Department of Modern History, Politics and International Relations - Politics and International Relations

John XXII, Ad conditorem canonum

Translated by John Kilcullen and John Scott

Copyright (c) 1998, John Kilcullen and John Scott.

[Latin text from Corpus iuris canonici (Lyons, 1671), compared with Friedberg's edition (Leipzig, 1879). Section numbers in square brackets from the gloss in the Lyons edition.]

[1] There is no doubt that it is the business of the maker of the canons to take action when he sees that statutes issued by himself or by his predecessors harm rather than help, before they can do further harm.

Provisions made by Pope Nicholas III in Exiit.

[2] Some time ago our predecessor of happy memory Nicholas III,

  • seeing with attentive foresight that the Rule of the gracious confessor blessed Francis laid down that professed members of his order "should not make anything their own, neither house, nor place, nor any other thing", and
  • carefully considering that pope Gregory IX of pious memory and some other predecessors of the same [i.e. of Nicholas III] had declared that this [not making anything their own] should be observed "both individually and in common",
  • and noting thoughtfully as well that some have criticised the Brothers, urging against them that they were not observing the Rule and such declarations [as Gregory's], and
  • dutifully purposing to close the mouths baying against those Brothers and to provide for the consciences of the professed members of the Order themselves,

ordered and enacted, among other things,

  • that the ownership and lordship of all equipment, books, movable things, both present and future, and also of all churches, chapels and cemeteries, both present and future, and also of other purchased things, and of things offered in divine alms or granted to the said brothers (in which, however, the offerers or granters decide not to reserve anything to themselves), belongs fully and freely to himself and to the Roman Church,

accepting those things to himself and that Church, reserving to the Brothers only simple use of fact in such things and goods. And because it is sometimes useful for books and other movables above mentioned to be sold, or also exchanged, in the same ordinance he granted to the Brothers

  • that they could freely exchange those things for other things the use of which it is licit for the Brothers to have, provided that the authority of the General and Provincial Ministers (together or singly) should interpose.

But also, since their Rule strictly forbids the Brothers to accept money, directly or through another, he [Nicholas] willed and granted that,

  • if the movable things referred to come to be sold for an estimated price, this price should be received through a procurator by the before mentioned See or by the Cardinal Governor [protector] of the same Order, to be allocated by the same procurator for spending on a licit thing the use of which would be permitted to the Brothers of the same Order:

adding this, that

  • concerning paltry movables or things of small value, the Brothers (having obtained, however, their superiors' permission on this matter), could, with a view to piety or devotion or for some other decent and reasonable cause, give them away, either within or outside the order.

Objections to these provisions

[3] But although our predecessor ordered the above mentioned things moved by dutiful thoughtfulness and thinking that they would benefit the said order, nevertheless, in view of the Brothers' way of using and the subsequent forbearance concerning it of the said Church [forbearance suggesting approval], subsequent experience, the teacher of things, is known to have declared that these things have not benefited, but have rather harmed both the Brothers themselves and also many others.

[The Brothers have not been freed from solicitude] Indeed, the above mentioned reservation of lordship [to the Roman Church] has by no means benefited the Brothers in respect of the state of perfection; for since the perfection of Christian life principally and essentially consists in charity-which the Apostle calls the bond of perfection, which unites or in some measure joins man, while on the way [i.e., in this life], to his end. Contempt of temporal goods and renunciation of ownership of them opens the way to this perfection especially because the solicitude that acquiring, preserving and dispensing temporal things requires, which commonly impedes the act of charity, is cut off. It follows that if the same solicitude persists after such divestment of ownership as existed before it, such divestment can contribute nothing to such perfection. But it is certain that after the above ordinance the Brothers were no less solicitous in acquiring and preserving those goods, in court and otherwise, than they had been before it, or than other mendicant religious who have some things in common.

