Question IV

GRATIAN. PART I. But if he shall have departed from the monastery without the abbot’s permission, it is asked whether his property is to be restored to him or not. But neither an abbot nor anyone else is permitted in any way to alienate possessions and property handed over to a church. Hence Pope Symmachus: “Possessions which each person, etc.” And again:

Whatever bishop, priest, or deacon, forgetful of God and unmindful of this decree, acting contrary to the enactment, shall attempt to alienate a great or small estate of a church or anything from the right of a church, let the donor, alienator, and seller be punished by loss of his honor.

[PALEA.

No reason permits that what is known to have been given for common utility be applied to anyone’s private uses. ]

Likewise Ambrose in book [II] On Penance, [c. 9]. There are those who, after they conferred their resources upon a church by a tumultuous impulse of mind rather than by a perpetual judgment, later thought that they were to be recalled. For them neither the first reward nor the second is acceptable, because the first had no judgment and the second had sacrilege. There are those whom it has repented to have divided their resources among the poor. Thus those who do penance ought to fear this alone: lest they do penance for penance itself.

Likewise Gregory to Sabinus the Subdeacon, [book VIII, letter 6]. It is sacrilege and contrary to law if anyone shall attempt, by efforts of a depraved will, to retain for his own advantage what is left to venerable places.

Likewise Bishop Lucius to all Bishops, [letter I, c. 6]. We anathematize all plunderers of a church and alienators of its resources, drive them from the thresholds of the same mother church by apostolic authority, condemn them, and judge them to be sacrilegious; and not only them but all who consent to them, because not only those who act are judged guilty but also those who consent to those acting. For an equal punishment embraces both actors and consenters.

Likewise Nicholas to all Bishops. PART II. Just as was established in ancient times by the holy Fathers, we establish that a greater church is to have sixty paces around it, but a chapel or smaller church thirty. § 1. But whoever shall attempt to break their boundary, or shall remove from it the person of a man or his goods—unless he shall be a public robber—let him be excommunicated until he amends and restores what he plundered.

Likewise from the Council of Tribur. If anyone commits a fight in the atrium of a church or shall commit homicide, whatever is to be paid as amends for the violated immunity is to be paid to the altar, to whomever that church shall belong.

Likewise Augustine to Boniface, [letter CLXXXVII]. I marvel how suddenly the enemy’s battering ram broke through the wall of faith. For I know with what religious reverence you have always venerated the church. At whose instigation did you do this—you carried off a man from a church? If a fugitive belonging to you had perhaps presumed to go to your friend, he could undoubtedly have merited pardon by reason of the intercessor. Therefore, if a friend is appealed to, why is God offended? But if reliance is also placed on power, consider King Nebuchadnezzar, who because of pride was changed from a man into an ox. I write these things not to confound you, but to admonish you as a most beloved son. Therefore recall unharmed to the church the man whom you, most irreligiously, carried off. But I have forbidden the offering of your household to be received by the clerics, and I forbid communion to you until, when the penance defined by me for your audacious deeds or error has been performed and pardon has been granted for this deed, you offer to God a worthy sacrifice with a contrite and humbled heart.

Likewise from the book of Capitularies, [book V, c. 90]. Let no one dare to drag away an accused person fleeing to a church, nor to hand him over from there to punishment or to death, so that the honor of churches may be preserved; but let the rulers strive to obtain his peace, life, and limbs; nevertheless, let him lawfully pay composition for what he did unjustly.

