Question VII

GRATIAN. PART I. But the authority of all the canons testifies that neither an abbot nor anyone else is permitted to receive churches from the hand of laymen. For in general both churches and the property of churches remain under the power of bishops. But laymen can possess neither tithes nor churches by their own authority or that of bishops. Hence, if bishops shall have given churches or tithes to laymen either as a benefice or for a price, they make the house of prayer a house of business and a den of thieves. Hence, after the overthrow of their see, separated from the assembly of the faithful, they shall be scourged by the Lord with an eternal lash. Hence Gregory VII says, [in the Lateran Council, c. 7, book VI of the Register]:

By apostolic authority we forbid tithes, which canonical authority demonstrates were conceded for the use of piety, to be possessed by laymen. For whether they received them from bishops, kings, or any persons, unless they shall restore them to the church, let them know that they commit the crime of sacrilege and incur the danger of eternal damnation. § 1. But it is more fitting that we receive from all the people the tithes and first fruits which we decree by right belong to priests, which the faithful offer at the Lord’s command, according to that prophecy of Malachi the prophet: “Bring the whole tithe into my barn, so that there may be food in my house.” § 2. But we decree that these tithes are to be under the bishop’s hand, so that he who presides over the others may distribute them justly to all and not furnish anything more honorably to one person, from which others might be moved with a scrupulous heart; but let all things be common, because it appears dishonorable that some priests should have while others suffer loss; but just as there is one catholic faith, so it is necessary that he who is provider of the place, although the churches are many, nevertheless distribute faithfully to all.

[PALEA.

Hence Urban II: When a synodal assembly of many bishops was gathered at the city of Clermont, a question was proposed to us by certain of them concerning churches or ecclesiastical possessions acquired until the present by clerics or monks without consulting the bishops. But we, employing the sounder counsel of those same bishops, yielding for the time and providing for ecclesiastical peace, and because otherwise a question of this kind could not proceed without danger of inevitable scandal, decreed by apostolic authority that those things which were acquired up to today by clerics or monks, or by any persons, as they were able, are to remain perpetually ratified and undisturbed, yet with this tenor: that henceforth they are not to presume such things without consulting the bishops. ]

Likewise Gregory [VII]. A sinister report has reached us that certain bishops confer the tithes and offerings of Christians not upon the priests of their own diocese but rather upon lay persons—namely, soldiers or servants or, what is graver, blood relatives. Hence, if from now on any bishop shall be found a transgressor of this divine precept, let him be held not the least among the greatest heretics and antichrists; and, just as the Synod of Nicaea decreed concerning simoniacs, let both the bishop who gives and the laymen who receive from him, whether for a price or as a benefice, be assigned to the fires of eternal burning.

Likewise Ambrose in the sermon On Lent, [whose beginning is: “Behold, now is the time”]. Whoever shall recognize in himself that he did not faithfully give his tithes, let him now amend what he did insufficiently. What is it to give faithfully, except that he at no time offer either what is worse or less, from grain, wine, the fruits of trees, livestock, a garden, business, or his own hunting?

Likewise from the Council of Rouen. All tithes of the land, whether from crops or the fruits of trees, belong to the Lord and are sanctified to Him. [PALEA. Oxen, sheep, and goats which pass under the shepherd’s rod: whatever comes tenth shall be sanctified to the Lord. Neither good nor bad shall be chosen, nor shall it be exchanged for another. If anyone shall exchange it, both that which was exchanged and that for which it was exchanged shall be sanctified to the Lord, and it shall not be redeemed. ]

But because many are now found unwilling to give tithes, we establish that, according to the precept of our Lord, they are to be admonished once, a second time, and a third. If they shall not amend themselves, let them be struck with the bond of anathema until suitable satisfaction and amendment.

Likewise from the Council of Mainz. Abraham intimates by deeds and Jacob by promises that tithes are to be given to God and the priests of God, and all the holy priests commemorate this. GRATIAN. But they are not to be bought back from the people if the people shall have been unwilling to give them otherwise. Hence it is read in the same council:

It is to be forbidden by the bishops that tithes which the people are unwilling to give unless they are bought back from them by some payment be treated in this way.