[They have not been made poorer] Besides, the above mentioned ordinance has not, in any case, benefited the said Brothers by enabling them on account of lack of such ownership to call themselves poorer than if they were to possess those things together with (what they say they lack) lordship [of them]. For although our predecessor thought that the lordship of things that happened to be offered or granted, or come in some other way, to the Brothers-but [things] of which the Order, or the Brothers, are permitted to have use of fact-should be taken to himself or to the Roman Church, with simple use of fact reserved to the Brothers, and decreed that [the lordship thus] pertains freely [to himself and the Roman Church], as has been stated above, nevertheless, in view of the Brothers' manner of using, and its effect, and the subsequent forbearance of the Roman Church concerning that manner, it is not the Brothers' use but rather the lordship of the Roman Church that should be called "simple".

For who could describe as a "simple usuary" someone permitted to exchange, sell or give away the usuary thing? Undoubtedly these acts conflict with [the] nature [of a usuary], and do not pertain to a usuary. But with the movable things mentioned above, the Brothers themselves do these things. And that the lordship reserved to the Roman Church should be regarded as "simple" appears from the fact that no temporal benefit has thus far come from it to that Church, neither is it hoped that it should come in future, since it was not the intention either of the reserver or of the Brothers themselves that the profit of these things should come to anyone whatever except the Brothers. This undoubtedly has been made more evidently clear by the Brothers' manner of using and the subsequent forbearance of the Roman Church.

And that such was the intention of the legislator is clear also from the fact that he retained for himself and for the Roman Church the lordship only of those things of which the Order and the Brothers are permitted to have use of fact. But lack of such lordship, devoid of all benefit in reality in the present and in hope for the future, does not make anyone who does not have it the poorer in respect of temporal poverty, which these Brothers claim for themselves as being of higher degree than other mendicants who have things in common.

[4] [Use of consumables without ownership is impossible] But that these Brothers should not be regarded as usuaries in respect of things that are consumed by use appears clearly enough from the following. To say, indeed, that in such things it is possible to establish use of right, or of fact, separate from ownership of the thing, or lordship, is opposed to the law, and conflicts with reason; and it does not seem to have been the intention of our predecessor to reserve lordship of such goods to the Roman Church. For what sane person could believe that it was the intention of so great a father to keep the lordship for the Roman Church, and the use for the Brothers, of an egg, or a cheese, or a crust of bread, or other things consumable by use, which are often given to the Brothers themselves to consume on the spot? Truly, it does not seem probable, especially since he reserved to the Roman Church the lordship only of those goods of which simple use of fact can belong to the Brothers of the said Order. This can by no means be found in things consumable by use, in which neither a right of using, nor a use of fact, separate from ownership of the thing or lordship can be established or had.

And he shows evidently that he did not refer to such things when he answers the law that says that usufruct cannot be permanently separated from lordship, lest the lord's lordship, with the use always escaping [abscedens: "existing separate" (gloss)], be made useless. Indeed, that law is understood of those things of which the use can remain with one person and the lordship, though useless, with another. That can by no means be the case in things consumable by use, since in these, through the usuary's use (or "abuse"), the substance of such a thing ceases to exist, and consequently ownership, even useless, does not subsist.

For since, in so far as it is established in a thing, usufruct, which is called a personal servitude and for which real actions are competent, is nothing other than a right of using-and the use that is also a personal servitude is not other than only a right of using-another's things saving the substance of the thing-that is, a right of gathering, in whole [in the case of the usufructuary] or in part [in the case of the usuary], in his own name, the fruits and other utility that can come from the thing in which the usufruct or the use is established (on account of which an ownership is regarded as useless from which there permanently escapes the usufruct or use established in things from which, while they stand to the usufructuary or usuary, no utility can come)-it is clear that such usufruct or use can be established in a thing only if fruit or utility can come from that thing to the fructuary or usuary saving the substance of that thing. But if no utility could come to them from the thing, saving its substance-and it is certain that things consumable by use are of this kind-then by no means could usufruct or use in those things be established for anyone, or be had by anyone.

