely carnal. Grace can, however, be present there — for instance, if one renders the conjugal debt — so that spouses may merit [grace], as in C. 32, q. 5, c. 1; C. 27, q. 6, c. ita habitans. Moreover, here is the argument of the gloss: since no exaction ought to be made for the nuptial blessings because they confer the grace of the Holy Spirit, and therefore the exaction of money is forbidden — this is true of those things specifically. But for the marriage itself, money may lawfully be involved. Conclude that a dowry and a gift on account of the marriage may lawfully be given, because properly speaking the money is not given for the marriage — that is, so as to obtain the marriage itself — but for the burden of marriage, as in c. vestras [Extra, de dote post divortium restituenda]. Likewise, before the marriage is actually celebrated, a gift between the betrothed parties may lawfully be made, provided it does not amount to buying the marriage itself, as in l. 1, Codex, de donationibus ante nuptias. But in the contracting of a marriage, if one party induces the other to marry, a gift or promise made by one of the spouses is not valid, because it appears to have been made for a shameful cause — namely, the extortion of sexual pleasure. So the text notably [holds] in l. si ita stipulatus, section si tibi, and l. si divortii [Digest, de verborum obligationibus]. Bartolus, however, holds in both passages that if the woman was noble and the man was a commoner, then something may lawfully be given so that she contracts the marriage, because the gift is considered remunerative and in compensation for her lineage, and it does not occasion lust — which is well worth noting. I have heard that Bartolus advised that [gifts] between spouses are [valid] when the gift is remunerative for service received — as when, during the course of the marriage, a very great benefit has been conferred on the wife by the husband or vice versa, such that one is obligated to the other in reciprocity. In that case the gift and obligation hold even without awaiting the death of the other spouse, because what is forbidden between spouses is a simple gift, as in c. final. [de donationibus inter virum et uxorem] — but not a remunerative gift,

for that, properly and strictly speaking, is not a gift, since it does not proceed from pure liberality, as in l. 1 [Digest, de donationibus]. Rather, it proceeds in order to satisfy the obligation of reciprocity, as in l. final., section consuluit [Digest, de petitione hereditatis]; and in c. cum creatura [de celebratione missae]; and in c. cum in officii [de testamentis]. Note these points well.

Beyond the Gloss

Beyond the gloss, the question is raised: may money lawfully be given to a priest who refuses to baptize otherwise, or should the sacrament of baptism rather be forgone? On this see the good gloss in c. baptizandis [C. 1, q. 5], where the conclusion appears to be as follows. If the person to be baptized is an adult, he ought not to contribute anything but should rather forgo baptism, because since he believes and the failure to baptize is not his fault, he is regarded as having been baptized, by analogy with c. debitum, as noted there [Extra, de baptismo], and c. final. [de presbytero non baptizato], and what is noted there in the gloss. Alternatively, let him baptize himself, according to that gloss — though this last point would be of little avail, because there must be a distinction between the one baptizing and the one baptized, as in the aforesaid c. debitum. Similarly, he may have himself baptized by a layperson, because baptism conferred by anyone whatsoever is valid, as in c. [1], at the word “sacramentum” [Extra, de summa trinitate]. If, however, the person is an infant, then there are different opinions. Some say that nothing should be given, and that the infant should rather be left without baptism, and that you sin [more] by paying so that the infant may attain eternal life — dist. 23, quod ait, Zacharias and the gloss there; dist. 46, sicut. Others say that although money ought not to be given, nevertheless rather than leave the infant without baptism, money should be paid. Understand this to apply where no other person who knows how to baptize can be found. I would hold that in this case money may lawfully be given, even though it is unlawfully received, because the donor gives out of necessity — not in order to purchase a spiritual thing, but rather to remove the impediment unlawfully placed before this sacrament. Just as we say in a similar case regarding one who borrows money at usury: if he does so voluntarily, inducing another to commit usury, he sins; but it is otherwise if he does so out of necessity, as noted in c. super eo [de usuris], and this accords with what is noted above in the preceding chapter.

A Second Question

A second question is raised: may money lawfully be given to a pagan so that he may have himself baptized? On this see the gloss in c. de pio [C. 1, q. 5], where the opinions are set forth. Some say that it may lawfully be given, following the example of blessed Silvester, who promised temporal goods to pagans so that they would become Christians. Others hold the contrary. I favor this opinion: that where pagans refuse to come to the Christian faith on account of poverty, money may lawfully be promised to them. For many Jews have amassed great wealth through the depravity of usury and fear coming to the faith because they would have to restore all that was wrongfully taken. In this case, I think money may lawfully be promised to them so that they may come to the faith. But if they have no intention of coming to the faith except out of greed for the money promised, then I hold the contrary, because in such cases baptism is of little benefit — C. 15, q. 1, non enim — for they sin by abusing a good thing, and those who give would not escape sin, by analogy with C. 33, q. 5, ad fidem. And I judge that blessed Silvester acted according to the first category.

A Final Question

A final question is raised: what if money is given to a bishop so that he will not confer spiritual things simoniacally? The doctors say that there is simony on the part of the recipient, but not on the part of the giver.

Capitulum X.

Procuration

A prelate ought not to demand procuration [i.e., provision of hospitality and expenses] except in cases expressly set forth in law, or cases similar to them. Procuration is owed to a bishop not only when he visits or consecrates distant places, but also nearby ones. Note the first case in which procuration is owed apart from visitation — namely, when a bishop or prelate goes to consecrate a church. And here Sinibaldus [Innocentius IV] and the doctors commonly hold that in no case shall procuration be furnished to a prelate for performing his office except in cases expressly set forth in law. Note this dictum as being singular, because it is cited daily. Therefore one who demands procuration must cite an express case, according to the doctors. But I would hold that in cases similar to the express ones, procuration may also be demanded, on the basis of what the gloss and doctors note in c. sicut [Extra, de accusationibus], and the text joined with the gloss, by analogy, in l. 1, Codex, de condictione indebiti, and in c. statutum, after the beginning [de rescriptis, Liber Sextus]. For not all legal situations can be resolved by the provisions written into law itself, but one must proceed from similar cases to similar, as in l. non possunt [Digest, de legibus]; c. dilecta [de confirmatione utili vel inutili]. And in the gloss at the end, at the words “rather for the labor,” etc.: some held this opinion, but it does not please the doctors, because it would follow that, given the proximity of the locations, this procuration would not be owed. Note well this dictum of the doctors, for from it one perceives that however close the church to be consecrated may be to the episcopal see, the consecrator may nonetheless demand procuration. This is satisfactory, both because the text speaks without distinction, and because we see the same principle in the procuration owed by reason of visitation — for it is owed even by churches that are in the bishop’s own city, as in c. venerabili [de censibus]. This procuration is therefore annexed to visitation and consecration. And it is not given as payment for the labor of the sacrament, because then it would be given for the sacrament itself and would constitute commerce [C. 1, q. 3, si quis obiecerit]. Rather, it is furnished as a sign of a certain superiority, and so that prelates may more readily be induced to visit and consecrate — as Innocentius notes in c. romana [de censibus, Liber Sextus]. Thus in consecration and visitation, procuration may be demanded — but not so in the case of those to be baptized.

those to be baptized. See extra q.1 Relatum, which says that this is done lest, on account of avarice or the poverty of the person, people be withdrawn or turned away from the sacrament of baptism. And note this gloss insofar as it says that, on account of a deficiency of the church’s resources, the bishop ought to consecrate the church at his own expense. Keep this in mind.

Capitulum XI.

One convicted of simony, or defamed of it, if he has not purged himself, is to be deposed.

One simoniacally elected as a prelate is to be deposed.

A notorious simoniac is punished as if he had been either confessed or convicted.

Simony is not punished on the basis of reputation alone.

Secular princes who, having accepted money, consent to the election of someone as a prelate commit simony, and they are bound to restore that money to the church whose prelacy was at stake.

An extrajudicial confession creates a basis for torture, and sometimes for depriving someone of his benefices. One who boasts of having committed such a crime is punished for the offense of boasting. [This applies to] one who proceeds against a simoniac in holy orders.

One who confesses in court out of fear of future proof is not said to have confessed spontaneously, and therefore does not enjoy the privilege accorded to those who confess.

What constitutes a spontaneous confession.

One who confesses through an inquisition is punished more severely than one who is convicted.

A simoniac in orders must be deposed from the order wrongfully received, since while retaining it he could not do penance.

Whether a lay patron of a collegiate church must consent in the election of a prelate.

The collation of benefices cannot be effected by a layman, nor can he have the right of consent in the election of a prelate; so much so that [such a right] cannot even be acquired by custom of immemorial origin, except by a special privilege of the pope, as the princes and kings of the world possess — with the gloss de iure patronatus, Nobis, which provides a basis in c. Cum terra.

How simoniacal money received by those governing churches is to be distributed, and how they themselves are to be punished.

The Literal Case

One convicted of simony is to be deposed. The same applies to one who is defamed and cannot purge himself. The second principal part begins at “regem.” As Joannes Andreae notably says in c. 2, de praebendis, book 6, in the Novella: an archbishop before his election promised an archdeacon a certain benefice and a certain cleric a priorate, so that each would consent to his election. Likewise, other princes received money to consent to the election. The archbishop asked what he should do concerning these matters. The pope’s response was that if the aforesaid archdeacon’s and cleric’s receipt of promises for that purpose is notorious, or if they have confessed it in court or been legitimately convicted, they are to be permanently deposed from the ministry of the altar. If, however, there is neither notoriety nor conviction nor confession, but they labor under public infamy, purgation is to be imposed upon them, and if they fail in it they are to be punished. The princes are to be induced [to make restitution], so that if they received [money] from the said bishop in order to lend their assent to the election, they should restore it to that church, since they cannot retain it without peril to their souls. From this, Romanus [Cardinal] draws from the text that on account of the vice of simony, even when committed in the election of a prelate, one ought to be deposed from office and benefice — which is to be understood as I said in c. Acquisitionis.

Note secondly that one who is notorious in the crime of simony, or confessed, or convicted, is equally punished.

Note thirdly that although the crime of simony is an excepted crime and many things in it are special, reputation alone does not suffice for punishment. Note that even one defamed of a grave crime may have purgation imposed upon him from the outset, and one who fails in it may be punished as the perpetrator of the offense.

Simony Exists

when an ecclesiastical benefice is promised in return for some service.

Kings, princes, and other laymen who receive money in order to consent to the election or promotion to some prelacy are bound to restore that money to the church whose prelacy was at stake, even though it did not come from the goods of the church. This is because the money was given to the disgrace of that church, and therefore it must be restored to that church as compensation for the injury — which should be well noted in practice. For the confessors of princes, whether led by ignorance or seeking to please them, neglect to induce them to do penance. Many such persons exist in the world today, and one must despair of the salvation of those who die in such sin, for sin is not remitted unless what was taken is restored — as in the rule Peccatum, de regulis iuris, book 6, and in c. Cum tu 1, de usuris.

Regarding the gloss at the word “confessi” — where it says “an extrajudicial [confession] does not prejudice,” etc. — understand the gloss to mean that a confession made outside of court concerning a crime does not prejudice, namely not fully. It does, however, produce a valid indication sufficient for subjecting the one who confessed to torture, as noted in the gloss and the doctors on l. Capite quinto, ff. de adulteriis. And [a confession] that passes into the designation of a specific offense also prejudices as to penalty: for example, if someone outside of court commits simony and boasts of having committed such a crime, he is then punished for the offense of boasting, as is the basis in c. Quod sit 1, de excessibus praelatorum. Innocentius holds in c. Per inquisitionem, de electione, that an extrajudicial confession of a crime is sufficient for depriving someone of his benefices — the contrary of which he himself holds in the aforementioned c. Quod sit. On this matter I have spoken most fully in c. At si clerici, de iudiciis.

In the same gloss, at “timore probationis” [for fear of proof]: note the singular gloss that is customarily cited every day, and the same is noted in the gloss at 4 q. ultima, in the summa. It says that one who confesses out of fear of proof is like someone who has been summoned to judgment. But it is otherwise if, without any preceding stimulus, one spontaneously

came to court and confessed the crime: for then this confession is said to be entirely spontaneous. And by this gloss I say that the statement of Innocentius in c. Qualiter et quando 2, de accusationibus, must be qualified — where I said that if someone confesses a crime, however grave, without any formal proceeding having been initiated against him, a penalty however severe may be imposed, as prescribed for the confessed offense. I understand this [to apply] where the person had already been summoned to court, even if not by way of accusation. It is otherwise if he had come of his own accord. Hostiensis says here that even if someone confesses out of fear of proof, he should still be shown some leniency, though not entirely, and it will be a matter of judicial discretion how much of the penalty should be remitted — by analogy with c. Si, de translatione. But this statement of Hostiensis is refuted by no law; indeed, all the laws inflict equal punishment on those convicted and those who confess in court, as here and in l. Si confessus, ff. de custodia reorum, and c. 1, de confessis, with many similar [authorities]. And in support [of the stricter view] there is that notable statement of Innocentius in the aforesaid c. Qualiter, where he holds that one who confesses should be punished more severely. In the gloss at the word “deponendi” — where it says “if he proceeds by way of inquisition,” etc. — deposition, even from orders, can also be carried out without distinction: because [the simoniac] retained the order wrongfully received. But if someone were simoniacal with respect to a benefice, then it does not seem that deposition should be effected by way of inquisition — by analogy with c. Insinuavit 1 [above]. I have treated this fully in the aforesaid c. Inquisitionis. See the discussion there.

In the gloss at the word “regem” — where it says “does not confirm the election,” etc. — consider the advice of Rorius, consilium 7, at the beginning: if the necessary conditions are met, [the patron] does not confirm the election. But in truth this is false as a matter of law, if the patron does not allege some legitimate ground for objection — unless he held this by special right from the pope alone. On this, see the good basis in c. ... Perhaps this text had this privilege, as I hear the king of France and certain princes of the world have by privilege the power of collation. By custom, however, this could not be acquired by a layman, even if the custom were of such antiquity that its origin was beyond memory. In the final gloss on this chapter, distinguish more clearly according to Hostiensis and the doctors, following Antonius: either the inquiry concerns a secular church or a regular church. In the first case, either the one who sold [the office] for money has no means of support — in which case restitution of what was given must be made to him, by analogy with c. Veniens and other [authorities] — or he does have a livelihood; and then either all in the church were complicit in the offense or [not]. [If all were complicit,] the money should be applied to that church, since it cannot be applied to the criminals themselves, as they are expelled therefrom. If not all were complicit, then the money should be applied to the treasury of the prince — namely, the pope — according to Hostiensis, who will distribute it for pious purposes. For disgraceful profits are exacted by the treasury, as in l. Fiscus, ff. de iure fisci. But if only the prelate or a particular member of the church offends, then he alone is punished and the money is applied to the church to whose disgrace it was given, as here. In the second principal branch, concerning a regular church: either all in the church offended — in which case the money is given to the one who gave it to gain entry, according to the manner [described] below — or a particular member of the church offended. Then, lest his offense harm the church, he is bound to give the money to a second monastery as to its usufruct only, and upon the death of the one who entered, it will revert to the first monastery. And thus the end of the gloss can be understood as qualifying that chapter Veniens.

Capitulum XII.

A Cleric at the Papal Curia

or in an ecclesiastical forum may serve as procurator for a layman; in a secular court, however, he may not, except for a single matter.

Those who receive anything by reason of a prelacy at the [papal] See are excommunicated by operation of law.

If a familiar of some prelate serves him for the purpose of obtaining a benefice, he commits simony.

A benefice conferred upon someone on account of temporal services received is simoniacal.

If a prelate who has someone in his service at a fixed salary then provides a benefice for him: whether he commits simony when [the cleric] retains such a benefice and especially [whether] his salary [continues].

An Elect Who Promises

an ecclesiastical benefice to those lending their voice to his election. First, he sets out the decision concerning the controversy of the procurator’s gift. Second, the definition and its cause, at “cumque.” The literal case: a cleric and a nobleman, Guillelmus, were before the lord pope concerning a controversy between them. Because the nobleman could not remain any longer at the curia of the lord pope, he

constituted a procurator for himself in that cause, with the parties in the pope’s presence. That cleric confessed that the knight was previously to give him a certain sum of money [and] to promote [his cause] in the pope’s presence, and that this promise proved [the cleric’s] simoniacal depravity. Concerning this case, Bernardus and Bonifacius and the text provide a basis that a cleric may serve as procurator for a layman. But note that even in a secular forum a cleric is not prohibited from advancing a layman’s case; and the laws that prohibit a cleric from exercising the office of procurator [apply] otherwise in a particular matter, as in the relevant title, c. Sed nec, etc.

[There follows a discussion of] excommunication, on which see the full treatment in the extravagant of Bonifacius on this point, in c. Cum, at the beginning. And today many fall under this excommunication.

[Regarding whether service is] spiritual, and whether simony is thereby committed: although a collation may follow, nevertheless it is otherwise if [the cleric] had not been assigned to that service, or if the service were not of an honorable kind. Antonius, for the sake of harmony, says that in general those receiving service either have regard to a specific benefice or tend toward an unspecified benefice — and the gloss of Joannes proceeds accordingly. But I do not see a good reason for the distinction between a specific and an unspecified benefice. Nor do I think that in any case it is licit to serve principally [for a benefice], where the principal motive leads to conferral in exchange for temporal service received: because what is in itself owed to human affairs belongs to grace, not to strict judgment — as in c. Memor 1, eodem [title]. Such a hope [of obtaining a benefice through service] — the gloss so held in c. Quid proderit, dist. 72, and Innocentius in Venerabili, de electione, at the end, at the word “fiducia.” And I understand the gloss in that [chapter] Et sunt nonnulli, 1 q. 1, according to this gloss and that c. Ad proderit. And this is relevant to the question that Hostiensis raises here: if someone assigns a cleric to spiritual service, promising him a fixed annual salary until a suitable benefice is provided for him — whether this is licit — and he concludes that it is. Provided that [the cleric] has not specifically bound himself by pact to perform temporal service, he does not commit simony. [Nor does he commit simony] if he later remits the salary when a benefice is conferred, because the salary was conditional, and once the condition is fulfilled the obligation expires, as in Institutes, de verborum obligationibus, section Die. But it would be otherwise if the promise had been unconditional and perpetual: for then he would indeed commit simony if [he exchanged] a temporal thing for obtaining a spiritual one — by analogy with c. Veniens, above, de testibus. I would consider the first statement of Hostiensis to hold true only where the prelate is not principally moved to confer [a benefice] on account of temporal or spiritual service received, but because the person merits it, and the service [merely] provided the final occasion — by analogy with c. Grave, de praebendis. For I observe that it is not licit to receive a promise of a benefice to be conferred in exchange for a vote given in an election, as in c. De hoc, above; and likewise it does not seem licit to receive a promise of a benefice to be conferred even in exchange for spiritual services. But it is otherwise, as I said, if this were merely the impulsive cause. And from these [considerations] the first [question] is resolved. Concerning the second, one can gather from the gloss whether it is licit for a cleric to serve a prelate for the purpose of obtaining a benefice, and whether the prelate may in such a case lawfully confer [it].

A Notorious Simoniac

A notorious simoniac, or one defamed of simony who has not purged himself, is deposed.

A simoniac with respect to a benefice is not deposed from orders, but is deprived of the benefice.

One defamed of the crime of simony, if he has not purged himself, is deposed — even though no formal mode of proceeding has been initiated against him, as is likewise the case with other crimes.

Simony is punished on the basis of presumption alone, when certain notable signs are present.

One defamed of any crime, if he is not purged of it, is punished as if convicted.

A probable presumption arising from infamy passes into a violent [i.e., compelling] presumption when the accused fails to purge himself.

A presumption is not sufficient for condemning anyone unless it is violent [i.e., compelling].

Infamy, although it takes the place of an accusation, does create some degree of presumption.

Statutes that make mention of “the convicted” are not satisfied by [the case of] those who fail to purge themselves, even though such persons are treated as if convicted.

When and what kind of interpretation statutes receive.

Whether one deposed from a benefice because he failed in his purgation of simony can, by episcopal dispensation, be admitted to that or another [benefice].

Capitulum XIII.

In a Simoniacal Case

One who acts as solicitor in a case for a layman — which Abbot [Panormitanus] calls being involved in a case at the Roman curia or in an ecclesiastical forum — [may do so]; and through c. Per venerabilem, joined with the rubric, qui filii sint legitimi. He holds otherwise regarding a secular forum. First the pope sets out the account of the facts presented to him, and second he orders provision to be made. The second part begins at “Unde.” The literal case: in Cistercian churches of a certain diocese, several clerics are said to have gained entry through simony, and they have been noted with the mark of infamy on this account. The pope therefore commands the diocesan bishop that, if it is public and notorious that certain persons entered those churches through simony, he should remove them. As for those whose crime is not public and notorious, but who nevertheless labor under public infamy, he should impose purgation upon them with five or six compurgators of their own order; and if they fail, he should permanently deprive them of those benefices. Bernardus and Hostiensis [note] that a simoniac with respect to a benefice is not deposed from orders — since he is not convicted by way of accusation — but is deprived of the benefice simoniacally acquired. On this, see what I said in c. Inquisitionis, above, de accusationibus. He could also be subjected to another penalty, since [deprivation of a benefice] is not, strictly speaking, a penalty. In support of this, see the good basis in Antonius, c. Cum clerici, above, de pactis.

Note secondly that purgation may be imposed upon one who is defamed from the outset, without any prior inquisition into the truth of the crime having been conducted; but one who fails in it is punished as if he had been convicted through an inquisition. Against this, however, c. Significasti, above, de adulteriis, strongly objects — on which I spoke in c. Accedens, above, de accusationibus. For where no formal mode of proceeding preceded the imposition of purgation, one who fails in it should only be suspended from his benefice; but here it does not appear that no formal proceeding preceded — therefore these persons should not be deprived of their benefices if they fail in purgation. It is difficult to resolve this objection, and [the text] does not address it here. But one must consider one of two alternatives: either a formal inquisition aimed at deprivation of benefices preceded, and when the proofs were insufficient, purgation was imposed; or alternatively, this can be understood as something special to the crime of simony, where proofs need not be so clearly manifest. It is not fitting that favor be shown [to simoniacs]; rather, they should be immediately expelled from the church when certain notable signs of the crime are established against them, as in c. Sicut and c. Grave, de praebendis. But this can also be well [applied] in [matters of] simony, as above under the same title. And there is yet another point on which this chapter seems to deviate. Antonius [says] in c. Qualiter, under the same title, de accusationibus, where it was said that, given the notoriety of the crime, however the proceeding is conducted — even if by way of inquisition — deposition even from orders must follow, since the crime is grave; and c. Cum non ab homine, de iudiciis, supports this, where one apprehended in a crime is deposed. A fortiori, if the crime is notorious, deposition ought to follow. This objection too is not addressed here; but it can be said that these persons could also have been deposed from orders, as was done in c. De hoc, above under the same title. But here the bishop asked only about deprivation of benefices, and the pope responds accordingly.

In the final gloss, where it says “passes into a violent [presumption],” etc.: note this final gloss, which I customarily cite every day to explain the true reason why one who fails in purgation is punished as if convicted. For he is not punished on the basis of a merely probable presumption, since that does not suffice for condemning anyone of a crime, as in c. Literas, de praesumptionibus. But a probable presumption arising from infamy passes into a violent [i.e., compelling] presumption when the accused fails to purge himself; and a violent presumption suffices for condemnation, as in c. Afferte, above, de praesumptionibus, and l. Indicia, C. de rei vindicatione. This should be understood as I explain in c. Ad, de probationibus. Similarly, note the notable gloss in c. Cum contumacia, de haereticis, book 1, where a presumption arising against one suspected of heresy passes into a violent one by standing under excommunication for a year. A similar [principle applies] in c. Rurfus and c. Quicumque, 12 q. [2].

Gather also from this gloss that from infamy arising against someone, a probable presumption is born; [infamy,] although it takes the place of an accusation, creates some degree of proof — although the doctors hold the contrary in the aforesaid c. Qualiter. On whether and when infamy or rumor creates a definite degree of proof, see the canonists’ discussion in c. Veniens 1, de testibus, and Joannes on l. De minore, section “tormenta,” ff. de quaestionibus.

And the foregoing can be applied to a statute providing that one convicted of a certain crime shall be punished with a certain penalty: whether one who fails in purgation is to be regarded as convicted so that the statutory penalty may be imposed. It seems that the answer is yes, because one who fails in purgation is punished as the perpetrator of the offense, as here, in c. De hoc, above under the same title, and in c. Accedens, above, de accusationibus. Likewise, statutes receive their interpretation from the common law, as in c. Cum dilectus, above, de consuetudine; Innocentius notes this in c. Causam, above, de rescriptis, and Joannes in l. De populi, ff. de institutionibus et iure. I hold the contrary to be true, because one who fails in purgation is constructively — not truly — convicted, as the notable gloss says at the end of c. Inter 1, de purgatione canonica. But in statutes, a constructive interpretation has no place; for the words must be taken properly and strictly, not fictitiously, because legal fiction has no place in them — as in l. 3, section “hec autem verba,” ff. de negotiis gestis, and as noted in c. Nostra 1, de initio [title]. As for the objection that I said statutes ought to be interpreted according to the common law, this should be understood [to apply] where the law proceeds without recourse to

not by fiction and propriety, as was discussed above in this matter, and that one must add: with a subsequent act following, because the will alone does not make someone simoniacal unless the effect follows.

where he elegantly sets out how and in what manner statutes are to be interpreted. I consider this to be true unless the statutes make provision in a matter of law without deviating from the disposition of law, but rather by lightening the penalty: for then the statute receives all the limitations and interpretations of law, even improper and strict ones. And see c. cum dilectus and c. ad audientiam, de clericis non residentibus; and see the gloss on l. quicunque, C. de feriis.

Finally, this question is raised:

whether the one who fails in his purgation can, after the deprivation that has been imposed, be dispensed by the bishop and restored to his benefice. And the conclusion is that he cannot, because while the infamy endures he could not be dispensed without scandal. Presbyter [C.2, q.5].

But I do not think this statement is true without qualification, because a fiction or violent presumption ought not to have greater force than the truth, as noted in l. 4, pro socio. But if someone had been justly and truly convicted of simony, he could in a certain case be dispensed. Therefore, all the more so when he was not truly convicted but only by legal interpretation. By canon law,

one may inquire whether a dispensation can be granted to a simoniac with respect to that benefice or to another: on this point, see fully the note in c. post translationem, de renuntiatione, where it was said that the penal provision there declares both parties to be simoniacal. Joannes Calderinus sets out a useful distinction; note also c. penultimum, de electione.

Capitulum XIV.

He commits simony

who for a price or for favor conceals a sinner, or who reconciles him before penance.

Simony is committed

whenever anything spiritual is performed or omitted for a temporal consideration.

A priest may bear witness

to the reconciliation of a penitent.

The literal case. Alexander decrees:

Alexander [III] decreed that no priest should receive any emolument from anyone who sins publicly, so as to conceal that person’s sin from the bishop or his ministers; nor should he, out of regard for any kinship or familiarity, omit to make the sin known. Secondly, he says that no one should, by reason of fire [i.e., urgent] penance — or still less by reason of any penance — bring a penitent to reconciliation through grace or favor, and bear testimony of reconciliation on his behalf, or on account of any ill-will or hatred withhold reconciliation. For both [concealing the sin and improperly reconciling] are simoniacal. Bernardus [of Parma].

First, note from this text that simony is committed not only by bestowing something spiritual for something temporal, but also by omitting what is spiritual when one was bound to bestow it, on account of some temporal advantage. And so simony is committed whenever something spiritual is performed or omitted for a temporal consideration. Secondly, note the argument that a priest may bear witness to the reconciliation and penance of a sinner.

The same is noted in c. testimonium, de testibus. So too a doctor [of law or theology] may bear witness concerning the life and competence of a scholar. See Hostiensis’s discussion; and the gloss on c. 1, in l. nemini, C. de admovenda disciplina tutorum. And on the basis of these authorities I have always held that, in the panel of seven doctors who must approve candidates for the doctorate, those doctors who serve as presenting masters may properly be counted, because — since they have always personally taken the scholars to be examined into their care — they can bear witness to the scholar’s competence better and more abundantly than other outside doctors who, at other times, have no knowledge of the scholar’s ability and do not vouch for it.

Those who are suspect ought to be excluded, because by the very fact that they present someone as fit, they appear to wish to approve him. Finally, note that what is just and honest ought not to be exercised out of favor of kinship or affection of friendship; for what is in itself honest and just, favor and partiality render dishonest and unjust. Similarly with a judicial sentence: it may be just in its cause and in its procedure, yet unjust in its motive — as when someone condemns a subject out of hatred rather than on account of the offense. [C.11, q.3].

This is relevant to what I said in c. cum essent, above.