Likewise Augustine, [book L of the homilies, homily 48]. Our forefathers abounded in all resources for this reason: that they gave tithes to God and rendered the census to Caesar. But now, because devotion to God has departed, the assessment of the fisc has increased. We are unwilling to divide tithes with God, but now the whole is taken away. The fisc takes what Christ does not receive.

Likewise Origen, [homily 15 on chapter 21 of Matthew]. And we have said these things according to the simple understanding. But according to the moral understanding we shall say such things, and first indeed concerning the temple, about which the Lord said through the Prophet: “My house shall be called a house of prayer.” Therefore, in accordance with the bodily circumcision of the flesh and the bodily feasts and sacrifices of the law, the temple of God, which was constructed from insensible stones, will consequently also be understood: first constructed by Solomon, then repaired by Ezra, but afterward, after Christ’s advent, destroyed by the Romans; and that house is the house of prayer. When it has been destroyed, it is necessary that the Jews, as now no longer having a house of prayer, no longer have the privilege of God’s watchman and cannot serve God according to the law. § 1. When this was done, therefore, Christ cast out all things in the ministry of His spiritual acts; and what He then did, He enacted visibly, casting those who sold and bought out of the temple, overturning the tables of the money-changers and the seats of those who sold doves, for the correction of the people: that they are not to celebrate feasts in God’s name for worldly purposes, nor devote themselves to purchases and sales in an unsuitable place in which they ought not to buy and sell, but to devote themselves only to prayers and to assemble as though in a house of prayer. § 2. But now I judge the church of Christ to be the temple of God constructed from living stones. There are many in it, however, who do not live spiritually, as is fitting, but serve according to the flesh, and by their acts, which are not worthy of the church of God but of a den of thieves, they make the house of prayer constructed from living stones into a den of thieves. For one who considers in many churches the sins of such Christians, who judge piety to be gain, and who, although they ought to live from the Gospel in the manner fitting for servants of God, do not do this but acquire riches and many possessions—will you not say that under them the church has been made a den of thieves, so that Christ rightly says to them because of the dissipation of His church: “What profit is there in my blood while I descend into corruption?” Likewise He Himself through Hosea in this manner: “Woe is me, because I have become like one who gathers straw at harvest and like a cluster at the vintage, when there are no bunches to eat the first fruits. Woe to my soul, because the God-fearing man has perished from the earth, and there is no one among all men who corrects.” And when you shall have understood Jesus saying such things and mourning our sins, behold at the same time also that which is written in the Gospel: “When He saw Jerusalem, He wept over it and said: If only you also had known.” And if He reasonably wept over Jerusalem, He wept more reasonably over the church, built indeed to be a house of prayer but made through shameful gains into a den of thieves. § 3. And I judge that the word concerning the sellers of doves befits those who hand churches over to avaricious, tyrannical, undisciplined, and irreligious bishops or priests. For this reason also the Evangelist stated that only the seats were overturned by Jesus. And would that those who glory in the seats of Moses upon which they sit, and sell all the seats of doves and hand them over to such superiors, would hear these things together with the admonition of Scripture as it speaks; to them it is rightly said by the Lord through Jeremiah the prophet: “The rulers of my people have not known me. For they are foolish and without understanding; they are wise to do evil, but they do not know how to do good.” GRATIAN. Therefore, since churches and their offerings remain only under the power of bishops, it is certainly evident that they are to be received from no one other than from their hand. Hence it was established in the Council of Orléans, [I, c. 19]:

Let all basilicas which have been constructed in various places or are constructed daily remain under the power of the bishop in whose territory they are situated.