Besides, neither can a right of using that is not a right in re and not a personal servitude but a pure personal right, for which real actions are not available, be established or had in such things or of using such things, since such a right also requires that, from the thing itself that is granted in such a way to be used, some utility should be able to come to the usuary while the substance of the thing remains "saved" together with the usuary's use. Obviously, this can by no means be found in things consumable by use.

Again, neither can a simple use that is neither a servitude nor something for which a right of using is available be established or had in such things. For since to use some thing is properly nothing else but to receive, in full or in part, the fruits of the thing or other utility that can come from it saving the substance of the thing, it follows that one cannot use that thing from which no utility can come saving its substance-such as things consumable in use certainly are.

From these [i.e. the arguments of section [4]] it is clear that neither the use that is a personal servitude, nor the right of using that is not a servitude but a mere personal right, nor the act of using itself without any right, can be established or had in things consumable by use, since any of the foregoing requires that from the thing itself, saving the thing's substance, some utility be able to come to the one who has the right of using, or to the user: and this indeed cannot be found in things consumable by use.

[5] It is no objection to the above that in the above mentioned ordinance [Exiit] our same predecessor [Nicholas] also reserved to himself and to the Roman Church the lordship of those things that pertain to the sustenance of life: for this should be understood of those things without which human life is not sustainable that precisely are not consumable by use, which indeed are not few [shelter, furniture etc].

[6] [The act of consuming is not use but "abuse"] But although, in things consumable by use, neither the right of using nor using itself can be established or had, one [ius: substitute quis] can, nevertheless, "abuse" them [or "use them up"]. When we are treating of things consumable by use, "abuse" is taken for the consumption of the thing [Digest, De usuf. earum rerum quae usu consu., l. hoc senatus, para.1 et seq.], which is opposed to using. Using indeed presupposes that with the use the substance of the thing remains saved [salva rei substantia maneat: see Digest, de usu et hab., l. plenum], but "abusing" requires that with such an act the substance of the thing be consumed, since "abusing" in this context can properly be said to be nothing else but to use against the nature of use. But although someone [e.g. a thief] can use a usable thing without any right of using, using itself cannot in such a thing be established by anyone, nor be had by anyone, without a right of using, separated from or conjoined with lordship.

[It is impossible to give the act of using to another person] And that such use cannot be established [constitui-see Digest] appears from this, that no one can give, or establish, what is not his and does not belong to him, although sometimes he can give it in another way than it is his [e.g. dominus can give the usufruct]. But the act itself of using belongs to the user, in as much as one is said to be lord of one's own acts through free choice and will, since through this one can not perform them, or also perform them: but the act itself of using does not pertain to him who grants to another that he be able to perform that act on his thing. This [grant] indeed is nothing else but that the user can apply his act to the thing belonging to the person granting it to his act: just as he who lends his horse to someone does not grant the borrower the act of riding, but that he can perform that act on his horse. This is certainly not to grant a simple act of using without a right, since to grant this [haec: substitute hoc] is nothing else but to grant a right of using. Indeed, in things consumed by use this right of using cannot be established in separation from ownership or lordship, as appears more clearly from the foregoing.

[The act of using cannot be "had"] Moreover, that simple use-that is, without a right of using-separate from ownership or lordship also cannot be had in a usable thing, is proved as follows. For if such a use can be had, it would be had either before the act itself, or in the act itself, or after the completed act of this sort. But that this cannot happen appears from this: what does not exist cannot be had. Now it is clear that the act itself, before it is performed, or even while it is being performed, or after it has been finished, is not in reality; from this it follows that it cannot at all be had. For although before the act itself someone has the power of performing it, nevertheless, through this the act itself does not exist in reality except in potency. And when the act is in the process of being done, the act itself cannot yet be said to be in reality, although it can be said of it [pro: substitute de] that it is in the process of being done. For that [stage] of an act in the process of being done that is past, or in the future, is not now in reality, but in memory or in apprehension only; therefore, except in so far as it is only in memory or in apprehension, it can by no means be had. But what is done in the present is momentary or instantaneous; undoubtedly it can be perceived more by the intellect than by the sense. Accordingly it cannot be had for any time except for that moment or instant in which, when it is being done, it can be called "done" after the completed act. Admittedly, if something is produced by the action itself, the thing made [delete aliqua] can be had: nevertheless the action itself, which now passes, is not had (except in memory, as has been said above).

