Question II

GRATIAN. PART I. To these arguments: Even if these tithes were owed to you by right, as you assert, nevertheless an objection of thirty years imposes silence upon you. For every possession is removed by a prescription of thirty years, or of forty years, as are the possessions of religious houses, or of a hundred years, as are the estates of the holy Roman Church. Hence Pope Gelasius says, [to the Bishops of Sicily, letter II, c. 2]:

Let bishops claim by right for themselves the resources of the church, and also dioceses, which are possessed by some of them and which the law of thirty years has concluded, because the authority of our sons the princes has also issued in such a way that beyond thirty years no one is permitted to appeal concerning that which the period of the laws has excluded. GRATIAN. But they argue to the contrary: By the authority by which you impose silence upon us, by that authority we close your mouths. For the same Gelasius says: “By no presumption the status of parishes, etc.” Therefore, if a temporal objection cannot tear apart a diocese once constituted, it is evident that it will not protect you either, so that, by changing the status of our parish, you may claim for yourselves by a claimable usurpation tithes once lawfully assigned to us. But how these authorities are to be distinguished will be found in the cause concerning monks. PART II. § 1. Now it is asked concerning the right of conducting funerals: which of these churches has the right of burying these persons? As Jerome writes, married persons appear to be placed in one tomb. For he says:

Hebron is said to be the city of three men, because three patriarchs were buried in it, in the double cave with their three wives, that is, Abraham and Sarah, Isaac and Rebecca, Jacob and Leah, besides Adam himself and Eve his wife. Tobias says to his son: “When God has received my soul, you shall bury my body, and you shall honor your mother all her days; and when she has completed her time, you shall bury her beside me in one tomb.” The same: § 1. Let one tomb join those whom one marriage joined, because they are one flesh, and let man not separate those whom God joined.

Likewise Augustine. PART III. Let every woman follow her husband, whether in life or in death. Likewise Gregory: § 1. The sister of Saint Benedict was buried in the tomb which he had prepared for himself, so that burial might not separate the bodies of those whose mind had always been one in the Lord. GRATIAN. Likewise Joseph, dying in Egypt, asked his brothers that at the time of His visitation they should carry his bones with them and place them in the tomb of his fathers. § 1. Likewise, it was said to the prophet who, contrary to the command of the Lord, had eaten in Bethel after being forbidden: “Your corpse shall not be brought into the tomb of your fathers.” § 2. Likewise, it is read of certain persons in the Book of Kings: “He died and was laid with his fathers,” that is, in the tomb of his fathers. § 3. Likewise, in the New Testament it is read that blessed Philip built himself a tomb in which he and his daughters rested. § 4. Likewise, blessed Severus, Archbishop of Ravenna, ordered a tomb to be made, in which he placed himself, his wife, and his daughter. § 5. From all these examples it is gathered that the bodies of children are to be placed in the burial place of their parents. Therefore, because the parents of these persons are buried at the former churches, these persons also ought to be buried at the same churches. § 6. To the contrary, Adam, as you assert, was buried in the city of Arba. But were all his children buried there? So great a multitude of the human race could not so easily be enclosed in so small a tomb. § 7. Likewise Abraham was buried there. But were Ishmael and Midian and the others whom he begot from Keturah buried there? § 8. Likewise Isaac was placed there. But was Esau buried with him? § 9. Likewise Jacob was placed there. But was any of his sons besides Joseph buried with him? Rachel also is read to have been buried not in Hebron but near Bethlehem. From the example of these persons, therefore, it is evident that children are free to be buried in the tombs of their fathers, and they are free to find lodging elsewhere for their bodies according to the suitability of places and times. Therefore, by this example these persons are not compelled to be buried in the tombs of their fathers. § 10. Likewise, it is not permitted to change things defined by laws. But things not expressed by laws follow the judgment of human will. Yet it is defined by laws to whom tithes are to be paid, and therefore the giver is not permitted to change this. But where each person is to be buried is not expressed by laws, and therefore it rests in the will of the person to be buried. Hence blessed Gregory says:

PART IV. GRATIAN. This is to be understood concerning a free man and not concerning a slave. For a slave cannot compose the written instrument of a testament. Hence Pope Gelasius writes to Bishop Honorius:

We also wish it not to escape your sincerity that it has been reported to us that Ampliatus the leaseholder—who is established not only to be a slave of the church, but to be so entangled in accounts from many years that, even if he were freeborn, he would in every way be held liable until he had rendered all the accounts—has endeavored with rash daring to compose the written instrument of a testament, although all his peculium is not doubted to be bound by the laws to ecclesiastical right. Therefore let your fraternity oppose these presumptions in our place, and permit absolutely nothing to be done by any surreption. And if by chance anything human should befall him, since he is said to be advanced in years, let your unanimity immediately command, without delay, that his substance be delivered under a faithful inventory only to those sons of his to whom the patrimony is proved to have been committed, until he is compelled to render the lord’s portions unimpaired for all the periods during which he is known to have administered this patrimony. PART V. GRATIAN. Therefore, because according to Gregory the last will of the deceased is to be preserved, their bodies are to be buried according to the will of these persons, not according to the judgment of your disposition. Likewise it is read in the Council of Tribur:

Wherever the possibility of times or places permits, let burials be celebrated at the greater church where the seat of the bishop is. But if this appears difficult because of the harshness of the time or place, let him be buried at the church where a religious congregation of religious canons, monks, or nuns dwells in common. But if this also appears unsuitable, where anyone paid tithes while alive, there let him be buried when dead. GRATIAN. Therefore, because he paid the tithe to us while alive, he is also to be buried among us when dead. Likewise, if anyone should cross from province to province and establish a domicile for himself there, having been freed from the authority of the former judge, he would be subjected to the jurisdiction of that judge in whose province he chose a seat for himself. Therefore, because these persons passed from your diocese into ours, having been freed from your authority, they are subjected to our right. Therefore the right of conducting their funerals is ours. But that statement of Pope Melchiades is objected:

It pleased the great council in all respects that no one, by the rashness of his own judgment, take care to resort for the sake of burial to any church other than the one to which the usage of his ancient parents is reported to be subject by canonical institution, unless, hindered by illness, he has advanced into another region for any business. In addition to these things, if any prelate strives to act against them, let him know that he subjects himself to the ecclesiastical bond. GRATIAN. But it is one thing not to follow the usage of one’s ancient parents from the pride of rashness, and another to choose a new burial place for oneself on a reasonable occasion. One strives against the authority of Pope Melchiades who, led by pride or hatred, or enticed by vain persuasions or various little gifts, disdains to follow the burial place of his parents. But according to Gregory, one who for a certain reason seeks a new lodging for his body has a free last will. § 1. Or, as certain persons distinguish, the last will of each person is free not in choosing burial for himself but in making a testament. Hence it is also called a testament, because by it each person freely testifies what he wishes to be done with his own goods after his death. § 2. But the will of the testator does not appear free when, according to Augustine, a testamentary distribution of resources ought to be made according to the number of children; for example, if anyone has one son, let him reckon Christ as another; but if two, let him make Christ the third, and so in order. And according to Leo, each person is ordered to leave half of the things which he bequeaths to Christ to the church at which he received the sacraments of the faith. But that statement of Augustine is not the statement of one commanding but of one dissuading, lest anyone in anger disinherit his son and leave the whole to Christ. For he says in his second sermon on the life of clerics:

If anyone is angry with his son and, dying, disinherits him, if he were living, would I not appease him? Ought I not reconcile his son to him? How, therefore, do I wish him to have peace with his son when I covet his inheritance? But plainly let him do as I have often exhorted. He has one son: let him reckon Christ as another; he has two: let him reckon Christ as the third; he has ten: let him make Christ the eleventh, and I receive it. GRATIAN. By this authority, of course, a measure is fixed for the testator, not one which he is compelled to discharge but one which he is prohibited from exceeding. PART VI. § 1. But those who are unwilling to render the offerings of the deceased are to be excommunicated.

Hence in the Fourth Council of Carthage, [c. 95]:

Let those who either deny offerings of the deceased to churches or render them with difficulty be excommunicated as murderers of the needy.

Likewise from the Council of Vaison, [I, c. 4]. Those who retain the offerings of the deceased and delay delivering them to churches are to be cast out of the church as faithless persons, because it is certain that this provocation of divine piety reaches even to the emptying of the faith, since both the faithful departing from the body are defrauded of the fulfillment of their vows and the poor of the solace of food and necessary support. Therefore such persons are to be regarded as murderers of the needy and as not believing the judgment of God. Hence one of the Fathers also inserted this into his writings, in a fitting judgment, in which he says: “To seize something from a friend is theft, but to defraud the church is sacrilege.”

