DISTINCTION 25. QUESTION 1.

Concerning Distinction 25, five questions are raised. First, concerning the minister of the sacrament of orders. Second, concerning the time of ordinations. Third, concerning the impediments to orders in general. Fourth, in particular concerning simony: whether the Pope can commit simony. Fifth, whether mental simony obliges one to resignation.

On Those Ordained by Heretics.

AS TO THE FIRST, it is asked whether all bishops can confer orders. And it seems that they cannot, because an instrumental agent acts only when joined to the principal agent; but the minister of the sacraments is an instrumental agent with respect to Christ, who is their institutor; therefore no minister can confer sacred things unless he is joined to Christ; but a heretic is not joined to Christ — not through his own faith, since he is an unbeliever, nor through the faith of the Church, since he has been cut off from it; therefore a bishop, if he is a heretic and has been cut off from the Church, cannot confer orders. Furthermore, to promote someone to orders is a greater act than to absolve from penalties or from legal sentences; but a bishop, if he is a heretic or has been cut off from the Church, cannot absolve anyone from sins or from sentences

therefore neither can he ordain. On the other hand: because a priest, however much he becomes a heretic or is otherwise cut off from the Church, can consecrate the body of Christ, as was shown above at distinction 13; therefore a bishop, however much he becomes a heretic or is cut off from the Church, can confer orders. Proof of the consequence: just as priestly consecration is ordered toward the making of the Eucharist, so episcopal [consecration is ordered] toward the ordination of ministers of the Church. 3 I answer: three things must be considered here. First, that a bishop by his own right can confer all orders. Second, that a bishop alone [can do so] except by commission. Third, what is to be said of one who has resigned the episcopate. 4 As to the first, certain people hold the following position, plausibly and subtly: a bishop can confer all orders. They prove this first as follows: a bishop, by virtue of episcopal ordination, has by office the administration of all sacred things. For among those who hold orders, the higher power can do whatever the lower can, and more besides. Since therefore episcopal consecration is the highest consecration conferred in the Church, the power given through it is supreme with respect to all others; and therefore a bishop can do whatever inferiors can do in administering sacred things, and more besides. The fullness of the administration of the sacraments thus resides with the bishop, from which they argue as follows. If not every bishop can confer orders, this is either because of unworthiness of life — as with an evil man — or because of defect of faith — as with a heretic — or because of a sentence of the Church — as with one who is excommunicated, or suspended, or otherwise cut off — or because of deposition from order — as with one who has been degraded; but none of these things prevents every bishop from being able to confer true orders; therefore, and so on. The minor premise is proved first as to two of its clauses — namely, that neither unworthiness of life nor defect of faith prevents [a bishop] from conferring all orders — because that which has its efficacy from the work performed [ex opere operato] is not frustrated by the unworthiness of the performer, provided that those things which are necessary to the performance are present; but the sacrament of orders has its efficacy from the work performed; therefore wickedness of life and defect of personal faith, which pertains to the unworthiness of the performer, do not prevent a bishop, who by virtue of his consecration is the minister of all orders (as has been declared), from conferring true orders — provided the due form and matter, which are necessary to the sacrament, are observed. Likewise, to elicit some act, a habit is not required — a habit merely adds a mode; a capacity suffices, which anyone can bring into act, as the very word “capacity” [potentia] implies. But grace and faith, through which works are good and life is good, are certain habits; therefore they are not required in order that a bishop may confer orders, but only in order that he may confer them rightly and lawfully. Second, the same minor premise is evident as to the other two clauses — namely, that an excommunicated or degraded bishop can confer true orders — because if he could not, this would be either because he had been deprived of the power, or of the [right of] execution: not only by law, but in fact. It cannot be said that he has been deprived of the power, because certain things remain through consecration as long as the consecrated thing remains; but the power of conferring orders is given to a bishop in his consecration; therefore it always remains and cannot be lost. Likewise, neither is he deprived of factual execution, because factual execution corresponds to power — power being that by which we are able [to act]; whereas legal execution, beyond power, requires lawful use. Since therefore through excommunication and degradation a bishop is not deprived of the power of conferring orders, he is not deprived of factual execution so as to be unable to confer true orders — though he is deprived of legal execution, since he confers unlawfully, to his own damnation and to that of one who knowingly receives [orders from him]. And this is expressly determined by Augustinus in the text [of the Sentences], which is found in the Decretum, distinction 1, question 1, chapter Quod quidem [Gratian, Decretum, C.1 q.1 c.96]. 5 I answer: the first of these arguments seems to have a dubious major premise — namely, that among those who hold orders, the higher power can do whatever the lower can. This does not hold in real and transient things, where whatever the body can do, the spirit cannot necessarily; nor does it hold in hierarchical acts, where whatever the bishop can do, the archbishop cannot necessarily. But this objection does not stand, because the point is precisely about what it means to be superior. For it is possible for something to be superior to another

