Question II

GRATIAN. PART I. That later privileges cannot derogate from earlier ones is proved by the authority of Anacletus, who, writing to all bishops and the other priests of Christ, says, [in epistle 1, c. 37]:

We have decreed that the privileges of churches and priests remain undefiled and inviolate at all times. We confirm the laws of the church by apostolic authority, and we remove foreign judgments.

Likewise Pope Leo to Emperor Marcian, [epistle 52, otherwise 54]. The privileges of churches and monasteries, established by the authority of the holy Fathers, can be overthrown by no dishonesty and altered by no novelty. In faithfully executing this work with Christ’s aid, it is necessary that the pontiffs of this holy see exhibit persevering service. For a dispensation has been entrusted to us, and it tends to our guilt if the rules of paternal sanctions are violated with our consent or through our negligence.

Likewise Gregory to Augustine, bishop of the English, [response 9]. We bestow no authority upon you over the bishops of Gaul, because from the ancient times of our predecessors the bishop of Arles received the pallium, and we ought by no means to deprive him of the authority he received. Therefore, if it should happen that Your Fraternity passes into the provinces of Gaul and something must be done by authority, let it be done with the aforesaid bishop of Arles, lest that which the ancient institution of the Fathers established be omitted. But we commit all the bishops of the Britons to Your Fraternity, so that the untaught may be taught and the weak strengthened by persuasion.

The same to Bishop Felix, [Book XII, epistle 31]. If I destroyed the things that our predecessors established, I would justly be proved to be not a builder but an overthrower, as the voice of truth testifies when it says: “Every kingdom divided against itself” will be made desolate, and every science and law divided against itself will be destroyed.

Likewise Pope Leo, [epistle 82, otherwise 84, to Anastasius, c. 2]. Therefore, according to the canons of the holy Fathers, founded by the Spirit of God and consecrated by the reverence of the whole world, we decree that the metropolitan bishops of the individual provinces—over whom the care of Your Fraternity is extended by our delegation—shall possess undefiled the right of the dignity handed down to them from antiquity, in such a way that they depart from the established rules through neither negligence nor presumption.

Likewise Pope Hormisdas, [in the epistle to Bishop John]. With the privileges of the metropolitans preserved, we delegate to you the office of the Apostolic See, so that, after these matters have been examined, both whether those things recently commanded by us are observed and whatever concerning ecclesiastical causes shall come to Your Revelation may be disclosed to us through your report. It will belong to your diligence and solicitude to show yourself in those things that are enjoined to be such that you imitate the faith and integrity of him whose care you undertake.

Likewise Gregory to Boniface, first defender, [Book VII, epistle 17]. We establish that the decrees of our institution, which have been arranged by privileges and ordination, are to be preserved with perpetual stability and without any opposition, whether those things that we decreed in writing or those that appear to have been arranged in our presence; and we decree that they are not to be overthrown or altered in whole or in part by any of the pontiffs on any occasion. For it is exceedingly harsh, and especially inimical to the good morals of priests, for anyone to strive under any pretext of reason to rescind things that have been well ordained and by his example to teach others that his own constitutions may sometimes be dissolved.

The same to Dominicus, bishop of Carthage, [Book II, indiction 10, epistle 39]. Concerning ecclesiastical privileges, let Your Fraternity hold without hesitation what it writes: just as we defend our own rights, so we preserve their rights for each of the individual churches; nor, with favor prevailing, will I impart to anyone more than he merits, nor, with ambition urging, will I derogate from anyone what belongs to his right. Rather, I desire to honor my brothers in all things and for each to be sustained by honor, provided that there is nothing that one may rightfully oppose to another.

Likewise to Vigilius, bishop of Arles, [Book VII, epistle 117]. Since the desire of a pious will and the intention of a praiseworthy definition are always to be aided by sacerdotal endeavors, the care of solicitude must be applied so that those things arranged or ordained for the peace of religious life can neither be neglected through dissimulation nor disturbed by any presumption; but just as what reason advantageously required obtained definition, so what has been defined ought not to be violated.