Likewise Gelasius to Bishops Victor, Constantinus, Martyrius, Felicissimus, Serenus, and Timotheus. Our brother and fellow bishop Epiphanius has reported to us in his account that Benenatus and Maurus, citizens of the city of Beneventum, sprang forth in contempt of religion with exceedingly bitter and punishable contumacy: they did not permit a member of their curia who had fled to the enclosure of a church to be safe even there or secure from their injury, daring, by an incursion of rash intent, to commit what it has never been lawful even for powers or princes to perpetrate, namely, violently to drag away a man situated in the sanctuary, struggling and crying out, after taking advantage of the priest’s absence. Insofar as he disclosed by his report to us, he rightly judged them to be unworthy of holy communion. And if the commission of so great a crime is truly established, our authority also assents in this matter. For a man ought not by right to be admitted to make supplication where he did not hesitate to commit sacrilege. Indeed, let no one suppose that within thresholds appointed to such great veneration both things are lawful for him at the judgment of his own will, so that he may claim for himself both humility and fury. And therefore, dearest brothers, if a manifest complaint shows the aforesaid men to be guilty, bar them from all the churches of your parishes by the authority of our command, so that not only may those who are proved to have sprung forth in injury to holy places deservedly receive punishment according to the quality of their deed, but others also may be recalled from such presumption by fear of that vengeance.

The same to Bishop Epiphanius. We directed a command to the other bishops that they judge those who are reported to have violated churches to be unworthy of access to them.

Likewise Pope Pius, [letter II to the Italians]. Just as one who lays waste God’s church and despoils and invades its estates and gifts becomes sacrilegious, so one who persecutes its priests is judged sacrilegious. § 1. Therefore fornication is not a graver sin than sacrilege. And just as the sin committed against God is greater than that committed against a man, so it is graver to commit sacrilege than to fornicate.

Likewise Urban, [in the letter to all bishops, c. 2]. All must take heed lest estates dedicated to the uses of the heavenly mysteries be vexed by certain persons rushing upon them. But if anyone shall have done this, after the bitterness of the punishment due—which by right is to be brought forth against the sacrilegious—let him be condemned to perpetual infamy and handed over to prison, or reserved for exile by perpetual deportation.

[PALEA.

If anyone shall have burned a church with fire, let him do penance for fifteen years, diligently restore it, and distribute his own price to the poor. ]

Likewise Clement, [letter II to James]. If perhaps any priest or deacon shall have sold a stolen linen cloth or veil of the sacristy, he will be reckoned like Judas Iscariot. Let one who shall have done this work because of greed know that he will undergo the punishment of the aforesaid Judas.

[PALEA.

Likewise from Theodore’s Penitential. Ecclesiastical money that has been stolen or plundered is to be restored fourfold; that of the people, however, is to be doubled. If anyone shall have stolen anything from the ministry of the holy church, let him do penance for seven years, three on bread and water. ]

[PALEA.

Likewise from the Roman Penitential. If any cleric shall have committed a capital theft, that is, shall have stolen a quadruped, broken into a house, or stolen anything of greater value, let him do penance for seven years; a layman, for five. But if anyone shall have committed a theft of lesser things once or twice, let him restore it to his neighbor and do penance for one year on bread and water; and if he shall not have been able to restore it, let him do penance for three years. ]

Likewise Anacletus, [letter I, c. 2]. One who plunders the money of his neighbor works iniquity; but one who shall have taken away the money or property of a church commits sacrilege.

Likewise from the Council of Lleida, [c. 8]. Let no cleric dare to drag away his servant or disciple who has fled to a church, or presume to flog him. But if he shall have done this, let him be separated, until he worthily does penance, from the place to which he did not give honor. § 1. But if any clerics shall have burst forth into mutual slaughter, let it be more strictly punished by the pontiff according as the dignity of their offices has suffered dishonor in such an excess.

Likewise from the Council of Tribur, [c. 20]. If any contumacious or proud person shall not have fear of God or reverence for holy churches, and by force shall in any way have dragged away from the atrium of a church or from porticoes adjoining a church his fugitive servant or one whom he himself pursued, let him pay nine hundred solidi as composition for the immunity, and let him himself be punished with public penance according to judgment. GRATIAN. Therefore it is sacrilege whenever anyone violates a sacred thing, either by taking a sacred thing from a sacred place, a sacred thing from a place not sacred, or a thing not sacred from a sacred place. § 1. One who shall have laid violent and impious hands upon a cleric is also said to commit sacrilege. § 2. Moreover, sacrilege itself contains a twofold penalty, namely a monetary penalty and excommunication. The monetary penalty is to be paid to those to whom the complaint of sacrilege belongs. Hence Pope John VIII writes to all Bishops:

Whoever shall have been found guilty of sacrilege is to pay thirty pounds of assayed, most pure silver as composition to bishops, abbots, or the persons to whom the complaint of sacrilege shall justly belong. § 1. Sacrilege is committed if anyone shall have broken into a church, the thirty ecclesiastical paces that are around a church, or houses that shall have been within the aforesaid paces, plundering or taking anything away from there; or if anyone shall have inflicted injury or the taking away of property upon clerics not bearing arms, monks, persons devoted to God, or any ecclesiastical persons. Chapels that are within the circuit of the walls of castles are not placed under this observance of thirty paces. § 2. Similarly, sacrilege is committed by taking a sacred thing from a sacred place, a thing not sacred from a sacred place, or a sacred thing from a place not sacred. The same: § 3. If anyone shall have violated the house of God and, without the permission of him to whom it is known to have been entrusted, taken anything away from there, or shall have done injury to ecclesiastical persons, let him know that he will be deprived of communion until, having been lawfully admonished in an assembly, he makes satisfaction. But if after a second and third admonition before the bishop he shall have refused to make satisfaction, let him be held liable by all to the peril of sacrilege, so that, according to the Apostle, he is not to associate with any of the faithful. The same: § 4. Those who break into monasteries, places dedicated to God, and churches, and carry away deposits or any other things from them, are to pay the loss ninefold, the immunity threefold, and, as sacrilegious persons, are to be subjected to the canonical sentence.

Likewise Alexander II. If henceforth any one of the chief men, or of whatever dignity or whatever order of laymen, shall have seized or struck a bishop, or by any force expelled him from his own see, unless perhaps he had been canonically judged, let the authors and helpers of so great a crime be anathematized, and let their goods be handed over perpetually to the right of that church. § 1. But if anyone shall have presumed these same things against a priest or any cleric of the lower grades, he will be subject to canonical penance and deposition. If he shall be contumacious, let him be excommunicated.

Likewise Pope Nicholas to Thado, Archbishop of Milan. Concerning the floggers, killers, and plunderers of priests—those, namely, who are by no means restrained by the secular arm—it is pleasing that, according to the Lord’s precept, they be admonished a second and a third time with fraternal love. If they shall not have heard you, we grant permission, when the church has assembled, to deprive them of holy communion and—if, remaining in their obstinacy, they shall perhaps have despised priestly admonitions—to cut them off from the body of the church under the prohibition of an anathema. § 1. Know that even these, when at length they have recovered their senses and worthy satisfaction has first been made, can be recalled into the bosom of holy mother church.

[PALEA.

Let a penance of twelve years be imposed according to the canons upon one who has killed a priest; or, if he shall have denied it, if he is free, let him swear with seventy-two persons; but if he is a slave, let him purge himself upon twelve glowing plowshares. If convicted of the offense, however, let him lack the military belt until the last time of his life and remain without hope of marriage. ]

[PALEA.

Let priests not travel unless clothed with a stole or orarium. And if on a journey they are despoiled, wounded, or killed while not clothed with a stole, let compensation be paid at the single rate; but if with a stole, at the threefold rate. ]

[PALEA.

Let all killers of priests be discharged by payment of composition to the bishop to whose parish they belong, in such a manner, namely, that the bishop give half of his wergeld to the uses of the church over which he presided and justly distribute the other half in alms for him, because no heir of his seems nearer to us than he who joined him to the Lord. ]

Likewise from book V of the Capitularies, [c. 25]. One who has killed a subdeacon is to pay three hundred solidi as composition; one who has killed a deacon, four hundred; a priest, six hundred; a bishop, nine hundred; a monk, four hundred.