in one [respect] and not in another: but the bishop is superior to the priest in administration, and in everything that a priest can do as priest, since the bishop is the supreme priest. 6 This same conclusion can also be proved otherwise, because the bishop is equal to the Pope in consecration: whence a bishop-elect elevated to be Pope does not receive a new consecration. But the Pope can confer all orders by his own right — yet this he holds not from his jurisdiction, in which he excels, but from the power of order, in which he is equal [to a bishop]; whence he calls them brothers and calls himself a bishop. Therefore, etc. But the argument that the unworthiness of one’s life does not impede [the conferral of orders] must be understood as follows: the effect that comes ex opere operato is not impeded on account of the unworthiness of the life of the one performing the act, whether as a first or second effect; but on account of the unworthiness of the life of the recipient the second effect — which is grace — is impeded, not the character or adornment, which is the first effect — provided that the essentials are present. Among the essentials may be counted the intention to receive and to do what the Church does; otherwise what is performed outwardly would bear only an equivocal relation to the sacrament. For the washing is not the matter of baptism, nor the words the form, when someone does not wish to be baptized but merely to bathe and the like — except equivocally. Thus the external acts are essential insofar as they are intended and given or received from that intention; otherwise they are not. 7 Regarding the second point, it must be known that the bishop alone can confer orders by his own right, especially the major orders. For it is no small thing to place a commander over an army and to enroll soldiers; but it belongs to the bishop alone, in the army of the Church militant, to enroll soldiers through the sacrament of confirmation, as was shown above at distinction 7. Therefore, with all the more reason does it belong to him alone to appoint commanders in the Church — which is done through the sacrament of order, especially with respect to the major orders. The Pope, however, can delegate to a simple priest the conferral of confirmation and of minor orders, because Christ determined that the minister of the conferral of the highest orders is the supreme priest, namely the bishop — a minister whom the Pope cannot change. But the minister of confirmation and of minor orders Christ established to be a priest whom the Church would designate, because there was nothing to be confirmed in man until the first confirmers had been confirmed by the Holy Spirit, and the Church did not make use of minor orders in the primitive era. And although this may seem to beg the question, yet from the custom of the Roman Church — which delegates the latter but not the former — it can be established that this was so, and it is certain that it was possible. But unless the Pope has been consecrated as Pope or as bishop (which amounts to the same thing), he cannot make such a delegation, since everything accidental is reduced to what is per se; hence every agent must act either by its own power or by that of another. And since it belongs per se to the bishop to ordain and confirm, if the one ordaining or confirming is not a bishop, this must be done in the power of a true bishop. Hence if one elected as Pope is not a true bishop, he cannot make such a delegation. Thus what was said at distinction 7 — that the consecration of a bishop is not a sacrament but a “sacramental” [sacramentale] — is true as regards many of its ceremonies; but as regards that part of the consecration by which the sacerdotal character is extended to the power of conferring [orders] and ordaining by one’s own right, and not merely by delegation, it is a sacrament, that is, a part of the holy priesthood. For just as one would say that a priest who had received the power of consecrating the body of Christ but had not yet received the laying on of hands with the power of binding and loosing would not have the power of binding and loosing by his own right — but could have it by the Pope’s delegation, because by reason of his ordination he is capable of it — so here too, a person fully ordained as a simple priest is capable of the power of confirming and ordaining, which he can receive in two ways: in one way, so that he exercises it by another’s right — and this is without a sacrament, by the Pope’s commission; in another way, so that he exercises it by his own right — and this is through the sacrament of the episcopate. Or as one would say that a priest ordained by the tradition of the chalice alone, all other rites omitted, could by the Pope’s commission perform anointing but not absolve, except through the sacramental laying on of hands — so also a priest can perform by commission what pertains to lesser [powers], but not the greater, unless he is a bishop by sacrament; nor could the Pope commit the consecration of bishops to a simple priest, any more