In the gloss at the end, note this gloss, which is useful for the interpretation of statutes, contracts, and other dispositions: namely, that a universal term should be resolved into a particular one so as to avoid absurdity. For it would be impossible [i.e., absurd] that a priest could receive any temporal thing whatsoever for concealing a sin; therefore “whatsoever” is to be construed as “something, from among certain things.”

In the second gloss, at the end, there is an objection from another chapter: there is much from remote cases: for it speaks of someone who receives a reward to point out a thief or a runaway slave, and he could not receive money for not pointing him out, because that would be against good morals — as in l. 4, de condictione ob turpem causam. And whether he can be compelled by the authority of a judge to make an identification, note that passage; and I will discuss this below in c. cum furti, de furtis.

But there is an objection against the gloss, against the text, and in a certain respect against the conclusion that simony has been committed here, because simony is the deliberate will or cupidity of buying or selling spiritual things, as noted in the Summa [C.1, q.1]. But here nothing spiritual is being sold. Therefore, etc. By way of solution: some hold that this definition is not

authoritative. Hostiensis says that it is the definition of mental simony, not by fiction and propriety — as was discussed above in this matter — and that one must add: with a subsequent act following, because the will alone does not make someone simoniacal unless the effect follows. Mental simony is committed when, without any preceding express agreement, it is tacitly arranged that a spiritual thing is given for a temporal one. He defines it thus, as I said above: it is the deliberate will or cupidity — with a subsequent act — of selling or buying something spiritual or annexed to a spiritual thing. Conventional simony occurs when the parties have expressly agreed between themselves that a spiritual thing is given for a temporal one. And Hostiensis defines this as: the reception or donation of spiritual things or things annexed to spiritual things, preceded by an agreement of promise, condition, stipulation, servitude, or some temporality. And I think that, comprehending all these cases, both types can be briefly defined thus: simony is the exchange of a spiritual thing, or something annexed to a spiritual thing, for something temporal. On this conventional simony, see the note in c. final, and the following chapter. And so Hostiensis appears to understand this text as concerning conventional simony. Others say that, broadly speaking, simony is committed here, though not strictly. Innocentius says here that these persons are punished after the manner of simoniacs, even if there is no true simony; but this was said against the end of c. non enim, which states that the penal provision there declares both parties to be simoniacal. For it is equivalent whether one exercises or bestows something spiritual for a temporal consideration, or commits [i.e., omits] the spiritual exercise for a temporality — in both cases a kind of exchange takes place. In the gloss at the end: and this last interpretation is the better one, because no reason for distinguishing between the last two cases is apparent. But on account of the similarity between the first two cases, those are treated as one; and the same must be said of the last two cases. But contrary to this, note the text insofar as it judges as simoniacal one who receives something from a public sinner — for “if thy brother sin against thee,” etc. [Matthew 18:15]. Therefore, know that you are so bound to denounce. This is relevant. And also where [the sin] is hidden; but it is otherwise if the sinner were prepared to correct himself, as there and in c. novit, de iudiciis.

A prelate alone cannot remit something through which a right has accrued to the church.

An alienation illegitimately made by a prelate can be revoked by the members of the chapter.

Missio in possessionem [a writ putting one in possession] for the preservation of a thing has application even among religious.

The right of patronage

passes with the universality [of property] when it is sold, because it partakes of temporality. A right that is purely spiritual, however, does not pass with the universality.

A copulative conjunction

joins the thing conjoined to it principally, not as an accessory; the word “with” [cum] operates differently.

The right of patronage cannot be sold in this form: “I sell you the estate and the right of patronage that I have in it.” But it can be sold in this other form: “I sell you the estate with the right of patronage.” Because in the first case the right of patronage comes principally, while in the second it comes as an accessory.

A sale of multiple things, of which some could not be sold, is valid with respect to those [that could be sold], but not with respect to all.

A church cannot be purchased or redeemed. This is the point so far as the literal text is concerned.

Capitulum XV.

First, he sets out the complaint of the monks.

Secondly, he commits the case by instructing the judge on the merits, beginning at the word unde quia.

The literal case: The monks of Acra had obtained a certain monastery with its appurtenances and a certain church from the monks of Cardomo under an annual rent of fifteen pounds, and they held a charter from the said monks on this account. Afterwards, however, the prior of the monks of Acra, without consulting his chapter, returned the aforesaid charter to the said monks of Cardomo, having received money for it. Wherefore these monks of Acra complained that they had been unjustly aggrieved. The pope therefore mandated certain persons to convoke the parties and settle the aforesaid cause by concord or by judgment.

He adds that, since the aforesaid church could not be purchased, so neither could it be redeemed. If indeed the monks of Cardomo, having been lawfully cited, should prove contumacious, the judges shall put the monks of Acra in possession of those things concerning which the controversy turns between them, and shall not permit them to be disturbed therefrom without due process of law. Joannes [Andreae].

Note first

from the text that a prelate alone cannot invalidate what has been done when some right of the church has been acquired through it. And secondly, note that the members of the chapter can take action for the revocation of those things which the prelate has unlawfully alienated — on which see c. si quis presbyterorum, de rebus ecclesiae non alienandis, and c. cum olim, de testibus.

Finally, note

that even among religious persons, missio in possessionem for the preservation of a thing on account of contumacy has its place; and note this as a limitation on c. ex literis, de dolo et contumacia, where, out of regard for religious life, sequestration rather than missio in possessionem is ordered. But missio can also be made, as here.

At the end, note several points from this gloss. First, that a spiritual right passes with the universality when it is sold, even though it cannot be sold by itself. But this is not true without qualification, and the authorities cited in the gloss speak not of something purely spiritual but of something annexed [to a spiritual thing] — such as the right of patronage, which, since it partakes not only of spirituality but also of temporality, passes with the universality. But what is purely spiritual does not pass, because it cannot follow as an accessory when it has no share in temporality, nor can it

come as an accessory. On this point, however, discuss and see what Innocentius and others have fully noted in c. ex illo, de iure patronatus. And secondly, note from the gloss that a copulative conjunction causes the conjoined thing to come principally, not as an accessory; and if it joins a thing that cannot come principally, then it cannot — but as an accessory it can — so it impedes the transaction. For the conjunction “and” [et] joins principally what cannot come principally; and note this concerning the copulative conjunction in the rule, de regulis iuris.

And I apply this gloss to the following question. It is certain that the right of patronage passes with the universality of a secular estate, as in the authorities cited in the gloss. But suppose a sale has been made in this form: “I sell you such-and-such an estate and the right of patronage that I have in it.” Does the sale hold with respect to the right of patronage? I believe it does not, as is plainly gathered from this gloss: because, by virtue of the fact that it is joined by the copulative “and” [et], it comes and is treated as sold principally, just like the estate — which it cannot be, as in c. 1, de iure patronatus. And on this basis I think the statement of Joannes Andreae in c. 1, de iure patronatus, in the Liber Sextus, should be qualified: it applies when the word used denotes a kind of accession and not when the copulative conjunction “and” [et] is used. Finally, gather from this gloss that, where several things are sold principally and one of them cannot be sold, the sale is not rescinded with respect to all the things, but only with respect to the thing prohibited from being sold — by the argument in l. 1, de evictionibus; see also l. dominus, de contrahenda emptione, and the rule utile and the note of Joannes thereon, de regulis iuris, in the Liber Sextus. But the gloss at the end raises an objection against the text: given that the church could not be granted under an annual rent, as in c. non satis and the following chapter, then since this was established by the confession of those monks themselves, the pope ought to have imposed silence on them, as he did in c. cum essent, in the same title.

By way of solution, the doctor says here that the church was not sold, but rather its fruits were sold or leased; and whenever one “leases the church,” this is to be understood as meaning “the fruits of the church.” It is understood that the church was granted to these religious while retaining the rent — in a manner similar to c. constituto, de religiosis domibus. Whether and in what circumstances a church may be so granted, discuss as noted there. And in the final gloss, at the end, note from the gloss together with the text that a delegated judge can order missio in possessionem for the preservation of a thing up to the definitive sentence. And this seems to me correct, having regard to the text, concerning which Innocentius here says that by these words [in the rescript] they were appointed conservators, and that just as conservators can defend, so too they can put someone in possession. It follows from this statement of Innocentius, which has been said, [that] that from the revenues of a certain dignity or church a fixed annual pension may be established for a spiritual benefice. And on this, the text is useful and notable when a letter is written to one who is not a judge by these words.

Capitulum XVI.

Money ought not to be exacted from churches for chrism, even if there is a custom to that effect.

First, the reprehensible practice is narrated; secondly, this is prohibited, beginning at the word quia vero; thirdly, the penalty for those committing this offense.

The literal case.

Certain bishops extorted money from the clergy for chrism; and some call these payments “cathedraticum” [the cathedral tax]; others call them “the Easter offering”; others call them “the customary payment.” But because this is simoniacal, the pope commands that on no pretext of custom or prelacy should they exact the aforesaid charges. For if they do, they may not without cause fear peril to their order and dignity. Bernardus and Liniensis, and the text, which prohibits not only the exaction of money for chrism insofar as it is used — that is, for the act of anointing someone with chrism — but also for the liquid of chrism itself. For here money was not exacted from the one being anointed or confirmed, but from the lesser churches, perhaps baptismal churches; and in c. 1, placuit. Chrism is therefore something spiritual, not only because it is a sacrament, but also insofar as it is a liquid [consecrated substance]. Therefore neither from the confirmed person nor from the churches to which it confers something of temporality should anything be exacted for it. Secondly, note that a change or alteration of name does not excuse what by its nature is evil — for names are but appellative labels, which are immutable (l. si quis in fundi vocabulo, ff. [Digest], de legatis 1). Only proper names may be changed at will, unless in fraud. Lynanus. C. de mutatione nominis. Note: for spiritual things therefore no temporal payment should be exacted, whatever name is given to such a charge.

How homage and fealty differ.

One who alleges his own turpitude is to be heard when he wishes to desist from sin.

Letters: note that simony in obtaining a benefice [binds] in conscience, but [the penalty is imposed only] by judicial sentence.

The crime of simony is equated to the crime of lese-majesty.

Infamy of fact is removed by a contrary act.

Canonical infamy, which is imposed for mortal sin, removes one’s own [rights].

Infamy of law is removed only by the prince — once the sentence has been pronounced.

An odious constitution ought in doubtful cases to be construed so as to be rather favorable.

Whether a simoniac may be dispensed for ecclesiastical benefices by someone other than

the prince. It can happen that one is not himself a simoniac, yet his election or collation is simoniacal — because, for instance, it was done without his knowledge. The son of a priest cannot succeed to his father’s church; and [this is so] even with the bishop’s dispensation, lest a kind of succession in the church of God be noted. Whether a bishop can restore one to good fame.

Capitulum XVII.

From one zealous for obtaining spiritual things,

to exact homage is a matter involving suspension. In the first [part of the text]: the supplicant’s narration, petition, and undertaking. In the second: the granting of the petition with relaxation and the giving of letters, beginning at the word quocirca.

The literal case.

The Archbishop of Canterbury induced a certain cleric to do him homage and fealty, on condition that he would grant the cleric an annual benefice. That cleric, seeing that such an obligation was illicit, earnestly petitioned the lord pope for absolution, declaring that he would accept nothing further from the said benefice. The pope, seeing that this petition was honorable and worthy of favor, absolved him from that fealty and [declared] that contract contrary to both divine and human laws, such that he should receive penance from the bishop or a discreet priest, lest he be tainted by any note of infamy. He grants him letters that he may show in testimony of his indulgence against those who defame him. Bernardus.

Note first from the text

that homage and fealty are different things. Properly speaking, homage is when someone makes a promise to another on bended knee with hands placed between the other’s hands, such that he becomes that person’s man. Such a person is called a liege man, and homage is customarily rendered to the emperor or king, such that one recognizes no other superior. On this homage, see the Clementine Pastoralis, de re iudicata, and more fully in the Speculum, in the title de feudis, section 2. Fealty, on the other hand, is when someone promises another to keep faith with him. And this oath of fealty contains many provisions, on which see the text at C.22, q.5, de forma, and what is noted in c. ego, de iureiurando: this oath may be rendered to several persons.

Secondly, note

that from the revenues of a certain dignity or church a fixed annual pension may be established for a spiritual benefice. And on this, the text of c. conquerente, de clericis non residentibus, provides good authority. In a second way this text may be understood as meaning that the cleric received a certain annual pension from an established benefice; but the first understanding seems better to fit the letter of the text, and it is the one Hostiensis approves.

Thirdly, note

that one who alleges his own turpitude or sin is to be heard when he intends to desist from sin. Finally, gather that a grace granted by the Holy See must be established through letters, as is the practice of the Curia, and it could not be proved even by witnesses — on which see Archidiaconus in the proem to the Liber Sextus — unless the letter once obtained had been lost, as in c. cum olim, de privilegiis. But on this there is no place [for the objection] because there seems to be an objection from c. cum clerici, de verborum significatione. By way of solution: since it is clear that clerics receiving benefices from their superiors owe them an oath of fealty — and also an oath of homage — and on this last point, see the text in c. quod sit grave, de excessibus praelatorum. The doctors commonly say that an oath of fealty may properly be rendered to a superior upon receipt of an ecclesiastical benefice, but an oath of homage may not. And c. quod sit grave should be understood as concerning homage taken in a broad sense, so as to encompass fealty as well. Note this. And there can be a true reason for the distinction as to why homage ought not to be rendered for spiritual things but an oath of fealty may: because homage involves a temporal advantage for the one to whom it is rendered, for the one swearing becomes his subject and vassal and is bound to certain services that ought not to be rendered in exchange for obtaining spiritual things. And this is perhaps what the gloss here intended when it said that this was a gift of obsequious service — that is, a service-gift — because many services follow from it. This is not so with the oath of fealty, which exists peacefully alongside the prelate’s authority, because one merely undertakes to be faithful to him; and it is rendered to the dignity rather than to the person. To this end, see c. venerabilem, at the end, de electione. But you may ask: why did the pope absolve this man not only from homage but also from fealty? I think a twofold solution can be given. First, that a grace conceded by the Apostolic See cannot be proved except through letters — save where the document has been lost, as the Archidiaconus holds — and here the archbishop intended to bind this man completely so as to make him his vassal and subject; therefore the obligation is vitiated entirely, by the argument in c. cum super abbatia, de officio delegati. Secondly, it can be said that, on account of the unworthiness and sin of the archbishop — because he wished to receive homage and thus committed a simoniacal offense — the obligation is vitiated in its entirety so that no advantage follows from it. Thirdly, it can also be said that the oath of fealty is to be rendered to the bishop or to another who has episcopal rights, on account of the preeminence of the dignity; but the case appears otherwise with respect to other lesser prelates who have the collation of a specific benefice, for this is not established in law. Let them therefore possess only so much of episcopal right as has been granted or prescribed in writing, by the argument of c. auditis and c. cum olim, de praescriptionibus. And from these sources, note: an odious constitution ought in doubtful cases to be construed so as to be rather favorable — c. cum ex iniuncto, at the end, de haereticis — and by this the meaning of this chapter is clarified. In the gloss on the word divinis, at the end: Hostiensis says that the text used “divine” [laws] in the plural so as to encompass theological rules as well.

Capitulum XVIII.

Verbal formulations are not regarded

unless the substance is thereby changed.

In assessing simony, great attention must be paid

to whether the person in question has been accustomed to commit simony, since in the case of those who habitually commit it, even a small gift is presumed to be simoniacal.

Alms should be given

by the giver in a manner no less fitting for the recipient than for the amount. Indeed, it is a greater sin to give a pauper lavish foods.

Whether officials may lawfully accept any gift.

Homage ought not to be rendered for a spiritual thing.

On the gloss, at the word “discretim,” at the end:

Can a priest who exercises poor judgment impose a penance less than is due, or otherwise exercise his office improperly, and yet the penitent be safe if he submits to the commission of simony? Or thus: In determining whether gifts induce simony, the following must be considered: the person of the giver, the person of the recipient, and the quality and quantity of the gift.

Infamy.

There [the text says] “they are infamous.” Note this gloss: that simoniacs are infamous. Of the nation. [Read] otherwise, or better: an ordination or consecration is not deemed simoniacal even if something was given to the one conferring ordination, provided it was not by agreement. The text is divided as follows: In the first part [the pope] commends the purity of the questioner’s conscience and reproves scrupulous curiosity. In the second part, beginning at “in hoc itaque” [in this matter, therefore], he narrates the facts and resolves them by drawing distinctions. The solution proceeds in three stages: the second begins at “cum accipientis” [since the one receiving]; the third at “si ergo” [if, therefore]. In the third principal part, beginning at “quod autem” [but as to the fact that], he responds to the authority from which the doubt arose.

The literal case.

A certain archbishop of Strigonium [Esztergom], having been confirmed, had his pallium sent to him by the pope through a certain cardinal traveling by sea. The brother of the elected archbishop went out to meet the cardinal, and since the cardinal had few horses, he offered him a palfrey — without the knowledge of the bishop-elect — who subsequently received the pallium from that same cardinal. Afterwards the archbishop, learning of this, doubted whether it should be imputed to him in any way, and consulted the pope on the matter. The pope responds that in these matters one ought not to doubt beyond what is necessary, since human laws say that some people scorn to render even those things that are necessary, and others, of a thin religiosity, doubt where there is no cause for doubt. And therefore, because his brother sent a single horse to the cardinal without his knowledge, there is no reason whatsoever to entertain doubt, since the cardinal had few horses with him when traveling by sea.

Likewise, because it is the regular rule in other public crimes that a person becomes infamous only after a judicial sentence has been rendered [Digest, de his qui notantur; in the rule infamibus, de regulis iuris, Book VI]. Note this well. And yet through a condemnatory sentence a simoniac could also incur infamy of fact, which is easily imposed on the basis of public [notoriety]. I understand this text in the sense that the pope says that this man should not be stigmatized, “lest the ways of those who bark,” etc. — which words clearly indicate that they speak of infamy of fact.

And in the said gloss here he adds the following: since no dispensation is granted to a simoniac for any ecclesiastical benefice except by the pope. Hostiensis says that even through the bishop a dispensation can be granted for a simple benefice. [Citing] Per. elec. Dominus Antonius says that that chapter does not speak of a simoniac. Or one might say that the simony was committed without his knowledge, and so he was not a simoniac — even though the election or collation was simoniacal. And through this, Dominus Antonius appears tacitly to hold in favor of [the one involved in] the simony. And the same appears from the text in c. non solum, de regulis iuris, Book VI. [See also] c. on the Psalm, “they trembled where there was no fear” [Psalm 13:5/52:6]. And whether one ought to act against a scrupulous conscience before laying it aside, note in c. per tuas, el. II: that lawful oaths are as if [releasing] from sins. And purity of conscience ought not to be bereft of the judgment of reason; and one who acts from a thin, scrupulous conscience is not to be praised, but rather reproved. He ought therefore to form his conscience on the basis of the judgment of reason. To the same effect see the text in c. non solum, de regulis iuris, Book VI. And so the bishop can also dispense for a simple benefice. And certainly neither the opinion of Hostiensis nor that of Dominus Antonius holds, because a bishop can dispense with a simoniac regarding a benefice — not only for a simple benefice, but even for one with cure of souls, as is proved [at I q.2, c. penultimate]. [The chapter] de electione speaks of a dispensation to be made for that very benefice for which the simony was committed: for holding that same benefice, a dispensation is not so easily granted as it would be for holding a different one, lest it appear that the benefice was obtained through the previous vice — just as we say regarding the illegitimate son of a priest, who is sent to the church of his father to deliver the pallium to the archbishop: he cannot hold it by episcopal dispensation, lest a certain succession be noted in the church of God; but he can perfectly well hold another benefice even without dispensation. And on the question of whether and in what manner a dispensation may be granted to a simoniac regarding holy orders or a benefice, state the matter as noted by Palaeottus after the gloss in c. post translationem, de renuntiatione. And you may ask: how can anyone inferior to the pope dispense with a simoniac, since the simoniac has become infamous by law, as stated above, and a bishop cannot restore one’s reputation, as noted in c. cum tu, XII q.? Directly, he cannot restore an infamous person; but by dispensing in cases committed to him by law, the infamy is removed as though by a certain consequence. And for this I adduce the similar reasoning of Bonagratia in the said l. I, §. de qua., Digest, de portuum. This is proved in c. at si clerici, §. si hoc iudicio. Understand it in the sense established there by Abbas. [Cited by] Vocatus. Keep this in mind.

Whether gifts induce simony:

one must consider the person of the giver and the recipient, and the quality and quantity of the gift.

An ordination or consecration is not deemed simoniacal

if something was given to the one conferring ordination, provided it was not given by agreement.

Conscience ought to be consonant with the judgment of reason,

and one who acts from a thin, scrupulous conscience is not to be praised, but rather censured.

Whether a donation is presumed from the words “take this money”:

It is proved if a witness who saw it says “I saw money counted out to him,” even if he does not say it was by way of a loan.

The cardinal did not sin on account of the palfrey received from the nobleman. The quality and quantity of the gift [must be considered] in the case of the recipient. In accepting gifts or presents, the contraries must be considered.

“But blessed is he who shakes out” [his hands from holding of bribes]

And note from this text against those friars [the Fraticelli] who abstain by law. Likewise against those who doubt in excess about things — which is to be reproved in a jurist, as in c. cum in iure perito, de electione, and in c. cum iure perito, de officio delegati. [See also] l. Labeo, ad Carbonianem, in l. I, Digest, ad municipalem. And note that if a cardinal is in effect [acting as] a nuncio, as in c. significasti, de electione. And for the honor of the cardinal, a legation ought to be assigned to him.

Third, note in particular this text,

[which asks] whether in a case of doubt it should be presumed that a gift was gratuitous or not. For the circumstances of quality in the person of the giver and the recipient must be considered: from a rich and wealthy person, a free donation is more readily presumed than from a poor person or one of lesser rank. Likewise the quantity of the gift must be considered: for one is not readily presumed to confer freely things of the greatest value, because no one is presumed to throw away his own [property], as in c. super hoc, de renuntiatione, and l. cum venit, of the hunting season. For a person is more readily presumed to give when another’s necessity is pressing than where no necessity exists. And on the basis of this text and the aforesaid [authorities], the gloss on feuds expands [the principle] — a gloss well worth noting — in l. cum ad, Digest, si certum petatur, on the question: if someone said to another in the vernacular, “take this money,” is a donation presumed, or a deposit, or a loan? And certainly from the preceding indications it must be determined whether it was intended as a loan, a deposit, or a donation; and in case of doubt, when those indications are absent, a loan or deposit is to be presumed, on account of the presumption that no one is presumed to throw away his own [property]. And from these [considerations] note Bartolus in the said l. when he says that a witness proves a loan if he simply says “I saw money counted out to him, but I do not know whether he donated it or lent it” — on which point, state the matter more fully as he notes there.

Finally, conclude

that in the conferral of the Holy Spirit there may lawfully intervene certain small customary gifts of modest value, provided all agreement is entirely absent. And understand

what they contribute in terms of custom. In the gloss, on the observance of gifts, where it says “the kind of gift,” as set forth in l. inter donum, Digest, de verborum significatione. Or even Hostiensis can be cited for this text throughout, at the end, under the same title. And he interposes — see the gloss in lama in c. ex tue I, under the same title — and therefore preserve the gloss for other kinds of gifts or for other cases and for this one about which there is dispute. Likewise he weighs the third point that the word “maxime” [especially] is included, so that these three things here expressed should be especially attended to. Barbosa [notes this], and especially regarding the precepts to his ordainer who without a price does not agree to ordain. On this word see also Alexander’s Consilium: he will adjudge it simoniacal, because the custom of the country must be attended to — an argument bearing on many [cases], at the end, Digest, de legibus I.

Concerning public [office]. One must hold that regard should be had not only to the giver, and one should not only accept food and drink. When one prepares a city-dwelling poor person [a gift], and that person says it does not befit his humble fortune — [consider] the king’s reply: “I do not ask what it befits you to receive, but what it befits me to give,” as Seneca relates. In another case [this would be] most disgraceful, because it was from pride and a certain arrogance that those words were uttered. And to the same effect see Hostiensis in c. non cogant, at a certain distinction, and in the passage above on the same, at that distinction. There, note that a person sins more who is concerned with providing the poor with lavish and costly banquets. See also Bonagratia on the manner of giving alms, at that distinction, c. quiescamus, c. et ab omni, on life and good conduct, and Bonagratia at distinction LXXXVI, non satis.

At the end, the gloss here tacitly raises an objection and does not resolve it. For if six solidi induce simony, then a fortiori the donation of one valuable horse does so as well. But resolve it according to Hostiensis: in the former case an agreement intervened; this donation, however, was made purely and from a certain generosity. And concerning public [office]: in the gloss above, at the end, the gloss and text raise an objection and suggest that nothing should be taken by an administrator or judge or superior — indeed, even something modest, as in l. I, Code, ad legem Iuliam repetundarum, and l. II, Code, de assessoribus, and in the Authenticum, “ut iudices sine quoquo suffragio,” at the passage si quis. [See also] c. exigit, de censibus, Book VI — indeed, even a fourfold restitution [is required]: II q.1, iubemus, c. on extortion. [Vocatus says] the penalty is twofold according to Vocatus, so that the contrary [authorities] apply in the case of one who exacts. These and similar [rules apply] when something is given voluntarily. Or the contrary [authorities] apply in the case of one who has a salary from public [funds]; the other legal provisions [apply] to one who does not. And in canon law it can be said to be a matter of discretion how much may be received, provided it does not exceed what is laid down in c. statutum, above, de rescriptis, Book VI. And certainly that chapter speaks of a delegated judge, who may accept only food and drink that can be consumed within a few days. And the same can be said of an ordinary [judge] and of a legate.

All this holds provided fraud is entirely absent — an argument drawn from this text. — Abbas.

Capitulum XIX.

Monachus [The Monk].

An abbot, if he accepts money as part of an agreement for receiving someone [into the monastery], commits simony. Simony is committed by mere agreement alone, provided one of the parties has performed, even if the other has not yet done so. Simony is committed not only if it is done by the prelate, but also if it is given to his household members. See below, c. poori, at the end. Note this.

Simony does not invalidate the monastic state. Excommunication does not impede the monastic state.

And let him be transferred to another monastery. The first part sets forth the complaints of certain priests. The second appoints a judge to whom three things are mandated, beginning at “quoniam” [since].

The literal case. A certain priest wished to become a monk in a certain monastery. The abbot and the brothers were unwilling to receive him as a monk until he agreed to give them thirty solidi. The agreement having been made, on the following day he was received by them. The monks demanded the thirty solidi from him. The abbot and his household

— for their part, saying this was the custom of the monastery. That monk went to the pope and voluntarily disclosed the foregoing before the pope. The pope commands a certain [judge] that, if the facts are as stated, he shall compel the abbot and monks to restore the money wrongfully received to the aforesaid priest. And he orders that [the priest] shall endeavor to serve in the monastic habit in another monastery entirely. The abbot and the senior members of the monastery are suspended from the exercise of their office on account of the enormity of this depravity. Bernardus [is the authority cited].

And note first from the text that from the mere agreement to give something temporal for something spiritual, simony is committed once the spiritual thing has been received, even though the promised temporal thing has not yet been handed over. For here the contract preceded the entry into religious life. And second, conclude that simony is committed not only by one who gives a temporal thing to the one conferring [the spiritual good], but also by one who gives to the ministers or household members of the one conferring, just as we say in the case of Giezi, who was the servant of Heliseus [2 Kings 5:20–27] [I q.1, in summa; and c. cito turpe]. Third, note and observe that the pope here appears to have diminished [the punishment] when he says that this wrongdoing by the abbot and monks is punished [only against] the abbot and senior members of the convent. But understand this to mean when only they were culpable. It is otherwise if, after consultation with all, the offense was carried out [by common counsel]. For then all must be punished, as argued in c. romana, above, on collective bodies, de sententia excommunicationis, Book VI. Even those who were present in chapter but remained silent when they ought to have spoken against it are punished, as Sinibaldus notes singularly in c. I, de his qui fiunt a maiore parte capituli. Finally, note that one received into the monastic state through simony ought not to remain in the same monastery, nor even live in the world, but must enter another monastery. And whether he is truly a monk [is discussed next].