Likewise from book VI of the same. One who has killed a monk or cleric is to abandon arms and serve God in a monastery all the days of his life, never to return to the world, and is to perform public penance for seven years.

Likewise Pope Innocent II, [in the Lateran Council, c. 15]. If anyone, at the devil’s persuasion, shall have incurred the vice of this sacrilege, namely that he has laid violent hands upon a cleric or monk, let him be subject to the bond of anathema; and let no bishop presume to absolve him, unless the peril of death is urgent, until he is presented before the apostolic presence and receives its command. PART III. GRATIAN. But one who shall have removed anyone by force from a church, or brought any injury in the church itself upon its place or worship, its priests or ministers, will be accused as for a public crime and lèse-majesté; and, if convicted or having confessed, he will be struck by the rulers of the province with a capital sentence, as is read in book I of the Code, title Concerning Bishops and Clerics, in the law “If anyone shall have burst forth into this kind of sacrilege,” and in the Digest, title On the Julian Law concerning Extorted Monies, in the final law. § 1. Those also commit sacrilege who either unknowingly commit acts against the sanctity of divine law, or violate and offend it through neglect; or who dispute concerning the prince’s judgment, doubting whether he whom the prince has chosen is worthy; or who, within a province in which they are reckoned among the provincials and citizens, desire the office of carrying on and undertaking an administration, in book IX of the Code, title Concerning the Crime of Sacrilege. § 2. Similarly, no one is permitted to dispute concerning the judgment of the Supreme Pontiff. Hence Pope Nicholas to all Bishops:

No one is permitted to judge concerning the judgment of the Apostolic See or to reconsider its sentence, namely because of the primacy of the Roman Church, divinely placed by Christ’s gift in blessed Peter the Apostle. GRATIAN. One who entrusts public offices to Jews also incurs the guilt of sacrilege. Hence in the Fourth Council of Toledo, [c. 64]:

The holy council established that Jews, or those who are from the Jews, are by no means to seek public offices, because under this occasion they do injury to Christians. Therefore let the judges of the provinces, together with their priests, suspend the surreptitious grants fraudulently left in place, and not permit them to exercise public offices. But if anyone shall have permitted this, let excommunication be pronounced against him as against a sacrilegious person, and let the one who shall have obtained the office by surreption be assigned to public beatings. PART IV. GRATIAN. But lest reverence for religion defraud masters of their right if servants fleeing to the enclosures of a church are by no means dragged away from there, it was established by the sacred canons that, after an oath of impunity has been furnished by the master, the servant is to be restored to him even against his will. Hence Pope Gelasius writes to Bishop Boniface:

If servants fearing their masters shall have fled to the enclosures of a church, they ought to seek intercession, not hiding places, lest this very presumption of delay increase their rashness in resisting. For our son, the distinguished man Peter, complains that his servant has remained for a rather long time in the church of Saint Clement; and when he had arranged for assurances to be furnished to him, the servant was unwilling to depart for any reason. Therefore, when the man of the aforesaid Peter who has now been sent comes together with the person whom you shall choose to send, after he has furnished assurances concerning the servant’s impunity, you will cause him immediately to return to his master by every means; or, if perhaps he shall persist in this obstinacy, after an assurance has been furnished to him, let him be restored against his will.

The same to John, Bishop of Vibo. The wife and daughters of Felix have arrived at Rome, because it was fitting thus. Indeed, we commanded this same man, who first betook himself to the basilica of the Barbarians and boasted that he had good causes, to depart on this condition: that, if he faithfully and reasonably set forth his acts, we would permit absolutely nothing harsh or severe to be done to him. Otherwise, if he were proved to have acted against good faith and his master’s interest, he was to impute it to himself and be subject to a fitting disposition. When our son Ortasius, a distinguished man, arrived, he was so convicted concerning every single matter that he could not open his mouth, and with his own voice he confessed that the things charged against him were true; and therefore he is held committed to custody.

