Oratio lamentabilis ... Iohannes Savageti Constantiensis et Basiliensis ... super turbatione dicte ecclesie Constantiensis ... una cum tractatu per eum, edito sex dubiis iuris clauso ... Per que evidens iustitia ... Ludovici de Freiberg ... confirmati episcopi ac iniustitia Ottonis de Sunnenberg ... declaratur et ostenditur

Consequently, it is clear that since the said concordats did not include or express this case of provision, they do not extend themselves to it, but it is held as omitted (law quicquid astringendae, Digest, de obligationibus), and it should be imputed to them who did not include it and did not state the law more openly. And thus the interpretation must be made against them, as in the rule of law contra eum against him, de regulis iuris, law 1, Book VI; and law veteribus, Digest, de pactis. And thus, since nothing in this case has been changed regarding the Supreme Pontiff, nor has the power to provide been abdicated from him in such a case of the infirmity and uselessness of a bishop, it is consequently considered to have remained with him and to be intact, because what is not yet changed, why is it forbidden to stand? (law sanctimus, Code, de testamentis; law precipimus, Code, de appellationibus; chapter constitutio, de electionibus, Book VI). And these are the things that put the axe to the root. For those things which the advocate of the opposing party, namely Lord Joachim, said to put the axe to the root, when he said that the disposition of the reservation is conferred to the time of vacancy and after the vacancy, at which time the election is to be made, and that thus such reservation is against the mind and disposition of the concordats, etc. For this would proceed when the church would be considered not to be vacant in jurisdiction due to the uselessness of the bishop, and when the Pope had not provided for any person for the church before its real and actual vacancy in fact and had persisted or stayed in the reservation alone. Because then such reservation would be drawn to the time of the existing condition, namely the death of the bishop. However, in our case, the church was considered to be vacant in jurisdiction by law, as has been said above, and immediately the Pope after the reservation provided for the church itself regarding the person of the said Lord Ludovic, whom he promoted as bishop, and thus he had a bishop, not regarding exercise. But the condition arriving, namely the death of Lord Hermann, this habit was immediately brought into exercise, so that the Church of Constance was not said to be vacant by the death of Hermann by law, but indeed by fact. Because as long as he was among the living, he was bishop in fact. And this conditional disposition of our Lord the Pope, namely the reservation and provision, arriving at the condition, was drawn back to the time of the date of the provision, as Zabarella notes in the Clementinae, cum ei que, 3, Question 15, where he clearly examines this and the laws written below prove it (Digest, qui potior in pignore habetur, law qui balneum and law potior; see the gloss on periculum et commodum rei venditae, law quod si pendente, which Zabarella alleges for this in the said question). The same is noted by the Rota in the new decisions, according to the order of those decisions, 382, which begins "Item if the Pope has made a grace," at the end of the decision. Nor do the opinions of certain contradictors stand in the way, namely that the condition would not be drawn back to the time of the date, which Zabarella refers to in the said question, because they were moved by reason of a right that in the meantime before the event of the condition might have been acquired by another, as in the chapter si pro te, de rescriptis, Book VI. But