Likewise Pope Callixtus. Let absolutely no archdeacon, archpriest, provost, or dean grant to anyone the care of souls or prebends of a church without the judgment or consent of the bishop; rather, just as was established by the holy canons, let the care of souls and the dispensation of ecclesiastical monies remain under the bishop’s judgment and power. But if anyone shall presume to act contrary to this or to claim for himself the power which pertains to the bishop, let him be barred from the thresholds of the church. Likewise Gregory VII, presiding in a general synod, said, [cc. 1 and 2]:

If anyone shall henceforth receive an episcopate or abbey from the hand of any lay person, let him by no means be held among the bishops or abbots, nor let any hearing be conceded to him as bishop or abbot. Moreover, we forbid him the grace of blessed Peter and entry into the church until, coming to his senses, he abandons the place which he took under the crime both of disobedience and of ambition, from which the crime of idolatry arose. We establish the same also concerning inferior ecclesiastical dignities. Likewise, [c. 2]: § 1. If any of the emperors, kings, dukes, margraves, counts, or any secular powers or persons shall presume to give investiture of episcopates or of any ecclesiastical dignity, let him know that he is bound by the bond of the same sentence.

The same, [in the same place, c. 3]. Because we have learned that investitures are made by laymen in many regions contrary to the authority of the holy Fathers, and that from this arise very many disturbances in the church—indeed, the ruin of holy religion—by which the religious order of Christian discipline is disturbed, we decree that no cleric receive investiture of an episcopate, abbey, or church from the hand of an emperor, king, or any lay person, male or female. But if he shall presume to do so, let him recognize that investiture to be void by apostolic authority and himself to be subject to excommunication until worthy satisfaction.

Likewise from the Canons of the Apostles, [31]. If any bishop, using secular powers, obtains a church through them, let him be deposed and separated, and all who communicate with him.

Likewise from the Chronicle of Anastasius. Indeed, the bishops of Thessalonica, because of fear of Emperor Anastasius, consented to Timothy, Bishop of Constantinople, who had anathematized the Council of Chalcedon. But forty bishops of Illyria and Greece, assembling as one, by a declaration made in writing departed from him as from their own metropolitan, and, sending to Rome, professed in writing that they communicated with the Roman bishop. And shortly afterward: § 1. When Dioscorus the Younger had received the imposition of hands, multitudes of peoples withdrew, saying that, according to what is contained in the canons of the holy Apostles, he was not made a bishop and therefore would not be received. For the princes enthrone him.

Likewise Pope Paschal [II]. If any cleric, abbot, or monk shall obtain churches through laymen, according to the canons of the holy Apostles and a chapter of the Council of Antioch, let him be subject to excommunication.

The same. Following the constitutions of the holy canons, we establish that whatever cleric from this hour shall receive investiture of a church or ecclesiastical dignity from the hand of a layman, and the one who shall lay a hand upon him, shall be subject to danger of his rank and be deprived of communion.

Let no layman occupy or dispose of churches or the goods of churches. But let one who shall act otherwise be barred from the thresholds of the church according to the chapter of blessed Alexander.

Just as the Lord’s garment was not torn, but lots were cast for it, so the church also ought not to be torn, because it consists wholly in unity. Therefore let churches be restored to the power of their own bishop and be ordered by him, as is provided in the sacred canons. Otherwise, let both the churches themselves and their clerics be deprived of divine offices.

Likewise Alexander [II]. Let no cleric or priest in any way obtain a church through laymen, either gratis or for a price. § 1. Let no one assume the habit of a monk while having the hope or promise that he will become abbot. § 2. Let no priest have two churches.

Likewise from the Council of Chalcedon, [c. 26]. Because in certain churches, as we have learned by report, bishops manage the resources of the church without stewards, it pleased us that every church having a bishop is to have a steward from its own clergy who shall dispense ecclesiastical property according to the judgment of his own bishop, so that the administration of the church may not be without testimony, ecclesiastical resources may not thereby be dispersed, and disparagement and a curse may not be procured for the priesthood. But if he shall by no means do this, he will be subject to the divine constitutions.

