Pastoral Rule, Dialogues & Letters 831

Gregory to John of Palermo. The love toward us which we wished you to show us by bodily sight, you constantly demonstrate by writings and works. But what else do you accomplish by showing this, save that we the more seek to see him whom we are taught the more to love? And a little while ago we even received a murmur, because we cannot see him whom we love. But there was one at hand who told me of the impossibility of the voyage on account of your glory, and therefore I retained what I loved, and spared what I had been angry at. May almighty God guard you with His protection, and defend you from all evils with continual grace. Gregory to John, bishop of Palermo. The desires of petitioners are always to be fulfilled, as often as those things are asked which do not deviate from reason.

And therefore, since we are requested by your clerics by our authority to confirm certain chapters which you have promised to observe toward them, we exhort your Fraternity with these instructions, that you ought to observe without any refusal those things which the present writings contain. First, that of the revenues of the Church you ought to furnish without any delay to the clerics of your Church a fourth portion in full, according to the merit, or office, or labor of each, as you yourself shall have foreseen fit to give to each. But of that which shall accrue from the offering of the faithful, do not delay to give them a fourth part in coin, or in the storeroom, according to the ancient custom. All the rest of the movable goods, however, retain in your own power.

For the immovable goods are to be added to the ecclesiastical revenues, so that, the quantity being multiplied, the fourth portion of your clerics may, God bestowing it, increase. But remember that a keeper of accounts is to be appointed with the consent of the elders and the clergy, who each year, to remove all suspicion of fraud, ought solemnly to set forth his accounts. And at the time of the vintage let the same clergy obtain as a remedy the buying of wine from the possessions of your Church at just prices, in as much as it is to be sold. For it is quite contrary to reason that what can be sold to strangers should be denied to the clerics though the price be given.

The possessions, therefore, or if there be any other things belonging to ecclesiastical right, and are unlawfully detained by strangers, hasten with all zeal, civility being preserved, to restore into the right of your Church, that you may not be able to be seen negligent in anything. If therefore anything concerning any cleric shall come to your ears which might justly offend you (Gratian, dist. 86, c. 25; cause 15, q. 7, c. 2), do not easily believe it, nor let an unknown matter kindle you to vengeance; but with the elders of your Church present, the truth is to be diligently searched out, and then, if the quality of the matter shall demand it, let canonical strictness strike the fault of the offender.

Let it therefore be the care of your diligence to guard all these matters so watchfully and gently that neither may you appear to have been forgetful of your promise, nor may they be able to find any just occasion of murmuring against you. Given in the month of August, in the sixth indiction. (John the Deacon, Book I, ch. 34.) Gregory to John the defender, going into Spain in the power of the Lord. First of all, inquiry must be made concerning the person of the priest, our most beloved brother and fellow-bishop Januarius; and if the truth stands as the petition of the same bishop sets forth, let that same priest be by all means restored to the Church and to his own place.

But if it be alleged that some case has been brought or proved against him, then, subtly, in his own presence and while he renders account for himself, inquiry must be made both into the kind of the case and the manner of proof, so that from this you may rightly gather whether he ought still to remain in exile, or rather be recalled to his own Church and his own office. Concerning the person of the above-mentioned bishop, this must be decreed: that if no criminal case which is worthy of exile or deposition has been brought or proved against him, then he who, while he was yet surviving, presumed to be ordained bishop in his Church perversely and against the canons, being deprived of the priesthood, shall be repelled from every ecclesiastical ministry.

He is moreover to be handed over to the same most beloved Januarius, our brother and fellow-bishop, so that he may either be held in custody by him, or else be sent by him to us in every respect. But the bishops who ordained him, or who were present consenting to his ordination, being for six months deprived of the communion of the Lord's Body and Blood, are to be decreed to do penance in a monastery; and the above-mentioned Januarius is by all means to be restored to his place and order. But if it should happen that any of those deprived of communion draw near to the peril of death, let the blessing of the viaticum not be denied them.

But if the bishops confess that, toward the prejudice of the condemnation or deposition of the said bishop, they consented and did such things out of fear of the judge, and not of their own accord, then their time is to be shortened and the measure of penance to be tempered. But if he who invaded his place has perchance departed from this light and another has been ordained, since the fault seems lighter — for he seems to have succeeded not this survivor but the deceased — let the office of the episcopate be forbidden him only from that Church, so that in another Church which shall have lacked a priest, if he be elected, he may be a bishop; yet only on condition that he is to return to the Church of Malaga.

