Title XXIII: On Presumptions

Latin source headnote: Just as one manifestly doing harm is liable to punishment, so also is one doing so secretly, even though afterward he says that he did it in jest.

Solomon in Proverbs.

As one is guilty who casts spears and arrows unto death, so is the man who fraudulently harms his friend and, when he has been detected, says: “I did it in sport.”

Latin source headnote: A definitive sentence is rendered from a violent presumption. And it is a notable case.

The same.

“Bring me a sword.” And when they had brought [the sword before the king,] he said: “Divide the living infant [into two parts,] and give half to the one and half to the other.” But the woman whose son was living said to the king—for her bowels were moved over her son—“I beseech you, lord, give her the living infant, and let him not be killed.” The other, on the contrary, was saying: “Let him be neither mine nor yours, but let him be divided.” The king responded and said: “Give this woman the living infant, and let him not be killed. For she is his mother.”

Latin source headnote: Conduct in youth creates a presumption in old age.

Jerome on Proverbs.

“A boy is understood from his pursuits.” For whomever you see pursue virtues with the modesty of continence, the hearing of the wise, [and] the observance of the commandments of God, and especially simplicity and humility, understand that this person’s works [are] pure and upright. But correct one who is contrary to these, or, if you cannot, avoid him lest you be corrupted by him.

Latin source headnote: A presumption is made against one who evades judgment by delays.

Pope Boniface, to the Bishops of Gaul.

No one doubts that a guilty person evades judgment in the same manner as one who is innocent seeks to be absolved, but the crafty cavil of those who believe that matters are to be conducted with cunning counsels will never receive the name of innocence. For whoever thinks that he evades judgment by delays confesses concerning all things. [He shall come, etc. Given on the day of the Ides of June, in the consulship of Monaxius, clarissimus, for the eleventh time, 419.]

Latin source headnote: One who denies one of two charges brought is presumed to affirm the remaining one.

Gregory in a Homily.

“Do we not rightly say that you are a Samaritan and have a demon?” Jesus answered: “I do not have a demon.” For two things were brought against him: he denied one and conceded the other by remaining silent.

Latin source headnote: From past things a presumption is made concerning future things.

The same, to Bishop Maximus.

We carry out the heavenly commands more effectively if we share our burdens with our brothers. Therefore, we decree that you, [the most reverend man Maximianus,] our brother and fellow bishop, shall administer the office of the Apostolic See over all the churches of Sicily, [so that whoever is enrolled there in the habit of religion shall be subject to your fraternity by our authority, in order that it may not be necessary for him to reach us concerning small causes by crossing such expanses of sea. But if perhaps there are any difficult matters that can by no means be resolved by the judgment of your fraternity, let these alone seek our judgment, so that, relieved from lesser causes, we may be occupied more effectively with greater ones.] We grant this office not to the place but to the person, because from your past life we have learned what we may presume [also] concerning your subsequent conduct. [In the month of December, the tenth indiction, 591.]

Latin source headnote: From proximity, knowledge of a fact in a neighboring place is presumed.

The same.

Certain persons—(And below:) But as to how Africa is being laid waste by mortality and sicknesses, the nearer you are, [the more] keenly I believe that you have learned it. [But concerning the East, etc.]

Latin source headnote: A deed known in a remote place is presumed known in a neighboring place.

The same, to Bishop Victor.

In proportion as [it is a joy to us to know that our brothers are becoming fittingly solicitous toward their sons with paternal charity, so we reckon it a sorrow when neither reverence for other brothers nor consideration of the priesthood is able to restrain them from illicit things. Therefore, it is not doubtful that it is clear to your fraternity how grave and bitter is the complaint against our brother, the bishop of the city of Tegessis, by his clerics or by those who are placed in sacred order, because] it could not remain hidden from you nearby which reached us far away. [And because, etc.]

Latin source headnote: From past things a presumption is made concerning future things.

Jerome on Hosea.

“I shall write for them my manifold laws.” From those given previously and neglected, it appears that they will neglect these.

Latin source headnote: More effective proof is required from one who wishes to prove that which is not probable.

Alexander III, to the Dean of Cassium.

Because it is not probable that the priest H. granted the personate of the church to the chaplain R. and received from him the vicarage of the same church, you shall provide attentively that you do not receive the proof of the aforementioned W. concerning this, unless the common report of the place holds it or such persons appear concerning whom it is not probable that they ought to perjure themselves; since it often happens that witnesses corrupted by payment are easily induced to put forward false testimony.