The same, [to Bishop Natalis, Book II, epistle 37]. As to what you say, that the things handed down or preserved by my predecessors also ought to be observed in our times: let it be far from me to infringe the statutes of my forebears with respect to my fellow bishops in any church, because I do injury to myself if I disturb the rights of my brothers.

Likewise Pope Julius, [epistle 1 to the easterners, c. 4]. With every excess of usurpation cut away, let no one presume those things that do not appear to have been granted to him. § 1. Let the things established by the Apostles and their successors be neglected by no sloth, violated by no dissension, and disturbed by no contention.

Likewise Pope Gregory, [Book VII, indiction 2, epistle 60, to the illustrious Praerectus]. It is altogether fitting to ecclesiastical moderation that the things that have been ordained or decided ought to be disturbed thereafter by no opposition.

The same in the Register, [Book VII, indiction 2, epistle 7, to Januarius of Cagliari]. It has been openly sanctioned by an imperial constitution that things done contrary to the laws are to be regarded not only as ineffectual but even as not done.

From Book I of the Code, under the title On Petitions to Be Offered to the Emperor, Emperor Constantine. Things harmful to the fisc and things contrary to law ought not to be requested.

We command that rescripts elicited contrary to law be rejected by all judges, unless perhaps there is something that does not injure another and benefits the petitioner, or grants indulgence for a crime to the suppliants.

Likewise Pope Pelagius to Count John. To the one saying that he had sacred commands before him, we responded that he ought to know that the most clement prince himself established by general laws that those sacred commands granted to the desire of each suppliant prevail and are committed to effect which accord with the principle of right and the laws; but those that perhaps are obtained by subreption or false petitions bring no remedy to the suppliants. GRATIAN. Rescripts, whether they are annotations or pragmatic sanctions, ought to have an express condition in themselves: “If the petitions rest upon truth.” For a lying petitioner ought to lack the things obtained, and those to whom the writings are directed are to be punished if they have forbidden the falsehoods of the petitions to be challenged. Hence Emperors Diocletian, Maximian, and Constantius in Book I of the Code, under the title If Contrary to Law or Public Utility: § 1. “When an objection of falsehoods has been interposed—whether a falsehood is found in a narration of law or of fact, or in fraudulent silence—we command that the judge appointed ought to investigate according to the tenor of the truth, not the assertion of the petitioner, and in accordance with this it is fitting to render sentence concerning the case.” Likewise Emperor Constantine: “We command that judges who have forbidden the falsity of petitions to be challenged be punished by a fine of ten pounds of gold.” Emperors Theodosius and Valentinian: § 3. “And if a lying petitioner shall present a sacred oracle consonant with the laws, let him wholly lack the things obtained; and if the liar’s excessive dishonesty is found, let him also be subject to the severity of the judge.” Likewise Constantine: § 4. “And if not investigation but execution is commanded, it is fitting that the truth of the petitions be investigated, so that if fraud intervenes, the whole matter may be investigated.” Emperor Anastasius: § 5. “We admonish all judges of every greater or lesser administration of the entire commonwealth that they should permit no rescript, no pragmatic sanction, and no sacred annotation that appears adverse to general law or public utility to be produced in the adjudication of any litigation; but let them not doubt that the general sacred constitutions are to be observed in every way.” Under the title of the Code On Diverse Rescripts, Emperors Diocletian and Maximian: § 6. “We sanction that the authentic and original rescripts themselves, even those signed by our hand, not copies of them, be formally presented.” Emperor Constantine: § 7. “If any personal grants are discovered without day and consul, let them lack authority.” Emperor Zeno: § 8. “We command that all rescripts—whether issued to the person of the petitioners or to any judge, whether called an annotation or any pragmatic sanction—be produced under this condition: ‘If the petitions rest upon truth’; nor may the petitioner obtain any fruit of an oracle procured, although he asserts its truth in court, unless the question of the reliability of the petitions is shown to have been inserted in the imperial grant. For both the magnificent man the quaestor and the respectable masters of the bureaus who shall have dictated any divine response without the aforesaid addition, and the judges who shall have received it, will incur reproof; and the memorial clerks of any bureau, or pragmaticaries, or assistants to the primicerius, who shall have dared to write things unlawfully dictated will be struck with the loss of their belt.”