In the final gloss, beginning “it appears that he was a monk”: Note the beginning of this gloss, from which it appears that simony committed in connection with entry into the monastic state does not invalidate that state. Nor does the objection that follows in the gloss hold — namely, that here there was no agreement that the monk should keep money for himself, but rather that he should hand the money over to the monastery. And this is not contrary to the substance of the monastic state. Likewise, money was retained by him so that he might enter another monastery and not be a burden to the second monastery; but the one entering ought not to retain it for himself. And this also appears to be the view of the doctors. Certain others, however, say that this text does not prove that this person remains a monk. For at the beginning [the text] calls him “priest” and “monk.” But an objection arises from the end of the chapter, where it orders him to enter another monastery — because this could have been so that he might do penance there. And this consideration is raised here by Vocatus Antonius. I follow the first opinion. First, on account of the end of this chapter, where it says that he must serve in the monastic habit. Therefore it is not merely so that he may do penance. Likewise, it does not command that he become a monk, but that he serve in another monastery in the [monastic] habit. Therefore he remained a monk. To the same effect I adduce the text which in my judgment confirms this view in c. qui I, under the same title, where it is said that one so received ought to enter a monastery “lest he damnably wander in the world.” These words clearly indicate that those who so transfer remain monks. Nor does it prescribe that he do penance, but rather that he not remain idle in the world, as argued in c. final, de regularibus. Likewise, properly speaking, simony is committed not with respect to the monastic state itself, but so that one may have a place in that particular monastery. Thus entry with respect to that monastery is vitiated, but the monastic state holds. For it is a certain obligation made to God, which the wrongful act of the one receiving money does not impede. For since this person intended to obligate himself to God, the wrongful act of another does not impede this obligation. This is supported by what Johannes Andreae notes in c. final, de conditionibus appositis. Just as we see in the case of a son, that excommunication does not impede the monastic state, as in c. cum illorum I, de sententia excommunicationis. And from this you have a case in which simony vitiates the act [with respect to the particular monastery, but not the monastic state itself]. — Abbas.

Capitulum XX.

De simonia [On Simony].

A prelate who has received money by agreement for conferring holy orders commits simony. If a priest knows something as God does — that is, in the confessional — even if he knows it, [and even if] the pope has revealed it to him, he is not believed [as a witness]. By the words “you shall admonish and persuade,” the power to compel strictly is not given. A simoniac in holy orders, if he enters a religious house, is not thereby rehabilitated to exercise the order simoniacally received. Entry into religious life does not remove defects contracted from the sin of the one entering; it is otherwise for defects contracted without sin. Whether and when simony is induced by giving something before or after [the spiritual act], and when restitution is required. Whether religious are impeded from being promoted to sacred orders by the mere prohibition of a superior when no other cause appears. Religious are not impeded from exercising sacred orders already received by a mere prohibition when no other cause appears. A simoniac in holy orders is suspended from that order by operation of law itself.

The abbot and senior members of the convent: one who is suspended and excommunicated by law can be suspended and excommunicated again by a human judge. And those who received money by agreement for the reception of a monk are suspended from office and benefice. And money so received is to be restored.

The literal case. A certain man, wishing to ascend to the order of the priesthood, went to the archdeacon so that he might present him for the order of the priesthood, but the archdeacon was unwilling to present him for ordination unless he first paid six solidi to him. Thus, having been presented by the archdeacon, he received the order. And the diocesan, to whom this priest had confessed in secret, inquires what

must be dealt with concerning him. The pope [says] that if this is secret, the same person should be advised and induced to serve as a vicar, to enter some religious order, with the condition that he unlawfully and perpetually abstain from the office of the priesthood, with no exaction following thereafter; otherwise the pope should not remove him from the office of priest, since his transgression is secret. Nevertheless, a secret penance should be imposed upon him.

Note i.

From the text: from a confession made in the penitential forum, draw one general rule — that [a person] cannot be deposed or otherwise coerced from office against his will, even if the confession was made to the bishop or even to the pope, because each of them knows [such matters] as God, not as man. This accords with [the chapter] Sacerdos, de officio ordinarii, as noted in c. Dilectus, de excessibus prelatorum. For here the confession was made to the pope in the private forum. Therefore the pope says, as it were, that the transgression is secret — and this must also be understood to mean that the confession was made in the presence of the judge alone. For the judge is not believed against the one confessing if the latter denies it [C.6, q.1, Si tanti and Sacramento], as in c. Cum satis, and c. Placuit, de octestato, c. Cum a nobis.

Note that simony is com-

mitted in the conferral of orders not only when money is given to the one conferring the order, but also when it is given to the minister or to the one assisting at the ordination — and [see] here, and c. supra, de eo.

Note that by the words “advise and induce”

no power of strict compulsion is given. On this, however, say as noted in [the chapter] Habitum. He himself indeed concludes the contrary in c. De sponsionibus. And lastly, it is gathered that by entering religious life, a simoniac is not rehabilitated for exercising an order simoniacally received: that by entering religious life the defect is removed.

Second, note there

[that] without sin on the part of the one entering, the contract [is dissolved], as in c. j., de simoniacis. Yet the contract is not dissolved by one’s own delict, as [in] legi, non, c., de apostatis.

In gloss i., there: “the intention must be considered.”

Hostiensis says that intention alone does not induce conventional simony, but rather mental simony, which is abolished by penance alone without restitution, as in the penultimate chapter under the same title. And he says that the gloss had a good understanding of this. And indeed the point is well taken that by intention alone simony is not committed — as when something is given and received out of liberality, and thus c. Si questiones speaks. But it is otherwise where there is an actual effect of committing simony, for the blessing is something spiritual. He says more, pursuing four members at length. For either something temporal is conferred by agreement, and however small it may be, it induces simony — just as we say in theft and usury — and so the text speaks, and as I said in c. j., de eo.

Moreover, it is then called conventional simony, nor is the sin committed unless what was wrongfully received is restored, as in c. De hoc. And there intervenes a sin; but [consider] the depraved intent as to its coming about — either [the candidate] would not be advanced to higher orders because [the ordainer] would not have presented or ordained him unless he had first received something temporal: then mental simony is induced, which is abolished by penance alone, as in the penultimate chapter under the same title. It is otherwise in usury, where restitution is necessary, as in c. Consuluit and what is noted there, de usura. Or the mind was not depraved but something given out of liberality was received, and then simony is not induced, as in c. Tua under the same title. And the [question] is in doubt whether a depraved intent preceded, and this is properly the subject of c. Si questiones.

And for conjecturing intent, they weigh what is found there, and in the text by means of a brief distinction they bring many laws into harmony.

In the gloss on the word “secret,” at the end.

From this gloss, draw two good limitations on c. Ad aures, alleged in gloss i. [The rule] applies entirely to regulars; but it is otherwise for secular clerics, since by the mere prohibition of a superior, without any apparent cause, they cannot be prevented from being promoted to orders. [This is supported by] c. Ex tenore, under the same title.

[Panormitanus] does not affirm the above-mentioned c. Ad aures. But it pleases me that it should not apply to seculars — by the argument in c. Si tantum, c. Placuit, C.6, q.1 — because that chapter Ad aures speaks properly of regulars, since they are more subject to their prelate than are secular clerics, by reason of the argument in c. Si religiosus, de electione, book 6, and in the final chapter, de sepulturis, in the same book, and C. [...], q.1, Molo, and c. Non dicatis.

The limitation is that although regulars can, by the mere prohibition of a prelate, be prevented from being promoted to certain orders, nevertheless they cannot be coerced from the exercise of an order already received by the mere prohibition of the prelate without any other apparent cause. For it is more shameful to be ejected [from an office already held than never to be admitted], etc., c. de itt.

Second, gather that those who were simoniacally ordained but who

are not [themselves] simoniacs can receive a dispensation: since they are not simoniacs, they may by dispensation remain in their orders. And the truth is that [even when there is] simony, dispensation is possible — I shall speak of this more fully shortly, with the gloss.

A person simoniacally ordained is by law itself suspended from the order.

[See] dist. 22, §. Verum. But this chapter is understood concerning coercion of fact — that is, that he be in fact restrained from celebrating and from the exercise of the order. It can also be understood concerning suspension imposed by human authority, because just as one who is excommunicated by law can also be excommunicated by human authority, as in c. Quorundam, de Iudeis, so the same must be said regarding the suspension of a simoniac.

In the gloss,

at the end: this penance enjoined is rather admonitory and consolatory than salutary with respect to eternal life. And what this performance of penance effects and how many effects it has — see the gloss in c. Quod quidam, de penitentia, dist. [...].

Finally, [the question is raised] there whether this person under the agreement is bound to confess again, when he utterly rejects it from him. Abbas [says]: one who was knowingly ordained simoniacally [must do so].

Capitulum XXI.

§3. Simony is committed if something temporal is received for

the consecration of vestments, a chalice, and similar things. Whether a priest hiring out his services at some church commits simony.

One who gives or receives money for the exercise of an ecclesiastical ministry also commits simony. Simony is not committed by the fact that something is given spontaneously.

Nostram.

Note i., from the text:

one general rule — that for the exercise of an ecclesiastical ministry, money must not be given or exacted. And therefore [the text] says “for the ministry” and “for the mystery.” For there is a difference between ministerium and misterium: ministerium properly means an office, from the act of serving; misterium is the same as a sacrament, which has a hidden and secret power — whence a sacrament is said to be, as it were, a sign of a sacred thing [C.1, q.1, Multi]. For money must not be exacted for exercising an ecclesiastical office. Nor does it follow [from this alone] whether simony is committed when something temporal is exacted for blessing a chalice or vestments. On this, see Hostiensis, in the Summa, under the same title, the word sed nunquid simonia. Some say it is not simony, because they find no specific prohibition. Nor is it better [resolved] by this text, where it says generally “for exercising an ecclesiastical office,” etc. — for there an ecclesiastical office is involved and it is something spiritual. Regarding vicars — not only is simony committed in the institution of a benefice, but also [when money is given] so that someone may serve as a vicar in a church. He says this should be examined — see Hostiensis with the gloss in c. Licet, below, de vicariis. Whether, moreover, a priest commits simony by hiring out his spiritual services at some church, I shall discuss in c. Quoniam, below, ne prelatis, etc.

Third, note there, “for chrism”:

that [money] must not be exacted indiscriminately for chrism. And since the text speaks generally, the prohibition applies — whether it is conferred as a sacrament, or whether it is supplied so that an inferior church may use it, or in any manner whatsoever.

Lastly, note there:

“exact” — that in spiritual matters, exaction is nevertheless prohibited. If therefore something is offered spontaneously, this is not prohibited, according to Hostiensis. Understand [this rule] accordingly.

Capitulum XXII.

§3. One who was simoniacally ordained but who did not become a simoniac rightly seeks

a dispensation. And before dispensation, he may not rightly be promoted to that [office].

One who was knowingly ordained simoniacally is suspended from all orders; it is otherwise if the simony was committed without his knowledge. A bishop cannot dispense except in cases expressly provided by law. With one simoniacally ordained who is not [himself] a simoniac, a dispensation can be granted. And [the chapter] is not divided. The literal case: certain persons were ordained simoniacally. It was asked what should be done regarding them. The pope responds that he cannot give a definitive answer on this unless we first know how they were ordained, because according to a certain species of simony, some — although simoniacally ordained — [are not culpable], as when they were ordained in ignorance.

Note, first, from the text, that certain persons

are simoniacally ordained yet are not simoniacs — as when, without their knowledge, money was given for their ordination, perhaps by a friend. Others, however, are simoniacs and simoniacally ordained — as when they themselves gave money to be ordained, or it was given with their consent, tacitly or expressly. Still others are simoniacs but not simoniacally ordained — as when the simony was committed not in the ordination itself, but because they themselves gave money so that others might be ordained. [Those who are not simoniacs] may remain in their orders [by dispensation], since [the text] does not specify through whom [dispensation is granted], from which it is inferred that a bishop can dispense — in conjunction with the theory of Innocentius in c. Dilectus, de tempore ordinationis. On this point [see there].

In gloss i., at the end. Concerning this

matter — who can dispense with one guilty of simony — the doctors offer some discussion here, and it is more fully noted in the gloss on the penultimate chapter, de electione, and in c. Post translationem, de renuntiatione, and there Johannes Calderinus, collecting the opinions of others, framed a distinction which Doctor Antonius reported here, adding nothing. But in truth, in many respects it requires, in my judgment, reformation. Distinguish, therefore, that either one obtains an order or a benefice through simony. In the first case, either the simony was committed with his knowledge and consent, tacitly or expressly, or with him personally giving the money — and then only the pope dispenses, nor does even the pope customarily do so. And such a simoniac is suspended not only from the order simoniacally received but also from all orders, as in dist. 22, §. Verum, [and] C.1, q.1, Reperitur. Or the simony was committed without his knowledge and was not subsequently ratified: then Laurentius and Hostiensis here — whom Johannes Calderinus follows in the passage cited above — distinguish.

He voluntarily confessed having received the order in ignorance, and thus a benign interpretation should be made, so that he is treated as canonically ordained and as one renouncing [the office]. Because, therefore, that chapter has no bearing on the matter at hand — and by the rule [Regulae iuris], where dispensation is permitted both for monks and for canons regular when simony intervened without their knowledge — this [applies] as to the first principal member. But as to the second member, concerning a benefice obtained through simony, distinguish: either it is a benefice with cure of souls, or a dignity (which is treated as equivalent in this context, by the argument of c. De multa, de prebendis, and in c. Cum in illis, under the same title, book 6), or it is a simple benefice. In the first case, Johannes Calderinus says in the passage cited above that whether he acted knowingly or in ignorance, if he knowingly and voluntarily renounces the benefice, he can receive a dispensation for another church; but he cannot be dispensed so as to hold the one where the simony was committed, except to hold something there in minor orders, and to have a benefice in a church [so] purchased. He can have another [benefice] by dispensation and with the exercise of all orders; but the one where simony was committed he cannot have, although he may hold a simple benefice there and with the exercise of minor orders only. But Johannes Calderinus does not specifically address the case of one who does not renounce but awaits a condemnatory sentence. And in that case I think the bishop in no way dispenses, so that he might have a benefice elsewhere — nor [in] that same church. In support of this I adduce the text in c. Nobis, at the end, under the same title, where it is said that such a person cannot obtain any dispensation. Likewise, the text of c. j. is relevant, where dispensation is permitted for such a person if he knowingly relinquished the benefice — that is, voluntarily renounced — but otherwise not. And here there is a twofold reason: first, because one deals more leniently with one who confesses than with one who is convicted [l. 2, Nolo]. Likewise, because he is now rendered infamous by law — [C.5, q. [...], c. Sane, q.2, c.] — and a bishop does not dispense with an infamous person except in cases expressly provided by law, as noted in c. Cum te, de re iudicata. In this case, c. Ex diligenti under the same title can be very well reconciled, in the penultimate gloss. Likewise, a bishop regularly dispenses even in lesser and less serious matters, as in c. At si clerici, at the end, de iudiciis. But the crime of simony is graver, as in c. Sicut under the same title, and in gloss i. thereon; therefore he does not dispense, since [the power to do so] is not found expressly stated.

If, however, he was ignorant — then either [money] was given by his rivals, and it does not harm him, as is proved in the first response under the same title, and c. Sicut, because they appear to have acted fraudulently. Or [it was given] by friends: then if he voluntarily renounces, a dispensation can be granted to him out of great mercy — the same according to Hostiensis and others. If he awaits a sentence, [he is dispensed] out of the same utility or necessity of the church. This distinction simply does not satisfy me. For first, it seems contrary to the penultimate chapter, de electione, especially in the passage [that begins] ft., c., in the word pais, for the word vero comes adversatively to the preceding text, and dispensation is permitted when one voluntarily renounces; therefore the contrary [holds] where the benefice is not simple — that is, where he does not voluntarily renounce. And for this, the text in the aforesaid c. f., at the end, q.5, where dispensation is not permitted by the bishop for one to hold the dignity or church where simony was committed. Does the bishop [dispense] except in cases expressly provided by law? — the case is expressed nowhere — therefore I would distinguish as follows: where a benefice with cure of souls or a dignity has been acquired simoniacally by a cleric in ignorance, under no circumstances is dispensation granted unless the benefice is vacant, so that he may hold such a benefice with cure of souls or dignity; but for another that becomes vacant, yes. He may, however, hold other benefices even [in the church where simony was committed].

Where the delict is manifest, only the pope dispenses — by the argument in c. [...]. Where it is not manifest, the bishop dispenses. But certainly, although the doctors pass over this commonly and [accept] this statement, I do not think it true. Rather, I say without distinction that the bishop dispenses with such a person — first, by the text which permits dispensation without distinction; therefore the bishop will be able to dispense, as I said above. Likewise, I adduce c. Presentium, C.1, q.5, where nevertheless he dispenses, and the matter could not have been non-manifest from the same [facts], since he confessed it when this person burdened [him] out of hatred for another. Nor can it be called simony such that he may dispense, by the argument of the rules Odia, Sine culpa, and Non. And note that in this case, when the simony was committed without his knowledge, he is not suspended from all orders; rather, as Innocentius rightly says here, he is suspended only from the order simoniacally conferred. Therefore he may licitly exercise the other orders lawfully received, retain benefices, and receive new ones — because, as we have said, he is not a simoniac. But he cannot be promoted to a higher order unless he receives a dispensation for the order simoniacally received, because otherwise he would seem to have been promoted by skipping a grade [per saltum] — dist. 5, c. j., de clericis per saltum promotis, throughout. Nor does the aforesaid c. Ex tue present an obstacle, nor the chapter by which opinions that distinguish between manifest and occult seem to be removed — that distinction, namely, so that he may be coerced from the exercise of the order — because one whose [sin is] occult, having confessed and performed suitable penance, is not impeded but rather is not coerced, since the penitential form does not give precise coercion but rather [he] is dispensed. It is otherwise if, having been made aware, he wishes to wait [for judgment]. [The text] speaks of a simoniac with whom only the pope dispenses — this is understood [to apply] if the money was not given to him but to his predecessor or to another; otherwise [the rule is] different, as noted in the gloss on c. Presentium. And by the foregoing I conclude that the position of Innocentius here does not hold insofar as he says that a bishop dispenses with a simoniac in no dignity, even if money was not given for it — and the text seems to the contrary in C.1, q.5, c. f., at the end, where dispensation is prohibited for the dignity or the church [that was] purchased; therefore, [it is permitted] for another church.

Capitulum XXIII.

One who is elected commits simony if he gives money to dissenters from his election so that they may consent.

A priest-confessor may reveal a sin confessed to him with the consent of the penitent; otherwise not.

[He may not hold] the benefice, but in that case he does not dispense unless he also ministers [in office], as proved in C.1, q.5 and c. j. It is therefore more severe [a consequence] for him to hold [a benefice] elsewhere than to have watched and awaited the sentence. And one who has been condemned for simony by sentence — let him commit to memory, living in this world, to gain his soul [rather than the world].

Note i., from the text, that a sin disclosed in penance can be revealed by the confessor to another, provided the sinner-penitent consents.

And thus this text is understood according to the doctors; for this Carolus learned of it in penance, and afterward revealed it in secret to the pope — certainly it must be understood [that this] was done with that person’s consent; otherwise it would not be permissible.

[See the] Codex, de poenitentiis et remissionibus. Second, gather from the gloss that simony is committed for obtaining the vote of someone in an election, even a vote not necessary for the validity of the election. For this election had been made by the greater part, yet simony was committed so that the minority would cease its opposition. All the more, then, would simony be committed if money were given to obtain a vote, because it pertains to something spiritual. Third, gather that a will disturbed by sin does not excuse [the] sin.

In the gloss, there: “And thus he had a right,” etc. Weigh the gloss carefully, because it greatly restricts the text — [namely,] that it should apply to opposition based on a legal right, not on mere fact. Therefore, if money is given to those opposing a simple benefice purely on a factual basis, simony is not committed according to the gloss. In support of this, [consider] that the one elected would seem rather to be redeeming his own vexation than purchasing something spiritual. Symon says the contrary, stating that before confirmation, money must not be given, whether the opposition is based on law or on fact — by the argument in c. Significasti, above, de electione. And this view pleases me, because for seeking a right not yet acquired it is not licit to give money, even to redeem vexation; it is otherwise for a right already acquired — in support of which, [see] what is noted in c. Dilectus, below, under the same title — for [in the former case] one appears to give money in order to obtain more freely that spiritual right. But when the right is already acquired and one stands upon it, then money is properly given for [relieving] the vexation. And note this statement of Innocentius. Abbas: [he is] a simoniac.

Capitulum XXIV.

A simoniac is one who demands money in order to absolve an excommunicated person.

A debtor can be excommunicated at the petition of his creditor if he does not pay his debt.

An excommunicated person must be absolved even after he has made satisfaction, or for the cause on account of which he was excommunicated.

Prescription does not run against an excommunicated person, because he cannot interrupt it since he is unable to bring an action.

A statute providing that an excommunicated person shall pay a fixed sum for each month during which he remains excommunicated is valid, as is evident.

Simony is committed if anyone gives money to another so that he will not harass or vex him.

To obtain absolution of the excommunicated person, one should have recourse to the superior of the superior and compel him to accept the resignation. First the complaint is set out; second, the appointment of a judge, at the word quoniam.

Literal Case.

A certain person was excommunicated on account of money he owed, because he did not pay it by the appointed term. Eventually he satisfied his creditors, but he was unable to obtain the benefit of absolution, since those who had excommunicated him demanded one hundred pounds for the absolution. He brought his complaint before the pope, who thereupon mandates certain persons that, if the aforesaid debtor has paid his debt, they should absolve him without charge; and if the excommunicators should decline to absolve the excommunicate, they are to proceed by inquiry.

First point from the text.

A debtor can be excommunicated at the petition of his creditor for failure to satisfy his debt — on which point, see what is read and noted in c. Odoardus, de solutionibus. Second, it may be gathered by argument that an excommunicate person, by virtue of receiving [absolution], will recover his rights, provided he has made satisfaction; he needs absolution even after making satisfaction.

Note regarding suspension: whether it [i.e., the need for formal absolution] applies when a suspension has been promulgated — on which see Joannes [de Lignano] in c. Cum hoc and the Glossa singularis in Clem., de decimis.

In whose hands the resignation of a benefice must be made.

The Gloss here states that the matter redounds to the vexation of the excommunicate. Joannes [de Lignano] here holds a third position: namely, that for absolution nothing temporal ought to be paid; rather, one should have recourse to the superior, by the argument in c. Nullus, de iure patronatus. Joannes Andreae agrees and says that before these persons suffer any prejudice from the delay of absolution — for instance, because one hopes to be elected, or must himself elect, or prescription is running against him unless he acts — then the opinion of the Gloss applies, so that it may be said that the vexation redounds to his detriment. But if no such peril is present, then the opinion of the doctors applies. This distinction is sufficiently probable and equitable.

On the same Gloss, at that passage.

[The Gloss states] that the excommunicate must remain in place before he is absolved, etc. In support of this statement, compare the text in c. Venerabilibus, and Sextus, de sententia excommunicationis. But the question arises: what if a statute provides that an excommunicate shall pay one hundred pounds for each month during which he remains excommunicated — is this valid? Hostiensis here says it is, because in this case the payment is not exacted for the absolution itself, but for the contumacy. For a pecuniary penalty can be exacted of anyone under canon law, as in c. Collectus, de officio ordinarii; and so the text in c. 1, section 5, de iudiciis can be understood when it speaks of satisfaction. He says, however, that some hold the view that the person should first be absolved and afterwards compelled to satisfy, according to the form of the statute.

Lastly, Innocentius here poses the question:

Whether it is lawful for a person who is being vexed to give something temporal with impunity in order to redeem his vexation. He concludes that if the vexation concerns a temporal matter, it is permissible, because in that case there is no sin on the part of the giver. But if the matter turns on a spiritual thing or even on a possession, then the giver does not sin if he pays someone to cease vexing him. However, if the person does not have possession — that is, if he has been despoiled — then it is not lawful to pay money for it, because in that case he is not merely redeeming the vexation but also purchasing the possession. Note this well: although possession of itself is not something spiritual, nevertheless it is connected and joined to spiritual things, because through it one obtains the exercise of spiritual functions. On this subject more will be said in the ensuing chapter.

Capitulum XXV.

A simoniac is not only deposed, but must do penance for the sin committed.

A benefice acquired through simony must be resigned or ceded into the hands [of the appropriate superior].

A knowing simoniac in a benefice is not dispensed by the bishop.

Monks guilty of simony and members of religious orders.

I discussed this fully in the repetitio on c. Si quis contra clericum, de foro competenti. Those who are simoniacal are transferred to stricter monasteries; others, after resignation, may be placed either in the same monasteries or in other monasteries of the same order. The first part is the consultation; the second, the response.

Literal Case.

Certain regular canons, with their own knowledge, gained entry into monasteries and regular churches through simony. The question is what should be done with them. The pope responds that, since many express authorities are found on this point, nothing else is to be decreed except that they must entirely relinquish the place they obtained in such a manner and betake themselves to other, stricter monasteries, there to do penance. If, however, money was given without their knowledge, they are to be compelled to resign from that house and may afterwards be restored to the same place — if they can remain there without scandal — or else placed in another house of the same order.

First point.

From the text: one who was received simoniacally — and who is himself simoniacal — is not only ejected from the place so obtained, but must do penance for the offence committed.

Note also that simoniacs and those simoniacally received must be placed in a stricter monastery, or one situated in a remote place. On these matters, what must be said today is as set forth in the chapter that follows on this title.

Point: concerning one who was simoniacally received.

One who was received [simoniacally] but who is not himself a simoniac can be dispensed by the bishop, provided a prior resignation has been made. And note that here no distinction is drawn between the manifest and the occult case; therefore the bishop dispenses without qualification. The reason is that such persons are not simoniacs [themselves], but were simoniacally received. This relates to what is noted in c. De simoniace, eodem titulo.

On the Gloss, at the word omittam.

Where it says: “in the hands of the prelates.” Say also, following Hostiensis, that if these prelates [act] under the Liber Sextus, and regarding what the Gloss adds — that if superiors refuse to accept the resignation, these persons must nevertheless cede — say more accurately as follows. And note that this extends and amplifies c. Admonet and c. Quod in dubiis, de renuntiatione, so that the cession is made in the hands of the prelate, not of anyone else. Those who are exempt do not resign except into the hands of the pope or his legate, as in c. Cum venerabilis, de consuetudine and c. Si abbatem, de electione. And regarding what the Gloss adds — that if superiors refuse to accept the resignation, these persons must nevertheless cede — one should have recourse to the superior of the superior and compel him to accept the resignation, by the argument in c. Nullus, de iure patronatus. And note that this extends and amplifies c. Admonet and c. Quod in dubiis, de renuntiatione, so that the cession is made in the hands of the prelate. After resignation, the person may once again be canonically admitted [to the benefice]; nothing from the earlier [tainted appointment] is retained.

[This applies] not only to a benefice lawfully acquired, but also to one acquired unlawfully and through simony — as is supported by c. Nisi cum pridem, de renuntiatione. The point, therefore, from this Gloss and its epitome, is that even in a simple benefice acquired simoniacally, the bishop does not dispense when the person acted knowingly. This relates to what I discussed in c. De simoniace, eodem titulo. Note this well, etc.

Capitulum XXVI.

One who was unknowingly and simoniacally received into a benefice.

If he claims anything by virtue of that reception, he may be admitted again to the same benefice canonically, after resignation; nothing from the earlier [tainted] reception is retained.

A benefice that anyone holds through the commission of simony by another, without his knowledge, cannot be retained in good conscience.

The bishop dispenses one who was unknowingly simoniacal to receive another benefice.

[He may be dispensed] to obtain the benefice, but not to retain another benefice that he held simoniacally. As to why dispensation is granted for simony committed unknowingly: the person who had been unknowingly assumed through simony is afterwards assumed anew, and the bishop can [dispense] thus. From the earlier reception he may not claim anything in that church, or, stated otherwise: one who resigns a simple benefice to which he had been assumed through simony without his knowledge may, by dispensation, be assumed anew to that same benefice in the same vacancy. Nothing, however, from the first reception will be claimed by him — all [rights from it] are extinguished.

Literal Case.

The second part begins at videmus. A certain person, through his father’s avarice and without his own knowledge, was received as a canon of a certain church. Afterwards, upon reaching the age of discretion, he took the sign of the cross and freely resigned the prebend he had so obtained into the hands of the pope’s [representatives among] the brethren. The provost and brethren, taking compassion on him, elected him anew as a canon, on condition that he should claim nothing from the earlier reception in that church.

First point from the text.

One who has obtained a benefice through another’s commission of simony, while himself remaining ignorant of it, cannot in good conscience retain it, but must resign it into the hands of the superior. In agreement with this, note secondly that a canon can resign his canonry into the hands of the chapter without the authority of a superior intervening — which Innocentius says perhaps applies in the special case of simony, or perhaps the election and confirmation belonged to the chapter. But if the election belongs to the chapter and the confirmation to [the pope], then the resignation must be made into the hands of both the one who confirms and those who elect, by the allegation in titulus, quaestio 3, Statuimus. On this subject — in whose hands the resignation of a benefice must be made — and [the requirement] that the consent of the electors is also needed, see the full discussion in c. Admonet and c. Quod in dubiis, de renuntiatione, and in Paulus’s commentary on Clem. 1, eodem titulo; I discussed this at length in the repetitio on c. Si quis contra clericum, de foro competenti. Understand that the institution and removal of canons belonged to the chapter; in that case, the resignation may validly be made into the hands of the chapter, as noted in the authorities. However, the last opinion of Innocentius holds that the resignation cannot be made into the hands of the confirmer alone, but the consent of the electors is also required, since it is a matter that concerns them, and a kind of contract is entered into between the electors and the elected, by the argument in c. Cum inter canonicos, de electione and c. Nisi cum pridem, de renuntiatione. Hence, just as in contracting the consent of the electors is required, so too in dissolving [the relationship], by the argument in the rule de regulis iuris and in l. Nihil tam naturale, ff., eodem. Note also that simony committed unknowingly in obtaining a benefice does not impede dispensation by the superior, even in the same vacancy, provided that a resignation has intervened — and that the benefice is a simple one, on which I spoke in c. Non simoniace, section 8, eodem titulo.

