Question V

**QUESTION V. ***

GRATIAN. Part I. When the accusers fail, the defendant does not appear to be compelled to purgation. For just as, when the claimant fails, a possessor is not compelled to prove the title of his possession, so one who is assailed is not believed to be compelled to purge his innocence. By the authority of Pope Cornelius and of the Council of Tribur, priests are also prohibited from swearing, except for the right faith. For Cornelius says, [letter II to Rufus, an eastern bishop]:

Up to this time we have by no means known an oath to be exacted from high priests or from the rest except for the right faith, nor have we found that they swore of their own accord.

Likewise. We, following the laws of the holy apostles and their successors, confirm them and prohibit incautious oaths.

Likewise. We do not know an oath to have been offered by bishops, nor ought it ever to be done.

Likewise from the Council of Tribur, [c. 21]. If any priest has a dispute arising from a complaint against a layman, or a layman against a priest, at the bishop's command let it be concluded without respect of persons. Let the layman purge himself by oath, if necessary; but in place of an oath let the priest be questioned by the holy consecration, because priests ought not to swear for a light cause. Shall the hand through which the body and blood of Christ is confected be polluted by an oath? Far be it, since the Lord says in the Gospel to his disciples—whose place we unworthy ones bear in holy Church: “Do not swear at all; but let your speech be: yes, yes; no, no. Whatever is more than these is from evil.” Part II. GRATIAN. In truth, by these authorities not all oaths are prohibited from being made by priests, but only incautious ones and those which are offered in a judgment for any temporal cause. But when priests are oppressed by popular infamy, then they ought to offer oaths for the assertion of their innocence. Hence Pope Gregory says, [letter I to Boniface III]:

If a priest, or any sacerdotal person, has been accused by the people and certain witnesses have not been found who speak the truth concerning the crime charged, let him make an oath in the midst and produce as witness to the purity of his innocence him to whom all things are naked and open.

Likewise from the Register of Gregory, [book II, indiction 10, letter 23], to Emperor Justin, chapter VII. The envy of the ancient enemy has this as its peculiar trait: those whom it cannot cast down into the perpetration of wicked acts because God resists it, it rends their reputations for the present by fabricating falsehoods. Therefore, because a certain sinister rumor had cast aspersions contrary to the priestly purpose upon Leo, our brother and fellow bishop, we caused a strict inquiry to investigate at length whether those things were true, and we found in him no guilt concerning the things which had been said. But lest anything appear to have been omitted which could remain doubtful to our heart, we caused him, in addition, to furnish strict oaths at the most sacred body of blessed Peter. When these had been furnished, we rejoiced with great exultation, because his innocence of this kind shone forth evidently. For this reason, let Your Glory receive the aforesaid man with all charity and show him the reverence which befits a priest; nor let any doubt concerning those matters which have now been purged remain in your hearts. And thus you ought most devotedly to adhere to the above-written bishop in all things, so that you may be seen fittingly and becomingly to honor God in the person of him whose minister he is.

Likewise from the same to Brunhild, Queen of the Franks, chapter CCXXXVII. But after we, inquiring into the things which had been said concerning Menna, our most reverend brother and fellow bishop, found him culpable in nothing—and he, moreover, furnishing satisfaction under oath at the most sacred body of blessed Peter the Apostle, showed himself foreign to those things which had been alleged against his reputation—we permitted him to return purged and absolved. For just as it was fitting that, if he existed as guilty in anything, we should punish the guilt in him canonically, so it was not fitting that, with innocence aiding him, we ought to retain him longer or afflict him in any respect.

§ 1. Nevertheless, where the accuser has ceased, we entrust to your judgment that this same man shall furnish before you a purgation concerning himself with two priests joined to him. Finally, the common law, supported by no canonical decree—namely, contact with boiling or cold water or with glowing iron, or any popular invention whatsoever, because these things are altogether fabricated by envy as their maker—we do not wish either him to offer or you to demand in any way; indeed, by apostolic authority we most firmly prohibit it.

The same to Castorius, notary of Ravenna, [book VII, indiction 2, letter 80]. In proportion as you are trusted by us and see necessary causes entrusted to you, so ought you to show yourself energetic and solicitous. Therefore, if Maximus of Salona, after furnishing an oath, has affirmed that he is not held by the simoniacal heresy and, merely questioned concerning the other matters before the body of Saint Apollinaris, has answered that he is innocent, and if he has done penance for his disobedience as we appointed, we will that Your Experience should give him, for his consolation, the letter which we wrote to him, in which we signified that we had returned both our grace and communion to him. For just as it is fitting that we be severe toward those persisting in contumacy, so we ought not to deny a place of pardon to those who are humbled and penitent.