As for Comitiolus the glorious: whatever the aforesaid bishop shall affirm on oath to have spent, or the loss he has suffered, through the violence and persecution of that same man, he shall be condemned to restore to the said bishop. But if it should perhaps be reported that the matter was done otherwise than the petition of the aforementioned bishop sets forth, subtle inquiry must be made; and when the truth is known, judgment is to be given, with the fear of God, as the order of justice shall advise. Since therefore Bishop Stephen asserts that certain things were fabricated out of hatred against him, that he was accused on false charges, that nothing was done in orderly fashion, but that he was condemned unjustly, it must be diligently inquired: first, whether the trial was conducted in orderly fashion, or whether the accusers were some and the witnesses others.

Next, the quality of the cases must be examined, whether it was worthy of exile or deposition. Also whether, in his presence, testimony was given under oath against him, or things were done in writing, and whether he himself had liberty of replying and defending himself. But also concerning the persons of the accusers and the witnesses, subtle inquiry must be made: of what condition and of what reputation they are; whether they are needy; or whether perhaps they harbored any enmities against the aforesaid bishop; and whether they gave testimony from hearsay, or attested that they knew it specifically; and whether judgment was given him in writing, and the sentence recited with the parties present.

But if perhaps these things were not solemnly transacted, nor was any case proved which is worthy of exile or deposition, let him be by all means recalled to his own Church. But those who condemned him against the fear of God and the statutes of the canons, being excommunicated, are to be sent into a monastery to do penance for six months — yet in such wise that, if to any of them the crisis of death should chance to draw near, the blessing of the viaticum is not to be withheld from him. But he himself who, while the other yet lived, rashly aspired to his place, being deprived of the priesthood, is to be repelled from all ecclesiastical ministry, and to be handed over to the same most beloved brother and fellow-bishop of ours, so that he may either be sent by him to us, or held in custody with him.

But the bishops who presumed to ordain him, or gave their consent to his perverse ordination, these same, being deprived of communion, are to be assigned for six months to a monastery to do penance. But if the bishops confess that, toward the prejudice of the condemnation or deposition of the said Stephen, they consented and did such things out of fear of the judge, and not of their own accord, their time is to be shortened and the measure of penance tempered. If, therefore, he who invaded the place of the aforesaid Stephen has perhaps died, and another has been ordained bishop in his Church, that is to be decreed concerning him which we said above in the case of our brother and fellow-bishop Januarius.

But if perhaps some of the things charged against the said Bishop Stephen have been proved, while others could by no means be established, it must be weighed with every careful consideration whether the lighter charges or rather the graver ones have been proved, so that from these you may be able to know how to frame your decision. But the glorious Comitiolus, if the above-mentioned bishop shall have been shown to be innocent, is to restore to him without any delay whatever he took of his goods or of his Church's. Moreover, whatever the same bishop shall swear that he expended in that man's persecution and violence, or the loss he suffered, the said glorious Comitiolus is to repay and make satisfaction.

But if it be established that the aforesaid bishop committed such a fault — which God forbid — that it appear he was not deposed unreasonably, let his deposition be confirmed, and let all the goods of the Church be restored which shall have appeared to be taken away, since the crime of a person is not to be turned into the loss of the Church. For if, as they say, Comitiolus is dead, let the things unjustly taken away by him be restored, without excuse, by his heir. (John the Deacon, Book IV, ch. 28.) Concerning the person of the priest, this must be attended to: that if he had any case, he ought not to be tried by another, but his own bishop ought to have been approached, as this constitution of the Novellae makes plain.

which speaks of the most holy, God-beloved, and most reverend bishops, clerics, and monks — by Peter the most glorious praetorian prefect: If anyone has any action against any cleric, or monk, or deaconess, or nun, or ascetic woman, let him first approach the most holy bishop to whom each of these is subject; and let that bishop judge the case between them. And if indeed both parties acquiesce in what has been judged, we command that these things be perfectly committed to execution by the judge of the place, etc. But lest it be objected that this speaks of a cleric, not of a priest, it must be known that in the same constitution, at Book I of the same, it is read that under the appellation of 'cleric' priests and deacons also are included.

Now the words of the law are these: 'Presbyters, moreover, and deacons, and subdeacons, cantors and lectors — all of whom we call clerics,' and so forth. (Novella 123, § 'If anyone against,' in Julianus, ch. 33; Book I, Authenticum, 'On the most holy bishops.') Concerning the person of Bishop Januarius it must be known that it was done altogether gravely and against the laws that he should be violently dragged from the Church, since when a bishop shall have suffered any other injury whatsoever in the Church, the law smites him who inflicts the injury with capital punishment, and, as with one guilty of treason, grants to all license of accusing him — as the tenor of this law declares, in the first book of the Code, title six, constitution ten:

'The Emperors Arcadius and Honorius, Augusti, to Theodorus, praetorian prefect: If anyone shall break out into this kind of sacrilege that, rushing upon Catholic churches, he should bring any injury upon the priests and ministers, or upon the very worship and place, that which is done is to be punished by the governors of the province; and thus the ruler of the province shall know that vengeance is to be taken, by a sentence of capital punishment upon those convicted or confessed, for the injury done to the priests, and clerics, and ministers of the Catholic Church, and also to the place itself and to the divine worship.' And a little after: 'And let it be praiseworthy to all to prosecute atrocious injuries done to priests or ministers as a public crime, and to merit vengeance upon such culprits,' etc.