On the Gloss, at the word elegee.

Understand the Gloss as follows: the bishop can dispense a knowing simoniac not with respect to that same benefice for whose acquisition the simony was committed, but so that the person may obtain another benefice — he can do this by dispensation, as in quaestio 5, c. 1. I discussed this fully in the previous chapter. [...] Non simoniace, etc.

Capitulum XXVII.

1. One who was unknowingly simoniacal ought not to be deprived of his benefice, unless fraud is discovered, as below in point 4.

2. Simony committed by one person, while others are ignorant, vitiates the act with respect to all. The reason is perhaps as discussed below in the next chapter.

3. If an excommunicated person participates in the acts of a corporate body, those acts are not vitiated with respect to the others unless he was knowingly admitted.

5. Simony is induced by a mere promise to give something temporal for something spiritual.

4. Fraud and deceit are proven through conjectures.

Whether and when simony is committed on account of the giving of money to elect [a person], or through another, even if the person would have been elected without the money.

[Whether simony can be resolved] in my judgment, and the collation was illegitimate. The first fault is that the collation is simoniacal, and insofar as it is simoniacal, it must be rescinded — there is a text for this in the next chapter. In the Gloss, Joannes Andreae refers to what is noted there. And say that this Gloss does not much restrict [the rule], as is said here; and rightly so, since when the cause ceases, the effect is extinguished — because an appeal is revoked when the grievance is withdrawn — and a right extinguished by resignation does not revive. Therefore no right, at least no legitimate right, was acquired by the person to whom the collation was made. And then the second opinion of the other reading proceeds: that the election was not free, and perhaps they would have changed their minds, and the intention of those involved cannot be proven since they are parties to the crime. In this case all the arguments of Joannes Andreae are conclusive. Or the money was given to a third party, perhaps a relative or friend of those who were to elect; and then, if the money was given on behalf of the person who was expected to be elected, the election is vitiated even if they would otherwise have elected him, because nothing ought to be given for the purpose of obtaining a spiritual right, as noted in c. Ad aures, section 8, eodem titulo, and as I shall say in the next chapter. For a place in a religious order must be denied to those who seek and canvass for it, and such an ambitious person ought to be rejected [Causa 7, quaestio 1, In scripturis]. Or it was given by another person; and then the first opinion can well stand, for the intention of the electors — who would otherwise have elected him — can be proven through those same electors, since they are not implicated in the crime; and perhaps, having deliberated among themselves, they had unanimously resolved to elect him. In this case the text in the final section cited above properly applies, and all the considerations of Joannes Andreae cease to be relevant.

Literal Case.

When a certain parish fell vacant, the chapter of that parish gave authority to elect to four persons, who elected a parish priest. Friends of the person whose election was expected promised money to the said four — or to all of them — that they would pay them; and so, without the elected person’s knowledge, he was elected while this promise was being made. The question is whether such an election, if this is proven, should be quashed. The pope responds that unless it is established that those who made such a promise did so fraudulently, to the disadvantage of the person who was to be elected as the better candidate, the election, as tainted by the presumption of simoniacal depravity, must be entirely quashed. A second question is then raised: suppose someone has been elected to the prelacy of a certain church, and his election has been quashed on account of simoniacal depravity as described.

Abbas [Panormitanus].

[The decretal concerns whether] a dispensation may be granted. It would seem not. Bernardus [de Bottone] says: An election is simoniacal not only when money has been promised or given to all the electors, but also when it has been given or promised to even one of them; thus the depravity of one person taints the entire act. This is remarkable. [By contrast,] if an excommunicated person participates in the acts of a corporate body, he does not thereby vitiate the entire act unless he was knowingly admitted, as in c. Si, de procuratoribus and noted in c. illa, de electione. And note that a mere promise to give something temporal for something spiritual induces simony — in agreement with c. Veniens, section 8, eodem titulo and c., de consuetudine.

Note a singular case in which an election made through simony is not vitiated: namely, when the simony was committed in fraud of the person who was expected to be elected. Otherwise, the fraud may become apparent through conjectures — for example, those who were opposing the election gave money so that [their candidate] would be elected. For fraud and deceit are proven through conjectures, as in c. 2, de rescriptis, Liber Sextus, and in the passage cited [by the Gloss].

And consider carefully: the text first says that [the money] does harm — for those who acted [in giving it] appeared to be friends, but were not. From this, gather that fraud can be proven through conjectures even against one who appeared to be a friend. In the Gloss on the final section, it says, as it were expressly, etc.: the depravity and deed of another ought not to harm [the person elected], since he would have been elected in any case. Similarly, we say that those who do not induce simony [are excused] when the person to be elected is otherwise suitable, as discussed in c. Tua, de aetate et qualitate. Hostiensis held this opinion here. But Calixtinus and Hostiensis hold the contrary opinion, which follows in the Gloss. Hostiensis said, on the same title: the money was given to another. The first opinion applies [when the money was given to a third party]; but the second opinion applies when it was given to the electors themselves or to the ordaining party. Joannes Andreae seems to follow the second opinion of the Gloss, for he does not see how the

intention of the elector can be proven except through the testimony of the elector himself, who is a party to the crime; and [yet] it is said [to be] simoniacal. Hostiensis, however, states that a person making assertions about his own act is not to be believed: it would be easy for anyone who elected [a candidate] for money to claim that he would have elected him anyway, and this cannot easily be proven. Indeed, perhaps he had spoken falsely or would have changed his mind if the money had not been given, as noted in c. Tua, section, de eodem. But observe that Joannes Andreae does not say the election was made simoniacally and money given to third parties — as if the money had been given to another while the electors [remained uninvolved] — for then his arguments would be conclusive. Hence, to reconcile the opinions, the distinction can be drawn as follows: either the money was given to the electors — and then the second opinion applies, namely that the election was not free, and they may have changed their minds, and the intention of those involved cannot be proven since they are parties to the crime (in this case, all the arguments of Joannes Andreae are conclusive) — or the money was given to a third party, perhaps a relative or friend of those who were to elect. In this latter case, if the money was given on behalf of the person who was expected to be elected, then the election is vitiated even if they would otherwise have elected him, because nothing ought to be given for the purpose of obtaining a spiritual right, as noted in c. Ad aures, section 8, eodem titulo, and as I shall discuss in the next chapter. For a place in a religious order must be denied to those who seek and canvass for it, and such an ambitious person ought to be rejected [Causa 7, quaestio 1, In scripturis]. But if the money was given by another [without the candidate’s involvement], then the first opinion can well stand, for the intention of the electors — who would otherwise have elected him — can be proven through those same electors, since they are not implicated in the crime; and perhaps, having deliberated among themselves, they had unanimously resolved to elect him. In this case, the text in the final section cited above properly applies, and all the considerations of Joannes Andreae cease to be relevant. In the Gloss, note the understanding of the Gloss that supports the opinion I touched upon in c. De simoniace, eodem titulo. I treated this matter fully there; see that discussion, etc.

Abbas [Panormitanus].

Capitulum XXVIII.

Whether money given to one who threatens to cause trouble in fact is recoverable if he does cause trouble.

Simony is not committed by giving money to preserve a right already obtained for the electors or ordinators or their friends; it is otherwise for obtaining a new right.

Whether and when simony is committed in the acquisition or preservation of temporal or spiritual rights.

[Decretal:] Dilectus filius, Leopardo.

Following one interpretation, adhering to the letter: if a person is molested in fact concerning his right, the money [given to stop the molestation] may be recovered if the promise [of peace] is not kept. Or, more broadly according to another interpretation [as follows]:

An archdeacon was harassing a provost; the provost promised to pay him a certain sum of money if he would desist from his injuries. He paid. But after receiving the money, the archdeacon did not cease his harassment over the dignities and benefices [of the provost]. The provost brought his complaint before the lord pope, who mandates certain persons that, if the facts are as stated, they should compel the archdeacon to restore what he received, if it is established that he acted contrary to his promise. Bernardus [de Bottone observes]: first, from the text, note this notable and singular case — that money can be given to a prelate without any taint of wrongdoing by one who is unjustly harassed regarding his existing right, in order to redeem the vexation of fact. From this it follows, as a special rule, that giving money to preserve a right already obtained against undue harassment does not constitute simony or moral turpitude. Thus, [had the promise been kept,] the giver could not have recovered the payment, because where turpitude exists on both sides, there is no ground for recovery, as in l. 2, ff., de condictione ob turpem causam and the rule In pari delicto, de regulis iuris, Liber Sextus. Hostiensis here says that for the purpose of obtaining a spiritual right, it is not lawful to give anything, as in c. Matthaeus, section 3, eodem titulo. But for preserving a right already obtained, it is lawful, as here — though say more accurately as I discussed there.

And observe that the Gloss of the provost follows the second opinion that I set out in c. Ad aures, section, eodem titulo — namely, that for absolution unjustly denied, one may lawfully give something. But on this point, say more accurately as I discussed there.

To encompass the entire subject, the following distinction should be drawn. We are dealing either with temporal matters or with spiritual ones. In the first case, vexation may lawfully be redeemed both for a right already obtained and for a right being sought; however, the person receiving the money holds it unjustly and is bound to make restitution, as in l. 1, l. Generaliter, ff., de calumnia and l. 4, section Quoties, ff., de condictione ob turpem causam. In spiritual matters, however, it is not lawful to give anything for the purpose of obtaining a right, even to remove an impediment of fact, because such a person appears ambitious in giving money to obtain something more easily — and this is properly the case addressed in c. Matthaeus, eodem titulo. In such a case, the vexation is not properly being redeemed; rather, money is being given to facilitate acquisition of a special right. But for a right already acquired, where the person is in possession of that right and is being molested in fact, it is lawful to give something, as is proven here — although the recipient is bound to make restitution. If, however, the person is being harassed because the bishop wishes to depose him justly, or someone justly accuses him, or [a claimant] asserts a right in the benefice, then it is not lawful for the ordainer or consecrator or the elected person to give anything, because in that case what is being redeemed is not a vexation of fact [but the removal of a just claim], as noted in c. Nemo, eodem titulo, and c. Nisi, de praebendis and c. Cum pridem, de renuntiatione. If the person is not in possession of the right already obtained, then [a further distinction applies]: if he has possession — even possession unlawfully held — then

it is not permitted to give anything, as noted above. I hold, however, that if on account of the power of an adversary or one’s own inability one cannot easily obtain [the right] before the superior, then in order to avoid great prejudice one may licitly give money, just as Joannes Andreas says in a similar case regarding obtaining absolution from excommunication [c. ad aures]. Secondly, and in accordance with this, understand the subject matter of this gloss as noted there.

In the final gloss, where it says “supply especially”: this gloss is commonly held, by the argument in the law Generaliter [ff. de calumniatoribus]. For if someone sells money in order to machinate calumniously against spiritual things, as in the final chapter De officio ordinarii [lib. VI], there one would not allow the recovery of what was given, and a fourfold penalty applies. This holds for the agreement regarding what was to be received. Or the text can be understood according to another interpretation, which Hostiensis and Joannes follow: that here a composition intervened between the archdeacon and the provost, with the authorization of the superior, in which case one may licitly reclaim the money, nor is the recipient bound to restitution if he observes the terms of the composition, as in the chapter Nisi essent [de praebendis]. Both interpretations are sound in themselves. The final gloss resolves this contrary point as noted in the chapter Pervenit in the gloss on electi.

Abbas [Panormitanus].

Capitulum XXIX.

That nothing may be exacted for conducting the dead to burial.

That the parish priest must administer spiritual things to his parishioners without charge.

That mental simony is committed when a priest goes about his office with the intention of gaining something; this is remitted through penance alone, without any restitution.

That simony is not committed if something is received for funeral rites of the dead or for the nuptial blessing, provided there is a custom to this effect.

That custom is not established through acts that are merely facultative [i.e., done freely at will], except in favor of the Church.

That custom is established if all the members of a community were doing something and if afterwards one person, persisting in such observance, was encouraged by others to do the same, and he then followed the practice of the others — for in such a case the consent of the people wishing to introduce a custom is apparent.

That a continued payment over a period of time, related to a definite obligation, establishes a custom.

That a custom by which one is bound to give something in a lawful case is established within the space of ten years and gives an action to anyone wishing to claim something by virtue of such a custom.

Whether a priest may, in the absence of custom, demand anything for funeral rites of the dead or the like.

That a cleric holding a meager benefice must blame himself for having accepted it, and ought to seek his livelihood through some honorable industry.

That if a priest has no means of support and cannot otherwise honestly obtain a livelihood, the bishop must provide for him, or the people may be compelled to furnish him with the necessities of life; indeed, he may withhold [spiritual services] if offerings are not made to him.

That a priest, whether poor or not, may hire out his spiritual labors to a stranger [i.e., to one outside his parish].

[C]um nobis [When it was brought before us]. Concerning the nuptial blessings and funeral rites of the dead, nothing may be exacted. This chapter is well divided: first the question is set forth; second, the judge’s determination, at the words “to your discretion,” etc. A chaplain of Villafranca was exacting money from his parishioners for funeral rites of the dead and for the nuptial blessing, and was unjustly extorting it. The parishioners complained to the pope. Whereupon the apostolic [authority] by canon law commands certain persons to admonish the chaplain to desist from such presumption and to make suitable satisfaction for his excess. If, however, he refuses to obey, they are to punish him with canonical penalties.

Note 1.

From the text: the parish priest must administer the sacraments and other spiritual things to his parishioners without charge. Secondly, gather that any priest — whether the proper pastor or another — is bound to administer spiritual things gratuitously; if he receives anything by agreement, he must restore it. Understand this of conventional simony; it is otherwise in mental simony, where no agreement intervened but only a depraved intention. In such a case, the sin is abolished by penance alone, as in the last chapter on this title, where the gloss discusses this eagerly. In the chapter Nico [de clericis non residentibus, lib. VI], the question is raised concerning a canon who attends the divine office solely with the intention of receiving his daily distributions: this too is mental simony, not conventional, and is abolished by penance alone without restitution; on this, see what is fully noted there.

As for other matters, it is lawful for a priest to seek his livelihood by his own hands or industry. Hostiensis says that an action [i.e., a legal claim] is available where there is such a custom. But against this the text in the chapter Cum in ecclesiis on this title objects, where the text specifically speaks of funeral rites of the dead and of nuptial blessings and condemns the custom. Zenzilinus briefly and succinctly says that perhaps for the spiritual services themselves to be rendered, a custom cannot be introduced requiring that something be given; it is otherwise, however, for labor. And thus this gloss can be understood. But certainly this solution does not seem tenable, because as

the doctors commonly say — even if it be a Roman [custom] — not even for labor can anything be demanded for spiritual things or for what pertains to them, because no spiritual service proceeds without some [labor], and thus for both — that is, for the labor and for the spiritual things or their accompaniments — [nothing may be exacted]. Whence for understanding this chapter Ad apostolicam, from which this gloss derives the approval of custom, various interpretations are noted there, as I shall fully discuss in that place. But I have always held this opinion: that a custom can be introduced provided no exaction preceded it, so that the custom was introduced from the pure liberality and devotion of the people. For in that case it has no taint of vice nor a vicious foundation but a praiseworthy one; it is no great thing and no wonder if those who administer by office of their order should deserve temporal things from those they serve. This seems to be the meaning of that chapter Ad apostolicam, when it says that the laity are to be compelled to observe the praiseworthy custom toward their church, one “introduced by the pious devotion of the faithful,” etc. But where a preceding exaction gave rise to the custom, then such a custom is invalid, because it had a vicious beginning — and thus the text speaks, if rightly understood.

But against this

the following objection is most powerfully raised against the first member of this distinction. For from acts that are merely facultative [i.e., done freely at will], no custom is introduced, nor from an annual payment freely made, as is read and noted in the law De servitiis et aqua, and by Bartolus in Cum de in rem verso [ff. de usuris], and by Cynus. Just as receiving a friend who comes from far away does not give rise to a quasi-possession — even if he has been received many times — nor does any custom result from it. And as Bartolus says in the aforementioned passage, if someone for ten years voluntarily and out of liberality brought someone a pair of capons annually, no custom is thereby introduced that would compel him to continue against his will in the future. Likewise, as Cynus says, even if someone for ten years continued to go to a particular mill or market and thus brought profit to its owner, no custom is thereby introduced obliging him to continue in the future, because these are merely facultative acts. To the point, therefore: if the people freely offered something to the church and the church received it, this does not establish a custom binding them to the same thing against their will in the future. Against this, I say this difficulty can be resolved in three ways.

First

by understanding the case where it already sufficiently appears that the people consented and wished to introduce that praiseworthy custom, as noted above.

Secondly

these arguments hold where the donation is pure and not related to [a spiritual service]. But in our case, even at the time of the sacrament or of the spiritual thing rendered, the protracted payment [shows that] something was being given, and the people over a long time, by so observing, wished to bind themselves to this and to constitute that voluntary obligation in recompense for spiritual things, acknowledging God in his gifts and redeeming their sin with alms [dist. I de poenitentia, Medicinas]. The case is similar to what Bartolus notes in the aforementioned passage about the countryman who for a long time paid a pair of capons under some pretended cause, because he held something belonging to that person.

Thirdly, the objection can be resolved

in favor of the Church: just as the people over a long time, by contributing temporal things to spiritual services, appear to wish to introduce a custom for the future. This is supported by the chapter Ex parte [de offertoriis, de praebendis], the chapter Ex parte regarding consent, and these points should be well noted, from which a method of proving a praiseworthy custom in these spiritual matters is drawn; and I shall touch on a similar point in the chapter Iacobus on this title.

As to how much

time is required to introduce this custom, I hold that a period of ten years suffices, both because this custom binds the laity and not the clergy — and among the laity custom proceeds without distinction, as commonly noted [ff. de legibus] — and because this custom is not contrary to law but is rather pious and favorable, as in the aforementioned chapter Ad apostolicam; and a period of ten years suffices, as the gloss notes in the final chapter De consuetudine [lib. VI]. I also hold that, given this praiseworthy custom, in order to enforce its observance, a priest cannot exact anything in the absence of custom unless he lacks the means of support. Here I distinguish as follows: if the parish priest has a means of livelihood, then in the absence of custom he cannot exact anything else, as here and in the chapter Cum in ecclesiis on this title — but he may licitly receive what is freely offered, as in the chapter Priori at the end, and related chapters. If, however, he lacks the necessary means of support, then if he can honestly acquire a livelihood from other sources — for instance, by writing, by teaching boys, or by exercising some similar occupation — he cannot exact anything, and he must blame himself for having accepted so meager a benefice. For even Paulus sought a livelihood with his own hands during the time of his preaching. Just as we often see that even a son, if he can honestly support himself, [cannot demand support], as the text states [ff. de liberis agnoscendis]. But if the parish priest cannot honestly earn a livelihood by other means, then either the bishop must provide for him, or the people may be compelled to furnish him with the necessities of life. In support of this, see the good gloss [de consecratione, dist. I, c. Omnis christianus].

where it says that a needy priest may withhold spiritual services from his own [parishioners] unless they make an offering from which he can live. See also what Joannes writes in the chapter Orbis [de ecclesiis aedificandis].

As for being induced to perform funeral rites or to render other spiritual services:

a priest may then hire out his spiritual labors — not so as to receive a temporal thing directly in exchange for spiritual ones, but in compensation for the losses he sustains in making himself present and in ministering, as noted in the chapter on this point [ne praelati vices suas]; and the gloss [q. I, Precipimus] implicitly says that a priest may hire out his spiritual labors. Understand this even in the case of a stranger [i.e., non-parochial] priest, provided his resources are lacking, for even if he has plenty, he can exact something in compensation for his losses, since he is not bound to this by his office. And by this the entire matter of the gloss remains clarified.

In the gloss on “jurisdictions,” at the end, where it discusses the mode thus, as noted in the rubric De sacramentis non iterandis, concerning what are sacraments strictly so called, whether necessary or voluntary — see the good gloss in the chapter Veniens [de transactionibus]. This gloss also seems to suggest that if the nuptial blessing were not a sacrament, something could be demanded for it, as in the chapter Ad nostram on this title.

Capitulum XXX.

1. One who receives simoniacally, and one who is simoniacally received, is deposed.

2. One convicted through the process of inquisition of simony committed, not in orders but in benefices, is deprived of the benefice or place simoniacally acquired.

3. An archbishop cannot depose the subjects of his suffragan bishop unless the offenses are also notorious, or unless the archbishop also exercises the right of legate.

4. A monk simoniacally received is to be removed from that monastery and placed in a stricter one; but in the latter he may remain only by dispensation.

5. Simony is not committed in those things that are given freely, unless a prior assessment was made.

6. Simony is not committed if one received as a canon pays something by virtue of a statute so disposing.

7. Whether simony is committed by giving money to infidels so that they convert to the faith.

8. Whether in simony proceedings are brought against secular clerics as much as against regulars.

9. Whether individuals are punished for a delict committed by the entire chapter.

10. In criminal matters, presumed knowledge is not punished, but only actual knowledge.

11. Where a delict was committed, yet not capitally, only the senior members of the chapter are punished.

12. Whether a universitas [corporate body], college, or chapter can commit an offense — whether by omission, commission, command, or ratification — and whether it can be punished.

13. A universitas is a kind of fictitious and representative person.

14. A universitas cannot be excommunicated, because excommunication requires a real body and soul.

15. When is a universitas said to offend as a whole.

16. If a universitas has been punished, whether afterwards the individual members of the universitas can be punished.

Upon the one who simoniacally receives, and upon the senior members, a fitting penalty is imposed; meanwhile they are suspended from the exercise of sacred orders. The chapter is divided: in the first part the question and its rejoicing [i.e., the preliminary exposition]; in the second part the distinguishing response, at the word “we”; in the third part the mandate, at the word “enjoin”; in the fourth part instruction, at the words “that thing.” The literal case is as follows: the Archbishop of Canterbury, while visiting his diocese in monasteries and other religious houses, found that the plague of simony had proliferated, so that in them many had been received for a price who ought to have been received freely. But because the multitude [of offenders] was vast, the pope [wished] to relax something from severity. And those who were accused before him — after the crime has been established through judicial process — both givers and receivers are to be punished with canonical penalties. If, however, the matter has been established through inquisition alone, those who were simoniacally received in such places are to be removed from them, corrected, and sent to stricter houses to perform penance. And upon the abbots, priors, prelates of whatever rank, and their officials, he is to impose a fitting penance; until they have completed it, he is to suspend them from the exercise of sacred orders, and is to instruct his bishops to cause this form to be observed throughout their dioceses — provided that if anything is freely offered to them, it may be received without scruple.

From the text, note that one convicted through inquisition is not deposed from office, but is nevertheless removed from the place simoniacally acquired, for after performing the imposed penance he may licitly minister in his order and is transferred to another monastery or another [house].

Regarding suffragans: the doctors understand the case here as special to the Archbishop of Canterbury, who exercises not only metropolitan right but also legatine authority, as in the first chapter De officio legati. And we can say that the crimes were notorious, and the archbishop was visiting the province

Thirdly, gather that one received in a monastery through simony or simoniacal corruption, once removed from there, must be placed in a stricter monastery so that he may do penance for the offense committed.

And if no stricter monastery can be found, then, as the doctors say, he is to be placed in a cell of the same order by dispensation, after having renounced [his former house], as in the chapter De regularibus on this title. And by this the entire matter of the gloss remains clarified.

And fourthly, gather that what is freely offered at the time of receiving some spiritual thing may licitly be accepted, if no prior assessment was made.

And from this I infer the following: suppose there is a statute in a church requiring that one newly received as a canon or as a monk must pay a certain sum. Someone who was received without any exaction nevertheless pays — is this licitly received? I say yes, the text can [be so read], because since an assessment preceded, that offering appears to have been made by virtue of that assessment [q. I, Ex multis].

And on the first gloss, where it says “money may be proved,” etc.: but note that what we say here and in the following at first glance appears to conflict with the text. Nor does the passage resolve [the tension]. In truth, strictly speaking the nuptial blessing is not a sacrament, but [the gloss] broadly sets forth various cases: from the one who is bound to offer [spiritual services] freely, nothing should be exacted — thus speaks this text. But in the cases posited in the gloss, the money is given by the one inviting rather than by the one invited. Hostiensis says here that in order to receive what is necessary [for salvation], we may give money, because without these things we cannot be saved; the giving of money is tolerated in order to attract someone to the faith and to salvation. But for receiving other voluntary sacraments, nothing should be given; hence one ought not to give money to someone to enter religious life, since one can be saved without entering a religious order, as in the final chapter De summa trinitate et fide catholica. Likewise, [Hostiensis] says that even for voluntary sacraments nothing should be given by agreement — a sufficiently notable statement. And limit this as in the chapter Cum in ecclesia on this title. However, one should not give money to an infidel by agreement so that he converts to the faith, but one may do so out of free liberality, in order to attract him to the faith.

In the gloss at the words “are accused of this”: this is the truer [reading], as is sufficiently proved. For someone could have been convicted through false proofs or unjustly condemned by a judge; [such a person’s] reception should not be held against another. In support of the gloss, the text helps where it says “if against them,” and the passage can comprehend both givers and receivers.

In the gloss at the word “severity”:

it then asks what this deposition means in the monastic context. Innocentius and Hostiensis say that [the deposed monk] will not be summoned to chapter nor to other deliberations, nor will he receive his prebend or his meals with the others, but he will be in a workhouse — that is, in a confined place or prison. I hold that this teaching applies to a monk who is not a cleric, for upon such a person deposition from orders cannot fall, and deprivation presupposes the possession [of orders]. But in the case of a monk who is a cleric, deposition will operate just as it does for a secular cleric: he will be deposed from orders and will no longer have their exercise.

In the gloss at the word “with love”:

at the end, the gloss seems to suggest that secular clerics convicted of simony committed even in benefices are deposed, even if the proceedings were conducted by way of inquisition. And the doctors, in confirmation of this view, adduce certain reasons of distinction between regulars and seculars. The first reason is that among regulars the judicial order that is called usque quando [how long?] is not observed, as in the chapter on accusations, with the heavier [penalty] rising in proportion to the quality of the benefice. The second reason is that a regular appears to have done this out of charitable intent for the salvation of his soul, not because he gave money in order to be simoniacally received: [since] both the received and the receiver are deposed, they could still serve God in a monastery. The third reason is that out of favor for religious life, through inquisition, one received [simoniacally] should be dealt with more leniently in a stricter monastery. Zenzilinus, combining these reasons, entangles this matter [further]. As I see it, in the chapter Inquisitionis and in the gloss, there is no real difference between a secular and a regular: for a secular convicted of simony committed in a benefice should likewise not be deposed when proceedings were conducted by way of inquisition; it would be otherwise if the simony had been committed in orders, as I fully discussed there. And this chapter proves the point well, without introducing any special rule for regulars. But what may perhaps be drawn from the text is that, since here proceedings were conducted by way of inquisition, the abbot and abbess are not removed from administration — although for a grave sin a secular is removed from administration. And regulars are more readily deposed from administration, as stated there. But regarding the present chapter, it can be said that they were dealt with more leniently because they were not exacting money for their own profit but for the monastery, and thus they do not appear to have sinned as gravely as another secular prelate who commits simony out of personal greed.

In the gloss at the word “officials”:

where it says that all the members of the chapter are presumed to know. Hostiensis says that although other members of the chapter are presumed to know what is done by the chapter or [its officers], they are nevertheless not punished unless it is proved that they consented, for a delict requires a true will; it does not suffice to rely on the presumption of knowledge. With this view the doctors commonly concur here. But by this, the present question does not seem fully elucidated. Therefore I distinguish more fully as follows: if the delict was committed with the entire chapter convoked, then all who consented are to be punished — both those who expressly consented and those who remained silent, because they were bound expressly to resist the wrongdoing and to raise their voice in opposition, as Antonius notes.