Likewise Pope Leo, [epistle 52, otherwise 54, to Emperor Marcian]. The privileges of churches, established by the canons of the saints and fixed by the decrees of venerable Nicaea, can be overthrown by no dishonesty or altered by novelty. Likewise Pope Nicholas, presiding over a universal synod, said, [in the Council of Rome, last chapter]:

If anyone shall have contemned dogmas, commands, prohibitions, sanctions, or decrees salutarily promulgated by the prelate of the Apostolic See for the Catholic faith or ecclesiastical discipline, for the correction of imminent or future evils, let him be anathema.

Likewise Gelasius to Cresconius and John, bishops of Mesalia, among other things:

Just as it is fitting for a successor to preserve the statutes of his predecessors as lawful and just, so also he ought to correct things badly done. Hence also Arcadius and Honorius:

We command, they say, that whatever was established by our forebears at diverse times concerning the sacrosanct churches remain inviolate and uncorrupted. Therefore, let nothing be altered in the privileges; let protection be extended to all who serve the churches, because in our times we desire reverence to be increased rather than anything to be altered from those things formerly granted. The same, [law 30]. § 1. By the present sanction we do not so much command anything new as confirm those things that appear to have been granted long ago. Therefore, under threat even of punishment, we prohibit mutilating the privileges that reverence for religion obtained long ago, so that those also who obey the church may enjoy its benefits. The same, [law 34]. § 2. If the privileges of the venerable church shall have been either violated by anyone’s rashness or neglected through dissimulation, let the offense be punished with a condemnation of twelve pounds of gold, as was also formerly established. And let the privileges themselves nevertheless possess their fullest force in all things. Likewise Pelagius to Armentarius, master of soldiers, among other things:

After the rights of the church have also been confirmed by the authority of intervening documents, let a pontiff in no way be permitted to have free license to depart from them, even if he wishes. GRATIAN. Therefore, if the privileges of monasteries or any churches are preserved inviolate by the authority of Leo, Gregory, Gelasius, and some other pontiffs of the holy Roman Church; if things done contrary to the laws are to be regarded as not done; if a pontiff does not have free license to depart from documents by which the rights of a church are confirmed: it is evident that later privileges cannot derogate from earlier ones, nor by their authority will any exception be raised against them, since even if they were issued specially against them, they would be regarded as not done. PART II. § 1. To these things answer is made thus: by her authority the holy Roman Church has power to separate things joined and to join things separated, provided the equity of reason is considered. Hence, in view either of piety or of necessity, she has power to alter either wholly or in part things once granted by her. For because of the necessity of correcting vices, the privileges of many churches are either diminished or wholly altered, whether personally or generally. § 2. Personally, according to this: “One who abuses the power permitted to him altogether merits losing his privilege.”

Likewise Pope Silverius to Bishop Vigilius, [epistle 2]. Thus it is fitting that the faith of the holy Fathers be preserved in the Catholic Church: one who with reprehensible rashness has assumed what he did not receive should lose what he possessed.

Likewise Simplicius, [epistle 2], to John, bishop of Ravenna, shortly after those things by which he prohibited him from an unlawful ordination. But we declare that if after this you shall presume anything of this kind and perhaps believe you can make anyone a bishop, presbyter, or deacon against his will, know that the ordinations of the church of Ravenna or Emilia are to be taken away from you.