The same to the Bishops of Syracuse, Constantius, and Laurentius. Judas, who is of the Jewish profession, has reported that a slave belonging to his right, whom he asserts that he purchased a few years ago, has now fled to the church of Venafrum, as the tenor of the attached petition shows, because the slave says that, though a Christian from infancy, the sign of circumcision was recently impressed upon him by the aforesaid master. Therefore let your careful concern diligently examine between the two the truth of the matters in good faith, so that neither religion may seem to have been profaned nor a servant, by falsely alleging this objection, may strive to evade the rights of the ownership properly belonging to him.

Likewise from the Twelfth Council of Toledo, [c. 10]. The holy council defined that no one is to dare to drag away those fleeing to a church or residing there, or inflict any kind of injury, loss, or spoliation upon those residing in the holy place; but rather that it is to be entirely lawful for those who seek churches to proceed thirty paces from the doors of the church, within which thirty paces reverence for each church is to be defended throughout its whole circuit—yet in such a way that those who flee to it are by no means to withdraw into foreign houses or houses far separated from the church, but, proceeding within this number of thirty paces without the shelter of foreign houses, they will obtain access by which they may go out to fitting places for the use of natural necessity, and those who have committed themselves to the Lord’s enclosures to be defended may be constrained by no event of necessity. § 1. But if anyone shall have attempted to violate this decree, let him both be subject to ecclesiastical excommunication and be struck by a sentence of royal severity. § 2. But if, in accordance with the institutes of the ancient canons, those who seek the persons who made refuge at a church shall have rendered oaths, and the priest of that church shall not have drawn them away from the doors of the church, either the flight of such persons, if it shall occur, is to be charged to the priest, or a sentence for the losses is to be imposed upon priests of this kind according to the prince’s choice.

Likewise from the Council of Orléans, [I, cc. 3 and 5]. We establish that what the ecclesiastical canons have decreed and Roman law has constituted is to be observed: that it is entirely unlawful to drag them away from the atria of a church or the bishop’s house, or even to consign them to another, unless, after oaths have been given upon the Gospels, they have been made secure from death, mutilation, and every kind of punishment, so that the criminal may come to an agreement concerning satisfaction with him to whom he is liable. But if anyone shall have been convicted of violating his oaths, as guilty of perjury let him be separated not only from the communion of the church and of all clerics, but also from the common table of Catholics. But if he to whom the accused is liable shall have wished composition to be made to him while a claim is being made, and the accused himself, having been driven by fear, shall have departed from the church, let him not be sought from the clerics of the church. § 1. A servant also who has fled to a church because of any offense, if he shall have received an oath from his master concerning the offense committed, is immediately to be compelled to return to the service of his master; and after he has been consigned to his master upon the giving of an oath, if he shall be proved to have suffered some punishment for the same offense for which he is defended, let the master be held excluded from the communion and common table of Catholics for contempt of the church and violation of faith. But if a servant defended by the church for his offense, when the clerics demand it, shall have received assurances of impunity from his master, and is unwilling to depart, let it be lawful for the master to seize him. PART V. GRATIAN. For under the occasion of religion a servant ought not to despise his master and forsake his service. Hence it is read in the Council of Gangra, [c. 3]:

If anyone under the occasion of religion teaches another’s servant to despise his master and forsake his service, and has not rather taught him to serve his master in good faith and with every honor, let him be anathema.

Likewise from the Council of Pope Martin, [c. 47]. If anyone for the sake of religion should teach another’s servant to despise his master and withdraw from his service, let him be reproved most severely in all things.

Likewise from the Council of Carthage, c. 31. Let no one alienate the property of a church. But if it has no revenues and some excessive necessity compels it, we determine that this is to be made known to the primate of that province, so that with a fixed number of bishops he may judge whether it is to be done. And if so great a necessity of the church presses that it cannot consult the primate beforehand, let it at least summon the neighboring bishops, taking care to report every necessity of the church to the council. But if it shall not have done this, when his honor has been lost, let the seller be held guilty before God and the holy council.

