Title XXVIII: On Burials

Latin source headnote: One dying intestate is buried in the tomb of his ancestors, or where burial is chosen; nevertheless, the parish church will have the canonical portion of what he left to the church of burial. This it says according to the truer understanding.

Leo III.

We, considering the institutes of the earlier fathers, and also confirming their decrees, establish, as is most holy, that everyone namely lie in the tombs of his ancestors, as the passing of the patriarchs teaches. Nevertheless, we deny no one the choice of his own burial place, and even one belonging to another. For the Lord and Master, who was without sin, chose one belonging to another as his own. But because the worker is worthy of his wage, we hold that by right he should give a third part of his disposition to that church in which he was accustomed to be refreshed with heavenly nourishment daily from the beginning of his origin, so that according to the Apostle [thus] they may be partners in consolations as they were also in sufferings; and then, finally, let him choose burial wherever he pleases. Lest it be done otherwise, by the authority of our Lord Jesus Christ, who spoke through the Prophet, saying, “Do not transgress the ancient boundaries that your fathers established,” and of the Apostles Peter and Paul and all the saints, we denounce and forbid it under the bond of anathema, because it is neither ours, nor has it ever been lawful for any priest or faithful layman, for any reason, to inflict prejudice in such matters without manifest guilt of an offense.

Latin source headnote: One who is converted to a monastery is bound to leave to the parish church half of the goods that he disposed of for his soul.

Pope Leo, to all the faithful constituted throughout Dardania.

It has been reported to our ears that there are certain persons acting perversely who strive to overturn and attempt to divide the unity of the church, namely abbots and monks who keep watch and teach not from the pursuit of charity but from the zeal of rapacity, and do not cease to seduce secular persons whom they can ensnare, so that they deliver their property and possessions, whether in death or in life, to their monasteries, and leave nothing from [their] goods to the churches to which they are seen to be subject and from which they received or receive baptism, penance, the eucharist, and also the nourishment of life with the milk of the flesh. Therefore, observing this tinder of discord, we wish to inhibit it in every way and utterly prohibit it from being done further, considering that it is not good if those who formerly were partners in suffering, according to the Apostle, are exempt from the partnership of consolations. And because the hireling is worthy of his wage, therefore we command and mandate that whoever from now on wishes to be converted in a monastery, whether in death or in life, leave half of all the property and possessions that he decreed to dispose of for the salvation of his soul to the church to which he is known to pertain, and thus have license to go and be converted in the monastery as he pleases. But whoever shall be an opponent, overthrower, and violator of this enactment shall lie under the sword of anathema. [Given at Rome, on the twentieth day of the month of April, in the fifth indiction.]

Latin source headnote: Where someone, leaving the tomb of his ancestors, chooses a tomb in a less religious place, induced by fraud, or from contempt, or without the canonical portion being left to his church expressly or tacitly, the choice does not hold. This it says, preserving this text so far as can be done.

Innocent III, to the Archbishop of Genoa.

We do not believe your fraternity to be ignorant that from antiquity the tombs and cemeteries of the dead have been disposed at those churches and monasteries in which convents of religious brothers are constituted, and prayers and solemnities of masses are more frequently celebrated for the living as well as the dead. Hence the devotion and last will of those who desire to be buried at churches of this kind are in no way to be contradicted. But those who, leaving the ancient churches and the tombs of their fathers and other relatives, transfer themselves to new and less religious places, contrary to the custom of the Fathers of the Old Testament, who are read to have been buried with their fathers, are seen to act unreasonably and contrary to the ancient institution. Hence, if perhaps P. de Castello commanded anything concerning the burial of his body contrary to so ancient and reasonable a custom, this does not prejudice reason but ought to lack force. Wherefore, by the present writing we command, and by commanding direct, that you cause the body of P. himself to be returned to our beloved sons, the monks of Saint Stephen, and to be buried with his fathers.

Latin source headnote: If someone in the sickness from which he dies offers himself and his goods to a monastery, the parish church has a canonical portion from them; otherwise if he does so in health.

Alexander III, to the Bishop of Spalato.

Concerning those who transfer themselves with their goods to religious places in sickness or in health, leaving nothing to you or to the churches from which they received the nourishment of salvation, we wish this to be made known to your prudence: if they pass to religion in the sickness itself, provided that they die from that sickness, a canonical portion from their goods ought to be furnished to those churches by which they had been received. But if they have transferred themselves to religious places while in health, they cannot be compelled to impart to the aforesaid churches anything from the things that they confer upon those places, because they are then free to confer their goods not only upon religious places but also upon any private persons.

Latin source headnote: Those who bury another's parishioner, whom they ought not to bury, are compelled to restore the body and the things they obtained by reason of him. This it says together with the following chapter.

The same.

It was intimated to us on the part of the canons of Obrigen that the prior of Insula buried a certain parishioner of theirs in his church after an appeal had been made to us. Wherefore, because this is known to be contrary to ecclesiastical discipline and wholly alien to the path of reason, that someone should put his sickle into another's harvest, by apostolic writings, directing your fraternity, we command that you admonish and strictly compel the aforesaid prior to restore to the aforesaid canons the body of their aforesaid parishioner and thereupon agree peacefully and amicably with them, or not defer presenting himself in our presence.