If, however, some expressly spoke out against it in chapter, then those persons are not to be punished, as in the law [ff. de magistratibus conveniendis], where there is a good text, and in the passage Romana, section In universitate [de sententia excommunicationis, lib. VI], at the word “culpable” — for a penalty ought to bind its own authors. And [likewise] in the chapter at the end [de his quae fiunt a maiore parte capituli]. But if [the delict was] not [done] capitularly,

the offence was committed naturally, then the officials and senior members of the community ought to act together with the prelate, because there is a presumption that the prelate committed the crime with their counsel and authority, so that at least a presumption of knowledge attaches to them, and therefore they were obliged to resist. In this way the gloss can be understood, and so understood it is noteworthy. But the inferior members of the community are treated differently, both because they are not so readily presumed to have known, and because they do not have as much boldness in resisting. Whence, even among those who hold office by constitutional authority, I think it should be said that if it is established that they were ignorant, they ought not to be punished — yet the prelate himself is liable for whatever offence he commits. The argument is in c. j. de off. cum palle. c. finit. c. xvi. q. vi. si epi.

In the gloss at that place: “But can a college [be punished]?” Note this gloss through to the end, for reference is made to it whenever the question arises whether a college or university can be accused or punished. And a similar gloss appears at xi. q. ii. ope, which begins — yet this gloss concludes nothing of value.

At the word grave: in homicide the capital penalty threatens. Innocentius concludes that a university cannot be accused criminally, because its acts are as though those of a madman and similar persons who cannot be held responsible. For if the entire university were punished criminally, the absurd consequence would follow that innocents would be punished; and because excommunication does not fall upon a university, since it requires a true body and a baptized soul — and indeed, when some members die and others are substituted in their place, [the university persists]. l. proponebat. ff. quod iure. Whence it would be unjust that those who were incapable of deliberation should be punished. But these arguments are refuted in rebus eccle. non alie; see what is noted at xxiv. q. ii. in summa.

Joannes argues in l. aut facta. ff. de pe. that in many offences the innocent is punished on account of the guilty, as can be seen in the crime of lese-majesty, where a son is punished for his father. l. quod. C. ad l. iu. ma. and vi. q. j. fascibus militibus. Likewise in sacrilege, concerning which see c. felicis. de penis. lib. vi. To the same point, the text in l. ususfructus. ff. quando ad usufruct. amit., where a city is sometimes subjected to the aerarium [treasury]. The Doctors note this well. Whence I conclude this matter, following Bartolus, who elegantly examines this question, and in l. aut facta. Two things principally had to be examined. First, whether a university or college — as a corporate head (for the terms signify the same thing) — can commit a crime. And from this you have the second doubt resolved: namely, whether it can be punished.

On the first point, it must be said that in truth a college — if a university is said to commit a crime — is not something other than the individuals who compose the college; but according to the law, the college is one thing and the individuals another, as in c. quod manumittit. and c. novit. de his que fia pia. Whence a college or university is a certain fictitious and representative person. l. mortuo. ff. de fideiuss. c. pal. c. novit, where it is said that the bishop and canons form one body. And certainly this body is not a real body, but a fictitious and representative one in the proper sense. Therefore a university cannot commit a crime, because it does not have a real body; rather, in the proper sense it is the individual and particular members of the university who commit crimes — though through that corporate body, by its voice, with respect to many legal effects.

Whence it must be noted that some offences consist in omission, and such an offence can indeed fall upon a university — speaking, however, according to the legal fiction. To this effect: C. de sa. san. ec. Thus also concerning the university ff. or. tatio in universitate. This accords with what is noted in c. cum his, twice, concerning the offence of negligence. See also what is noted in c. de illis. S. de co. di. appo. Other offences, however, consist in positive action, and in such offences one must consider what properly pertains to the university itself rather than to the individuals — such as enacting unjust statutes, or imposing unlawful levies or collections, and the like. For these cannot be attributed to individuals but to the university itself. Whence in such matters the university itself can commit a crime. See aut. iuida comitas. in aut. cassa. C. de sa. san. ec. and in c. civitas, acting as the principal, while individual members are liable as instigators, and if the act is general, see c. non erit. j. de sen. exco. Still other offences, however, are those that do not properly fall upon the university itself — such as fraud, homicide, and the like — and these are [treated differently] because they are common and arise daily.

if the university itself offends, it is punished. For this, see the text in l. Iubcinus. To the same effect, the text in many places. c. cum dilectus. de or. cogni. But if the penalty can equally fall

upon the individuals — for example, where the penalty is pecuniary — then those who consented ought to be punished. As in l. ff. de magi. cone. And in this way one can understand the passage concerning the university, at the word culpabiles. But if the college is dispersed — see above — dispersed, such as a town or city, then because in fact the offenders cannot be distinguished from the non-offenders, the university itself shall be punished. To this effect, the consilium clviii. I think it should be said that even if the offence does not properly fall upon the university, Baldus in consilium lzv. [argues that] because the university mandated others to act or ratified what was done, the university is bound, as in Parlament. S. ii. The text in c. felicis. de penis. lib. vi. supports this, as does c. tua and c. Sebastiani aposta. non. and v. q. j., where a city is deprived of its temporal dignity on account of the crime of homicide — so that although [the crime] does not properly fall upon the university, nevertheless [it is liable] insofar as it mandated or ratified the act. But regarding the manner of punishment, it must be noted that either the penalty is of such a nature that it can fall upon the university itself, and the university can be punished, or it is not of such a nature, in which case it shall be commuted into another penalty — for example, in place of excommunication, since for this see what is noted in l. ad ergo. S. pena gravior. ff. de his. q. noe. de except. Iaf.

And the true reason why a university cannot be excommunicated is on account of the penalty of excommunication itself. q. iii. omnis christianus. c. audi denique. and c. si quis presbyteri oms. de cler. taurinens. It is not fitting. As stated. Moreover, in this case the university can be “decapitated” — that is, totally destroyed by dissolving the entire college — lest the absurd consequence of which Innocentius spoke should follow, namely that innocents be punished for the guilty, when the offence is not of that kind. And for this reason Bartolus holds, in the passage cited above, that if a university is condemned to a pecuniary penalty, execution is carried out only against the offender. But if it cannot be ascertained who committed the offence — for example, because the vote was cast with white and black ballots — then either all members of the university shall be punished, or the offence shall remain unpunished. The argument is in l. ita vulneratus. ff. ad l. Aql.

But in accordance with the foregoing, the gloss touched upon this in l. Sicut. c. See many authorities to this effect in ff. de cuiusvis universi. But the gloss did not firmly establish its footing. The gloss in l. aliud. S. refer. ff. de reg. iur. established the point better. Bartolus discusses this in l. aut facta. Joannes Andreae in the aforecited c. felicis. The common and true solution is that an act is then attributed to the university when it was first deliberated upon in the university assembly with the bell rung and its registers opened for the congregation of the university. Whence if certain people of this city were to rise up and commit a certain crime, it would not be deemed an act of the university [but] of individual members of the university. Indeed, what is more, even if they had the bell rung and raised the banner of the university, those persons would rather be instigators of individuals. Therefore it is necessary that the matter first be deliberated upon in the congregation of the university. One may ask whether, once the university has been punished for its offence, the individual members of the university who committed the offences can also be punished. On this, see Joannes Andreae, following Joannes Monachus, in the aforecited c. felicis, where he concludes in the affirmative. And the text supports this in the aforecited S. in universitatem. c. romana. And more clearly, Baldus in l. aut facta, where he subtly concludes that in those offences which I discussed above — those that can properly fall upon the university — the university is punished. In other offences, however, which do not properly fall upon the university, it is entirely the other way around: the individuals are punished as the perpetrators, and the university as the one who caused the act to be done or ratified it. And in support of this, this text applies, in c. veniens. S. e. and what is noted in the aforecited c. felicis. And this is well established. But the prelate is to some extent punished temporally for failing to punish the excesses of his subjects, and likewise a father who does not punish wicked sons.

Capitulum XXXI.

Summary

1 Witnesses brought forward to prove someone is a simoniac can be challenged solely on the ground that they are enemies or conspirators.

2 A prelate, even if he is personally good and holy, is punished not only eternally but also temporally for the excesses of subjects whom he does not punish; the same applies to a father who does not punish wicked sons.

3 In notorious cases the order of law is not required, and therefore one accusing a notorious criminal does not inscribe himself [as accuser], nor is a clamorous report required.

4 Whether simony requires a charitable admonition.

5 An inquisition requires not just one clamorous report but several, though this is left to the discretion of the judge.

6 Easily believing what tends to the prejudice of another is blameworthy; otherwise it is not, because it is a sign of good simplicity.

7 A judge can proceed from his office by way of inquisition even if the accuser or denouncer desists.

8 A prelate who is under suspicion and against whom an inquisition is being conducted is not removed from administration while the inquisition is pending; it is otherwise with a guardian, because in the crime of lese-majesty he does not have as strong a right as a prelate.

9 Dilapidation of goods, and the conjectures from which it is inferred.

10 Witnesses, however criminal, are admitted in the crime of lese-majesty and heresy.

11 Simony is not always equated with the crime of lese-majesty.

12 A notorious fact of a permanent nature requires no proof, but it is otherwise with a notorious fact of law or a transient notorious fact.

13 An extrajudicial demand is required when the debtor is bound with an added condition — unless the parties are of different jurisdictions. But if the creditor cited the defendant without a prior admonition, he shall be liable to the defendant for expenses; otherwise not.

14 When jurisdiction has been invoked, the judge may condemn by way of redhibitory action.

15 Enmity arises without regard to the cause from which it proceeded, whether just or unjust.

16 A broker is not a competent witness on account of the interest he has in seeing the contract completed.

16 A procurator or advocate in the first instance is not a competent witness in the appellate proceeding; the same applies to a denouncer in the case he denounced by way of accusation.

17 Whether criminal or suspect witnesses may be admitted, with the objection reserved until after the publication of the proceedings.

18 How one proceeds against a prelate suspected of dilapidation. Whether one suspected of dilapidation is to be deposed from the administration of temporal as well as spiritual affairs. Whether a coadjutor should be assigned to a prelate suspected of dilapidation.

19 Infamy takes away the exercise of any dignity. And it has the effect that one no longer has the exercise of orders.

20 One suspected of dilapidation ought to be removed even if he is willing to provide sureties for holding the church harmless.

21 The crime of heresy is greater than the crime of simony. Heresy is proved not only by criminal witnesses but by notorious ones. Simony is not proved by infamous witnesses.

22 A cleric, as Baldus notes in c. ad fiscam, who claims that collation pertains to himself. Nostra, third.

23 A cleric who for a long time held some benefice or several incompatible ones is not thereby a thief; see the argument ad fiscalem in c. evidentia. Whether one who has lost [a benefice] after a long time can prove [his title] by oath. S. 3 accusatio.

24 A prelate who tolerates a benefice-holder remaining in a benefice and serving therein cannot afterward compel him to show his title, because he is seen to have acquiesced. And thus the prelate takes upon himself the burden of proving the defect of title. This requires proof. If a benefice-holder is tolerated in a benefice of recent grant, the consent of the superior is not thereby induced, because there is a legal presumption against him. A cleric is bound to make full proof of the title of his recently obtained benefice, since the tacit consent of the prelate cannot be inferred — which consent, whether express or even [implied],

C. Admonitio.

cannot be held [to exist]. b. o. The Curia explains this chapter, which follows and which comes to the elucidation of this matter, and it is divided into three parts. In the first, the introduction is set forth. In the second, the narration of the facts and the order of the proceedings: and for these it cites the passage beginning: ne vero.

Literal Case.

Prelates ought to correct the excesses of their subjects with all the greater diligence as it would be all the more damnable for them to leave their offences uncorrected. This is shown by the example of Helias, who, although he was personally a good man, nevertheless did not effectively correct the excesses of his sons, and inseparably received the Lord’s vengeance together with his sons — for when his sons were slain in battle, he himself fell from his chair and died with his neck broken. A prelate therefore can proceed against subjects by three modes, with certain exceptions, and all of this can be clearly seen in the text of the present chapter.

First observation from the text.

A prelate, however good and holy in himself, can be burdened and brought low by the excesses of his subjects whom he negligently leaves uncorrected. For he destroys them by failing to correct them. 2 Corinthians [and see also] c. Ephesiis. and liii. dist. c. it. c. irrefragabilis. 8. De offic. ordi. And therefore the office of prelate is no light burden, because one must provide not only for oneself but also for others here and elsewhere; and on account of this, the one who stands in eminence is afflicted more by sorrows than he rejoices in honors. dist. nervi.

A person is punished not only eternally in the next world but also in this one, by violent and temporal death.

A person who dies [prematurely] does not complete his days, according to the saying of the Psalm: the men of blood [Psalm 55:23]. The same thing that is said of a prelate applies to prelates who are negligent in correcting the excesses of their sons. For this holds. xxiii. q. iv. Note these two things. See bo. ter. 3 Elvii. dist. in S. necesse facit. c. non putes. xxii. q. v.

In notorious cases the order of law is not observed.

Therefore neither an inscription nor a prior admonition nor a clamorous denunciation is required. And so the text here says to pass over notorious excesses — and yet something must be said about this, as noted in c. nostram. S. pe. in reiu. A canonical charitable admonition must precede. And note that the ecclesiastical admonition must be charitable — that is, proceeding from charity alone, and not from a motive of hatred or for temporal gain.

In the crime of simony, this admonition is required just as in other crimes, and thus the text here seems to accord with the ruling of the gloss in c. inquisitionis. in S. Veactt. This, however, is not entirely derived from the text, because — as Joannes Andreae says here — perhaps this simony was not committed in the reception of orders or in the acquisition of an abbey. Likewise, the admonition may have been required here as a precaution. Further, the inquisition must proceed upon

a frequent report of infamy; therefore a single report does not suffice, as [it would] for ordinary crimes. The charges were not reported only once; indeed, according to some authorities, a third report is required. The argument is in c. acti ecclesia. S. de cau. pos. et proprie. Others say that a single report suffices, from the argument in l. C. de epi. audi. and c. nos. xcv. q. i. And it can well be said that this is left to the judge’s discretion and is not established by express law; regard is to be had to the number and quality of those making the denunciation and to the quality of the person denounced. The argument is in c. qualiter. el. ii. de accu.

Observation.

At the words non facile credere, etc.: a prelate or judge ought not to believe readily one who reports to the prejudice of another. This readiness to believe to another’s prejudice is therefore condemned. But where belief does not tend to the prejudice of the first person, such readiness is not then blameworthy but rather commendable goodness and a sign of innocence, as in [the saying]: the innocent man believes every word [Proverbs 14:15]. xii. q. iv.

Likewise, gather from this that when a judge proceeds by way of inquisition, the role of the accusing party is not assumed by the judge; rather, infamy takes the place of the accuser or denouncer.

Note.

At the words cum igitur, first note that if in the denunciation some difficulty is found, the superior may set it aside and proceed from his own office by way of inquisition, and the denouncer is not punished for desisting in this manner or for not prosecuting the denunciation to its conclusion, according to Innocentius. Hostiensis holds the contrary view and says that this is a special prerogative of the pope; but the first opinion pleases me more, because when one acts for the public good [and] the other [party] is excommunicated, in the same way the contention between denouncers and the denounced ought not to be a cause impeding excommunication, except in one case dealt with here — yet in this matter one acts only for the benefit of correcting a person’s life. xxiii. q. v. prodest.

Whether and when one can be compelled to show the title of his benefice.

Note the express rule here, that a preliminary inquiry and investigation by virtue of a preceding denunciation requires a prior admonition; but when [the inquiry] proceeds from the pure or mere office of the judge, [no prior admonition is required]. And the gloss in c. qualiter. ii. de accu. supports this. And there [the accused] can nevertheless show his title or dispensation, which perhaps will suffice.

Note.

This is expressed here, and keep in mind that while an inquisition is pending, a prelate who is under suspicion is not to be immediately removed from his administration. It is otherwise with a guardian, because if he is accused as suspect he must immediately desist from his administration while the case is pending. l. e que. C. de suspe. tu. and Inst. eo. 6. si qo. And the reason, according to the Doctors, is that a prelate who holds his status in a prelature is compared to a guardian with respect to the property of a ward. And concerning this, see the gloss at v. q. iii. in c. quia epi.

Further note.

The suspicion of dilapidation is proved from conjectures alone, even for the purpose of suspending the prelate from his administration — which is well noted. And this is special in this crime on account of the imminent prejudice; otherwise, conjectures do not suffice to prove a crime, as at ii. q. viii. sciant cuncti.

And note well that once it is established as proved from the evidence, if a prelate is suspected of dilapidation, and it is established that the church is impoverished, in the course of the inquisition he can raise the objection that [the accusers] were enemies; and if it appears that his conduct was bound up with debts, he can excuse himself by alleging conspirators; and if he raises such an objection of a crime under the pretext of nobility — because, as the Doctors say, and rightly so, for the time being even a nobleman must make his expenditures according to the measure of the church’s revenues. I observe here that no one should ever spend everything he receives from revenues; rather, it is prudent counsel that one always set something aside each year for future necessities.

In the third part, the pope makes an interlocutory ruling. The second part begins at: cum ergo ter. The intervenors: thus the administration of a ward’s property is managed. The pope shows in the decretal pie liv. — as is the text noted in l. si alimentorum. ff. ubi pupil. edu. de. — and if anyone were to proceed recklessly, he would easily fall into want.

Note.

At the words quasi ex dilapidatione suspectus: that in the consumption of movable goods one speaks of it as “quasi” dilapidation, but dilapidation properly consists in relation to immovable property. Therefore the text here used the word “quasi.” For this word “quasi” diminishes [the force of the term]. To this effect, see what is noted in c. putoe vel contuma.

10

Note.

In the crime of lese-majesty, all witnesses are admitted indiscriminately, including criminal ones, just as we say in the crime of heresy, concerning which see c. in fidei favorem. de here. lib. vi. And see what is noted there.

11 in c. de confess. ac. xv. q. it. nemim.

Likewise note.

The crime of lese-majesty and simony are not equated in all respects. And note from the text a good method of undermining [an argument]: arguing from a similar case by proving dissimilarity in the point from which the comparison is drawn.

Finally, gather

that an accuser is more readily admitted than witnesses, because there is not as great a prejudice in accusations as in testimony, since crimes are proved through witnesses, not through accusers. Whence in the civil law no provision is found that an enemy cannot accuse. And weigh the fact that from this title, in c. i. S. de acci., [accusation] is distinguished [from testimony], since one is repelled from testimony, as in aut. si dicat. C. de testi.

In the gloss.

At the word notorii, at: “or say that this applies in the case of a notorious fact of a permanent nature; for in the case of a notorious fact of law, proof is indeed required” — as when the sentence pronounced is denied — and in c. sicut. de re iudi. his days shall not be halved. And see the gloss at xii. q. iv. epi. And the same applies to a transient notorious fact, concerning which see as noted in c. vestra. de conha. cle. et mu. See the gloss at i. q. j. 5 manifesta.

In the gloss.

At the word inscriptio: note the gloss, because it is commonly cited in practice. And see the observation that S. xii. di. indigue.

And from this the gloss

says: where one proceeds concerning a crime civilly, an admonition is required. I understand this and restrict it to the case where one acts for the public good by way of a kind of denunciation, as when the proceeding is civil and the prelate merely removes [the accused] from his administration, as here together with c. pri. at the end. It is otherwise if one acts for private advantage, for then no admonition is required. The argument is in c. tue. de p.

13

Likewise, insofar as the gloss says that in pecuniary cases an admonition is not necessary except as a matter of propriety, Joannes Andreae says that it is required of necessity when no day was added to the obligation, for then an interpellation is required to constitute someone in default. As in l. Ibito rees alle. in the gloss. I conclude more broadly that either the obligation is without a fixed day — in which case the adversary is not placed in default unless proceedings are initiated, as in l. legati ca. ff. de q. ob. and as noted in l. debitores — or if the defendant is cited, [and there was] an interpellation, I hold that this shall bind him to the interest, because recklessly

because he acted rashly and had him cited when the latter was not yet in default. But the woman remained infamous, as follows here. In another reading, however, notoriety is itself a judicial summons and suffices to constitute the defendant in default. Ya. [holds] that if one confesses a debt, he should be ordered to pay. But through this nothing is settled with regard to this text. Wilrch. treats this matter in c. Vulterane [C.12 q.2], and there he concludes that when there is an obligation — and thus the one who acted and the defendant are of the same forum — the debtor is bound, without any formal demand, to offer the money to the creditor. And afterward the proceeding continues upon the inquisition. If the case reaches this point, a coadjutor shall be appointed in accordance with c. Venerabilis. And an inquisition shall be conducted into the truth, and once established, the person shall be removed entirely from administration. But as I have said, this chapter [capitulum] argues to the contrary, because no coadjutor was appointed here, nor was the power of alienation interdicted from the beginning. In truth, regarding the manner of proceeding against a dilapidator, the laws speak principally of a single denunciation. On this matter it seems true in the case of evangelical denunciation, where the sole aim is penance, provided the parties to the dispute can be brought to an agreement — unless one party supplies [the defect] through another means. And therefore the judge in that context is both judge and party, as in c. Cum speciali [de appellationibus]. But indeed the writers speak in various ways on this matter elsewhere. Hence I would assign various modes of proceeding as established by law with respect to that point where the judge is not a party. One mode concerns recusal, and they choose arbitrators — [in which case] there is no judge. Whence, properly speaking, regarding the same matter no one can discharge a dual incompatible office, in accordance with what is held in analogous cases.

On the gloss at the word si iudicii forma, where it resolves the matter: say as there shown. Therefore, considering the quality of the denouncer and the one denounced, and on that gloss at the word ex parte, say that there the pope supplied from his office, wishing to show favor, as appears there. And at the final gloss, so that you may understand the power of alienation — know that here the contrary holds true for a defective thing purchased where the defect is latent: when the condition was not fulfilled, the proceeding continues upon suspicion, as here. Furthermore, once suspicion has been proved, a twofold action lies. One is called the actio redhibitoria [action for rescission]: at the purchaser’s petition, the sale is entirely rescinded. The other is called the actio quanti minoris [action for reduction]: in this the purchaser sues to recover the entire amount he paid beyond the just price that would have applied had the defect been disclosed. Whence, etc. The allegation in the gloss [states] that if the buyer sues under the quanti minoris, the judge can nonetheless condemn under the redhibitoria — that is, that the sale be rescinded entirely. And this is infamy of law, on account of which the person will no longer have the exercise of his order, as I said above following Hostiensis. For infamy removes the exercise of any dignity whatsoever and takes away an honorable benefice. But note that that text speaks of the case where the judge finds the defect to be such that the person would not have been chosen at any price — and if one examines the matter carefully, the decision is not contrary to the nature of the action, since [the defect means] the thing is worth nothing, or at least that there is a surplus in the price. Therefore it is sound counsel that if a prelate is vehemently suspected on account of his fraudulent administration, he should not await the sentence lest he become infamous, but should voluntarily resign from the beginning, before the sentence — just as this abbot did, as is said below. And. says, under a doubt, that perhaps the rule is different in accusation and in denunciation, since the latter tends toward correction. But this is also the counsel of Bartolus in l. Si reus [ff. de procuratoribus]: in whatever case a person would be rendered infamous by condemnation, he should pay beforehand and not await the sentence. And in the final reading, as is commonly held, this solution is indeed not satisfactory — because although the denouncer aims at correction, denunciation customarily provokes enmity, and for this reason the enmity is not assessed by the justice of the preceding cause; rather, it suffices to render the church whole. And the doctors commonly hold this.

He says that the mind of the one or the other party could have been provoked, as in l. fin. [ff. de his qui ad indicium]. Just as one who has first brought an action is barred from testimony on account of the partiality he has — that the testimony might benefit [his position] — according to what is noted in c. fin. de testibus [lib. 6], so too one who was advocate and procurator in the principal instance is barred from testimony in the appellate instance on account of the partiality he had toward the cause, as in c. fin. of the same title, book 6. The gloss seems contrary to the text of this chapter and the following one, where it is clear that these two crimes [simony and heresy] are not treated equally in all respects as regards accusation and testimony. Nor indeed does the other reading hold that all witnesses who are admitted in the crime of heresy must be admitted in the crime of simony, because in the crime of heresy witnesses are admitted regardless of whatever crimes they are involved in. Thus they could fear the prelate if he remained in administration, as argued in [C.6 q.1, Visis]. And to this point note the statement of Innocentius in c. Cum [de re iudicata], where he says that conspirators — even those conspiring for a good end — are not admitted to testimony against the person against whom they conspired. And therefore it can be said regarding this text that here at the end the pope reserves these exceptions, removing all objections based on enmity, but from the beginning receives all witnesses and reserves the disputation until after publication [of testimony], as in c. Presentium

[de testibus]. And succinctly this was the sense of Dominus Antonius [de Butrio] on this gloss. On the gloss at the word dilapidationem, where again the matter is examined, etc.: weigh the words of the gloss, because in truth this other reading is entirely contrary to this text, insofar as it says that when one is denounced as suspect, the power of alienation is interdicted from the one denounced — and yet here that did not occur. Likewise the gloss says that if afterward the suspect should be proved [guilty], a coadjutor should be given to him — yet here none was given; rather, he was simply suspended from administration. Hence the gloss here considered other legal authorities that it cites, which seem to be contrary to this text, nor does the gloss otherwise respond to this text. But on the text, many press the point, and they seem finally to conclude that

Extra gloss: I ask about the common practical question.

A bishop presses against a cleric, his subject holding a benefice, that he show the title of his benefice. The cleric responds by requesting that a formal complaint [libellus] be presented to him, since he is in peaceful possession of the benefice. The bishop replies that this makes him even more suspect, as though he wishes to proceed for his own advantage. The question is: what does the law hold? Hostiensis concludes

that regarding dilapidation, two inquisitions are conducted. The first is dealt with summarily: it is examined whether the person is suspect of dilapidation, and once this is established, he is suspended from administration. Then the second inquisition takes place into the truth of the matter. The first [summary] inquisition takes priority because there is a fear that if the person remained in administration, he would corrupt officials and obstruct the inquisition into the truth. Therefore he is suspended from administration by a special mode and a special procedure, as in c. Venerabilis [de officio delegati] — unless there were fear that he might not induce canons or other clerics to show their title — without any presentation of a formal complaint; nor is an appeal admitted to the contrary, just as an appeal is not admitted against a correction, in c. Ad nostram [2], c. Reprehensibilis [de appellationibus]. So too no appeal lies from this act, which is carried out on the occasion of correction. For if he does not have a title, he holds the benefice in sin and deceives the souls of his parishioners, as in c. Dudum [el. 2, de electione]. Likewise because this inquisition into title can be conducted even in general as part of the judge’s office.

he was notorious and a notorious criminal does not celebrate [the sacraments] without a dispensation.

Regarding expenses, add the following. And [regarding] the exercise of his order, as I said above following Hostiensis: for infamy removes the exercise of any dignity whatsoever and takes away an honorable benefice. And it carries its effect through. On the question whether one can be a witness in a cause in which he was a mediator, see Se. in c. Cum nobis. He would speak less well if he said otherwise, for the giving of surety does not change a malevolent disposition, as in Institutiones, de suspecto tutore. And this is especially so if he is a bishop who is a perjurer. On the gloss at the word indifferenter, at the end, concerning the tutor, see Platim. in c. Cum deputati, at the penultimate column, above, de iudicis. And say as I said in c. Quoties, above, at the same chapter: then the gloss would state the matter so strictly. But then in the final gloss, and declare the end of this chapter as I said, because there it is more clearly held that exceptions were admitted.

The pope replies that he intends to proceed by way of inquisition, because the benefice has devolved; this cleric is bound to show the title of his benefice. The cleric responds by requesting that a formal complaint [libellus] be presented to him, since he is in peaceful possession of the benefice. And the bishop replies that he intends to proceed by way of inquisition, because the benefice has devolved. In the final gloss, and declare the end of this chapter as Hostiensis concludes: this cleric is bound to show his title without any presentation of a formal complaint, nor is an appeal admitted to the contrary — just as an appeal is not admitted against a correction, in c. Ad nostram [2], c. Reprehensibilis [de appellationibus]. So too no appeal lies from this act, which is carried out on the occasion of correction. For if he does not have a title, he holds the benefice in sin and deceives the souls of his parishioners, as in c. Dudum [el. 2, de electione]. Likewise because this inquisition into title can be conducted even in general as part of the judge’s office.

as in c. Grave [de praebendis] and c. 1 de institutione. This he restricts, however, to a recent matter; it is otherwise if the matter is ancient — both because it is imputable to the bishop who allowed a tacit [toleration], and because he is deemed to have consented by his silence, as in c. Ex ordinario [de his quae fiunt a maiori parte capituli], and because proofs and Joannes Andreae after him in c. 1 de regulis iuris, book 6, and [the right] through archbishops in c. Ordinis and by office to compel a subject to show his titles.

he has obtained the bishopric or has long remained [in office], proof is by oath, as argued in l. Si arbiter [ff. de probationibus], and from Sebastianus Sapta.

On the three criminal readings.