[An act without a right cannot belong to a state of perfection] Moreover, if simple use without a right of using can be had by anyone, it is certain that such an act of using would have to be regarded as not just, since someone will have used to whom a right of using did not belong. But such a not-just use by no means pertains to the state of perfection, and does not add anything of perfection, but rather is manifestly known to conflict with it and detract from it. That the maker of the canon [Nicholas, maker of Exiit] meant to reserve to the Brothers a not-just use, no one with sense should at all suppose. Indeed, that he referred to a just [use] can more clearly be seen from this, that in the same ordinance he took care to add that he was receiving to himself and to the Roman Church the lordship only of those things of which it was licit for the Brothers, or for the Order, to have use of fact-enjoining in addition, however, that of some things the Brothers should not have the use. But as far as what relates to simple use of fact without any right of using, no difference is to be reckoned in things as far as the Brothers are concerned: for they can use de facto things prohibited, just as things permitted. The foregoing distinction of things is therefore to be referred rather to that use of fact for which there is available to the Brothers a right of using. For the use of some things [e.g. money] is known to be prohibited to the Brothers, and of others permitted: from which it follows that the use of fact of which this ordinance [Exiit] speaks should be understood of such [use] as is just-that is, for which there is available a right of using. And this the maker of the canon [Nicholas, in Exiit] evidently expresses, when in the same ordinance he added that moderate use in the previously mentioned things is granted to the Brothers.

[Use that destroys is not separate from ownership] Further, if in consumable things use can be established or had, such a use could not be said to be simple nor separated from the substance, ownership or lordship of the thing, since by such use (that is, by the act of using), and in the very act, and with that very act, such a thing is consumed, and it is performed upon the substance of the thing itself; and without the consumption of the thing such use could not exist. From this it appears that such use cannot be called simple, or separate from lordship.

[7] [The arrangements made in Exiit have damaged the Church] Again, not only has the above mentioned ordinance [Exiit] not benefited the Brothers themselves, but it also occasions, and has occasioned, not inconsiderable damage to the honour of the Holy Roman Church. Does it not derogate from the honour of that Church if it must continually litigate, now in the Church courts, now in secular courts, sometimes also before lower judges and mostly for small and paltry things? That this happens is well known, however, since by the occasion of the said retention [reservation] of lordship all cases that arise in suing for or defending such goods in the name of the Roman Church are conducted upon this, by virtue of a certain privilege [Exultantes in Domino] conceded by our predecessor Martin IV of happy memory, and (what must be regarded as more serious) the procurators [agents] of such cases are said to harass many people unduly-although the power in respect of the administration of the above mentioned goods given to such procurators by the above mentioned privilege has not formerly been observed, and is not observed. There is no doubt that all of these things flow back to the ill fame and injury of the holy Roman Church.

Besides, the above mentioned ordinance is shown to be too heavy and troublesome to the prelates and rulers of the Church. Can it be not heavy to the foregoing [prelates] that they should oppose themselves to the Holy Roman Church, which is known to be their head and teacher, and assiduously litigate with her, suing or defending, or else yield their own right? Nevertheless they must do this, since in many things the Brothers are said to be injurious to those [prelates], as is established by the witness of many prelates and rulers of various provinces still present in the Curia. These Brothers indeed try to defend their deeds done through the procurators above mentioned.