Latin source headnote: It is summarized above, in the chapter immediately preceding.

The same, to the Dean and Master R. of Ravenna.

Since it is free, by all the institutes of the holy Fathers, to choose burial for oneself in a last will at religious places, he who presumes in this respect to contradict the devotion of the last will of persons dying undoubtedly opposes canonical reason. It has come to our hearing from the complaint of the abbot and brothers of Saint Martin of Laon that, when a certain priest was carrying the body of a certain woman to the same church for burial, as she had disposed in her last will, the monks of Saint Vincent of Laon did not at all hesitate violently to seize her body and bury it in their own church. And they presumed to do the same concerning the son of Ralph Canis. Concerning this we are indeed moved with vehement wonder, since the same monks both act contrary to the institutes of the holy Fathers and strive to violate the privileges of our predecessors and our own, which the aforesaid brothers propose that they have concerning free burial. Hence it is that by apostolic writings we command your fraternity that, after summoning each party before you, you inquire into the truth of the matter concerning this and, if you find it to be so, you compel the aforesaid monks to restore in their entirety to the aforesaid brothers the bones of the aforesaid woman and the benefactions that they are known to have received by occasion of her burial, and not to presume to do such things hereafter.

Latin source headnote: A married woman can freely choose a burial place for herself.—(Whether, etc.:) A father can cause his minor children to be buried where he wishes, if the custom of the place so holds. This it says.

Lucius III.

But concerning a wife, whether she, just as also the husband, ought to have free choice of burial, it seems to us that no distinction is to be made in this respect between husband and woman, but we believe the faculty of each to be equal in this case, since that choice pertains rather to the state in which a woman is released from the law of her husband. But whether a father can bury his minor children where he prefers, we do not find defined by the holy Fathers, and therefore we decree that it is to be left to the custom of the land.

Latin source headnote: If a parishioner of the cathedral church is buried elsewhere, a fourth of his funeral offerings or of the things left to the church of burial is owed to the chapter of the cathedral church.

The same, to the Provost and Chapter of Faenza.

Since concerning a certain chapter, which by favor of religion [is granted by the Apostolic See to certain churches—namely, that when some persons choose burial with them, canonical justice is reserved to the churches from which the bodies of the dead are taken—scandal sometimes arises among ecclesiastical men, who devise a diverse and varying interpretation of that justice, we have thought, from the clemency of the Apostolic See and with the counsel of our brothers, that provision should be made for you and your church, which, as we have learned, suffers grave injury in this matter through certain religious men exceeding what was granted to them by the Apostolic See in the aforesaid chapter.] Hence it is that, [inclining to your just petitions,] by the authority of the present writing we establish that, if it should happen that any of your parishioners chooses burial elsewhere, according to the statutes of blessed Gregory a fourth portion from his testament is to be left to you. [In addition, etc. Given at Verona, on the fifteenth day before the Kalends of April. 1186–87.]

Latin source headnote: As to the quantity of the canonical portion owed to the parish church, the custom of the place is followed.

Clement III.

You wished to be made certain by us how that clause that is customarily apposed in our privileges concerning the justice of those churches from which the bodies of the dead are taken ought to be understood and expounded. But since diverse institutes of our predecessors have issued concerning this article, Leo holding that justice to be sometimes a third part and sometimes half a part, and Urban III holding it to be a fourth, we furnish such a response amid this variation: as blessed Jerome says, let each province abound in its own understanding; according to the reasonable custom of the region, let that justice be observed at a half, a third, or a fourth part according to the diversities of places. [Given at the Lateran, in the second year.]

Latin source headnote: Those privileged concerning the right of conducting funerals can bury those who choose burial with them, nevertheless paying the canonical portion to the parish church. But if they bury others, they are bound to restore whatever they received by occasion of the funeral.

Innocent III, to the Bishop of Clermont and the Abbot of Mauriac.