Likewise from the Council of Agde, [c. 4]. Let clerics or secular persons who persist in retaining the offerings of parents, whether donated or left by testament, or who have believed that what they themselves donated to churches or monasteries is to be taken away, just as the holy synod has established, be excluded from the churches as murderers of the poor until they restore them. § 1. But if any cleric has committed theft against the church, let foreign communion be assigned to him. PART VII. GRATIAN. It is likewise asked whether anything is to be exacted for the burial of the dead. Concerning these matters Gregory writes thus in the Register to Januarius, Bishop of Sardinia:

Nereida, a most illustrious woman, complained to us that your fraternity wished to exact solidi from her for the burial of her daughter. But after, by God’s authorship, we attained the honor of the episcopate, we altogether forbade this vice also from our church, and we did not permit it to be usurped again through a depraved custom, mindful that when Abraham requested from the sons of Ephron, that is, from the sons of Seor, a tomb at a price for burying the body of his wife, he refused to accept a recompense, lest he appear to have obtained profit from a corpse. Therefore, if a pagan man was of such great consideration, how much more ought we, who are called priests, not to do this? Hence I admonish that this vice of avarice not be presumed to be attempted again against others. § 1. But if at any time you permit someone to be buried in your church, if indeed his parents, kinsmen, or heirs should spontaneously wish to offer anything for lights, we do not forbid it to be accepted. But we altogether prohibit anything from being requested or exacted, lest—something exceedingly irreligious—the church be said, which God forbid, to be venal, or you appear to rejoice in human deaths if you endeavor to seek gain in any way from their corpses.

Likewise Jerome on Genesis. After Ephron was overcome by the price, so that he sold the tomb and accepted silver, although Abraham compelled him, the letter waw, which among them is read as o, was removed from his name, and instead of Ephron he was called Ephran, Scripture signifying that he was not of consummate and perfect virtue, who was able to sell the memorial of the dead. § 1. Therefore let those who voluntarily sell tombs and are not compelled to accept a price, but extort something from the unwilling, know that their name is changed and something of their merit perishes, since even he who accepted unwillingly is secretly reproved.

Likewise from the Council of Tribur, [c. 16]. For it is written in the ecclesiastical book: “Do not withhold grace from the dead, knowing that we shall all die.” And likewise: “All things which have sprung from earth shall be turned back into earth.” Why do you sell earth to earth? Remember that you are earth and shall return to earth, and that death is to be yours and draws near, even if it delays. Recall that the earth belongs not to man but, as the Psalmist commemorates, “The earth is the Lord’s, and its fullness.” If you sell the earth, you will be held guilty of invasion of property. Freely you received from God; freely give on His behalf. Therefore let it be forbidden to absolutely all Christians to sell earth to the dead and to deny the burial that is owed, unless perhaps the kinsmen and friends of the deceased should wish freely to give something for the sake of the man’s name and the redemption of his soul.

Likewise from the Council of Vaison. It is to be commanded according to the authority of the canons that they exact no gift for tombs and for persons to be buried, unless perhaps the one who is buried, while living, ordered something from his goods to be bestowed upon the church in whose churchyard he is buried, or even after his death those to whom the making of his alms was committed should wish spontaneously to give something from his goods; and nevertheless nothing shall in any way be exacted from them by the priests or by those who preside over the places and villages. § 1. It is also to be forbidden according to the institutions of our predecessors that persons be buried in no way in the church, but in the churchyard, or in the portico, or in the exedrae of the church. But within the church, or near the altar where the body and blood of the Lord are confected, let them in no way be buried.

Likewise Augustine. PART VIII. Those whose sins have not been forgiven cannot be helped after death by sacred places, because, if those whom graver sins weigh down cause themselves to be buried in sacred places, it remains that they be judged for their own presumption, since the sacred places do not free them, but the guilt of rashness accuses them.

Likewise Gregory, [book IV of the Dialogues, c. 50]. When grave sins do not weigh them down, then it profits the dead if they are buried in churches, because, whenever their kinsmen come to those same sacred places, they also behold the burial place of their own, remember them, and pour out prayers to the Lord for them. For the bodies of those whom grave sins weigh down are placed in churches for a greater accumulation of condemnation rather than for their release.

Likewise from the Council of Mainz, [I, c. 52]. Let no dead person be buried within a church unless bishops, abbots, worthy priests, or faithful laymen. GRATIAN. But what profits the dead from being buried beside a church, and what reaches them, Augustine shows in the book On the Care to Be Taken for the Dead, [last chapter], saying:

Let us not think that anything reaches the dead for whom we take care except that which we solemnly supplicate for them by the sacrifices either of the altar, of prayers, or of alms, although these do not profit all for whom they are done, but only those who, while they live, cooperate so that they may profit them. But because we do not discern who they are, it is fitting that these things be done for all the regenerated, so that none of those to whom these benefits can and ought to reach may be passed over. For it is better that these things be superfluous to those whom they neither harm nor profit than that they be wanting to those whom they profit. § 1. Nevertheless, each person acts more diligently for his own necessary ones, so that the like may be done for him by his own. § 2. But whatever is expended upon burying the body is not a safeguard of salvation but an office of humanity, according to the affection by which no one ever hates his own flesh. Hence it is fitting that one take whatever care he can for the flesh of his neighbor when he who took care of it has departed from it. And if those who do not believe the resurrection of the flesh do these things, how much more ought those who believe to do them, so that an office of this kind expended upon the body—yet upon it as one that will rise again and remain in eternity—may also be in some manner a testimony of the same faith. § 3. But as to the fact that each person is buried at the memorials of the martyrs, this alone appears to me to profit the deceased: that, by commending him also to the patronage of the martyrs, the affection of supplication for him may be increased. GRATIAN. To the contrary Jerome, [on the Epistle to the Galatians, c. 6, upon the words “Each shall bear his own burden”]:

In the present age we know that we can help one another either by prayers or by counsels. But when we have come before the tribunal of Christ, neither Job nor Daniel nor Noah will be able to entreat for anyone, but each shall bear his own burden. GRATIAN. But this is to be understood concerning the impenitent, of whom the Prophet says: “He shall not give his propitiation to God, nor the price of the redemption of his soul, and therefore a brother shall not redeem him, but he shall labor forever and shall live unto the end.” But it cannot be understood concerning others.

Hence Gregory to Archbishop Boniface:

For you are known to have consulted concerning those who are dying, whether it is permitted that offerings be offered for them. Holy church holds thus: that each person offer offerings for the truly Christian dead and that the priest make commemoration of them; and although we are all subject to sins, it is fitting that a priest make commemoration and intercede for the Catholic dead. Nevertheless it shall not be permitted to do any such thing for the impious, although they had been Christians.

The same. The souls of the deceased are released in four ways: either by the offerings of priests, or by the prayers of saints, or by the alms of dear ones, or by the fasting of kinsmen. § 1. But the care of the funeral, the condition of burial, and the pomp of the obsequies are consolations of the living rather than aids of the dead. If a costly burial profits an impious man, a cheap burial or none will harm a pious man. § 2. Yet the bodies of the deceased, and especially of the righteous, are not therefore to be despised and cast away. § 3. There it is also salutarily learned how great the recompense can be for the alms which we furnish to the living and sentient, if even that which the diligence of duty renders to the limbs of men devoid of life does not perish before God.

Likewise Augustine in the Enchiridion, [cc. 109 and 110]. The time placed between the death of a man and the final resurrection contains souls in hidden receptacles, according as each is worthy either of rest or of distress, on account of what it obtained in the flesh while it lived. Nor is it to be denied that the souls of the deceased are relieved by the piety of their living kin when the sacrifice of the Mediator is offered for them or alms are made in the church. But these things profit those who, when they lived, merited that afterward these things could profit them. § 1. For there is a certain manner of living neither so good that it does not require these things after death nor so evil that these things do not profit it after death. But there is a manner so good that it does not require these things, and there is again a manner so evil that it cannot be aided by them when this life has passed. Therefore every merit is acquired here by which someone can be relieved or burdened after this life. And a little later: § 2. When sacrifices of the altar or of any alms whatsoever are offered for all the baptized, they are thanksgivings for the very good, propitiations for those who are not very evil, and for the very evil, even if they are no aid to the dead, nevertheless they are consolations of the living. But for those whom they profit, they profit either so that there may be full remission or certainly so that the condemnation itself may be made more tolerable.

PART IX. GRATIAN. But concerning the observance of the third, seventh, thirtieth, or fortieth day, it is asked whence it took its origin. Ambrose in the book On the Death of Emperor Theodosius:

Because some have been accustomed to observe the third day, others the seventh, others the thirtieth, and others the fortieth in the offices of the dead, let us consider what the reading teaches. “When Jacob died,” it says, “Joseph commanded his servants the embalmers that they should bury him, and the embalmers buried Israel, and forty days were fulfilled. For thus the days of burial are numbered. And he mourned him for seven days.” Therefore that solemn observance which the reading prescribes is to be followed. But it is also written in Deuteronomy: “The children of Israel mourned Moses for thirty days, and the days of mourning were completed.” Therefore each observance has authority, by which the necessary office of piety is fulfilled. PART X. GRATIAN. But Cyprian forbids mourning and being sorrowful both for our own death and for that of others, saying:

How preposterous and how perverse it is that, when we ask that the will of God be done, when He calls and summons us from this world, we do not immediately obey the command of His will, but resist and struggle, and after the manner of obstinate servants are brought to the sight of the Lord with sadness and grief, departing from here by the bond of necessity, not by the obedience of will, and wish to be honored with heavenly rewards by Him to whom we come unwillingly. The same: § 1. To us also, the least and last, how often has it been revealed, how frequently and manifestly has it been commanded by God’s condescension that I should testify continually and preach publicly that brothers set free from the world by the Lord’s summons are not to be mourned, since we know that they are not lost but sent ahead, that in departing they precede us, as those setting out, as those sailing, are accustomed to do.

