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

are matters of law or rather matters of fact, it is treated fully by him in the said Clementinae, Question 16, where he says that the fiction is of law because the laws feign regarding those things that are of law, as that an useless prelate is not (that is, because they dispose as if there were no prelate), but they do not feign in fact, because in the truth of fact he is a prelate. ¶ And therefore, since the said church would be considered to be vacant regarding jurisdiction and regarding the effect of law due to the infirmity and uselessness of the said Lord Hermann, the Pope by giving a coadjutor to the same could rightfully also create him as future Bishop who would succeed him in the said church after his death, which without doubt seems to proceed by law, given the consent of Lord Hermann which intervened and petitioned that this be done, as in the chapter ecce, Case 7, Question 1. Thus also we see that a benefice vacant by law, even if it is not vacant in fact, can be conferred, as in the chapter licet episcopus, de prebendis, Book VI. ¶ And note the Archdeacon in the chapter licet canon, on the word privatus, de electionibus, Book VI. Nor is this new. For we read that Pope Zachary granted this to Boniface, Archbishop of Mainz, that in case of his own infirmity he could choose a coadjutor for his person and ordain him as Bishop, who would succeed him in the said church after his death, as in the chapter petisti, Case 7, Question 1. If therefore the Pope can indulge this to another, he can also dispose of it himself. ¶ Furthermore, since there are three ways of providing for cathedral churches, namely election, postulation, and provision, of which the first two pertain to the subjects and the third to the Pope and superior prelates, as the gloss notes in the chapter ut circa, on the word electiones, de electionibus, Book VI; and the said concordats regarding cathedral churches include and express only one way, namely election, by consequence they have excluded this way of provision which depends on the power of the superior, and it is not comprised under them by the ordinary laws (law commodissime, Digest, de libertate et postulatione; law si extraneus, Digest, de conditione ob causam; chapter susceptum, de rescriptis, Book VI). ¶ And that this is true is clearly proven because since the said concordats have the force and disposition of certain pacts and statutes, as has been said above. But pacts and statutes are of strict law and do not comprise other things than what are expressed. The first regarding pacts is proven (Digest, de pactis, law tres fratres; and Digest, de transactionibus, law cum aquiliana; and law qui cum tutoribus; for this, the final gloss in the chapter ne quis arbitretur, Case 22, Question 2; and in the chapter penultimum, de iureiurando). The second regarding statutes is proven, because a condition is given from a statute (Digest, de conditione ex lege, law 1). A condition from the law is of strict law because it is not counted in the category of actions unless of the action that divides actions into those of good faith or those of strict law. And those which are of good faith are enumerated there, and those which are not enumerated there are of strict law, regarding which also see the gloss in the chapter cum uenerabilis, de exceptionibus. ¶ And that statutes are of strict law is held expressly by Bartolus in law constitutionibus, Digest, ad municipalem, where he assigns the said reason which he also defends against some who strove to impugn it.