Hostiensis says that the proceeding is to be by general decree and everyone should establish proof of title. On the criminal proceeding, see Roffredus in the rubric. It might be doubted whether such proof by oath suffices in a judicial proceeding, at the penultimate column, where, given the antiquity of the matter, if by common law the presumption were against the one holding the benefice — as one who possessed two incompatible benefices — extensively and usefully [he discusses] the sick person. [He says] he retained the dispensation and lost it; and because it would not suffice, he does well to make [provision] in the ordinary chapter. Palla. and c. Contra morem [c. Dixit]. I am sufficiently of the opinion that this question should be carefully considered, having regard to the length of time and the quality of the superior predecessor of the beneficed person who tolerated him — just as we say in analogous cases.

[Regarding] the burden of proof: as noted in c. fin. [de iureiurando], when scandal would greatly result and if the superior tolerated the beneficed person, then one should have recourse to proving that title even by oath, because he is deemed to have consented, as argued by the cited authorities in c. Ex ore. The glosses hold this in the cited passages. Conversely, the superior himself can take upon himself the burden of proving the defect of title, as argued in c. Ordinato [de praebendis]. This opinion of the doctors, I think, must be limited: unless by common law the presumption were against the possessor, in which case that tacit consent would not suffice — since one cannot consent [to what is against the law]. And through this [is resolved] Palla. [on] c. Ordinarii, which speaks indistinctly, as though the matter were recent, or [whether] the superior did not consent tacitly or expressly.

[He is obliged] to make full proof of his title, as argued in the cited c. 2, Memini, and as noted in Palla., in the gloss, and [this is supported by] what Joannes [Andreae] noted in c. Super his, after the bishops, de accusationibus.

So holds Baldus in [the case of] one who has a special interest. And if he is not seen to have consented to this person, he could press the matter, and the other would be compelled to show the titles of his benefice. This was the holding of the [Holy] See, consilium 98, and [it is] to be fully carried through as stated there. And these questions, being of daily practical occurrence, keep in mind.

Capitulum XXXII.

one sometimes is not said to proceed criminally, even though one does not sue for a private advantage.

5. Whether therefore an abbey, and therein [the crime of] simony, as in heresy. [Sections] 6, 9, 1, 2, 3.

And the moderators follow.

4. Unsuitable witnesses [testes inhabiles], if admitted in some case, do not make full proof unless other supporting evidence [adminicula] is added.
5. The word si [if], when taken comparatively, stands in its proper sense; when taken relatively, it stands improperly, and does not establish a rule of law.
6. The word maxime is the same as praesertim and stands comparatively.
7. An abbey is not said to be an eminent [dignity], but rather is numbered among the lesser dignities.
8. Equality is to be observed in such a case, and otherwise.
9. The simony that has a connection with heresy — namely, that which holds that the grace of the Holy Spirit can be purchased — is perhaps the greatest crime that can be found. Other simony, of the sort commonly committed, has other crimes that are greater.
10. If criminal witnesses are admitted for some proof, perjurers are not included among them unless special mention is made of them.
11. Improprieties [of expression] are to be avoided.
12. If, while an inquisition is pending, the person becomes a bishop, should the inquisition be abandoned?

And in substance it says the same thing as the preceding [decretal]. It is divided into two principal parts: in the first, the consultation; in the second, the division, at the word Douterie. And this second part is subdivided: for the first [sub-part] distinguishes regarding which matters; the second cooperates with the point raised, recapitulating the facts and connecting the interlocutory ruling of the preceding decretal; the third trans-

ferring, concludes; the fourth recites the cession, there at Hec nota; the third there at Tales; the fourth there at Italie. In the preceding decretal, because the proposed abbot raised several exceptions about the witnesses brought against him on the charge of simony — and the pope admitted some exceptions and rejected others — whence it appeared that criminal witnesses ought to be admitted in the crime of simony. Thus it was decided. Because [suitable witnesses] cannot easily be found, since they frequently perish over the length of time, therefore he says that in this case recourse to oath will suffice.

Nevertheless [they should provide] prompt proof: that is to say, where the matter is ancient — as where a person has long stood in peaceful possession of a benefice — it suffices to prove the title. How this is to be understood, [see] In noverimus, etc.

First rule, from the text.

When one proceeds against a beneficed person only for removal from administration, the proceeding is said to be civil and not criminal; nor is the person properly said to be accused. And from this, note well the singular points in de officio ordinarii, book 6, and c. Contra Moze. For the common conclusion is that where the bishop tacitly consents, he cannot afterward — even though the matter involves a crime — proceed criminally, since [the proceeding] tends toward vindication insofar as the crime is punished by the established penalty. But when one proceeds only for removal from a benefice, the principal aim is not to punish the offense but [to act] for the public good, so that the unworthy and harmful person cannot retain the title, nor does he consent tacitly or expressly — because from a notorious [offense] injury is done to the church.

On this point, the relative clause can be distinguished, and the opinions reconciled and supplemented: either the matter is ancient but the superior did not retain the title and did not consent tacitly or expressly.

Second rule: because the cause concerns the crime of simony in a criminal proceeding

in captivity — and then he will also have a special [right]. Criminal witnesses are not admitted. And from this the basis of that opinion of Hostiensis is clear. And on account of the antiquity of the matter, he admits a distinction between this crime and the crime of laesa maiestas [treason], because there even infamous persons are admitted although the proceeding is criminal, as above.

[This is to be understood] as noted in c. Illud, by a presumption — both because there is some presumption in favor of the title since the person was tolerated by the predecessor, and because [the doctors] understand simony as being like heresy, and the law above. And this opinion of Hostiensis, thus [is explained] in section 3 at the word indifferenter, commonly as set out.

4. Note particularly this singular point, which occurs daily in practice, concerning restricted simony.

For when one is promoted to the bishopric, it is customary today to conduct a general proceeding concerning the title of the benefice. When criminal witnesses are habilitated, the confluence of these qualifying conditions is required. But here the text habilitates, as argued in c. Decernimus [de sententia excommunicationis, book 6]. For a special provision is required, and habilitated criminals do not come within [its scope], as argued in c. An [4], [de fide iuris, de haereticis, book 2].

An objection [arises] from the text: whence it is otherwise with the excommunicated, because they are not treated [in the same way].

Likewise note, according to the common interpretation,

[where the person] is either incapable of holding the benefice and alleges that he had various concurrent qualifications — concerning which see below in the text — not, however, so as to make full proof; rather, it is necessary that other supporting evidence [adminicula] be present. This the text notably proves.

And lastly I conclude that the rules of the regular status [of religious] not only remit in part to the law, but a remission by the judge of the case also occurs for lesser causes, even without observing the full order of the law in all respects, as though a quasi-supplement of legal procedure were provided for removal.

But the matter is ancient. These concern the crime of [simony]. Here he touches successively upon two initial readings: that criminal witnesses are admitted as witnesses if they have been reformed. And then the word praesertim placed in section 5 stands for tamen [nevertheless]. And the third reading is that criminal witnesses, even those persevering in their crimes, are admitted together with other supporting evidence; then the word praesertim is to be expounded simply, according to the variety of readings and interpretations, and is more fully discussed at the word taliter, and there I shall speak on the matter. And through this the second gloss is to be explained, which is at the word praesertim: if it is expounded as meaning tantum [only], the exposition is improper. Nevertheless that singular reading [holds] insofar as it maintains that when the word praesertim is expounded as meaning tantum, it is an improper exposition; the proper exposition, therefore, is that it be taken comparatively — as Palla. wished, above, on the word taliter. [The term operates] comparatively, because it presupposes the same thing in its correlative position or in the contrary case: so the meaning is, “especially when the witnesses have been reformed of their crime” — that is to say, even when they are not reformed they are admitted, but they are admitted more readily because they are reformed. And from this he infers that since in statutes words must be taken in their proper sense, as noted in c. In nostra [de iureiurando], this word praesertim in them properly imports a comparison. And the same is to be said of the word maxime — that it be taken comparatively, as noted in the gloss on c. Auditis [de electione] and c. Quam frequenter, in the section Porro, concerning whether even infamous persons are admitted in the crime [of simony] when the suit is not yet joined.

On the gloss at the word de simoniace, at the end: he simply holds that the same rule applies in other excepted crimes. Although the doctors pass over the matter without qualification, it does not seem true in all respects here. For I concede that those who are admitted [as witnesses] in simony are admitted in the other excepted crimes, but not all who are barred here are barred in the other excepted crimes. The point is clear in the crime of heresy and in the crime of laesa maiestas [treason]: there, infamous and criminal persons are admitted without distinction, as above. And in judging — given equality of persons — here in the crime of simony they are not admitted without distinction; rather, the considerations set out in the text must be observed. Although these and certain others are called excepted crimes because they do not follow the rules of other crimes in all respects, nevertheless one crime is more severely punishable than another, either because of the magnitude of the crime, or because of the privilege of the prince or of the church, or for some other consideration.

On the gloss at the word excellentiores: note thus the gloss together with this text, that an abbot is not judged to hold an eminent dignity, but rather an abbey is counted among the lesser dignities.

And at the end of the gloss, note: because the conclusion of this gloss does not resolve the objection but rather strengthens it. For if equality is to be observed in judicial proceedings, then greater and lesser persons ought not to be punished differently. Therefore, by way of a better resolution, it can be said that equality tends toward the declaration of what is to be observed in judicial proceedings, given an equality of persons. Where there is a difference [between the persons], then to maintain equality would in fact be to create inequality, as argued in c. De multa, at the end [de praebendis]. And on this see what is noted in c. Novit [de iudiciis].

On the gloss at the word vel minora, where the objection is raised: today say rather as is held in c. 1 de testibus, book 6.

On the gloss at the word paria, where “the greater the crimes,” etc.: the whole gloss [holds] that in these excepted crimes, witnesses are admitted even those involved

entangled in evil offenses — what those offenses are on account of which they are deposed — yet at that point not so much credence is afforded. According to the quality and gravity of the offense charged, the judge weighs the credence to be given them. Hostiensis’s view is not satisfactory, because an objection lies against it: for the crime of simony is greater than other crimes, since all other offenses are reckoned as nothing in comparison with it, and the text here says as much. Therefore no graver offenses can be alleged against [such witnesses]. But the doctors say, commenting on this text, that even within the crime of simony itself there are degrees of greater and lesser — as when the case concerns a simoniac who could be removed without scandal and supporting evidence is present: in that situation, witnesses — excepting the prohibition that simoniacal persons, in accordance with what is established, must be admitted as witnesses even if not excommunicated, whether or not the judge wishes it, as stated in the gloss on c. ex parte, de officio delegati, as I discussed in c. j. eodem quaestione — how much credence is to be given them the judge shall weigh according to the quality and gravity of the offenses alleged. Less credence is afforded where the offenses alleged are graver than where they are equal or lesser, and still less, as it were. I would, however, think this true where simony exists in its [proper] form — as where someone believes the grace of the Holy Spirit can be purchased for a price. But I think otherwise in the case of simony as it is committed in our times, which is of positive law.

If, however, any of the foregoing conditions were lacking, I would not consider criminal witnesses admissible. And if the person against whom proceedings are brought is a secular, or if he is a regular but the action is criminal, or if he is of a more exalted dignity — this is clear from the ease of dispensation, as noted in c. de simonia, in the gloss on the word distinguenda, where it says that concerning a secular, criminal witnesses are not admitted even in the crime of simony unless they have already reformed. And interpret this gloss as I shall discuss below in the gloss on the word taliter, where the sense of this chapter will be clarified.

In the gloss at capitales, note how what constitutes capital enmities: state it as I discussed there. And note this gloss in the other passage at farti at the end: the gloss well [explains that] under the general [rule] this chapter must be understood as applying to the specified excepted crimes in simony, on account of its purpose.

Whether criminal witnesses are to be admitted — even those not yet reformed — when the conditions set out in the provision that qualifies criminal witnesses as competent are all present: it is otherwise if any of those conditions is lacking. For instance, if a perjurer is involved, must a perjurer then be admitted as a witness? In the gloss on the word debilitaret: note that this gloss seems not to apply if one understands the reading in this way. Just as in the case of si peccaverit [“if he has sinned”], the judge ceases from the inquisition where some interest may be at stake by reason of expenses or revenues, or the action is brought by someone [with standing], as in c. testimonium, de testibus, where it is clear that not only in an excepted crime but also in other offenses reformed witnesses are admitted when the action is civil, even without other supporting evidence. Therefore state the better view, as in [the gloss on] the word [taliter].

The judge should not proceed to removal once a cession has been made, except with care. In the gloss on the word taliter at the end: from this gloss it is gathered that if some other interest is at stake — by analogy to the law post sententiam — the gloss [teaches] that the text should be understood as positing two readings regarding criminal witnesses. The first reading must be framed according to the conclusion of the libellus and the foregoing chapter. But if the action was brought simply for correction, then because once cession has been made the crime is sufficiently addressed in the opinion of [various authorities]. But this reading is of little or no use today, on account of c. testimonium, de testibus, where the text generally [provides that] where [a crime] is not punished the court may proceed, as Hostiensis holds. And the doctors here raise another similar question: that during an inquisition, whatever the crime and against whomever it is brought, reformed criminal witnesses are admitted provided the action is civil. Therefore this reading is not to be followed, by analogy to l. Labeo, ff. ad carbonianam [Digest], so as to avoid a correction of the law, as in c. cum expediat, de electione, Liber Sextus. Nevertheless, since according to this reading an abbot is promoted to the episcopate, will the judge desist from the inquisition and conclude that it should proceed only so as to impose penance rather than to remove him from the episcopate? A promotion made while an inquisition is pending is, however, invalid — distinctio tantis. As to the first part, the text is applicable in the word praesertim: its true signification is that it functions comparatively, and that it posits the same [rule] in the contrary case as in the case at hand. As to the second part — whether the promotion holds — state the matter as I discussed fully in c. omnipotens, above, de accusationibus, etc.

Thus. And these improprieties of expression are to be avoided, as noted in c. intelligentia and in c. praeterea below, de obligationibus significationum, and in l. non aliter, ff. de legatis. The second reading was that of Odofredus, Oldradus, and Zancretus, according to which criminal witnesses must be admitted — even those persevering in their offenses — in this crime of simony, since it is an excepted crime, provided however that the considerations specified in the text, which I shall set out specifically below, are present. And then c. testimonium is neither corrected nor restricted, but proceeds as a general rule. And this chapter applies in this crime of simony since it is excepted. And this reading is the more agreeable one.

[Hostiensis] held, in c. near the end, understanding praesertim as meaning “especially,” as it ought to be interpreted. Hostiensis, you say that although many points are scattered in this matter across many chapters instructing judges through this chapter, nevertheless the position to be maintained is that this matter is discretionary, since the pope here does not speak in specific terms but has rather set out these considerations generally for the instruction of judges. He says, moreover, that the judge ought to consider whether the action proceeds by way of denunciation, and in that case all criminal witnesses are admitted — even women and those of ill repute — provided they have reformed, both for the purpose of denouncing and for testifying. To this effect, note q. i., si peccaverit, and c. movit.

Of prejudice. If, however, the action proceeds by way of inquisition and the crime is an excepted one, then criminal witnesses and women are admitted — not under the rigor of law but according to the tempering of equity — which is to be moderated at the judge’s discretion. The judge ought, moreover, to take many considerations into account. The first concerns the mode of proceeding: that they should proceed more readily, with equity weighed, by way of inquisition. The second consideration concerns the person against whom the action is brought: so that the judge admits criminal witnesses more readily against a regular than against a secular, and more readily if the regular is of an inferior grade than if he is of a more exalted dignity, and more readily if he is of ill repute and can be removed without scandal than if he is of good reputation and scandal would attend his removal. The third consideration concerns the persons of the witnesses: so that the judge admits upright witnesses more readily than criminal ones, and reformed criminals more readily than those persevering [in crime], [distinguishing those motivated] by zeal for justice from those [motivated] by the stimulus of hatred. The fourth consideration concerns the offenses alleged: whether they are lesser offenses, or equal, rather than graver ones.

The fifth consideration is whether supporting evidence is present, so that witnesses may be more readily admitted.

Some [are admitted] when supporting evidence requires it, and [not admitted] when it is lacking.

Others state the matter differently, but Johannes himself afterward departed from this opinion. He held that this tempering of equity is not to be left to the judge’s discretion, since it is expressed in the law as a general rule — by analogy to c. final., de transactionibus — although, as he concedes, even though it is expressed in the law, it nonetheless constrains [the exercise of] favor. And the gloss here sensed this, at the word an paria [“whether equal”].

If, however, any of the foregoing conditions were lacking, I would not consider criminal witnesses admissible. And if the person against whom the action is brought is a secular, or if he is a regular but the action is criminal, or if he is of a more exalted dignity, or if other supporting evidence is not present, etc. — for since through the provisions of this chapter there is a departure from the common rules of law [holding] that criminal witnesses who persist [in their offenses] ought not to be admitted, this chapter is to be understood restrictively: one should say that the crime of simony in question is one that does not have heresy annexed to it. For if one were to follow the opinion of Hostiensis, the judge’s power to relax and restrict the law in this matter would be too broad. Therefore, concluding clearly, state that this chapter must be understood as applying to the specified excepted crimes in simony, on account of its purpose.

Capitulum XXXIII.

A person simoniacally elected is not harmed when money was given despite his prohibition.

Namely, in [rubric] 7, c., whether [one must] relinquish the benefice obtained, at the end. Alfonsus can be promoted to the rectorship of a secular church, or [the question of] one excommunicated, and whether to inferior churches — treated by cross-reference. One elected as abbot must be confirmed by the bishop to whom the monastery is subject.

One who pays money for another’s promotion also commits simony.

The chapter [holds that] during a vacancy the [cathedral] chapter has the power to confirm an elect, but not to confer benefices. On the reason for this distinction, see the cross-reference. If a prelate commands someone under pain of excommunication to do something, and [the command] has not been obeyed, no one thereby incurs excommunication, because this is rather a kind of admonition.

Whether I can ratify that which was not done in my name — [this is relevant] to anyone.

The confirmation is not to be imputed to the elect if, despite his prohibition, money was given in connection with his confirmation. This is the summary, in three parts. The first sets out the consultation. In the second, the response, at [the word] In. In the third part a certain determination is set out, at [the word] illos. The literal case: when the monastery of Aulne was vacant, the monks elected one of their own — a prudent and discreet monk — as abbot. And because the church of Liège, which is a cathedral, was without a pastor, he went to the church of Cologne, which is its metropolitan, and with its permission he administered the monastery of Gembloux in the interim. Afterward a bishop was installed in the church of Liège. When the elect requested confirmation from him, the bishop was unwilling to confirm him. But when it was discovered that this was being done for money, [the elect] pronounced an excommunication that no money should be paid on account of this matter: whoever acted to the contrary would be excommunicated. And so, at the bishop’s invitation, he freely received confirmation and institution just as he had requested. Now word has come to the attention of this abbot, and he doubted

whether he could lawfully minister in the office of the abbacy. He inquired of the pope what he should do. The pope responded that according to the canons, even children who through the cupidity of their parents have obtained churches by means of money must relinquish them. And in favor of others — since it is one thing, far different, not to give consent, and another to expressly prohibit — nothing ought to be imputed to him as punishment or guilt, since he did not withdraw [consent] while another person promised and paid money without his knowledge, especially since that person was not joined to him by any consanguinity, unless previously bound by such a legal tie. Otherwise it would happen that through the treacherous schemes of some hostile party — and the result would be odious [even] to one who entirely disapproved — and thus someone would derive advantage from his own deceit.

Those, moreover, who received [the money] are themselves culpable, and if their transgression were manifest, they would be subject to canonical punishment by the church.

[Whether one can be promoted] to the rectorship of a secular church: concerning the episcopate there is no doubt, as in the Clementine, de electione. But whether one can be promoted to an inferior secular church, see with the gloss in Baldus, Clementine de electione — I treat this fully in c., and on the question of fear, de statu. And Romanus [holds] that confirmation of one elected as abbot pertains to the bishop of the place to which the monastery is subject. Likewise by analogy, with the gloss, q. 28, c. 1, and the good gloss treating generally concerning the confirmation of elects in c. per eum, de electione, Liber Sextus.

[The bishop stands] in place of a son, while the abbot [stands] in place of a father.

On the distinction: with truth considered, there is the greatest difference between an express prohibition and silence.

And the final notable point: that those who commit simony, even in favor of others, are to be deposed. This is supported [by the text]. And in other [passages] at the end, or according to Innocentius, perhaps this metropolitan church was patron of the monastery. Consequently, during a vacancy, they have the power of custody, as in c. vos, de officio ordinario. Thus [the metropolitan] could give this elect the power to administer. But today this opinion of Innocentius does not hold, on account of c. avaritiae, de electione, Liber Sextus, whereby an elect who has not been confirmed may not administer under any pretext offered, otherwise he incurs the penalty [stated] there. Therefore the opinion of the gloss holds. And as to why the chapter can confirm an elect during a vacancy but cannot confer benefices pertaining to the bishop, state as noted in c. cum olim, cited in the gloss, both there and in the gloss on the same chapter at sub interminatione at the end. Note the gloss that this comes up daily in practice among those regulars who command simply that something be done under pain of excommunication — for it is doubtful whether [such a command] constitutes an excommunication; rather, it is a kind of admonition concerning excommunication [to be imposed] if the one commanded is not obeyed — and this accords with what is noted in the title de communibus vel episcopi, almost throughout.

And this bears on the question of when a judge commands someone to do something and immediately imposes a penalty when [the command] has been [disobeyed] — that is, a threat of a penalty to be inflicted — see what is noted in the Speculum, de exsecutione sententiae. And you have many similar glosses in c. ij., de matrimonio contracto contra interdictum ecclesiae, and in c. salonitanae, distinctio xiii, and in c. unico, de sagittariis, and there more fully. I shall discuss, following Johannes Andreae, whether in some case [such a command] is to be treated as an excommunication.

On this question — whether one who is silent is to be taken as consenting — state as noted in the rule qui tacet, de regulis iuris, Liber Sextus. And I discussed this more fully in c. nonne, de praesumptionibus. But note that this chapter does not speak of one who is present and silent, but of one who is absent and ignorant. It is far different to expressly contradict and to be ignorant, because one who is ignorant does not, in truth, contradict. In the gloss on the word imputari at the end, note that although the gloss draws a distinction for the case of this chapter between [the situation of] a confirmed elect, it does not openly reveal whether the confirmation was invalid by reason of simony. And Innocentius speaks here in general terms, according to the gloss.

But Johannes and Hostiensis hold that although an election so made is not valid, the confirmation is nonetheless valid. Hostiensis, however, holds the opposite, saying that such a confirmation is quasi-purchased, and is understood [to be valid] only insofar as it does not invalidate the election previously made of that person.

And the opinion of Hostiensis accords, according to Johannes Andreae, with the principle that one seeking confirmation is dealing with a right yet to be acquired, where he appears to have acquired a right through simony committed by another. But in favor of Hostiensis’s opinion — he who seems to draw distinctions between one who is ignorant and one who contradicts, holding that the act of contradiction has a certain effect — Johannes Andreae himself distinguishes thus: he gives Hostiensis’s opinion that the confirmation does not hold; but in the case of one who expressly contradicts, he said it cannot be denied that such a confirmation is simoniacal.

Furthermore, certain others, restricting this matter still more, say that [the confirmation is tainted] even as if money were given in fraud of the very person who was to be elected or confirmed, and so is simoniacal. Understand this text, which ought to be interpreted as meaning that [the simony] is not to be imputed to him as a penalty or with respect to the possibility of dispensation; but certainly the election is not satisfactory. I follow another opinion, such that whether money was given to the one confirmed without fraud or with fraud, when the elect contradicts or even when he does not contradict, [and] where fraud intervened, such a

confirmation should not be annulled. And see this opinion proved by this text. As to the passage — for the word Qui [“who”] functions adversatively with respect to what follows — it says that even children are bound to relinquish benefices acquired through simony committed without their knowledge. As to the statement that “it is far different,” etc.: [the simony] should not be imputed to one who contradicts, either as guilt or as punishment. It should therefore be understood that imputation arises from the fact that [the person] expressed both prohibition and his own will, by which he subsequently consented as a penalty — so that the confirmation is annulled and he is bound to relinquish the benefice.

Otherwise [one might argue that] the word Qui vero [“But he who”] would not be adversative at all, for it is certain that one who is ignorant and does not contradict does not incur guilt along with penalty — nor even if he afterward consented by paying or repaying the promised money. There would be some doubt concerning one who is ignorant, or concerning one who says he was entirely outside the normal course [of events], and these cases must be resolved as doubtful cases — l. Labeo, ff. ad carbonianam [Digest]. Nor does it avail to say that this confirmation is simoniacal, because even though simony intervened on the part of the giver, lest the culpable act of that person prejudice one who expressly contradicted, such a confirmation is tolerated, for since that person was suitable, he might well have been confirmed even without money.

Those, however, who gave the money [are to be punished].

And one who expressly contradicts is treated the same as one in whose fraud the money was given; but the act of that [other] person ought not to be undone.

Note, third, that [the rule concerning] the monks is relevant to this matter. Note, further, from this chapter that although silence may be taken as consent, state [the rule] that those [committing simony] in favor of others are to be deposed. This is supported. And in other [passages] at the end, or according to Innocentius, perhaps this church. Where the remainder [of the discussion] bears on the passage cited here after the word et in sacra: because it is one thing to yield or buy a promise, and another to consent to it after the fact. As for the other point — since the matter pertains to a question of law — ratification has no place here, because the sale or purchase — that is, the payment of money — was not made in his name, but was made by those who involved themselves in sin by approving a blameworthy act. And so I understand the said chapter. And as to what Johannes Andreae says, relying on [Causa] 25: whether this person is bound on that account to relinquish the benefice or can be deprived of it — I say yes, joining the simony from the beginning with his subsequent agreement carried out afterward. This is what the text means here at the words nisi postea consenseris [“unless he afterward consented”], etc.: otherwise there would be no valid exception. Or [to put it another way,] let him not act under penalty of a thousand pounds, so that one who does not comply does not incur [the penalty].

Capitulum XXXIV.

One commits simony if he gives his goods to a church on condition that he be received as a canon and retain those same goods as his prebend. It is otherwise if no agreement preceded.

One does not commit simony if he purchases prayers or gives temporal gifts out of mere liberality for the purpose of obtaining a benefice.

A prebend that consists in temporal goods can also belong to a layperson. It is otherwise if it is annexed to a canonry.

Whether simony is induced by simoniacal intention alone.

Conventional simony is not remitted except through restitution of what was given and received. Mental simony, however, is abolished by penance alone.

One commits simony if he corrupts a judge or witness in a spiritual cause.

A cleric confers with an agreement.

And there are two parts. In the first, the consultation. In the second, the response, at [the word] devotionis, which proceeds by distinguishing two members, and submits a determination. The literal case: a certain cleric offered some of his goods to a church, requesting that the same cleric be admitted as a canon and be permitted to retain those same goods as his prebend for his lifetime. The question is whether it is lawful to accept those goods and for the same cleric to be received as a canon without the taint of simony. The pope responds: if a cleric offers his goods with a condition or agreement so that he may afterward retain them as a prebend and be admitted as a canon, such an offering or reception cannot take place without the taint of simony, since in such matters every agreement or arrangement must cease, in accordance with canonical sanctions. If, however, he freely offers [his goods] purely and without agreement or condition, humbly requesting that he be admitted as a canon and be permitted to retain his goods as his prebend, and the clerics give their consent purely, such a reception may well take place without simony. At the end, the pope says that we have determined this matter should be resolved thus, since one who makes such a donation with the intention of observing it — so that through the temporal goods he offers he may obtain spiritual things, and the clerics would not otherwise receive him — in cases of doubt such persons are judged culpable before God, from whom no secret is hidden.

Note, first, from the text, that earnest prayers offered for the purpose of obtaining a spiritual benefice do not constitute simony, nor does any other agreement, even an ambitious one. This holds even if a prior donation of temporal goods made freely had preceded. This chapter furnishes an excellent basis for the principle that one should always bear in mind regarding these cardinals or

freely, but to other prelates to whom one brings certain small gifts or presents while requesting some benefice to be obtained. For if they are not led by a principal intention to acquire spiritual things, and only secondarily entertain such a hope, they are judged to be beyond all fault. For as is said in c. Is beli [8 eodem], that which is done to the prejudice and infamy of another cannot occur without secondary hope, and Innocentius and Hostiensis say this [with reference to] c. tua, de aetate et qualitate.

Second, gather

that a prebend can consist in temporal things of three kinds. And such a prebend can fall even to a layperson.

On this, understand the gloss in c. cum [de vestimentis]. And if anyone says that a prebend is called a spiritual right, this holds true for that which is annexed to a canonry and so understood. [See the] Collecta, supra de praebendis, and see what Innocentius notes in c. maioris. But these matters briefly.