than the ordination of a subdeacon — since episcopal consecration is a partial ordination of the priest, though a less dignified part, whatever may have been said at distinction 7. 8 Regarding the third point — concerning one who has resigned a bishopric — it must be said that one who has renounced his see but not his dignity, at the request of the bishop, can licitly confer all orders, but minor orders without such request, upon those who were once subject to him, as Hostiensis implies. But one who has renounced both see and dignity should not ordain to major orders without the permission of the Pope; but minor orders he can confer with the permission of the bishop [Extra, de ordinatis ab eo qui renunciavit episcopatui, c. 1]. 9 But against that distinction the new law concerning temporal order seems to be opposed [Sexti, de temporalibus ordinationibus, c. 1, lib. 6], where it is stated that, without distinction, one who has been ordained by a foreign bishop without the permission of his own bishop is permanently suspended. But one who has resigned only his see, or both see and dignity, or has been deposed from one or both, has no subject at all. Therefore, it seems that to whomever he confers a minor order without the request of the proper bishop, he confers not the exercise [executio] but nevertheless the character, just as is the case with one who is degraded — for since the sacerdotal and episcopal character are one and the same, just as the former is indelible, on account of which a degraded priest can consecrate, so too the latter is indelible, on account of which a degraded and excluded bishop can ordain a true priest and a true bishop. But it is straightforward to harmonize the laws with one another: in one way, though the new law speaks generally, it nonetheless speaks of major orders. 10 But against this is the fact that even under the new law one may not give the sacraments except to a subject, and still less any order. 11 Or it can be said that the new law speaks of a bishop who is simply foreign [to the ordinand]; but such a one is not simply foreign to those who were formerly his subjects. 12 But neither does this argument hold: for a bishop translated to another see would err no less if he ordained those formerly subject to him than if he ordained total strangers. Hence it seems better that the earlier rule [the concession for resignation cases] is corrected; and similarly as to another case: one who has resigned both [see and dignity] should not celebrate in pontifical rites, and therefore should not confer even minor orders at anyone’s request, since orders are not said to be conferred otherwise. 13 To the first argument it must be said that a bishop, however wicked, heretical, excluded, or degraded, is joined and connected in the administration of the sacraments to Christ as the principal agent by reason of the ministerial power which he received at consecration, and by reason of the faith of the Church — provided he intends to do what the Church does — although he does not believe this to be efficacious. 14 To the second argument it must be said that there is no parallel between ordination and absolution from sins: because, as some say, in absolution there is no effect other than the remission of sins, which takes place through grace; and since one who knowingly submits himself to a heretic sins and is not capable of grace, he therefore cannot be absolved by him. In ordination, however, the primary effect is the power of order, and the secondary effect is grace. One knowingly ordained by a heretic or an excluded person therefore does not receive grace on account of the said cause, but he does receive the character or power of order. But what they say about one who knowingly submits himself to a heretic is true, and the same holds even for one who does so in ignorance, from the moment the heretic has been excluded from the Church — indeed from the very fact that he is a heretic by some outward act — since in that case he is excommunicated and consequently lacks the exercise of jurisdiction which is required for absolution, if he is publicly excommunicated. Hence just as a non-priest cannot absolve for lack of order, so neither can an excommunicate, for lack of the jurisdiction by which his material subject — namely, a penitent — is made subject to him. For the Church can take away voluntary jurisdiction, because in a man’s subjecting himself to someone, the authority of a superior is always implicitly excepted, against whose prerogative no one can newly submit himself to another. Since therefore Christ from the beginning subjected all to Peter, saying: “To you I will give the keys,” and “Upon this rock,” and “Feed my sheep,” etc. — against the prohibition of Peter no one can submit himself to another. Since therefore every person submits to another either voluntarily or by the Church’s ordering, the Church can remove either form of submission. And because it is of the very nature of absolution that the one to be absolved must be a subject judicially,