Latin source headnote: Marriage is proved through long cohabitation and reputation concerning marriage, matrimonial contracts, and other supporting evidence. Panormitanus.

The same, to the Archbishop of Genoa.

That also has nevertheless become known to us from your inquiry: that, when a certain free woman knowingly cohabited for ten years and more with a certain slave and was known carnally by him, she now asserts that he is not her husband because the witnesses to the betrothal do not appear. But the man, claiming her as wife, shows a public instrument in which they name themselves spouses and through which it appears that he made to her a donation on account of marriage. The woman, however, asserting that the instrument was defective, so that the master might be defrauded of the slave, produced several witnesses that that slave, often asked by her friends to betroth her, firmly asserted that he had neither betrothed nor would betroth her. But the man proved that the woman herself was his wife by nothing except the aforesaid instrument and certain witnesses who had seen her wearing rings; but the woman said that she wore the rings according to the custom of those women who sell bread. But because in doubt of this kind the reputation of the neighborhood ought rather to be considered, it shall belong to your solicitude to inquire diligently into the reputation of the place—whether the aforesaid man had her at bed and board as his wife or as a concubine; and if the reputation of the place holds that the man kept her at bed and board as a wife, since marriage is the union of male and female retaining an undivided custom of life, the woman is to be compelled to serve the same man with conjugal affection, especially if the aforesaid instrument was drawn up by one who fulfilled his office faithfully.

Latin source headnote: Carnal union is proved through a violent presumption.

The same.

Having received the letters of your fraternity, from their tenor it became known to us that, when P., your parishioner, sought by your judgment to be separated from the woman A., whom he had taken as wife, the accusers of the marriage produced witnesses firmly asserting that, after the aforesaid woman had contracted marriage with the aforesaid man, they saw a blood relative of her husband lying alone with her alone, naked with her naked, in the same bed, with the intention, as they believed, that he should know her carnally. They also said that this happened often in their presence both in many secret places and hiding places suitable for this purpose and at chosen hours and places. And public report agrees that after the marriage had been contracted they mingled with one another, which, as you assert, they publicly confessed in your presence, although they denied that they had done it before the marriage was contracted. It is also said concerning the aforesaid woman that, pretending that she had conceived by her husband, she falsely claimed that she had given birth to another’s offspring, already baptized, as is reported, and, causing it to be rebaptized, deceived her husband. But in the course of time, when report of the purchased alien offspring uncovered the fraud, she secretly returned it to the parents from whom she had bought it. Afterward the same woman is reported to have prepared a poisonous drink and other snares against the life of the man. Therefore, because your fraternity considered that we should be consulted as to whether the already-mentioned proofs suffice to dissolve the marriage, we respond to your consultation in this way: both from the confession and from a violent and certain suspicion of fornication of this kind, especially if what is said concerning the offspring and the contrivance of death can be proved, a sentence of separation can not undeservedly be promulgated, yet in such a way that the man shall have permission to marry another when she is dead, while the woman remains without hope of marriage.

Latin source headnote: It says the same as the preceding chapter.

Clement III.

In the third place, your fraternity sought to have the knot of a question of this kind untied: whether a young man ought to have as wife the betrothed woman to whom he consented through words of the present tense, when her niece, springing forth to impede their marriage, proposed that she had previously been known carnally by the young man. Witnesses produced by her said that they believed for certain that she had been the concubine of the said young man and joined to him by carnal commingling, adding that they had seen them wandering together many times through plains and woods, ways and pathless places, and said that they had received the testimony of the neighborhood concerning this. For greater certainty, however, because you believed that what the same woman asserted had been proved less than sufficiently, both she and the young man, bound by oaths, separately confessed that they had previously known one another carnally, although the young man did not wish to be separated from the woman whom he had betrothed. But we, understanding these things that have been said, and considering that the reputation of the neighborhood, the customary conversations of the said woman and young man, and their wandering courses through solitary places were proved by witnesses, and that they separately confessed under oath to carnal knowledge, especially since this is not said to be hidden but is proclaimed by many as virtually manifest, adhering to the footsteps of our predecessors, and especially following the statutes of Alexander III of happy memory, believe it more advisable and safer that they not be joined matrimonially, but that, their betrothal being dissolved, they be separated from one another. [Given at the Lateran.]