Likewise Pope Leo, [epistle 85, otherwise 87, to the African bishops]. If any bishops shall have consecrated as priest a person of a sort that it is not lawful for him to be, even if they in some way escape loss of their own honor, they will thereafter not possess the right of ordination, nor will they ever take part in that sacrament which, with divine judgment neglected, they bestowed upon an unworthy person. GRATIAN. Generally, as when the episcopal dignity is perpetually withdrawn from a city that was accustomed to kill its bishops. Hence Pope Gelasius writes:

Thus the repeated slaughter of the pontiffs of Sila confounded us by the atrocity of its horrifying crime, so that the determination of our deliberation hesitated for a long time, since we both detested imposing a bishop upon examples of parricide and judged that a church, however destitute, ought not to be left so entirely abandoned. Wherefore, now avoiding as it were a sacrilegious use and custom, we have judged that provision should be made for religion to the extent that, in the manner of a parish, it be governed by priests placed outside it, since it has learned to kill with the sword the pastors dwelling there; and that by an unheard-of crime—for it is nowhere at all read that this has happened even in those provinces afflicted by continual and diverse incursions of wars—a city should be found that, without a persecutor, strikes down the prelates ministering the Christian faith to it. Care must therefore be taken that its deadly destruction be healed by the cessation of its own bishops, and that the occasion of so great a fury at least be removed in this way: if no settled person against whom this cruelty can be perpetrated is present there. In this manner either that city, when it has no one against whom it may rage, may desist from rashness of this kind, or it may not offer to others the dire contagion of imitation. Therefore, let the city that cruelly stains with shed blood the sacred dignity placed within its bosom be in need of episcopal assistance supplied to it from elsewhere; in either case it is to be punished by this vengeance, whether it commits this when incited by domestic impulse or by external furies. Therefore, let Your Affection furnish the ministry of visitation to the church placed in this condition, and, either assembling together or by turns, as the quality and cause of the matters shall demand, present the divine mysteries to the ungrateful, lest, while we avoid the tares, we appear to pass by the Lord’s wheat. PART III. GRATIAN. Through the necessity of hostility or poverty, episcopal sees are also either transferred or two are combined into one, just as above, in the title concerning changes of bishops, blessed Gregory is read to have done. Therefore, the privileges of churches are not judged to remain inviolate in such a way that, when certain causes intervene, they cannot be derogated from by apostolic authority; otherwise the multitude of churches would be reduced to few, since innumerable churches are frequently found to have been founded within the dioceses of others. Therefore, let the privileges of churches be preserved unshaken at all times, so that, without the authority of the one by whom they were given, it may be lawful for no one to act against them. § 1. But that saying of Pope Symmachus is objected: “The possessions that each person has left to a church at his discretion, etc.,” which is written above under the title concerning alienation of ecclesiastical things. Hence it is given to be understood that those things conferred from the right of each church, whether in view of necessity, as upon travelers, or in view of piety, as upon religious houses, are to be possessed by those upon whom they are conferred not perpetually but temporally. Although that saying of Symmachus can be referred to regard for necessity, not to consideration of piety—namely, so that the things necessity counseled should be bestowed upon travelers or captives, but not those things granted to religious houses for the peace of religious life, are prohibited from being possessed perpetually. Or rather it is to be understood of both: namely, that just as those suffering necessity are compelled, when the necessity ceases, to renounce the benefits that the consideration of mercy granted them, so those living religiously, when they cease from religion, are divested of the privileges that religious life merited. Therefore, the privileges granted to religious houses are either to be understood in the case in which provision is made for them in such a way that nothing is derogated from anyone—namely, that by the authority of privileges they are not compelled to pay tithes to anyone from newly cultivated lands whose tithes had been assigned to no one—or, if on account of the pressing necessity of the time provision cannot be made for them unless derogation is made from others, the authority of the privileges appears to be preserved in such a way that their poverty is relieved, not so that, by the increase of their riches and the no small extension of their possessions, baptismal or parochial churches are utterly destroyed.