Either one is simoniac in receiving holy orders, or simoniac in conferring holy orders, or in a benefice. Note also that canonical right is spiritual right: hence it does not fall to a layperson. And in c. ii, de institutionibus and what is noted there. For the sake of good [order], it is not permitted to promise and give temporal things, as is said in c. Iacob, primo eodem.

In all orders, even those lawfully received, and at the time of receiving spiritual things, a donation of some temporal thing may be made, provided it is done freely. [This is supported by] c. in praesentia, de probationibus, together with c. ad apostolicam, primo concordantia; and see the gloss that discusses this in c. emendari [1 quaestio 3; 1 quaestio 2; c. quam pio, 1 quaestio distinctione].

In the final gloss, Innocentius says that in prohibited matters, the simoniacal intention alone induces [the stain of] death. Those things are called prohibited which are simoniacal with respect to spiritual things and by divine law — such as selling sacred things and the like. And this is what Innocentius wished [to say] here and in c. tanta, supra eodem.

[These opinions] are found in c. eos; and see the gloss on clerics. In simoniacal matters that are prohibited, intention alone does not induce simony — as when someone renounces his benefice with the intention of obtaining some temporal thing. [See] de poenis, in verbo non nonam.

Whether one suspended from office is also suspended from benefice — [relevant texts] support this. See the notable gloss in c. ex parte, de officio delegati. Joannes Andreae [held] without distinction that intention alone does not induce simony except mental simony, and there he speaks in a similar [vein], distinctione c. nullus; 7 c. preter.

And I understand this to be true regarding one who committed simony [in conferral], but otherwise regarding one who received the order [simoniacally]. The difference is greater between mental simony and conventional simony. For when another commits simony while the recipient is ignorant, even then the latter is truly suspended. In conventional simony, one is bound to restore such things — whether spiritual or temporal — unlawfully received, and cannot otherwise do penance, as in c. [ingratitudine], in paroechia. But in mental simony, it can be absolved by penance alone, as is proved [by the fact that the recipient] lawfully received [the order] and is not [deprived] of benefices previously lawfully obtained or to be obtained; [see] c. de simoniace, 3 eodem. There Innocentius wished this. I think the same in c. finali eodem titulo, where the text speaks without distinction of all spiritual things. It proceeds therefore whether they are spiritual things by divine law or by constitution of the Church, since [the text] does not otherwise distinguish. [See] distinctione finali [on this matter].

[The question] what happens if the person has been sleeping [i.e., ignorant]. That chapter, so introduced, admirably proves this opinion.

¶

And from another [perspective]: if someone corrupts a judge or a witness in a case involving spiritual things, this constitutes simony. [The author] concludes that it does so on account of a certain connection with spiritual things, or it will be quasi-simony; [see the] argument in c. nemo and c. sequenti. But if one gives money in a purely temporal case, that is not [simony] — the opposite [position appears] in the Paleae, c. poena, and he considers that to be true. I conclude therefore that a simoniac bishop can confer orders, even though he is suspended by law. One ought not to act against one’s erroneous conscience before first setting it aside, and one who does otherwise prepares a seat for himself in eternal fire.

Capitulum XXXV.

Per tuas [X 5.3.35].

One ought not to receive holy orders from someone whom one believes to be a simoniac. But one may minister in those [orders] which one previously received from him.

The actual case.

A certain monk of the Carthusian order received the order of the subdiaconate from his diocesan [bishop]. Afterwards he came to understand that this bishop had frequently committed the sin of simony, on account of which the same monk was afraid to minister in the order he had received, and was also troubled about being promoted to higher orders by the same bishop. On this matter the pope, having been consulted, responded that he may securely minister in the order he received, but for the sake of conscience he should not ascend to higher orders, lest perhaps he build toward Gehenna; and because he had fallen into greater difficulty from having had a conscience that was excessively scrupulous — yet he will not escape it unless he sets aside his errors.

The first rule, from the text: the argument [is] that a simoniac cannot confer the exercise of orders, because he himself does not possess it, just as one who is suspended cannot offer to another [what he does not have]. For no one gives what he does not have [c. Daibertum]. I shall speak on this more fully below.

The second rule: where there is no sin in believing [something to be the case], or where one cannot inform one’s conscience and it remains in doubt, one ought not to act against conscience — even an erroneous one — unless one first sets it aside. And to this point this text is daily cited.

Finally, gather

that to act against one’s conscience, even a scrupulous one, is to build toward Gehenna — that is, to commit a mortal sin, which is punished by

nothing other than the penalty of Gehenna, that is, of eternal fire. And “to build toward Gehenna” means to construct for oneself an edifice unto eternal death, having a conscience that is excessively scrupulous and erroneous. In the final gloss at the end, say as is said in c. Is beli [8 eodem], that to the prejudice and infamy of another one ought not easily to believe others, and so the text speaks here. But where another’s prejudice ceases, credulity is not blameworthy [21 quaestio 2, Innocens]. Therefore this monk ought not to have readily [believed such things].

It must be asked whether a simoniac is suspended ipso facto. [This involves the opinions of] many [authorities]. But I set this forth briefly and clearly through three categories.

Either one is simoniac in receiving holy orders, or simoniac in conferring holy orders, or in a benefice.

On the first category:

one who is simoniac in receiving an order — say that such a person is suspended not only from that order simoniacally received, but also from all other orders, even those lawfully received, and consequently he is removed from the administration of temporal goods of the benefice. The reason is this: there are indeed many orders, but the sacrament of orders is one; therefore, if one commits simony in one, one wounds the entire sacrament of orders, and so one is suspended from the exercise of all of them, and consequently from the administration of goods. This is what Innocentius wished here and in c. tanta, supra eodem. The text supports this in § verum [1 quaestio 9]; they are found in c. eos; and see the gloss thereon. And [the discussion] in de poenis, in verbo non nonam treats generally whether one suspended from office is also suspended from benefice. [The same] support [is found] in distinctione c. nullus; 7 c. preter. And I understand this to be true regarding the one who committed simony, but otherwise regarding the one who received the order while another was committing simony in his ignorance — even then this person is truly suspended, [but only] from the order simoniacally received, not from others which he previously lawfully received, nor from benefices previously lawfully obtained or to be obtained; [see] c. de simoniace, 3 eodem — there Innocentius wished this. I think the same regarding one who unknowingly received an order from a suspended simoniac.

On the second principal category:

one who is simoniac in conferring orders. On this point, opinions vary. One view held that such a person is not suspended with respect to others. And Innocentius inclines to this here, unless [the conferral has persisted] for three years, as in c. poena, primo eodem; and thus the one receiving the order is punished more severely [than the one conferring it simoniacally], because the recipient has a defective order, whereas the one conferring it — though he sins by conferring unworthily — [does not have the same defect]. But Innocentius himself inclined to the opposite in Paleae, c. poena, and considered that to be true. I conclude therefore that one who confers orders through simony is himself suspended ipso facto perpetually from all orders — [this is established] through the decretal together with the gloss in the Paleae, c. si qui a simoniacis. The text here also supports this, as do [other authorities], and [also] the good gloss. Accordingly, from such a simoniac, so long as he remains occult, we ought not to receive any sacraments except baptism and the Body of Christ in time of necessity.

On the third principal category:

one who is simoniac in a benefice. Either he is a notorious simoniac, and he is suspended ipso iure — as noted in [the discussion of the] Paleae, veritas, and as Innocentius [says] here and in c. tanta, supra eodem. Or he is occult, and he is not suspended but is to be suspended [by judicial process]; [see the] argument [in] 1 quaestio [3]. Innocentius says notably here that with respect to that benefice which he acquired simoniacally, he is suspended from all orders. If someone purchased an episcopate (though not the order itself), he cannot validly ordain clerics, because that collation proceeds from that purchase of the benefice, and therefore those ordained by him do not have the exercise [of their orders]. This is very noteworthy; I cite 1 quaestio 3, c. ea quae. And from these [conclusions Innocentius] now infers [certain matters] for the understanding of that chapter, for the elucidation of a few parts of divine [law].

The gloss. For first, this chapter can be understood [as follows]: this monk was erring in law, because he believed that one who was secretly simoniacal in conferring a benefice was suspended. Therefore the pope said that this man was in error. This does not please Innocentius, who says that although it may not initially be a sin to misunderstand a canon of positive law, after one has been called and instructed by a superior, one gravely sins by not setting aside the error; [see the] argument in distinctione nulli. And note this dictum: what is commonly cited — that to misunderstand law or canons is not a sin — is [qualified by the rule] that the person who through this misunderstanding commits some delict is not excused, because ignorance does not excuse in delicts; [see] de poenitentia, distinctio 2, sciendum, and c. per tuae, primo concordantia, secundo.

[The chapter] can also be understood [to mean] that [the monk] was erring in fact, because he believed on the basis of some presumption that the bishop was simoniacal in orders. But since the rumor was not certain, he should not have abstained from receiving orders — unless he had an excessively scrupulous conscience. But on the other hand, the letter of the text implies the contrary. The solution: Innocentius said that to receive orders is a matter of free choice, but to minister in orders already received is a matter of necessity, as in c. queris, de aetate et qualitate. Therefore that man should have informed his conscience according to law with regard to orders already received; but in orders yet to be received, one ought not to be compelled, for the reasons stated above. Likewise, according to Hostiensis, conscience more readily errs in matters already undertaken than in matters yet to be undertaken, because many things impede what is to be done [in the future], as in [various texts] qui clerici vel eorum and quemadmodum, de iureiurando. And Innocentius also inclines to this here: the pope dispensed in orders already received, because at that time [the monk] was ignorant; [see the] argument in c. si qui.

From the foregoing, [Panormitanus] explains the final question of the gloss: whether one may

receive an order from someone whom one knows to be a simoniac — and in which cases, therefore, the rationale ceases. And what I have said concerning simoniacal persons who are suspended applies equally to the excommunicated, the deposed, and the suspended: however occult they may be, they nevertheless do not confer the exercise of the order.

Capitulum XXXVI.

¶ An archbishop, although he does not have jurisdiction over the subjects of his suffragans,

may nevertheless abolish a depraved custom. And [the cleric] has a benefice constituted for him from the revenues of that church. And note well that one may seek a certain portion — [that is,] one ordained to the title of another’s church may lawfully seek a portion there. And understand what I said: that for investiture or only for provision, nothing should be exacted from the churches; where the portions are directed to sustenance, one ought not to [claim] merely on account of the portion. And it seems that a division of the benefice was made; [see] c. maioribus, supra de abbatibus; but [the beneficiary] ought [to do more].

[The text] deals with two matters; the second is at “the depraved [custom].” And [the text] sufficiently conveys that a cleric [is in this position]; [see the] argument in c. proposuisti, supra de temporibus ordinandorum. Note: the subject matter is divided, for first [the pope] narrates the facts, and second he orders correction. And there [is discussed the principle] that what was done [may have been] lawful, etc. — [but] ignorance of law does not excuse from a delict; [yet the offender is] to be punished more mildly; [see] “cum vero.” The literal case: certain suffragans of the Archbishop of Canterbury were accustomed to receive a fixed sum of money.

And [see] c. conquerente, de clericis non residentibus. These men, fearing the canonical penalty and desiring correction, anticipated the time of payment, with both sides looking to their interests. Thus the ordained cleric may directly seek a portion and is bound to reside there and serve in divine worship; but if he should fail to reside, then he could be deprived of this portion or title. According to Joannes Andreae on the said c. conquerente, the same applies if the resources of the church were insufficient. But it could be said according to him that that chapter does not speak in the strict sense — namely, since avarice taints the grace to be conferred, the one who first receives money from the person presenting [the candidate] has only himself to blame [for the consequences]. But the text can also speak [of another case]: the expressed form manifests the appearance of a sale. [This concerns] a successor who was not at fault; and this [is important] for the understanding of that c. conquerente. And thus the pope orders the archbishop to suppress excesses of this kind and to punish his suffragans and their officials in such a way that the fault of others not be imputed to him as a penalty on account of his own negligence. In the second gloss, at the end, [the commentator] says here that the text notes well. At the end, he says that the archbishop ought to extirpate from his province that depraved custom according to which, for the investiture of churches, they exacted a mark of silver. Other prelates [exacted] a white cow or a fixed sum in lieu of a cow. [Joannes]. And the text there [establishes] from the principle that one sin begets another: sins lead the sinner to further sinning. Note secondly that a variation in the time of payment, or a change in name, does not excuse a contract or [render] its unlawful [terms licit] — [one must look] not only to the words but also to the nature of the contract.

The second rule: a sale is more strongly established when the price precedes the delivery of the thing from which it follows;

because the delivery of a thing can pertain to many kinds of contracts, but the delivery of a price cannot. Note also that only an archbishop can punish his suffragans, on which see c. ut litigantes, de officio ordinarii, libro sexto and c. sacro, de sententia excommunicationis; and also the officials of suffragans who offend in their capacity as officials, on which see the aforesaid texts. And from the text another limitation is gathered: although in other cases one who is simoniac in orders is suspended not only from that order simoniacally received but also from others, nevertheless — and keep in mind that an archbishop can abolish the depraved custom of his entire province [c. ex frequentibus, de institutionibus; see also c. per tuas, supra eodem titulo] — in the case of this chapter, the person is suspended from the illicitly received order but not from others, as appears in the text. This occurs for the reason stated above. In such a case: one who ordains or presents under such a pact is punished more mildly, provided the matter concerns the entire province and the sin is notorious; [see] c. Romana, § notoria, de censibus, libro sexto. In the gloss, in the passage “qui paius,” at the end, according to Hostiensis: care should be taken about the return [of payments] if the price was paid within a certain period of time; [see] Digest, de aedilicio edicto, l. aediles, § finali and the following law, and the same is noted in l. si traditio, Codex, de actione empti. In the final gloss, note therefore from the gloss and the text that even for an investiture already performed — that is, for induction into corporeal possession — nothing may be exacted. For an archbishop can perform investiture of fact, not of right, as in c. ad haec, de officio archidiaconi. And thus for possession nothing should be given where the underlying matter is involved. The same portion, when the fruits are considered, is something temporal. The abbot therefore remitted this obligation of a temporal thing in order to obtain a spiritual right. And to remit in these matters is the same as to give, as in c. veniens, clausula prima, de testibus, libro sexto.

Capitulum XXXVII.

¶ One ordained to the title of the church of another cleric, with that cleric’s consent,

is obliged to provide for his own sustenance.

6. A bishop may do all things which the pope has not specifically reserved to himself.

And here I touch upon the subject matter of this section.

7. Simony is committed if someone was received into an order for the purpose

of being unable to seek anything further; he cannot ascend to higher orders without a dispensation. The case: a certain cleric who wished to be ordained as a subdeacon did not have a title [to a benefice].

He did not have [a title]: he asked a certain priest to present him to the title of his church. But since the priest was unwilling to do this, [the cleric] promised him that he would never seek any portion in that church if [the priest] would present him; and so by virtue of this presentation he was ordained. It was stated that this man was [numbered among] the clerics. And from these facts another question is deduced: whether he may minister in that order on his own authority, and whether he can be promoted to higher orders.

The first rule, from the text: not only abbots but also lesser prelates, namely rectors of churches, may present others for ordination to the title of their churches.

[Yet such a cleric] is to be compelled [to abstain] only in two cases: if he is a notorious fornicator or simoniac in orders, as in the previously cited § verum. But Innocentius [held that] a council may so decree without a judicial proceeding, at least for notorious [offenses] of those churches, as appears in c. poena, de iure patronatus. And from this he extends [the rule in] c. [finali] and [concludes that] the same holds true for any sin that impedes the exercise of orders — so that one cannot be ordained without a benefice of one’s own or of another, not even after penance has been completed, because the rationale is the same in these cases. And which those delicts are is noted in Paleae, c. nisi, § de conscientia, de renunciatione. And I examine this article more fully in c. cum non liceat, de praescriptionibus. For it suffices that one be ordained to the title of another’s church. From this it follows that he ought to receive sustenance from the fruits of that church, as if [holding] a claim.

Capitulum XXXVIII.

1. ¶ Simony is committed if anyone gives or receives money

so that his [clerics] may live from the revenues of that church and serve there in divine worship in equal number — unless the resources of the church would not suffice. [This concerns payment] for the administration of spiritual things.

Ignorance of law does not excuse one from a delict, though it mitigates punishment.

5. The ways in which spiritual things are understood in law.

4. The right of patronage cannot be sold except with the universality [of goods to which it is attached]; nor

can it be adjudicated in a secular court.

¶ Conventional simony is more detestable than mental simony.

[The chapter of] Consulere does not need a summary because it is brief, and in other words it can be summarized thus: simony [is committed] for a vicariate or for any other administration of spiritual or ecclesiastical things. One ordained as a subdeacon who promised to give money to his original presenter, [on the condition that] nothing would be sought from him, cannot minister in the order received or ascend to higher orders without a dispensation.

7. Those who give and those who receive are to be expelled from that church. D[ecretum].

The literal case. It was inquired of the lord pope what should properly be said concerning simoniacs. The above makes clear that whoever obtains any administration for money — both those giving and those receiving — are struck with simony, and they are expelled from that church to whose dishonor they wished to receive money. Note first, from the text, that a certain injury is inflicted upon

a certain injury is inflicted upon that church which acquires money for the perpetual right of purchasing; likewise if administration is granted for money in that church, because this renders that church or its administration venal. This accords with what is said above under the same title, and in c. Audivimus below under the same title.

Second, that simony is committed not only in obtaining a spiritual benefice, but also in any administration of ecclesiastical property; and thus this is simoniacal because it is prohibited. Concerning these administrations, the matter is treated at length in C.2 q.3 Salvator q.1. And from this you will observe, following Johannes, that certain things are spiritual according to their essence — some of these are incorporeal, others corporeal. The first kind, namely incorporeal things, cannot be sold even in fact, because they do not fall within the scope of agreement nor can they be appraised — such as the virtues and gifts of God; concerning these, see C.1 q.1 c. in c.1 and the Gloss there. But corporeal things cannot be sold by law, though in fact they are sold — not, however, without the taint of simony; for example, the relics of the saints, as in c. f. q.5 de reliquiis et veneratione sanctorum. Certain things are spiritual by reason of their cause, such as the sacraments taken both in the strict and the broad sense. For the sacraments are spiritual by reason of their cause, because through them we obtain grace; and because these are corporeal, they are susceptible of a price — though not without the taint of simony — as in c. Modo satis, and c. Cum in ecclesiis above.

Certain things are spiritual by reason of a statute:

such as religious life, and concerning these there is further discussion in c. Dilecti etc., and c. Veniens above. Certain things are spiritual because they depend on spiritual authority, as in c. Ad aures above. And others are spiritual by reason of office, as in c. Ad nostram under the same title. In these things, no sale may intervene. And what pertains to a cleric by reason of his orders is treated there as well. Fourth, by publication — such as ringing the church bell, closing the doors of the church, and similar acts — and if someone is an administrator of ecclesiastical property, these things cannot be sold. For they have a certain dependence on spiritual things, as do prebends and benefices, as we have explained above. Certain things are annexed to spiritual goods because they are dedicated to the use of spiritual things, such as sacred vessels and sacerdotal vestments and the like.

Concerning the right of patronage, it is certain that since it is annexed to spiritual goods, it cannot be sold, as in c. de iure patronatus; but it passes with the temporal estate as a whole, as in c. Ex literis under the same title de iure patronatus. Nor can the cause of the right of patronage be determined in the judgment of lay persons, as in c. Quanto de tutoribus. And in the Gloss there, [it is noted that] if women have entered improperly, they should be removed; and when others of the same order have gained access to the matter, then one must consider: either a pact intervenes, and the person commits conventional simony, which is extremely detestable; or no pact intervenes but only a depraved intention, and thus it is mental simony, which is not so execrable because it is removed through penance alone without restitution, as is said in c. Tua under the same title, and as is held in the final chapter under the same title.

Capitulum XXXIX.

Simony is committed if anything is received for the consecration of bishops,

or for the blessing of an abbey, or for the ordination of clerics, notwithstanding any custom — which holds true even if payment is received after the fact. The chapter Plata [Sane] made mention of this first.

Simony is not committed if those admitted to orders are compelled to give something for the fabric [of the church], provided there is a constitution regarding this and provided the order is first freely conferred.

And it is not simony if, at the time of chrism, a census otherwise owed to the bishop is given to him, provided there is a custom regarding this.

Just as it is certain that the matter is different with respect to the penalty for past acts — and thus with respect to that penalty, one is considered not to act [simoniacally] — for the consecration of bishops and the blessings of abbeys and the ordinations of clerics, no custom excuses. The text first narrates the excess and its excuse. Second, it rejects the excuse, prohibits the excess, and adds a penalty, at the word tum.

The literal case.

In many places, exactions are practiced by many prelates for the consecrations of bishops, blessings, and the like; and it is fixed how much must be given to this person or that, or to another of this sort, defending such depravity through custom. The Council thoroughly rejects this custom — which ought rather to be called a corruption — by expressly prohibiting anyone from presuming to extort or exact anything under any pretext for such purposes; otherwise let both the one who gave and the one who received be condemned together with Simon [Magus] and for simony.

Note first that a bishop must be consecrated [freely].

And it can also be gathered from this that monks and nuns should not be entrusted [with the handling of money] even on the pretext of poverty; this holds true here and likewise, just as a soldier of the armed militia must attend to arms, so too a soldier of the celestial militia must attend to divine things. But if perchance something else could be said to them, because Hostiensis himself holds that it can be induced by custom that the person being ordained should give something for the fabric of the church and for divine worship, provided nevertheless that the order is freely conferred — but afterward the ordained person may be compelled to observe a praiseworthy custom, as in c. Ad apostolicam below and as is noted there. And Hostiensis says this well, that not only from lay persons but also from clerics something may be obtained under the pretext of custom for divine worship and the needs of the church. And see below on this in the final question, in many passages toward the end, and in c. Jacobus below, where I shall discuss this.

And according to the doctors, the custom is also valid that a census otherwise owed to the bishop is delivered at the time of chrism, because it is not given principally for the chrism. Note this.

An abbess or prioress or other female prelate does not come under the designation of “nuns.”

Under the designation of “nuns,” monks are not included.

A constitution declaratory of ancient law that adds a penalty is said to innovate with respect to the penalty, to the extent that it is not applied retroactively.

Ignorance of the law excuses nuns, and even monks who do not leave their cloisters.

Whether ignorance of the law excuses clerics — since they too are soldiers of the celestial militia. Necessity excuses a person from theft with respect to both penalty and fault. Whether someone who commits a sin on account of poverty is excused. In a time of necessity, all things are held in common. Simony does not impede a monk to such a degree that he could not, apart from this, have a place in that monastery. Nuns, even on the pretext of poverty, ought not to receive anything from those wishing to enter monasteries. Simony is not committed if anything is received for the consecration of bishops, or for the blessing of an abbey, or for the ordination of clerics, notwithstanding any custom — which holds true even if payment is received after the fact.

Capitulum XL.

Religious persons are to be expelled from the monastery and thrust into stricter monasteries to do perpetual penance. But those received before this council who were received in such a manner are to be placed in other houses of the same order, unless their number makes this impractical; yet they must renounce their original reception and be received anew. And there are four parts: first, it provides for the future; second, for the past, at the word de his; third, it orders a prorogation to be made, at the word verum.

It has prevailed through simony that when a man wished to receive certain women,

he did so, and whoever hereafter commits such depravity — whether the one receiving or the one received, whether she be a subject or a prelate — those received in such a manner are dealt with by the council, and it decrees that those monasteries shall publish this [decree] annually.

And it should be noted that the reception of nuns pertains broadly both to others among the nuns; and observe that other nuns are permitted to be ignorant of the law.

A constitution declaratory of ancient law that adds a new penalty does not extend to past acts.

This constitution proves the point well, because before this conciliar decree this simony was committed, as in C.1 q.3, Notandum.

And it can also be gathered from this that monks and nuns should not be entrusted [with the handling of money] even on the pretext of poverty; this holds true here and likewise: just as a soldier of the armed militia must attend to arms, so too a soldier of the celestial militia must attend to divine things. But if perchance something else could be said to them — for Hostiensis himself holds that they may be sent to a nearby place of study — and the law favors and urges and commands them [to study], as in various texts on election and in the Decretum, dist. 38 c. Ignorantia and the many chapters of that distinction. But soldiers of the armed militia cannot idle about; rather, they must attend to the welfare of the republic. And Augustinus says there: you dare not seek to perform mortal [sin], as in c. Discipulos, de consecratione dist. 5, and c.3 de furtis, where one is excused from theft on the pretext of poverty. Johannes Andreae objects that necessity does not excuse from fault but only alleviates the penalty. And all the more so should nuns be excused, since they do not leave the cloisters of the monastery, as in c.1 de statu regularium lib. 6. But concerning monks this text is to be well noted; yet Hostiensis holds that this can apply to monks insofar as they leave the cloisters — and since today they go to hear law lectures, this ignorance is readily permitted to them. There could also be doubt regarding secular clerics, since soldiers too are permitted to be ignorant of the law, as in l.1 C. de iuris et facti ignorantia, and a cleric enjoys the privilege of a soldier, as in l.1 ff. de rerum. Just as a soldier of the armed militia must attend to arms, so too a soldier of the celestial militia must attend to divine things.

And [in c.] Discipulos, where the students are excused from both fault [and penalty]. Second, he resolves that poverty, in the case of genuine necessity itself, excuses. This solution is not universal. And an objection is raised, as in a certain quaestio: a person ought rather to die of hunger than to commit perjury by idolatrous oath, and similar things; and those acts done on the pretext of poverty are not to be committed. This holds true here and likewise — see the text there with the Gloss. And therefore conclude thus: acts that are evil in themselves — such as adultery, homicide, perjury, and the like — are not to be committed on the pretext of poverty; this holds true here and likewise.

[One must rather] suffer evil than consent to evil, as in c. Ita and c. Sacris, discussed at greater length in the Gloss. But certain things are good in themselves, and even if they are evil [under ordinary circumstances], nevertheless in a time of necessity all things ought to be held in common, as in dist. 37 Sicut; and therefore one does not commit theft at such a time, because one does not destroy another’s property. But understand this to apply when the necessity is so great that the person would perish of hunger if the thing were not taken, and when he cannot be helped by others — and then necessity excuses from all fault. And thus understand c. Discipulos. But when there is necessity that is not so extreme, then it alleviates the penalty and the fault but does not entirely excuse; and thus understand c. De eo.

One is excused from the taint of simony on the pretext of poverty, because [monasteries] must abstain from [simoniacal] reception; only so many should be received as can live from the revenues of the monastery, as in c. Unico de statu regularium lib. 6. And you have a similar Gloss in c. Non satis under the same title, and Hostiensis follows this Gloss, specifically in c. Cum in ecclesia under the same title, for it amounts to remitting what is owed by law as sustenance, even though [the person] does not have food from the monastery, as in c. Per tuas III under the same title. Poverty does not excuse, as is the case here; but say as I have said in c. Non satis, that through a pact and arrangement it is not permitted, but by way of a simple contribution it can be sufficiently sustained — as the Gloss supports. This was also the view of Dominus Antonius [de Butrio]; yet the safer course is that this should in no way be done, by the reasoning of c. Perniciosi de statu regularium lib. 6.

And there I believe that the present law must be followed, etc. The Gloss holds that today regulars received through simony ought to be deposed, whether one proceeds by way of ingratitude or by way of accusation; and according to this reading, the distinction drawn in c. Dilectus under the same title will be abrogated. But Innocentius and Hostiensis maintain the first reading of the Gloss, so that the mode of proceeding is distinguished — which pleases me sufficiently with respect to nuns, who do not have orders, as in c. Monachos de poenis et remissionibus. [In the case of monks,] this chapter will be observed without distinction. Observe what he says — that in effect they are deposed; and this is true of a monk who is not a cleric, but in the case of a monk who is a cleric, deposition operates more powerfully than simple suspension, at least with respect to dispensation, given what is noted in c. Tuae de clericis non residentibus. And in the Gloss, or according to Hostiensis, they are to be thrust into a prison cell within the walls of the monastery, and there, leading a harsher life — consider the Gloss with the text carefully — lest they wander about damnably in the world. And there it is elegantly proved that simony does not impede the monastic state itself, even though it impedes [the simoniac’s] place in that particular monastery; for if, with simony impeding, they were not [truly] nuns, they could return to the secular world without damnation — [but since simony does not impede the monastic state, they remain nuns and cannot], and this is maintained.

Capitulum XLI.

Those simoniacally received through extortions: the exacted amount must be restored twofold.

If, however, a person is received [in this way], these [amounts] are not to be discharged in the forum of conscience.

Simony is committed not only in purely spiritual matters but also in things annexed to spirituality.