Latin source headnote: No one ought to be condemned of a grave crime because of a presumption, even a vehement one.

Innocent III, to the Bishop of Nevers and the Archdeacon of Bourges.

We have received your letters containing that, when the cause being conducted between our venerable brother the Bishop of Auxerre and certain burgesses of La Charité whom the same bishop was accusing of heresy had been delegated to you and our beloved son the Abbot of Colonges by the Apostolic See, both parties at length, so that the prolixity of the matter might more easily be brought to an end, appointed you two as arbiters for themselves under a certain penalty, while the power delegated to you was nevertheless reserved. But G., the bearer of the present letters and one of those whom the aforesaid bishop was accusing, had confessed his heresy at La Charité in a public voice, and had similarly acknowledged concerning a certain brother of his that he was laboring with him under the same error. When this man was convened concerning his faith before our venerable brother the Archbishop of Bourges, and a purgation to be made by the same W., who was believed to be truly penitent and Catholic, had been prescribed to him, W. himself, after furnishing an oath, purged his brother, whom he had publicly asserted [to be] a heretic, and thus he was judged by the bishop to be both perjured and a heretic. On the contrary, however, the same W. proposed that, although he had publicly confessed concerning himself, he had nevertheless confessed nothing concerning his brother. Hence he could rightly have purged him, especially since he had heard from two chaplains of Aubigny, who knew the latter’s conscience, that he could safely purge him as a Catholic; afterward he showed you their letters. But concerning what he had denied about his brother, the bishop immediately convicted him before you through himself, one priest, and another deacon; whence he called him relapsed into heresy. You, therefore, considering these notable contradictions in the aforesaid W., transmitted him with your letters to our presence, his goods having meanwhile been inventoried until we should take care to ordain what ought to be ordained concerning his person and goods; you added that, when the same W., together with certain persons, pressed you to receive his purgation, as you had that of certain others, you were unwilling to admit his oath because he appeared self-contradictory, although a purgation for him with eight reputable men as oath-helpers was admitted.

But we, because the little foxes that endeavor to demolish the vineyard of the Lord are to be caught by sagacious effort—for foxes have dens and the birds of heaven nests—from the matters written above held the aforesaid G. vehemently suspect of heresy, both because he afterward denied having said what he had said before, as he was convicted before you, and because either he first spoke a falsehood against his brother by asserting him to be a heretic, or afterward committed perjury against God by purging him of heresy, either of which renders him very suspect; although it appears more probable that at the time when, as one truly penitent, he was returning from heresy to the faith, he would not have spoken so grave a falsehood, especially against a brother whom certainly, as most dear to him, he would not have asserted to be a heretic unless he had been kindled by zeal for the orthodox faith. Hence it is presumed that, when he afterward purged him of heresy, he perjured himself shamefully.

Wherefore, [by commanding through apostolic writings,] we order your discretion that, since we do not will him to be condemned of so grave a crime because of suspicion alone, although indeed vehement, you shall receive from him, beyond an oath-bound surety, security of such kind and quantity that he ought to be restrained by fear of corporal punishment; you shall impose upon him a discreet penance from which it can appear whether he walks in darkness or in light, and whether he is truly penitent or feignedly converted. And if in this manner you learn that he is a true Catholic, you shall not permit him to be unduly molested; otherwise, you shall condemn him as a heretic. [Given at Ferentino, on the Kalends of June, in the ninth year, 1206.]

Latin source headnote: One who maintained continence in youth is not presumed incontinent in old age, especially if he is learned.

The same, to the Bishop of Ceneda and the Abbot of Deciquorum.

Since in his youth our venerable brother C., Bishop of Pécs, exhibited himself so mature, honorable, and provident that, because of the sweet odor of his probity, he merited to be adorned with the pallium by the Roman Church, it is not lightly to be believed that, after he reached old age, he shamefully cast aside the yoke of the Lord by embracing the stenches and foulness of lust, since a stain of this kind, which is sometimes contracted in youth, is more frequently expiated in old age. Who, moreover, would easily believe that a man endowed with knowledge of letters, forgetful of his own salvation, would turn himself to that ignominy of passion so as to perpetrate abominable incest with his own niece, since, even according to the opinions of the pagans, the natural bond between such persons permits no suspicion of a savage crime? Therefore, although the King of Hungary, of illustrious memory, had sometimes denounced the same bishop to us through messengers and letters concerning such a crime, supplicantly and insistently petitioning that we remove from the Hungarian Church an evil of this kind, pernicious by example, nevertheless, because his suggestion appeared to proceed not from the root of charity but from the tinder of hatred, since he did not cease to persecute him as an enemy, as is manifest throughout the whole province, we were unwilling to incline our ears as if to malicious denunciations; but, so that we might prove whether the spirit was from God, we commanded the Bishop of Auria, of good memory, that he should prudently and cautiously investigate from the fellow bishops whether they believed that the aforesaid bishop had been sprinkled with such a stain. They afterward wrote back to us that they believed him to be a man of honorable conduct, commending his person in many ways. [But because, etc. (cf. c. 12, On Canonical Purgation, V.34.) Given at Ferentino, on the Nones of July, in the ninth year, 1206.]