Provisions of Exiit cancelled

[8] We, therefore,

  • being obliged to foster the truth, as being one who, though unworthy, holds the place on earth of Him who is known to be Truth;
  • wishing those things to be observed in the Holy Church of God that hold not in word only but rather in reality;
  • having brought the foregoing to the scrutiny of right thought, and having diligently deliberated beforehand with our Brothers [the Cardinals] and with many others;
  • thinking it worthy and fitting that the professed members of the said Order should claim for themselves before other mendicants the prerogative of a more perfect state and a higher poverty not in words only, and not in pretended actions, but by clear works, supported by truth;
  • and likewise [acting] for the honour of the Holy Roman Church (the glory of which could be clouded, if it [the Church] were by dissimulating to consent to go along with such a perverse pretence, which indeed is also detrimental to the pretenders, and furnishes to others matterof scandal);
  • and wishing, in addition, to provide healthfully in this matter for the protection against damage of prelates and rulers, not wishing in future that under the pretext or veil of such a temporal lordship [i.e. the lordship retained to the Roman Church]-verbal, empty and obscure-such great good as the said Brothers do should be tainted, and [not wishing] to foment such great evils as proceed from such dissimulation:

with the advice of our Brothers [the Cardinals], in this edict to be permanently valid, enact

  • that in the goods that are in future granted or offered, or happen in any other way whatever to come to the Brothers or order above mentioned (except for the Churches, chapels, offices [sacristies, refectories etc,], houses, and vessels, books and vestments dedicated, or to be dedicated, to divine worship, which may come to them in future, to which the unsuitabilities above mentioned do not so much extend, for which reason we do not wish this constitution to be extended to them), no right or any lordship is acquired to the Roman Church on the occasion of the above mentioned ordinance [Exiit], or of any other [ordinance] whatever issued especially in this matter by any of our predecessors whatever, but as far as this matter is concerned [acquisition by the Roman Church] let such ordinances be regarded entirely as if not made.

By this [constitution], however, in respect of the things among the above mentioned goods that, apart from the said ordinances, were able or ought to come or belong in any way to the said Church, we wish to do no prejudice to the same [Church], but we more expressly keep those things for it intact and inviolate.

And since the privilege of our predecessor above mentioned Pope Martin has not formerly been observed in respect of the administration of the above mentioned goods, and is not observed, and the office of those procurators nominated by the ministers and custodians of the Order is known to be injurious to the Roman Church and troublesome to many others and also burdensome, we strictly prohibit

  • that henceforth anyone be nominated by anyone or established from now on as procurator in the name of the holy Roman Church for the purpose of accepting, suing for, exacting, defending or administering the goods that in future happen to be offered or granted to the Brothers or to the above mentioned Order, or come to them in other ways, and
  • that anyone whatever should dare, on the occasion of any privilege whatever, to assume or perform in the name of the said Church the administration of any goods whatever that in future happen to come to the Brothers or to the Order, in the courts or outside them, suing or defending, supplicating, or in any other way whatever, unless by special permission of the Apostolic See:

decreeing [such action] invalid and empty, if it happens in future to be attempted otherwise [than by licence] by anyone, notwithstanding whatever privileges have been granted to the Brothers or to the Order, under whatever form or expression of words, by the above mentioned Pope Martin or by our other predecessors.

[9] By this [constitution] we do not, however, intend to derogate in any way from the Rule of the said Order nor beget any prejudice to the privileges granted by the Apostolic See to the Brothers or their Order, except precisely in respect of the foregoing and matters touching it. Let it be licit therefore to no man to violate this page of our enactment, prohibition, constitution and intention, or by bold act to go against it. If anyone presumes to attempt this, however, etc. Given at Avignon, 8th December, in the seventh year of our pontificate [1322].

Papal documents relating to Franciscan poverty

See also translations by Jonathan Robinson of texts relating to Franciscan poverty by Bonaventure, Michael de Cesena and William of St-Amour.

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