[Liber sextus Decretalium]

a ¶ Theft: Which is the fraudulent removal of another's property against the will of the owner and with the intent of gain. This is treated under "On quasi-delicts" in the present [section], and [further] on "Theft," and [on] "It was decided" and "Forbidden," and also under the catalog [of crimes] first, question 5 [on] penal matters, and in the second prohibition it holds the fourth place, as can be seen in the note at 22, question 7, "What in all."

It is one thing to impose a sentence of excommunication upon someone for the crime of theft, as if one were to say, "I excommunicate you if you do such a thing as I have prohibited for you." It is another to make a general statute imposing an excommunication, which is discussed below in the second [section] on making [statutes]... or it may be prohibited there to impose it, yet if it has been imposed, it holds, as noted there in [note] b; or if it is said that if one has omitted this, it is done [in vain]; then there is no contradiction that is held by [the laws]... and add what I shall say there.

¶ By a statute of a bishop, a sentence of excommunication is promulgated against all who have committed theft; his subjects who commit theft outside of his diocese are not known to be bound by it, since outside

b ¶ Diocese: In which he has total ordinary jurisdiction and in any place of it not exempt, sitting for the tribunal. [Digest] "On the office of the ordinary," in [the chapter] "With the bishop."

c ¶ Since outside: [See] also note [in the section] "On all who must render an account," which say as above "On the matter of..." in the end, when.

d ¶ His territory: "On the meaning of words," [law] "Territory." And territory is the collection of fields within the bounds of any city, so called from him, because the magistrate of that place has the right to move or remove [someone] within those bounds. [Digest] "On the meaning of words," [law] "The pupil," [section] "Territory."

e ¶ Impunity: That is, without penalty; that is, not obeying the bishop, one does not suffer a penalty.

f ¶ By law itself: Without the operation of an exception. And thus I think the opinion of Innocent [IV] is false, as noted above "On the office of the delegate," [in the chapter] "Prudence," [section] "Carried," and [in] the common note above, [in the chapter] "On letters," in the gloss. Here it is asked regarding the Julian law... [concerning] the presentation [of a claim]. Since all have said that a process held through letters obtained from an excommunicate is valid if the exception is not opposed; and this text says that all aforementioned [have] seen this to be so. Hence, either they did not weigh this word "by law itself" placed in the beginning... or they thought this to be corrected by [the chapter] "Pia," which I do not believe, since by that [chapter] which is corrected, it was removed as I shall say below.

g ¶ Rescript: Below, in the same [section], "Beloved son, the Abbot." And I think this is where it is wont to be asked: whether a defendant can reconvene an actor who, by excepting against the rescript and the person, has repelled [the actor] by the vigor of excommunication before the delegate himself. And it is shown that he cannot. If there is no rescript for him, and the convention is the principal, the reconvention is the accessory. With the principal removed, the accessory is also [removed]. [See] "On the rules of law," [section] "Accessory," with its concordances. Item: since the convention and reconvention must be held in the same tractate. Below "On loans," [chapter] 1, "On the order of cognizance," with [the chapter] "Beloved." Which here could not be. Item: the convention is expressed, the reconvention is tacit. Therefore, the expressed being removed, the tacit is [also removed]. And it makes what is noted below "On the clerics," [chapter] "As from you," and according to the holding of the Abbot in the 'Venerable question,' which begins 'The actor was convening the defendant'

...tation. And his opinion is the true ancient one, as may appear by the aforementioned glosses. And according to... and according to... and "On the cleric," [chapter] "He added." Concerning this matter, therefore, distinguish thus: that either he is excommunicated by the greater [excommunication], and acts before a delegate or before an ordinary. In the first case, sub-distinguish: that either he was excommunicated at the time the rescript was obtained, or he was excommunicated afterward. In the first case of the sub-distinction

s ¶ Process: Never... because that [chapter] "Pia" is corrected, below "On exceptions," where [it says] that a process held with an excommunicate holds until the exception is opposed, and afterward, upon him being absolved, the cause is resumed in the same state. No, it is not corrected; rather, it would be better to correct that [chapter] by this one, since that one is posterior. It is of Innocent IV and this of Gregory IX. Neither is corrected by the other; they speak of different cases. Therefore, first, let the modern opinion be made, as noted in the chapter "Pia" in the gloss, [section] "Meanwhile," and in the second, as in the chapter "Beloved" below in the gloss. Thus it seems, and in the chapter "On the office of the delegate," [in the chapter] "Prudence" in the gloss. Thus it seems, and in the gloss [it says] it would be otherwise, in which it said a rescript obtained by an excommunicate could be valid [after] absolution.