Latin source headnote: A person in whose favor a letter is written concerning the conferral of a benefice with the clause “if he shall have been suitable” is not bound to prove that he is suitable, since he is presumed suitable.

The same, to the Archdeacon and Provost of Milan.

Some time ago we commanded the Archdeacon of Milan, of good memory, that he should cause our beloved son C., a scholar, to be received as a cleric and brother of the same church by the priest of Saint Victor of the Forty Martyrs, who alone ministered in that church, in which, as the same scholar asserted, a cleric and a priest formerly ministered, and the same scholar proposes that its resources have in no way been diminished. But the aforementioned priest, maliciously declining the examination of the archdeacon, sent the cleric I. [on his own behalf] to our presence; and we appointed as auditor for him and the aforesaid C. our venerable brother the Archbishop of Trani, legate of the Apostolic See, then our subdeacon and chaplain; before him the said John asserted that the resources of the aforementioned church by no means sufficed for two clerics, adding that the aforesaid C. was not suitable for obtaining the benefice of that church.

[Hence, with their assent, we commanded our venerable brother [N.], Patriarch of Jerusalem, then Bishop of Vercelli, that, if the aforesaid C. lawfully proved before him that the resources of the aforesaid church had not been diminished but sufficed for two and that his person was suitable, he should compel the aforesaid priest to receive him through ecclesiastical censure, appeal removed; and, if any contradictors or rebels should perhaps appear, he should restrain them from their presumption by similar coercion, appeal ceasing; otherwise he should impose perpetual silence upon the aforementioned scholar concerning this. Any witnesses who should be named to him, if they withdrew themselves because of favor, hatred, or fear, he should also compel by canonical coercion, appeal ceasing, to bear testimony to the truth. But when the aforesaid scholar, in order to prove that the resources of the church had not been diminished but sufficed for two, had many times approached the presence of the aforesaid patriarch, then Bishop of Vercelli, and the same bishop had placed under interdict the witnesses named by him because, after admonition had been given beforehand, they were unwilling to bear testimony to the truth, our venerable brother [N.], then Archbishop of Milan, relaxed the interdict by his own authority. For this reason the aforesaid C. was unable to obtain his right. Hence we afterward commanded you, son Provost, that, having inspected the attestations already received—which we willed that you should cause to be exhibited to you through ecclesiastical censure—you should, according to them and others, if the parties should determine lawfully to produce any, since those received had not yet been published, terminate the cause itself according to the tenor of the preceding letters, with the obstacle of any contradiction and appeal removed, reason going before. Therefore, when the parties were afterward established in your presence on this account, since the said C., in order to prove that the resources of the church were sufficient, had named certain patrons and parishioners of the church to give testimony, and although often admonished by you they were unwilling to give testimony, excusing themselves by certain reasons, you bound them with the bond of excommunication unless within fifteen days from then they came to give testimony; but before the appointed day they appealed to the Apostolic See, wherefore the cause was not further pursued. Therefore, willing that an end be imposed upon the same controversy,] we have determined to commit the cause to you, [commanding you by authority of the present letters that you shall, as a precaution, bestow the benefit of absolution upon the aforesaid laymen, and shall terminate the cause itself according to the tenor of the former letters, appeal removed, reason going before;] in such a way that, from that clause—namely, “if the person shall have been suitable”—which is found inserted in our rescript, no necessity of proving himself suitable shall be imposed upon the same scholar, since prima facie he is presumed suitable unless something contrary is shown. [Moreover, the witnesses, etc. Given at the Lateran, on the fifth day before the Ides of May, in the tenth year, 1207.]