The same to Marinianus, Bishop of Ravenna, [book VII, letter 79]. You have learned from the letters which we transmitted to you what things are to be done concerning the case of Maximus. But because we have learned more fully what the will of Your Fraternity is concerning this matter from the report of the bearer of these presents, Castorius our chartulary, therefore, if that same Maximus before you and our aforesaid chartulary has purged himself by oath concerning the simoniacal heresy and, merely questioned concerning the other matters before the body of Saint Apollinaris as we wrote, has answered that he is free of them, we commit his case to the judgment of Your Fraternity concerning the penance by which so great a fault ought to be purged: namely, that while excommunicated he presumed to conduct the solemnities of Masses. And therefore securely dispose whatever is pleasing to you according to God, and hold nothing doubtful concerning us. For whatever has been ordained by you concerning this case we both receive with gratitude and willingly admit.

Likewise Pope Sixtus [III] to all bishops, [c. 1]. You commanded me to write to you how the pressing dispute against me was stirred up, or by whom, so that it might be repelled by your assistance and my case be made firm. Know that I am accused by a certain Bassus and unjustly persecuted. Hearing this, Valentinian Augustus ordered a synod to be assembled by our authority. And when the council had been held, satisfying all with a great examination—although I could sufficiently have escaped otherwise, nevertheless fleeing suspicion—I purged myself before all, namely freeing myself from suspicion and rivalry, but not giving a form for doing this to others who should be unwilling or who should not choose it voluntarily.

Likewise Alexander II to Rumald, Bishop of Como. We have deliberated in assembly concerning the case of your priest Gillandus, defamed concerning the death of his bishop, your predecessor. Therefore, with the unanimous assent of the brothers standing around us, we report to Your Belovedness that the aforesaid priest Gillandus is to be presented before you, where, if certain accusers should be lacking, then, with justice dictating and without any controversy, the priest shall receive whatever he unjustly lost on this account: both the priesthood and the benefices unimpaired.

Likewise from the Council of Agde. If lawful accusers have not been able to prove the crimes of a priest and he has denied them, let him, if he is able, purge himself of the crime with seven associates of his order. But if a deacon has been accused of the same crime, let him clear himself with three.

Likewise from the Council of Lleida. If a priest has been defamed by an evil reputation among the people committed to him, and the bishop has not been able to prove it by lawful witnesses, let him be suspended until worthy satisfaction, lest the people of the faithful suffer scandal in him. Worthy satisfaction, however—as it is taught to have been established by the elders—is when, either according to the canons or at the bishop's judgment, he joins seven colleagues to himself and swears upon the holy Gospel placed before him that he did not perpetrate the crime charged against him. And, purged by this satisfaction, let him thereafter securely discharge his office.

[PALEA.

Likewise Pope Sylvester. We held it supremely necessary to prohibit in writing the man accused of simony from celebrating the solemnities of Masses until we could learn what was more true.]

[PALEA.

If a noble or freeborn man is accused in a synod and has denied it, if it is established that he is a man of faith, let him purge himself with twelve freeborn men. If he was previously detected in theft, perjury, or false testimony, let him not be admitted to an oath, but—like one who is not freeborn—let him purge himself by boiling water or glowing iron.]

Likewise Hincmar, Bishop of Reims. If an evil report has gone out concerning a priest and lawful accusers and witnesses are lacking, lest, contrary to the Apostle, the hearts of the weak be struck by the priest's evil report, and lest our ministry be reviled, and lest priests, becoming more secure, slide more licentiously into sin, let him, according to the decrees of the elders, purge his reputation by an oath with neighboring priests nominated for him whom we know to be unwilling to perjure themselves.

[PALEA.

Likewise Innocent to the Patriarch of Aquileia and the Bishop of Mantua. We do not believe that it is hidden from your Prudence how often our brother, the Bishop of Trent, has been assailed in our presence concerning simony. When his case had finally been ventilated in our presence, accusers were produced against him, asserting by living voice and in writing that he had given the church of Saint Peter of Pado to the priest Paul for four modii of grain which he had accepted from the laymen of that same church. But because neither accusers nor witnesses were able to proceed in that case according to the form of the canons and the statutes of the holy Fathers, by the common counsel of our brothers we judge that he ought to purge himself in your presence as the third oath-taker among men of his own order—that is, with two others of his order—and with four abbots and religious priests concerning the aforesaid simony. The form of the purgation, moreover, will be of this kind. That same bishop shall first swear upon the holy Gospels that, for the church of Saint Peter of Pado to be given to the priest Paul, neither did he himself through himself, nor through a subordinate person, nor did another for him with his knowledge, receive a price. Then the purgators shall swear upon the holy Gospels of God that, as they themselves believe, he swore truthfully. We therefore, entrusting the sequence of this case to your Prudence, command you to take care to assemble together in a suitable place and, with the Lord granting it, so to restore the case itself according to the tenor of the present letter that every scruple of this question may thereafter be removed and justice preserved for both parties. But if either of you, with a certain cause hindering him, cannot be present, let those of you who can be present conclude the same judgment. But if our aforesaid brother A. has performed the aforesaid purgation, restore to him by our authority the aforesaid office and the church of Trent. We order him to fulfill this purgation before the next Purification of blessed Mary the Virgin.]