Likewise from the Council of Agde, [c. 56]. In sales which abbots presume to make, let this form be observed: whatever shall have been sold without the bishop’s permission is to be recalled to the bishop’s control. § 1. But it is not lawful for an abbot to manumit slaves given to monks. For we think it unjust that, while the monks perform daily rural labor, their servants should enjoy the leisure of freedom. PART VI. GRATIAN. Even if a possession of a monastery shall have been given by an abbot with the bishop’s consent, the gift will be of no force, unless perhaps the gift was made for erecting the fabric of a church. In that case it is lawful for him to give only as much as the walls of the church enclose. Hence Gregory writes, [book VII, indiction 1, letter 33, to John, Bishop of Squillace]:

The monks of the aforesaid monastery complained to us that their abbot, under the pretext of constructing a church, conceded to your fraternity by title of gift land within the fortress of Squillace which extends six hundred feet. Therefore we will that as much as the walls of the constructed church can surround be claimed for the right of the church. But whatever shall be outside the walls of that church is to return without any difficulty to the right of the monastery, because neither the statutes of worldly laws nor of the sacred canons permit the property of a monastery to be separated from its right by any title. On that account, restore without any delay the gift of that land, which was made contrary to reason.

Therefore we establish that this page of our writings is to be preserved firm and inviolate by you and by all bishops for all future time, so that, with the Lord’s help, they may be content only with the right of their own church, and monasteries may in no way be subjected to ecclesiastical conditions, forced services, or any secular services; may serve under no canonical dues; but, with vexations removed, may perform the divine work with the greatest devotion. ] PART VII. GRATIAN. But it is to be noted that it is one thing to convert the property of a church to one’s own use or that of one’s relatives—which pernicious greed the sacred canons everywhere forbid and show to be damnable—and another when, from the dispensation of charity, provision is made for human weakness, so that his former property is restored to one who disdains to remain in a sacred purpose. We read that some of the saints did this, not so much by the law of the forum as by the law of heaven. For blessed John the Evangelist restored gold and gems to two young men who repented that they had relinquished all their property for Christ and distributed it to the poor, so that they might buy back for themselves everything they had sold. But it is objected: Blessed John did not restore offerings which had already been distributed to the poor, but supplied other things in compensation, which had never been counted among the resources of the poor or of churches. Similarly, if an abbot or bishop shall have anything that is not yet numbered among ecclesiastical resources, following the example of blessed John let him give those things to the one departing, but let him retain the things offered to the church. § 2. Therefore another example follows, by which the same things that were taken away are shown to have been laudably restored. Augustine in sermon [II] On the Life of Clerics:

Whoever wishes to make the church his heir after disinheriting his son, let him seek another who will receive it, not Augustine; indeed, with God’s favor, he will find no one. How praiseworthy was the deed of Saint Aurelius, Bishop of Carthage! For a certain man, when he had no children and did not expect any, gave all his property to the church, retaining the usufruct for himself. Children were born to him; the bishop restored to him, though he did not expect it, the things that he had given. The bishop had power not to restore them, but by the law of the forum, not by the law of heaven. GRATIAN. Behold, offerings are sometimes restored lawfully and laudably. Yet this example does not show that his property is to be restored to one departing. For it is one thing to persist in the profession of one’s life, another to depart from the purpose of one’s order. If Saint Aurelius restored the offerings to one remaining in the lay habit because he received children after the offering, it does not follow that their property is to be restored to those going into apostasy, from whom necessities would more usefully be withdrawn so that, compelled, they might return to the order from which they departed. But just as we are commanded to furnish necessities to enemies and persecutors, and just as we are admonished by the Apostle to redeem the time so that we may be free for prayer more readily, so—lest the church suffer scandal, lest the one departing plunge into worse things, lest on account of his property he blaze forth to the ruin of the monks or the burning of the monastery—it is more laudable, I do not say that his property is restored to him, but that it is permitted to be taken away, than that those things be inflicted by him.