...territory, one does not obey the one dictating the law with impunity. ¶ Gregory IX.

Ipso A decorative initial 'I' in red and blue ink with penwork flourishes. Regarding Rescripts: A rescript or the process held through it by law does not hold if [obtained] from an excommunicate against another whom...

locus: Has place here, so that according to the second [opinion], the rescript does not hold, nor the process held by him, unless it was obtained regarding the cause of excommunication or appeal, as [seen in the] Abbot and the concordances alleged above. In the second case, that is, that the excommunicate was [the one] who obtained [the rescript], it has place in the chapter "Pia" and "On the office of the delegate," [chapter] "Prudence," section 6, if he acts before the ordinary; then there the time should be distinguished, as according to the old laws, the process held with him did not hold. [See] "On exceptions," [chapter] "Exception." Otherwise, I do not see that a condemnation of expenses would be made there, but the process remains, as also noted there. Afterward, Gregory established in the decider of this chapter that a process held with an excommunicate holds if the defendant knowingly admits him, otherwise not. According to the modern laws, the process holds, and the chapter "Pia" has place, and thus it is neither corrected nor does it correct. If it is said that it is the reason of a diverse law, and it be said that the excommunicate sinned in his person by ingesting himself into the communion of men, this response does not hold, since the same reason exists in the ordinary. ¶ If it is said that this is the reason: that the rescript was obtained with such truth silenced that if expressed, he would not have had the letters, it does not hold to be this response, because then the rescript would be the reason, because the jurisdiction holds, nor by law itself. Below, in the same [section], "Above the letters." And this is noted by the Abbot, below "To the audience." Whence it seems quite surprising. ¶ If I act before the ordinary, the process holds, and if I obtain the delegated [rescript] from him, neither the rescript nor the process holds, as the first is elided by the operation of an exception, not by law itself. Below, in the same [section], "Person of the agent and requester." And therefore, since the place was the beginning... in the principle... neither the rescript nor the process holds. But ordinary jurisdiction does not begin from the acting actor, and therefore it is different there. Item: ordinary jurisdiction is favorable, extraordinary is odious, as above in the same [section], "To this." Item: that which proceeds before the ordinary or delegate obtained before excommunication is in something imputed to the defendant, who saved the excommunication, except if he knew [otherwise] he ought to have investigated. Thus, as the actor obtains the first delegate in the absence of the defendant, and therefore neither the obtaining nor the process held by the vigor of that obtaining holds, as [noted by] the Abbot. ¶ By these two reasons, therefore, and by the odium of the excommunicate, it may be said specifically that in such a case, the truth suppressed by law itself vitiates the rescript and the process held through him by the greater excommunication, according to the exception.

h ¶ Excommunicated by us: Below, in the same title, "Pia."

i ¶ Elsewhere: What if an excommunicate obtains letters of inquisition? [Innocent IV] noted [this] "On the office of the delegate," [in the chapter] "Prudence," in the gloss. It is gathered that the letters are indeed valid, and this is because the fame there holds the place of the accuser. As seen above, "On accusation," [chapter] "How." And although the promoter may appear inept, nevertheless the rescript holds and the process will proceed through it. "On accusation," [chapter] "When it behooves," where the same is held by Innocent and Hostien. To this, that the excommunicate only provided the mystery and was not named in the letters. The same [is said by] Guillelmus in [the] 'Speculum,' "On inquisition," section 1, [verse] "What if," [etc.]. Innocent and Hostien, "On [the] 'Pacta'," [chapter] "Impa," [etc.]. And I believe the contrary, since this was introduced into the odium of the excommunicate.