Likewise John Chrysostom, on the Epistle to the Hebrews. Wherever we may be buried, the earth is the Lord’s and its fullness. Let that, namely, which ought to be done be accomplished. But to mourn, deplore, and lament those who depart from this life occurs from faintheartedness.

GRATIAN. But this is understood of despair concerning the future resurrection. Hence the Apostle also does not say simply, “We do not wish you to be ignorant concerning those who sleep, that you may not be sorrowful,” but adds, “as also the others who have no hope.” For we are not prohibited from mourning the dead from an affection of piety and a regard for humanity, just as we read that some of the saints expended pious tears upon the obsequies of others. Hence Pope Anastasius also, [letter II to Nerius]:

Perhaps those who do not know another life, who do not trust that the passage from this world is to something better, have a just excuse for prolonged grief. But we who believe and teach this ought not to be excessively sorrowful concerning the dying, lest that which among others bears the appearance of piety should rather be a fault in us. For it is in some manner a kind of distrust to lament, contrary to that which each person preaches, while loving justice, as the Apostle says: “But we do not wish you to be ignorant concerning those who sleep, that you may not be sorrowful as also the others who have no hope.”

Likewise from the Third Council of Toledo, [c. 22]. Those who depart from this life by divine summons ought to be carried to the tomb only with psalms and the voices of those singing psalms. But let it suffice that the service of divine canticles is expended upon the bodies of Christians in hope of the resurrection. The holy Apostle forbids us to mourn the deceased, saying: “But concerning those who sleep, I do not wish you to be sorrowful, as also the others who have no hope.” And the Lord did not weep for the dead Lazarus, but wept for him who was to be raised again to the miseries of this life. If a bishop can forbid this to all Christians, let him not delay to act. Nevertheless, we judge that it ought in no way to be done otherwise for religious persons. For thus the bodies of deceased Christians ought to be buried throughout the whole world. PART XI. GRATIAN. It is also asked concerning the dead whether they know the things which are done here by the living. Isaiah says in the person of the afflicted people: “Abraham our father did not know us.” Augustine also testifies to the same in the book On the Care to Be Taken for the Dead, saying, [c. 15]:

It must be confessed that the dead indeed do not know what is done here while it is done here; but afterward they hear from those who proceed from here to them by dying—not indeed all things, but those things which these are permitted to remember and which it is fitting that those to whom they report them should hear. The dead can also hear something from the angels who are present at the things which are done here, according as He to whom all things are subject judges that each of them ought to hear. § 1. Many also believe that some of the dead come to the living, just as, conversely, divine Scripture testifies that Paul was caught up from the living into paradise. PART XII. GRATIAN. But concerning those who are suspended on gibbets, it is asked whether they are to be buried beside a church. Concerning them it was established thus in the Council of Mainz, [II, under Rabanus, c. 27]:

It was asked by some brothers concerning those who are suspended on gibbets for their crimes after confession made to God, whether their corpses are to be carried to churches, offerings are to be offered for them, and Masses are to be celebrated, or not. To them we respond: If communion is to be given at the end, according to the precepts of the canons, to all who make pure confession of their sins and worthily repent, why do the canons interdict communion or burial to those who have paid the final penalty for their sins and confess or desire to confess? For it is written: “God does not judge twice for the same thing.”

Thieves and robbers, if they are killed while stealing or plundering, it has seemed good that prayer not be made for them. If, after being captured or wounded, they have confessed to a priest or deacon, we do not deny them communion.]

[PALEA.

Likewise from the Council of Orléans. If a thief or robber caught in plunder can be captured without killing, and nevertheless he is killed, because they were created in the image of God and baptized in His name, their killers shall not enter the church for forty days. Clothed in woolen garments, let them abstain from foods and drinks which are forbidden, from the marriage bed, from the sword, and from riding. On Tuesday, Thursday, and Saturday let them use in turn and temperately some kind of legumes or vegetables, fruits, and small fish, with moderate beer.

But if it is proved by truthful witnesses that, without premeditation of hatred, in freeing themselves and their own they killed members of the devil who could not be captured, we do not impose penance for homicide upon them, unless they themselves should wish to do something that belongs to humanity. But if he is a priest, let him not be deposed; nevertheless let him do penance all the days of his life.]