Given on the seventh day before the Kalends of May, at Milan, in the consulship of Honorius Augustus for the fourth time and of Eutychianus. (Code, 'On Bishops and Clerics,' law 'If anyone,' and the Theodosian Code, Book XVI, title 2, ch. 31.) Of the above-mentioned book, title 15, constitution 2: 'The Emperor Honorius and Theodosius, Augusti, to Jonius, praetorian prefect. By a faithful and devout precept we ordain that it be lawful for no one to abduct those who take refuge at the most sacred churches, under this definition indeed: that if anyone shall attempt to come against this law, let him know that he is to be held liable to the crime of treason.' Given on the Kalends of April, in the consulship of Honorius for the seventh time and of Theodosius for the third. Likewise, law of the same title, constitution 5: 'The Emperor Leo Augustus, to Eutychianus, praetorian prefect.'

'By the present law we decree that it shall have force in all places, save this royal city, in which we, dwelling by the favor of the Godhead, whenever occasion shall have required, being invoked, grant to individual cases and persons decisions suited to the moment: that no persons whatsoever, of any condition, who take refuge at the most sacred churches of the orthodox faith, be demanded, or dragged, or forced away.' And a little after: 'Those who shall have dared to attempt to contrive this, or to do it, or even by bare thought and design to attempt it, are to be punished by proscription and the final penalty. From these places, therefore, and their bounds, which the prescriptions of the earlier laws have sanctioned, we suffer none ever to be cast out or expelled, nor within those revered churches to be thus in any way detained.'

'and constrain them, so that anything, whether of victuals, or of clothing, or of rest, be denied to any of them,' etc. Given on the day before the Kalends of March, at Constantinople, in the third consulship of Leo Augustus. (Of those who take refuge at the Church, laws 'Faithful' and 'By the present,' Book I.) Concerning the person of Bishop Stephen, this must be attended to: that he ought neither to have been dragged unwilling to judgment, nor to have been judged by the bishops of a foreign council, as the aforesaid constitution of the Novellae sets forth, which speaks of bishops. For it says: 'But neither for any pecuniary or criminal cause do we permit an unwilling bishop to be produced or exhibited before a civil or military judge, apart from an imperial command.'

'but the judge who shall have presumed to command any such thing, whether in writing or without writing, we order, after the deprivation of his belt of office, to pay a penalty of eleven pounds of gold to the Church whose bishop he ordered to be produced or exhibited; the executor likewise, after deprivation of his belt, is to be subjected to blows and deported into exile.' Likewise, after much: 'But if any application also be made against a bishop by a cleric or layman whatsoever, for whatever cause, let it be judged before his most holy metropolitan, according to the holy rules and our laws.'

'And if anyone contradict what has been judged, let the case be referred to the most blessed archbishop and patriarch of that diocese, and let him, according to the canons and the laws, give an end to it.' If against these things it be said that he had neither metropolitan nor patriarch, it must be answered that this case ought to have been heard and settled by the Apostolic See, which is the head of all Churches — as the aforesaid bishop is known to have petitioned, who held the bishops of a foreign council altogether suspect. Since, therefore, a sentence not pronounced by his own judge obtains no firmness, the tenor of this reading shows, Code Book VII, title 48, constitution 4: 'The Emperors Gratian, Valentinian, and Theodosius, Augusti, to Potitus, vicar:'

'And in the cases of private persons let this form be observed, that no sentence pronounced by a judge not his own bind any of the litigants.' Given on the twelfth day before the Kalends of October, at Rome, in the consulship of Ausonius and Olybrius. ('If anyone be not compelled by a judge,' Code, Book VII, law 'And in the cases of private persons.') But as to what is said, that he was accused by his own slaves — that they ought by no means to have been heard, this constitution makes plain, saying thus, Code Book IX, title 1, constitution 20: 'The Emperors Arcadius and Honorius, Augusti, to Eutychianus, praetorian prefect. If anyone of the household intimates or of the slaves of any house shall come forward as informer and accuser of any crime whatever of him'