Likewise from the Second Council of Seville, at which Isidore was present, [c. 9]. At the ninth proceeding we learned that certain persons from our college, contrary to ecclesiastical customs, have laymen appointed as stewards over divine property. Therefore, treating the matter together, we have chosen that each of us, according to the edicts of the Fathers of Chalcedon, appoint for himself a steward from his own clergy. For it is indecorous for a layman to be the bishop’s vicar and to judge ecclesiastical men. For in one and the same office the profession ought not to be unlike. This is also forbidden in divine law, when Moses says: “You shall not plow with an ox and an ass together,” that is, you shall not associate men of different professions together in one office. Hence it is fitting for us to obey both the divine books and the precepts of the holy Fathers, establishing that those who are associated with pontiffs in administrations differ neither in profession nor habit. For those whose pursuits and vows are different cannot adhere and be joined. § 1. But if after this any bishop shall choose a lay agent to administer ecclesiastical property, or shall not entrust it to be governed with the testimony of a steward, truly, as a contemner of the canons and defrauder of ecclesiastical property, he will not only be judged guilty by Christ concerning the property of the poor but will also remain answerable to the council.

Likewise in the Synod of Pope Symmachus, Lawrence, Bishop of Milan, said: It did not please us that a layman should have any power of establishing matters in a church, since the necessity of following remains for him, not the authority of commanding. Likewise in the same council Eulalius, Bishop of the church of Syracuse, said:

No power to dispose of anything concerning ecclesiastical dignities is read to have been attributed to laymen, however religious they may be.

Likewise Pope Callixtus [II]. If any of the princes or other laymen shall claim for himself the disposition or dominion of ecclesiastical property or possessions, let him be judged sacrilegious.

Likewise Gelasius to Bishop Senecio. PART III. The devotion of a pious mind is to be embraced, by which Senilius declares to us that he founded a church on the Viviana estate belonging to his right, which he desires to be consecrated in his name in honor of Saint Vitus the Confessor. Therefore, dearest brother, if you do not doubt that this church pertains to your diocese, it is fitting that it be dedicated according to custom, after the solemn donation has first been conferred which the giver of the aforesaid gift testifies that he destined for the ministers of the church; he is to know without doubt that, apart from access to the procession, which is owed to every Christian, he will have nothing of his own right there.

But Trigetius suggested to us by a petitionary representation that on his estate, which is called Sextilianum, he founded for his protection a basilica of the saints Michael the Archangel and Mark the Confessor. And therefore, dearest brother, if it pertains to your parish, render the blessing of the aforesaid basilica with solemn veneration. Nevertheless, let the founder know that he is to claim nothing for himself from this basilica except access to the procession, which is owed in common to all Christians.

Likewise Clement, [letter II to James]. Build churches in suitable and useful places, which ought to be consecrated by divine prayers and burdened by no one.

Likewise Leo IV to King Charles. It appears to be contrary to the decrees of the holy Fathers if a secular or lay person is seen to expel priests from the churches in which they were designated or introduced at the time of their ordination. GRATIAN. But if the founders of churches begin to incline toward poverty, let them receive from those same churches support for temporal life. Hence it is read in the Council of Toledo, [IV, c. 37]:

Whoever among the faithful from their own devotion shall have conferred something from their resources upon a church, if perhaps they themselves or their children shall have been reduced to need, let them receive support for life from the same church for the need of the time. GRATIAN. Therefore, if they do not have power to dispense ecclesiastical resources, much less can they commit the churches themselves to any persons to be governed or take them away from others. § 1. But here it is to be distinguished what right founders of churches have in them, and what they do not have. They have the right of providing, counseling, and finding a priest; but they do not have the right of selling, giving, or using them as their own. Hence it is found in the Canons:

Let it be permitted to the sons, grandsons, and more honorable relatives of him who constructed or enriched a church to have this diligence: if they shall foresee that the priest is defrauding anything from the property conferred, let them either restrain him by an honorable agreement or report the matter to the bishop or judge to be corrected. But if the bishop should attempt to do such things, let them take care to intimate them to his metropolitan. But if the metropolitan does such things, let them not delay in bringing them to the ears of the king. § 1. Nevertheless, let the heirs themselves not be permitted to assert the power of their own right over that property, to bring in plunder and fraud, or to presume any violence, but to employ only this much in salutary solicitude: that either no harmful action may attain its harmful end, or that it may receive a penalty or some part of a salutary reward. § 2. But if anyone henceforth shall wish to violate these admonitions, he will restore with disgrace the things wickedly plundered and sustain a sentence of excommunication for one year.