GRATIAN. In the foregoing authorities it is understood implicitly, “if the defendant wishes to purge himself,” so that the sacred canons impose upon the accused the manner, not the necessity, of purging, as appears from the end of the chapter of Pope Sixtus and from the authority of Leo, who, after giving a purgation, says concerning himself:

It has been heard, dearest brothers, how evil men fabricated grave crimes against me. For this reason I, Leo, pontiff of the holy Roman Church, purify myself in your sight before God and his angels, because I neither perpetrated nor ordered to be perpetrated these criminal and wicked things which they allege against me. But in doing this I do not prescribe a law for others by which they are compelled to do it. GRATIAN. Behold, each supreme pontiff purges himself, yet he does not prescribe to others the necessity of purging. Hence it is given to be understood that the satisfaction of purgation rests in the will of the accused, not in the judgment of the judge. But since in the Council of Lleida a priest is commanded to be suspended until worthy satisfaction, and since also by the decree of Leo it is placed in the bishop's judgment with how many oath-takers a priest ought to purge himself, it is evident that he is to be compelled to purgation and that it rests not in his own will but in the judgment of the judge. Likewise Pope Leo, writing to King Charles, says:

We do not doubt that it is known to all of you by sight or hearing that, very often at the persuasion of the ancient enemy, various crimes are alleged against priests. But although, in the time of the lord Pippin of good memory, your father, or in ancient times, it was very often ventilated by the holy Fathers and other men of good devotion how a reasonable examination and satisfaction concerning these matters is to be made by them, nevertheless we have by no means been able to find anything fully concluded on the matter. Indeed, in our times this very matter has very often been ventilated by holy bishops, other priests, and the other ministers of ecclesiastical dignity dwelling in your kingdoms or in others for God, and by us acting together with them, on account of the many and excessive complaints which have come to us concerning this from various parts. But we wish all you ministers of either order to know how it was determined by the counsel of our lord and father Leo the Apostolic, of the other bishops of the Roman Church and other priests, of the eastern and Greek patriarchs, and of many holy bishops and priests; also by the authority and consent of all our bishops and all the other priests and Levites; and by the counsel of the rest of the faithful and all our counselors.

For it was established by reason and necessity, with the aforesaid authority and the counsel of all, that whenever a crime is imposed upon any priest, if the accuser himself is of such a kind that he ought to be received—because the canons fully express what sort ought to be admitted to the accusation of priests—if, however, as was said, that accuser who is canonically to be received can prove the charge against him in the sight of the bishops with the lawful number of men and of good witnesses, then let him be judged canonically; and if he has been overcome as culpable, let him be condemned canonically. But if the accuser himself cannot prove the charge against him under the above-written condition, let this also be judged canonically. Therefore, if that priest is suspect or not credible to his bishop, to his other fellow priests, or to good and just men from his people or his parish, lest he remain under crime or the aforesaid suspicion, let him—with three, five, or seven good and neighboring priests, after the example of Pope Leo, who had twelve bishops in his purgation, or with more if it should seem good to his bishop or if he should perceive it necessary on account of the tumult of the people, and with other good and just men—after giving an oath before the people upon the four Gospels, return himself purged to the Church. But if anyone desires to know what sort of witnesses ought to be received for the accusation of priests and what is to be done concerning the accuser, it can be found fully in the canons. Part III. GRATIAN. Purgation by the ordeal of glowing iron or boiling water, however, is not to be added to an oath. Hence Stephen V to Liutbert, Bishop of Mainz:

You consulted us concerning infants who, sleeping in one bed with their parents, are found dead: whether the parents ought to purify themselves by glowing iron, boiling water, or any other test from having smothered them. The parents are to be admonished and warned not to place such tender infants with themselves in one bed, lest, through some resulting negligence, they be suffocated or crushed, whence the parents themselves may be found guilty of homicide. For the sacred canons do not judge that a confession is to be extorted from anyone by an examination of glowing iron or boiling water; and what was not decreed by the teaching of the holy Fathers is not to be presumed by a superstitious invention. Offenses made public by voluntary confession or proof of witnesses, with the fear of God held before the eyes, are committed to the ruler to judge. But hidden and unknown things are to be left to him who alone knows the hearts of the sons of men. Those, however, who are proved or confess themselves guilty of such an offense, let your moderation chastise, because if one who destroys by abortion what was conceived in the womb is a homicide, how much more will one who has killed a little child even of a single day be unable to excuse himself from being a homicide? GRATIAN. Whether this pertains to every kind of purgation or only to these two which appear to be prohibited here is not undeservedly doubted, on account of the sacrifice of jealousy and that statement of Gregory: “If a man who is said to be of a frigid nature can prove by a true judgment that he has never known his wife, let him be separated from her.”