'to whose intimacy or dominion he has clung, before the production of witnesses, before the examination of the trial, in the very setting forth of the crimes and at the outset of the accusation, let him perish, his estimation, his head, and his fortunes forfeit, by the avenging sword. For the deadly voice ought to be cut off rather than heard. Yet the crime of treason alone we except.' Given on the fifth day before the Ides of November, in the consulship of Caesarius and Atticus. ('Of those who may not accuse,' Code, Book IX, law 'If anyone.') But if it be said that he was accused of this, that it pertains to the crime of treason, not even in that was he to be believed, unless his life or reputation had before stood forth as such, as in the book

of the Pandects, Book XLVIII, on the Julian Law of Treason, Modestinus writes, in the law 'Infamous,' a little after the beginning: 'Yet this crime is not to be treated by the judges in every opportunity, for the sake of veneration for the imperial majesty, but in the truth of the matter to be judged. For the person too must be considered, whether he could do it, and what he did before, and whether he had contemplated it.' But as to what the same bishop says, that in his absence certain most worthless witnesses were produced — if this is true, it is to be known by the law to be of no moment, by the recent constitution which speaks of witnesses, chapter 16:

'This too we have often observed, that certain persons enter, either before the defenders of the localities, or before the most illustrious judges of the provinces, or even, as is wont, here before the most illustrious master of the census, and complain that they have suffered something against the laws from another, or have been otherwise injured or damaged, wishing to produce witnesses. But lest afterward it be objected to them that the proceedings were transacted through one party alone, it is fitting that he also who is impeached, being established in the very city where the testimonies are given, being admonished by the judge or by the defender, should come and hear the depositions.'

'But if he be unwilling to come, but shall despise it, so that thereby the testimonies given against him from one party alone should be useless, we ordain that testimonies of this kind be as valid as if they consisted not of one party, but had been made even with him himself present. For if he shall have refused, and been unwilling to come and to hear what is deposed — since he is indeed in public and cannot fail to come by some inevitable necessity — he shall be as one who has come, and no benefit shall be afforded him from his contempt; but the proofs shall be seen to have been made in the presence of both.' Behold, the adversary is always to be admonished to come to the hearing of witnesses. And because this was here omitted, it is necessary that what was done against the laws should have no firmness. (Authenticum,

'On witnesses,' § 'And here indeed.') But what kind of witnesses, and of what reputation, are to be admitted to testimony, very many laws show, which are held unknown to almost none; which also ordain this, that the most worthless witnesses ought not to be believed without bodily examination. But as to what is said, that nothing was judged in writing — title 44 of Book VII of the Code is to be read, since it ought to have been judged in writing. For there, among other things, it is prescribed that a sentence which shall have been pronounced without writing does not even deserve to have the name of a sentence. (As above, § 'Witnesses.') In the name of the Lord, in such-and-such an emperor's reign, on such-and-such a day, in such-and-such an indiction.

He upon whom the office of examiner is enjoined ought to show himself in all things with so ready and unstained a conscience, that from those things which he judges in others he may not himself incur the vengeance of the eternal examination. Since, therefore, by the deputation of the most blessed and apostolic lord my pope Gregory, I, John the defender, had sat as examiner between Januarius, bishop of the city of Malaga, and those and those bishops, I found it necessary to discuss the case of the aforesaid Januarius by inward inquiry, and subtly to seek the truth from the parties: whether, as his petition sets forth, he was violently dragged from the Church by clerics sent by the said bishops, together with the men of the glorious Comitiolus.

And while they cast many things against one another in turn, as the records attest, both parties came at length to this term of conclusion, asking that I ought to judge concerning the things acknowledged. Whence, carefully re-reading what had been transacted, and seeking out the truth by diligent investigation, I found in the aforesaid Januarius no fault which was worthy to be punished by exile or deposition, but rather found him violently cast out of the Church.

And although the censure of the laws most strictly smites temerity of this kind, I nevertheless, tempering the rigor of the laws with priestly moderation, from the midst of the most sacred Gospels, in whose presence I sat from the beginning as examiner in this judgment, do pronounce those things which were decreed against him — though by law they have no force, nor are of any moment — to be nevertheless unjust and invalid; and condemning those and those aforementioned bishops who, priestly consideration set aside, dealt unjustly and against the fear of God toward the prejudice and condemnation of their brother, I establish and decree that they are to be received into a monastery to do penance for a time.

But him who wickedly presumed to invade the place of the aforesaid most holy Januarius against the statutes of the sacred canons, I condemn, and decree that he be deprived of the priesthood and removed from every ecclesiastical order, so that he may both lose that which he wrongly obtained, and not return to the office which he had before unworthily exercised. But the oft-mentioned most holy Bishop Januarius, absolved, I appoint to return to his place in the rank of the episcopate, God being author, and to be by all means restored.