And there are three principal parts. In the first, the facts are narrated. The literal case: certain former rectors of churches subject those churches to interdict and do not permit anyone to be instituted in them until money is paid. Likewise, when a soldier or a cleric enters a religious house, or when someone chooses burial among religious, they feign [obstacles] until they receive some gift. This came to the attention of the pope, who responds that — since the Apostle commands us to abstain not only from evil but from every appearance of evil — such exactions are to be deemed harsh, and whoever commits them shall restore double what was exacted, to be faithfully converted to the benefit of the places from which they were paid. Note that nothing should be exacted for the institution of a rector or for the consent given at such institution. Second, note:

The case concerns the institution of a rector; if money is exacted for institution [it is simoniacal]. And note further a case in which what is simoniacally exacted must be restored twofold — and this is stated in the text under the same title, where nevertheless what is illicitly exacted is to be restored; nor in any other law under this title is provision made concerning such doubling. It can be said that the former rule applies when someone acts simoniacally by common agreement of the giver and the receiver, whereas this third case concerns what is exacted by a superior, as it were, on account of the difficulties by which they sought to extract this money. And note this well, as in c. Procurator de censibus, and in the chapter on exactions under the same title lib. 6. And as to whether, in the forum of penalty, those exactors are bound to restore double what was so exacted, I believe not, because in the forum of conscience it is not necessary to pay what is imposed by way of penalty.

In the Gloss there, [the phrase] “because we redeem his own,” etc. — note how badly the Gloss speaks, because it takes “institution” here to mean the free collation of a benefice or the confirmation of an election — that is, institution by law. And if this undoubtedly constitutes simony, then in this case [the superior] wrongfully denies institution to others, to whom it ought not [to have been denied]; rather, the matter should have been referred to the higher superior. And this is the apt text in c. Sicut under the same title; c. Nullius de iure patronatus also supports this. Nor is such a person obliged to buy off the vexation inflicted upon him; indeed, he should rather have recourse anew, for this case concerns a spiritual right being given, not a right already acquired being defended — which is what he says.

Under the same chapter, or else one takes “institution” here as it is in practice — that is, as induction into possession, which occurs after a fuller transfer [of rights], as in c. Ad haec and c. Ut uti, according to the distinction drawn by Archidiaconus. Then, for the acquisition of such possession, no temporal thing may be given by pact, since possession pertains to law; and hence it is that a lay person cannot possess a spiritual thing, as in c. Cum de praescriptione; or at least it is conjoined with the exercise of a spiritual right. And truly nothing should be enjoyed from spiritual things [for a price], as in C.1 q.3 Si quis obiecerit and in c.1 de iure patronatus. This was the view of Innocentius in c. Ad aures under the same title, and see the Gloss de furtis. But there is one reading on the point that these nuns cannot [do this]; note c. Maiores C.16 q.7. See what I have said in c. Dilectus, where I touched upon whether and to what extent it is licit to buy off one’s vexation, etc.

Capitulum XLII.

Simony is not committed if, after the reception of orders, something is given to the ordainer, provided there is a custom regarding this; nevertheless, no prior assessment or surety of payment should precede, but these things should be conferred freely; and whether after ordination the person can be compelled to give.

The bishop has jurisdiction over lay persons to compel them to observe praiseworthy customs of the church.

Custom in favor of the church is established through acts that are purely voluntary, even by lay persons.

And in England the living do not pay anything by way of tithes, but at death all movable goods are tithed.

Things to be conferred in apostolic manner: yet the ordinary compels lay persons to observe praiseworthy customs.

And first it sets out the excess of clerics. Second, it provides for both parties, at the words et propter id.

The literal case. Certain clerics exact and extort money for the blessings of those being married, for funeral rites of the dead, and for similar things; and unless they are satisfied, they fraudulently raise fictitious impediments. Conversely, [certain lay persons] strive to undermine praiseworthy customs introduced by the devotion of the faithful toward holy Church, under the pretext of piety. Accordingly, the Council prohibits these exactions from being made. It orders that pious customs be observed, decreeing that ecclesiastical sacraments be conferred freely, and that the bishop of the place, having ascertained the truth, restrain those who maliciously attempt to alter a praiseworthy custom.

And first note from the text that although, once all temporal exaction by those conferring [the sacraments] has been removed, nothing temporal should be rendered by way of exaction, nevertheless something may be freely and spontaneously conferred upon churches, nor are sacred things thereby said to be sold — to this effect, c. Grati and c. Collectus II under the same title. And a custom can be introduced by which lay persons confer something upon churches; on which see more fully in the cited passage of the Gloss. And Romanus [Hostiensis] says there, at the word libere, that even where a custom of giving something exists, the sacraments themselves must be conferred freely. From which it follows that no surety may be exacted for them. Note also, at the words per episcopum loci, that the rector of a church cannot decide anything concerning custom or compel the people to observe this custom; rather, the reasonableness of the custom must be examined and declared by the bishop, and the compulsion must be carried out by the same bishop.

And third, note a singular case in which — in the second part, the prohibition is made at the words cum igitur; in the third, punishment is ordered — the bishop has jurisdiction over lay persons so as to compel them to observe a praiseworthy custom introduced toward the church. And keep this text in mind, so that the bishop may claim jurisdiction not only where the reasonableness of the custom is apparent, but also in determining whether the custom itself is praiseworthy — from this text, at the words veritate cognita — just as a judge examines whether a matter falls within his jurisdiction, as in c. Super res under the same title de referendariis, and in l. final. quaestio ex aliena ff. de iudiciis. So too can the bishop examine the foundation of his own jurisdiction — namely, whether the custom is praiseworthy — for given the reasonableness of the custom, lay persons who [violate it] commit sacrilege or transgress against the church itself, in which case the bishop claims jurisdiction even over lay persons, as in c. Cum sit generalis under the same title de foro competente.

In the final Gloss, in this Gloss two readings are gathered. Concerning the third reading, it posits at the end that one should understand this as referring to the custom by which lay persons abuse [their position] in wishing to institute clerics in patronage churches, or in wishing to elect where the church is collegiate. But in truth this reading is not applicable to the text, which speaks of a custom introduced by lay persons in favor of the church; for the fact that a lay person presents or consents to an election was not introduced by the custom of lay persons, nor principally in favor of the church or of clerics, but rather in favor of the patrons themselves, and it was introduced through the tolerance and permission of the church, and as a favor so that lay persons would be induced to construct churches, as in c. Quoniam de iure patronatus. Thus it was rather by force and pressure; and therefore it can be gathered that the text here should be understood as referring to a custom arising from the spontaneous will of the giver. And by this [reasoning] is resolved the claim that lay persons wish to punish clerics before any degradation, saying that they do this in order to purge the province of all evils — for these and similar examples are not consonant with this text; on which see the final Gloss at C.12 q.2 Frater, concerning praiseworthy custom introduced by lay persons in favor of the church, which now certain lay persons were seeking to undermine.

And therefore he gives a second reading, which he posits at the beginning of the Gloss, [a reading] unique and singular, and not proved elsewhere except here — namely, that it should be understood as referring to the custom by which lay persons were accustomed freely to offer churches certain temporal things when they received the sacraments. The Gloss itself intended the same reading of the text in c. Sua under the same title. But Innocentius wished to restrict this reading greatly, saying that it should be understood [only] when lay persons strive to alter this custom by solicitation, or [to argue] that something ought not to be given; but it should not be understood to mean that if something was customarily conferred at the time of the conferral of a sacrament, the person can be compelled to pay it. For he adduces the argument that if a gift was customarily given through penance, no one can be compelled to pay it.

Thus, if someone pays by way of addition or unwillingly, then that payment was simoniacal — being introduced by divine law and therefore imprescriptible, as in c. fi. de consuetudine [X 1.4.11]. But if someone pays voluntarily, then he cannot be compelled to pay. However, if something has customarily been given not at the time of conferring sacred things but after the fact — as is the custom where men during their lifetimes did not pay the archbishop a palfrey at his installation or some equivalent, nor anything from tithes, but at death all movable goods are tithed, and also in Brittany where at death a third part of all goods is given, to be devoted to divine worship and alms for the poor — then this custom proceeded from the root of avarice, prohibiting the solemnities of installations for those who do not observe such a custom. They can be compelled, since for such a long time they have been paying to elected abbots of the Cistercian order, thereby adding that the archbishops and those [abbots] voluntarily obligated themselves to this. The conclusion is that Innocentius [IV], in a brief epitome, sets forth the form of profession and its intentions as follows: that if there is a custom that something should be liberally given at the time of sacred things, and such a custom has been established. Laypeople who wish to enact contrary statutes so that nothing is owed, or who agitate [against these customs], can be compelled. Tract. 4. Ro. [notes] first that monks and abbots, even of the Cistercian order, are subject to the archbishops of their localities; and that these [religious] have many privileges by reason of privilege. Note in c. cum ordinem. But if one has not had a privilege, [the payment] is voluntary in origin, and therefore no one ought to be compelled. Regarding the jurisdiction of bishops: those who have [privileges] must therefore prove the privilege if they allege [exemption]. Otherwise, where something has customarily been given after a free conferral, Hostiensis says, and others too, that by common law all clerics and prelates of whatever dignity and status are subject [to their bishops]. One who freely pays with no preceding exaction can then be compelled to observe the custom; yet the compulsion shall occur after the conferrals, as in c. cum venerabilis de relig. do. [X 3.36.8], and in c. j. de offic. ordin. [X 1.31.1], in c. cum episcopo and similar [chapters]. In support of this, one may cite c. ex parte de censibus [X 3.39.6]. And on that reasoning, Innocentius says in that [chapter] — showing that where [payments] have customarily been given afterward — it appears that the elected and confirmed [abbot] freely introduced the installed [person], placed in the choir, as having been deputed and obligated to that. He says the same if at the time of conferral no exaction arose. Hostiensis holds the same view, giving an example that is more forcefully applied in the case of an abbot’s position. Therefore, from this installation alone the installed person acquires possession of the benefice and its properties — see this treated elegantly by Innocentius in c. in litteris de restitutione spoliatorum [X 2.13.5]. It was customary, as it still is, that a certain amount be given at nuptial blessings; loaves of bread are customarily given; at the ordination of clerics, hand-towels are customarily given. So he expressly held that what was given at the time of conferring sacred things to the bishops of the localities — namely, subjection, reverence, and obedience. Not only, therefore, are they subject to bishops, but they must also show them reverence and obey their lawful commands that are not contrary to the common rule. In consultu j. [the text states] “a palfrey at his installation,” etc., and this decretal supports that point. Moreover, this custom can be so harmful to the churches themselves — although it can sometimes be profitable — for if the head of a household were to live a hundred years, this decretal [applies] to the title, since he was giving something temporal through this installation. That pope prohibited this and wished that bishops be content to tithe those goods once in a hundred years, and thus the church loses out. Conversely, it can happen that within three days the father, son, and grandson die in succession, and thus those goods would be tithed three times in three days. Likewise, regarding whether a custom concerning tithes is valid, state the matter as noted in c. j. de obed. lib. vj. [VI 1.18.1], in c. ad apostolicae, in c. a nobis, c. tua, section de venditionibus. Zenzellinus [adds], and distinguishes, yet I see nothing good [in this approach]. He will therefore say how or whether what is to be rendered by customs has some just cause — as laypeople [may act] straightforwardly through monks who elect. Johannes Andreae says one must abide by the intervention of the cathedraticum [i.e., the episcopal tax], and then [the payment] is to be rendered. The same applies if one need not specify the cause of a custom observed among them over time. But I think that where no custom appears requiring that installation be performed by the archdeacon — since governing pertains to him by common law, as in c. et nimis — such that sacred things, having first been freely conferred, [should proceed] as Hostiensis says there. If indeed [the matter concerns] the office of the archdeacon, here nevertheless the solemnity is removed, not something that must be rendered at the time of sacred things that tends to the benefit of the clerics themselves in performing the installation. Then compulsion may occur; otherwise, if payment is made after the fact without fraud, then [it is permitted].

Again, the opinion of Innocentius, for the understanding of this chapter: see what I discussed fully in c. sua, section 8. He excludes the view that this term should be understood as referring to what is customarily given freely, whether at the time of conferral or after the fact, such that it is done generously. Presupposing a custom, compulsion or any exaction at the time of sacred things [is permissible] — provided that the custom was introduced not from a preceding exaction but from the pious devotion of the faithful. The text of this chapter seems aptly to prove this. For at the beginning it made mention of clerics exacting [payment] for the sacrament, and immediately added [the case] of laypeople wishing to alter a praiseworthy custom. Lightly, therefore, the tail does not surpass the head, according to the note in c. maiores de baptismo [X 3.42.3]. And that [this chapter] is understood as referring to a praiseworthy custom of giving something at the time of sacred things — and certainly this text sufficiently invites [such a reading] regarding donations at the time of sacred things — as if, had there been no custom that they give afterward, there would have been no doubt that clerics had exacted from the beginning. Thus the pope here provided a middle course concerning accepted practice: while sacred things are freely conferred, laypeople may afterward be compelled to observe the custom. Nor does the restriction of Innocentius apply, who understands [it as meaning] that while a dispute is pending, one who has not observed the custom of giving some temporal thing to the canons themselves [cannot be compelled]. This division [is as follows]: for the first part sets forth the report concerning those wishing to enact contrary [statutes], but not that one may otherwise be compelled; the second part gives the judgment there in the section beginning “circa.” For the text there strongly opposes him where it says “and we command that pious customs be observed.” Therefore compulsion will take effect. For although elsewhere they may be compelled to resist harassment, nevertheless for this purpose the custom would necessarily be observed, as the pope [states] above in this chapter. I therefore conclude three things: first, that no custom is valid whereby something is conferred at the time of sacred things from the beginning. Second, a custom can be introduced whereby something is owed for the sacraments where no exaction preceded — because at the beginning it was simoniacal and vitiated — and in these two cases I understand the modes that annul the custom. Third, that against a custom whereby something [is given] from the time of conferral [is to be distinguished from that given] after sacred things, and where [the custom] was introduced from the sheer liberality of the people — yet in such a way that sacred things are first freely conferred. Either, then, [the person] wished to give freely at the time of sacred things, and [the recipient] may accept, or he did not wish [to give], and then, lest sacred things appear to be sold, they must be freely conferred, but afterward compulsion will follow to observe the custom. And this appears to be the sense of this text.

Second, note that beyond the prebend, other revenues or income are owed to the canon, and perhaps [the text] speaks of common proceeds that in certain churches are called the mensa grossa [the common table], or perhaps it speaks of daily distributions according to custom. And this appears to be the sense of this text. Moreover, if a custom can be introduced from a free donation — and from those things that are purely voluntary — note what Bartolus says in l. cum de itinere verbo ff. de usur. [Dig. 43.19], and what Lex. [says] in j. de servi. et aqua., in l. ij. C. de longi temporis. Regarding what beyond the prebend — on both points, see what the law reads and the custom. I discussed this in the aforecited c. Nam, and state [the matter] as there.

Capitulum XLIII.

Abbots owe three things to the bishops of their localities.

Whether monks are bound to obey the pontiff and their rule, and whether the pope can dispense with a religious so that he may take a wife — see the cross-references.

The literal case is as follows. Cistercian abbots have been accustomed to give [something] after the fact, as is the custom where men during their lifetimes did not pay the archbishop a palfrey at his installation or some equivalent, nor anything from tithes. And henceforth such a custom ought to be observed, being directed to divine worship; [the contrary practice] proceeded from the root of avarice, prohibiting the solemnities of installations for elected abbots of the Cistercian order, thereby adding that the archbishops and those [abbots] voluntarily obligated themselves to this. The very form of profession and its intentions are as follows: that if there is a custom that something should be liberally given at the time of sacred things, and such a custom has been established — “I, Brother [N.], abbot,” etc., as in the profession itself. And that monks and abbots, even of the Cistercian order, are subject to the archbishops of their localities; and that these [religious] have many privileges by reason of privilege. Note in c. cum ordinem. But concerning those referred [to the bishop], they are nevertheless not exempt from the jurisdiction of bishops. Those who have [privileges] must therefore prove the privilege if they allege exemption. For by common law all clerics and prelates of whatever dignity and status are subject to their local [bishops]. The bishop’s intention is established by common law over the entire diocese, to [enforce] the observance of the custom; yet compulsion shall occur after conferrals, as in c. cum venerabilis de relig. do. [X 3.36.8], and in c. j. de offic. ordin. [X 1.31.1], in c. cum episcopo and similar [chapters] under the same title, c. j., c. quasi pro. In its entirety. And second, that even an abbot, even of the Cistercian order, can take possession through installation — because the elected and confirmed [abbot] introduces the installed [person], placed in the choir, as having been deputed and obligated to that [office]. He says the same if at the time of conferral no exaction arose. And Hostiensis holds the same view, giving an example that is more forcefully applied in the case of an abbot’s position. Therefore, from this installation alone the installed person acquires possession of the benefice and its properties — see this treated elegantly by Innocentius in c. in litteris de restitutione spoliatorum [X 2.13.5]. Third, that abbots owe three things to the bishops of their localities. Ro. [notes] second that abbots owe bishops subjection, reverence, and obedience. Not only, therefore, are they subject to bishops, but they must also show them reverence and obey their lawful commands that are not contrary to the common rule. In consultu j. [the text states] “a palfrey at his installation,” etc., and this decretal supports that point. For [the abbot] was giving something temporal through this installation. That pope prohibited this and wished that bishops be content with the promise of obedience, the form of which is set out here. Likewise, in Anglia [the third point]: note there that the Gloss does not say that these Cistercian abbots ought to be installed, but it does prohibit the solemnity of installation. And regarding whether a custom concerning tithes is valid, state the matter as follows. On this point, Hostiensis criticizes Glina, who had said that even secular prelates are installed, but not religious, and Hostiensis says that these [religious] could be installed straightforwardly by the monks who elect them. Johannes Andreae says one must abide by the intervention of the cathedraticum [i.e., the episcopal tax] and the custom observed among them over time. But I think that where no custom appears requiring that installation be performed by the archdeacon — since governing pertains to him by common law, as in c. et nimis, de officio archidiaconi. And here nevertheless the solemnity is removed, but the person is not changed. The final Gloss at the end [asks]: whether they are bound to obey the pope against their rule — state the matter as fully noted in c. cit ad monasteria. [On] obeying the rule, in stat. reg. and what is noted in the rule semel loco, de reg. iur. lib. vi. [VI 5.13], by Johannes. And there [the question] was fully debated whether the pope can dispense with a religious so that he may take a wife — and see that chapter. And whether this is true without qualification.

Capitulum XLIV.

One may hold multiple canonries in different churches.

Concerning churches by special law, on which topic see the cross-references.

One received as a canon must not be compelled to give anything, even the smallest amount, to the other canons.

Whether one received as a canon can be compelled to give something by custom — whether the reception is conditioned on it or not — regarding this custom. The third [point] of the custom is that a dinner may not be exacted from a canon, and in other ways likewise. One received as a canon is owed a prebend and revenues notwithstanding contrary custom.

The literal case is as follows. Jacobus, a canon, had been received as a canon — the brother of a canon in the church of Aprutium [Teramo]. The canons of that church refused to assign him his share of the common revenues and prebends unless they first received a dinner from him, invoking a custom whereby they receive a dinner from a newly received canon. And the pope commands a certain prior that, if this is so, notwithstanding that custom, he compel the canons to assign him his prebends just as they would to any one of them. Bar. [notes] therefore that one could be instituted as a canon in several churches, and this proceeds from special law. On this title, state the matter as fully noted in c. literas de non refil. vj. And [this is] notable if it is found below. But some said that sacred things should be freely conferred, and that afterward compulsion would follow to observe the custom. And thus this notable point would not be gathered [from here].

Second, note that beyond the prebend, other revenues or income are owed to the canon, and perhaps [the text] speaks of common proceeds that in certain churches are called the mensa grossa [the common table], or perhaps it speaks of daily distributions. Regarding what beyond the prebend — on both points, see what the law reads and the custom. I discussed this in the aforecited c. Nam, and state [the matter] as there. And not in c. cii adndi de prae et dig.

Finally, note from the term [used here] that one received as a canon is not bound to give anything temporal to the other canons, even under the pretext of custom. But is this true without qualification, such that the custom of donating something temporal is never valid? Hostiensis says

that the custom is not valid insofar as it [requires giving] something to the canons that tends to the filling of their bellies or their purses. But if someone requests a vestment or something else tending to divine worship, then this may be lawfully exacted as a starting point, and a guarantee may be received, [as in] de preben. significatii., per elec. c. significasti. What if in this case a canon exchanges one spiritual thing for another spiritual thing? But as to something for the benefit of the canons, a custom does not avail; yet from laypeople, under the pretext of custom, clerics can exact something else, according to c. ad apostolicam, section 8, [under this title]. And several reasons may be given as to whether a custom is valid whereby laypeople should give to clerics — not clerics to clerics. And the reason is this: for a person judges [differently regarding] private benefit — a gift from cleric to cleric is [for] private benefit, whereas what is given by laypeople to clerics is public [in nature], l. j. ff. de civit. et iur. j. de iure publici. Likewise, laypeople are [subordinate] to clerics and in their care, q. t. laicos. And one need not worry whether the church has it or whether it thus remains with the laypeople, in c. cum apostolica de his quae fi. a. The second reading also cites similar reasons. With what has been said by Hostiensis, the doctors commonly agree. And from the views of Hostiensis, certain conclusions may be gathered.

First conclusion:

A custom is not valid whereby clerics, for spiritual things received or to be received, give something temporal to others.

Second conclusion:

A custom is valid whereby laypeople give something temporal to clerics upon receiving spiritual things.

Third conclusion:

Something temporal tending to the increase of divine worship may be sought under the pretext of custom — that is, in recompense for spiritual things conferred.

But against the foregoing, I adduce a singular text on this matter in j. q. iij. [C.1 q.3], where, after many points have been raised: from a cleric being instituted or already instituted in a benefice, nothing temporal should be sought in recompense for the institution — not even something to be distributed to the poor or applied to the fabric of the church — because one who takes wrongfully and dispenses well is burdened rather than helped, as [the text] says there. Therefore, in favor of divine worship, nothing should be exacted for spiritual things themselves. To the same effect, c. veniens, c. c. quantato, section 8, where from one who wishes to enter religious life, not even under the pretext of custom should anything be exacted, even if it is applied to the church. Nor is it lawful to give temporal things to the church so that a prebend may be made from them, which is afterward assigned to the received canon — as in the aforecited c. quantato. Hence, in this matter, one should distinguish as follows: either no statute or custom exists, and then nothing should be exacted, even something to be devoted to divine worship, as in the aforecited laws — although a burden may be imposed on each of the canons to contribute annual payments in favor of a pious cause, as in c. fi. de his [quae] d. a ma. par. ca. But in receiving [a canon], nothing else should be exacted, lest it appear to be done in recompense for spiritual things. If, however, a statute of the church exists, or if the statute imposes this burden on the prebend, state the matter as I discussed in c. ad apostolicam and in c. sua, section 8 — even with respect to clerics. And then the fact that no exaction preceded the worship [in question] can be a true reason for the distinction between clerics and laypeople: because laypeople, in cases of doubt — since they freely paid — are deemed to have obligated themselves under a kind of obligation that laypeople customarily make to clerics both temporally and spiritually, as in de consc. di. j. “every Christian.” But the case appears different for clerics who are received as canons, because here the presumption does not arise that the penalty should be commensurate with the offense, xxiiii. q. j. non affirmamus, in c. difinit. de his d. fi. a ma. par. c. This is [addressed in] c. venice j., section 8, de test. Therefore, the obligation there does not now cease, as it says here. But [this is] true with respect to the one primarily [concerned]; with respect to the church, however, the obligation endures for a time, as [discussed] below. Moreover, [what is taken] by the pope is not restored.

Capitulum XLV.

One simoniacal in conferring orders is suspended ipso facto from the conferral of orders.

One knowingly ordained through simony is dispensed only by the pope; otherwise if unknowingly.

If a cleric who has been ordained promised his ordainer that for a certain number of years he would not seek provision from him — whether such a promise, even if sworn, is valid, both with respect to the ordained person himself and with respect to the ordainer.

One simoniacal in orders is deposed not only from the simoniacally obtained order but from all others.

The penalty should be commensurate with the offense.

One simoniacal in obtaining an order is not dispensed except by the pope.

Only through the Apostolic See is dispensation granted to them.

The literal case.

Because it frequently happens that someone is ordained without a definite title, on account of which promises are made or oaths taken that [the ordained person] will not trouble [the ordainer] regarding his provision — Gregorius [IX] decreed that if anyone has ordained or conferred an order on someone, receiving from him a promise or oath that he will not trouble the same

ordainer regarding provision, they shall know themselves to be suspended from the conferral of orders and from the promotion of the ordained person for a three-year period. And the ordained person shall know himself to be suspended from the order so received; without dispensation from the Apostolic See he will not be able to obtain [the exercise of that order].

First note:

From the text, that one who confers an order simoniacally received is suspended ipso facto from the conferral of orders, and the ordained person is suspended from that order so simoniacally received.

Second, note:

That for one simoniacally ordained, only the pope dispenses. This should be understood [to apply] where the ordained person himself was simoniacal — as when he himself gave money or something temporal. It is otherwise if, without his knowledge, money was given by another, as in c. c. de simonia — note what is said there: no obligation is induced there. Observe that the Gloss raises a question that has no mention in the text — namely, whether such a promise is valid. And the conclusion is that it is valid even if no oath intervenes. But the Gloss in c. si eps. de preben. lib. vi. [VI 3.4] says that even after the fact, that promise or renunciation is valid — namely, that [the ordained person] will seek nothing from the bishop or the one who presented him. For just as a person can renounce a benefice, so too [can he renounce] this canonical obligation, and [another] may succeed in the place of the office, di. q. f. “regarding the danger.” But a renunciation made before ordination is not valid, because it is simoniacal, as [stated] here. I think this statement [is correct] even where no oath intervenes, because this pact — standing on a base of turpitude — is not valid in law. But if an oath intervenes, then I do not think the ordained person can seek anything contrary to the oath, because insofar as it concerns him, this can be observed without peril to eternal salvation, by analogy to c. debitores de iureiur. [X 2.24.18], where, for this reason, even a bare and simple promise holds. But the ordainer or the one who presented him cannot, by virtue of that obligation, desist from providing for the ordained person — nor may petition be [refused] — because insofar as it concerns him, the promise cannot be observed without peril to eternal salvation. For by this renunciation, etc. Therefore he cannot repent unless he renounces and remits what was thereby obtained, as in c. de his, section 8, [under this title], and in c. ionis de acct. in the beginning. And in the Gloss, in the word “presentatorem,” at the end: from this Gloss, two readings may be gathered for this text. The first is that here there was not properly simony in the strict sense; therefore suspension is imposed here only for a three-year period. For here there is no buying or selling, but rather a remission of an obligation already arisen. This reading is followed by [various doctors]. Here Panormitanus says that this simony was not committed in the order itself but in obtaining the order. For the ordainer wished to ordain and the ordained wished to be ordained with no price given. If one were to consider simony [committed directly] in the order, the ordainer would be perpetually suspended from the conferral of orders, and the ordained person would be suspended not only from the simoniacally received order but also from all other orders, j. q. j. reperiunt, section [under this title]. From this reading it follows that where simony is not committed directly in the context of divine worship — by analogy to c. significati de preben. and c. unico — since it is committed in obtaining the order rather than in the order itself, dispensation is not granted by anyone other than the pope, as is proved here in the text. This is contrary to what is said [elsewhere], and even though one may say that [the other case] proceeds where [the person] sinned in ignorance, here [the person acts] knowingly. For one who sins less is punished less, as in de pe. [title on penance].

The second reading gathers [the following] there. And this should be understood: when a custom exists, then if [something is owed] by laypeople to clerics, something else is owed. It was an addition that restricts that chapter so that it applies only when the crime is hidden; otherwise, if it were manifest, Hostiensis and the first [commentators] and Sinibaldus hold this view, although he later changed his position. And Archidiaconus [says otherwise]. But the first reading pleases me more, because in truth the ordinands did not have free ability not to ordain [i.e., refuse ordination] — [the transaction] does not lead to any turpitude — yet [the legislator] wished to avoid all [evils] that might follow from it, just as the ordained person did not intend to acquire the order [simoniacally] but wished to keep his ordainer harmless. And therefore these persons should not be punished like those who directly commit simony, because here the presumption does not arise that the penalty should be commensurate with the offense, xxiiii. q. j. non affirmamus, in c. difinit. de his d. fi. a ma. par. c. This is [addressed in] c. venice j., section 8, de test. Therefore, the obligation there does not now cease, as it says here. But [this is] true with respect to the one primarily [concerned]; with respect to the church, however, the obligation endures for a time. And those parishioners not only wished to keep [the ordainer] harmless but even [wished] that the debt of the church to them be remitted, and that presentation, etc.

An abbot is included under the designation “monks,” because by becoming an abbot one does not cease to be a monk. And this holds in favorable [interpretations]; otherwise in odious ones — on which see extensively below.

Under the designation “scholars,” the rector is included.

Under the designation “offices,” dignities and rectors are not included.