For in the book of Numbers it is read that the Lord commanded Moses to speak to the sons of Israel and say to them: “A man whose wife has gone astray and, despising her husband, has slept with another man, and the husband has been unable to discover this, but the adultery is hidden and cannot be charged by witnesses because she was not found in the illicit intercourse: if the spirit of jealousy has stirred up the man against his wife, who either has been polluted or is assailed by false suspicion, he shall bring her to the priest and shall offer as an offering for her the tenth part of a satum of barley flour. He shall not pour oil upon it nor put frankincense upon it, because it is a sacrifice of jealousy and an offering investigating adultery. Therefore, the priest shall offer her and station her before the Lord; and he shall take holy water in an earthenware vessel and put into it a little earth from the pavement of the tabernacle. And when the woman stands in the sight of the Lord, he shall uncover her head and place upon her hands the sacrifice of remembrance and the offering of jealousy. But he himself shall hold the most bitter waters upon which he has heaped curses with an imprecation; and he shall adjure her and say: If a foreign man has not slept with you, and if you have not been polluted by abandoning your husband's bed, these bitter waters upon which I have heaped curses shall not hold you. But if you have turned away from your husband, have been polluted, and have lain with another man, you shall be subject to these curses: may the Lord give you as a curse and an example to all among his people; may he cause your thigh to rot and your swelling womb to burst; may the cursed waters enter your belly, and, with your womb swelling, may your thigh rot. And the woman shall answer: Amen, amen.

“And the priest shall write these curses in a book and shall erase them with the bitter waters upon which he has heaped curses, and he shall give them to her to drink. When she has drained them, the priest shall take the sacrifice of jealousy from her hand and shall elevate it before the Lord and place it upon the altar, provided only that he first takes from it a handful of the sacrifice which is offered and burns it upon the altar; and thus he shall give the bitter waters to the woman as a drink. When she has drunk them, if she has been polluted and, having contemned her husband, is guilty of adultery, the waters of cursing shall pass through her; and, with her belly inflated, her thigh shall rot, and the woman shall be as a curse and an example to all the people. But the husband shall be without guilt, and she shall receive her iniquity. But if she has not been polluted, she shall be unharmed and shall bear children.” Part IV. [GRATIAN.] But every purgation of this kind appears to be prohibited, since in the foregoing authority of Pope Stephen it is said: “By voluntary confession, etc.”

Likewise from a decree of Pope Nicholas. We do not, however, admit single combat in the law, since we do not find that it was commanded. Although we read that certain persons entered upon it—as sacred history relates of holy David and Goliath—nevertheless divine authority has nowhere ordained that it should be held as law, since those who pursue this and things of this kind seem only to put God to the test. GRATIAN. Part V. To the contrary, in the Council of Worms, [c. 15]:

It often happens that thefts are perpetrated in monasteries of monks. We therefore establish that, when the brothers themselves ought to purge themselves concerning such matters, Mass shall be celebrated by the abbot or by one of the brothers present, and, when the Mass has thus been completed, all shall communicate with these words: “May the Body of the Lord be for you as a proof today.”

Likewise, [in the Council of Salzungen, c. 7]. It was asked what should be done if two persons have been blamed for adultery, and one confesses while the other denies it. It was decreed by the holy council that the one who denied it shall purge himself by a credible ordeal, and the one who confessed shall perform worthy penance.

Likewise, [in the same council, c. 14]. The holy synod also established that, if two persons have been accused of adultery and both have denied it, and they ask that it be granted them that one of them purge both by a divine ordeal, if the one falls in this, both shall be held guilty.

Likewise, [in the Council of Worms, c. 10]. If some evil deed has been imputed to a bishop or priest, he ought to celebrate Mass and communicate for each charge, and to show himself innocent of each thing imputed to him. If he has not done this, he shall be held excluded from the thresholds of the church for five years. GRATIAN. But what Sixtus and Leo added at the end of their purgation is to be understood from their example; for by the example of their own satisfaction they did not wish to prescribe for others a law of purgation.