When our beloved son, the prior of the church of Montferrand, and B., the proctor of the Hospitallers of the diocese of Clermont, were constituted in our presence, we appointed our venerable brother the Bishop of Sabina as auditor, before whom the same prior proposed that the aforesaid Hospitallers had received for ecclesiastical burial certain of his parishioners, two of whom were under the lawful years, on account of which the same church sustained damage of more than five thousand solidi. Wherefore the same prior humbly supplicated that we deign to forbid the Hospitallers themselves from attempting such things hereafter to his prejudice, and to compel them to repair the damages that he sustained therefrom. On the contrary, the aforesaid proctor proposed that, by privilege as well as by special indulgence, it is lawful for the Hospitallers to receive indiscriminately for ecclesiastical burial all persons except the excommunicated and interdicted who have chosen to be buried with them, and that they can lawfully accept fideicommissa left in a last will, only a fourth being paid to the parish church from whose parish the bodies of the dead are taken, except from horses and arms, which were granted to them in aid of the Holy Land, from which they are not bound to deduct a fourth. Therefore, when the same bishop had faithfully reported to you these and the other things proposed before him, all the attestations and allegations having been heard and understood, with the counsel of our brothers, we thought that such a sentence should be rendered concerning these matters: the aforesaid Hospitallers are hereafter not to receive parishioners of the aforesaid church for ecclesiastical burial unless they have chosen to be buried with them. And then the parish church is to receive a fourth part from the offerings, beds, and other things that the deceased left for his soul in his last disposition, except from horses and arms, and the Hospitallers are to have the residue, unless the deceased was induced by their deceit or fraud to make a disposition of this kind. We nevertheless enjoin upon the Hospitallers themselves that they satisfy the aforesaid prior concerning the fourth part of three thousand solidi, since it is established that they received those solidi from his parishioners and it is not sufficiently shown that they had been their oblates or converts. We further thought it should be enjoined upon them that, unless they prove that G., a parishioner of the prior who was killed in the fields, had chosen burial with them, they restore to the aforesaid prior all things that they received in consideration of him; otherwise, they are bound to restore only a fourth part. But for those who are established to have died under the lawful years, we enjoined upon them that they restore all the things they received for the sake of their burial. Wherefore, by apostolic writings we command your discretion that, appeal being removed, you cause by ecclesiastical censure what was judicially determined by you to be firmly observed. [Given at Ferentino, on the second day before the Ides of June, in the ninth year. 1206.]

Latin source headnote: One who died accidentally ought not to be deprived of ecclesiastical burial.

The same, to the Archbishop of Tours.

It was intimated to us on the part of the relatives of M., a young woman now deceased, that, when in the twilight of night the noble man N., lord I. of Île-Bouchard in the diocese of Tours, had laid an ambush for the young woman, wishing to violate her, whom he had often solicited for fornication, and she encountered upon a certain bridge the servants who were endeavoring to seize her, finally, she herself, fleeing their hands, fell from the bridge into the river and was accidentally drowned. But after she was drawn from the river, the chaplains of that place hesitated to deliver her body for burial, and you also, having been consulted, thought that an apostolic response should be sought concerning this. Wherefore, by apostolic writings we command your fraternity that, since that young woman did not voluntarily cast herself down from the bridge but, fleeing the hands of those who, as was expressed above, were endeavoring to seize her, fell by accident, you cause her body to be delivered to ecclesiastical burial, especially since she is known to have fled for an honorable cause, and communion is to be given to her now dead, to whom it was given while living. [Given at Saint Peter's, on the fourth day before the Nones of March, in the ninth year of our pontificate. 1206.]

Latin source headnote: If the bones of excommunicated persons are buried in an ecclesiastical cemetery and can be distinguished, they ought to be exhumed and cast out; otherwise, it is otherwise.

The same, to the Archbishop of Nidaros.

It is established by the sacred canons, and approved by the custom of those observing them, that we not communicate with the dead with whom we did not communicate while living, and that those who were previously cut off from ecclesiastical unity and were not reconciled to the church at the moment of death are to lack ecclesiastical burial. Hence, if it sometimes happens that either the bodies of excommunicated persons through the violence of certain persons, or by some other event, are buried in an ecclesiastical cemetery, if they can be distinguished from the bodies of others, they ought to be exhumed and cast far from ecclesiastical burial. But if they cannot be distinguished, we do not believe it expedient that the bodies of the faithful be disinterred together with the bones of excommunicated persons, since, although no burial or a base one does not harm the just, a celebrated or splendid one does not benefit the impious. [We distinguish, etc.; cf. c. 5, Concerning Things Done by Force, I. 40.]

Latin source headnote: Consecrated cemetery ground to be dug for burial ought not to be sold.

Innocent III, to the Bishop of Maguelone.

The perversity of a custom to be abolished, indeed of an abominable corruption, has, as is said, grown established at Montpellier, so that, namely, when persons die, permission is not given to dig a grave until a certain price is paid to the church for the ground in which they are to be buried. Therefore, because this is far from the rule of piety and the honor of the church, by the authority of the present writing we command you that, since you are the diocesan bishop of the place, you forbid clerics to presume to exact anything at all for this cause, enjoining upon the laity that they observe the laudable custom introduced through the pious devotion of the faithful toward the church of God, and that they not appear to corrupt it with the leaven of heretical depravity under the pretext of ecclesiastical purity.

Latin source headnote: An excommunicated person who was absolved at death by his priest ought to be buried in a cemetery, and the heirs are compelled to make satisfaction.

Gregory IX, to Bishop N.

A parishioner of yours who, excommunicated for manifest offenses—namely, homicide, arson, violent laying of hands upon ecclesiastical persons, violation of churches, or incest—was absolved by his priest according to the form of the church while he was at the end of life, ought not to be denied a cemetery and the other suffrages of the church; but his heirs and relatives, to whom his goods came, are to be compelled by ecclesiastical censure to make satisfaction for him.