Likewise from the Council of Toledo, [IX, c. 2]. We decree that as long as the founders of churches shall survive in this life, they are to have solicitous care for those places, and those same persons are to present suitable rulers to the bishop to be ordained in those basilicas. But if, in disregard of those founders, the bishop shall presume to ordain rulers there, let him know that his ordination is void and that, to his shame, others whom the founders themselves shall have chosen as worthy are to be ordained in their place.

Likewise from the Roman Synod, [of Eugene II and Leo IV, c. 21]. Let a monastery or oratory canonically constructed not be taken away from the dominion of the builder against his will; and let it be permitted to him to entrust it for its sacred office to whatever priest he shall wish from that diocese, with the bishop’s consent, lest he be evil.

Likewise Pope Gregory, [book VII, indiction I, to Secundinus, Bishop of Taormina]. The order of reason does not permit that anyone ought, against the will of the founders, to claim a monastery from their disposition for his own judgment. GRATIAN. Nevertheless, churches ought to be honored by their founders according to the providence and admonition of the bishop. Hence Gregory:

It is to be considered that, if the coheirs themselves shall wish to retain them according to the providence and admonition of the bishop, let them cause them to be honored. But if they shall oppose this, let it remain under the bishop’s power whether he permits them to remain or wishes to remove the relics from them.

Likewise from the Council of Tribur, [c. 32]. If several heirs shall contend concerning a common church, let the bishop command the sacred relics to be removed and the church to be closed until by common consent and the bishop’s counsel they establish a priest there and that from which he may live. PART IV. GRATIAN. Therefore, as is gathered from these authorities, churches are not to be received from the hand of laymen except with the consent of the bishops, according to that statement of the Council of Mainz:

Let laymen not cast priests out of a church, nor establish them in churches without the consent of their bishops.

Likewise from the Second Council of Chalon, [c. 42]. It has been found that many persons, by the rashness of their own judgment and—what is graver—led by greed, give churches to or take them away from any priests without the consent of their bishops. Hence it is fitting, with the canonical rule preserved, that no one give a church to any priest without the consent of his bishop; and if the priest shall have obtained it justly, let him lose it only for a grave fault before the bishop by canonical severity. GRATIAN. Therefore, just as by the authority of Jerome it is permitted, with the bishop consenting, for monks to receive from the hand of laymen tithes badly possessed by laymen and to hold them with perpetual stability, so also it is permitted for monks, with the consent of the bishops, to receive churches badly detained by laymen in order to put them in order and to provide for them in perpetuity. Hence Urban II:

Let monks not receive tithes and churches from laymen without the consent and will of the bishops. But if anything shall have been presumed otherwise, let them be subject to canonical vengeance.

Likewise from a decree of Pope Sylvester. Let no king or any person be permitted to hand a monastery into his own right, except to another monastery, or to exchange it except with another monastery, or to sell it by any contrivance. But if this shall have been done, it will not be valid, but let the monastery itself be restored to its former state.

Likewise from a decree of Boniface. PART V. If anyone wishes to place his monastery in another place for its improvement, let it be done with the counsel of the bishop and his brothers, and let him leave a priest in the former place for the ministries of the church.

[PALEA.

Likewise from the Council of Mainz. PART VI. This sacred assembly indeed established that bishops or abbots who, intent not upon the fruit of souls but upon avarice and shameful gain, have tonsured any persons by deceiving them and have taken away their property by such persuasion are to be subjected to canonical penance as followers of shameful gain. But let those who, having been enticed, laid aside their hair be compelled to persevere in what they began, and let their property be restored to their heirs. ]

Likewise from the same. The congregation ought to elect an abbot for itself after the death of its abbot, or while he is living if he has departed or sinned. For the bishop ought not violently to retain an abbot in his place. But he himself cannot ordain anyone from his relatives or friends without the will of the brothers.