the person to be absolved must be a subject judicially. Therefore, unless he is a subject, the absolution is null. But a man can give power even to one who is not his subject; however, he cannot compel him to receive it. The Church cannot prevent someone from being able to ordain another — which is to give power to a willing recipient — since the character is a power. But the Church can act in such a way that even an unknowing person cannot absolve another; for although every agent requires the subjection of matter, it does not require the subjection of jurisdiction or lordship, just as it is not necessary that the host or chalice which a priest or bishop wishes to consecrate be his own. Nor, similarly, is this required of the one he is to ordain, since he does not have power to bind him or impose anything upon him. But one who absolves does have power to bind and to impose penance, which he cannot do except to one who is subject to him in jurisdiction. Hence, etc. Therefore, if the ordaining minister is a heretic, or excommunicated, or suspended, it matters: for either the recipient knowingly receives from him — and then, on account of the fiction [of consent], he does not receive grace, and on account of the other’s suspension he does not receive the execution [of orders] — and likewise if the ignorance was crass and willful. But if the recipient was probably ignorant and bore no fault, he receives not only the character but also grace, since he placed no obstacle, as he did not approach with bad faith. If, however, the minister was publicly suspended, yet the one newly coming could probably have been ignorant of this, then he does not receive the execution of orders, but a dispensation can be granted to him by a bishop, as in the case of one ordained by a deposed person [Extra, de ordinatis ab eo qui renunciavit episcopatui, c. si]. Or if the suspension was occult, he then receives execution without dispensation. 15 To the third objection it must be said that, although a church consecrated by heretics must be reconsecrated, and every consecration that is not a sacrament [must be redone], since in these matters the Church wholly willed and was able to take power away from heretics — whence heretics can neither consecrate oil for the infirm nor chrism — they do nonetheless confer true orders, and likewise the episcopate, since this is a true part of a sacrament whose minister the Church cannot impede. Therefore one consecrated by them is a true bishop. Yet, as has often been said, excised heretics cannot absolve, because absolution requires a subject, and against the will of Peter regarding the person who is subject to him, one cannot submit himself to another — even though the jurisdiction required in the court of penance is spiritual and voluntary. In the article of death, an excommunicated person can absolve, as was said above in the proximate distinction; but not a heretic, since one who knowingly submits to one who would rather curse than absolve would be acting in bad faith. But if no bad faith on the part of the dying person intervened — for instance, because he did not know the minister to be a heretic, or if he knew it but in no way wished to assent to him, and received the sacrament out of necessity from him with detestation of the heresy — then it would seem a true absolution, as if made by a simple excommunicate. And it would not be necessary for one who recovered to confess again; which is certainly true in the case of ignorance. For it is lawful to receive baptism from the hand of a heretic in necessity, but not communion, nor consequently, as some say, penance — since penance and viaticum at death go hand in hand [Extra, de penitentia, Quod in te]. Yet it is truly the case that where viaticum is granted, penance is also granted, without which viaticum is not worthily received, but not conversely, since to one who is solemnly doing penance or under interdict, penance is granted at all times, but not the Eucharist, for it is always said: “Believe, and you have eaten.” And spiritual eating suffices for salvation. And although contrition likewise suffices, nevertheless, since a person does not know whether he is worthy of love or hatred — where he knows himself to be attrite but does not know himself to be contrite — and unless he is absolved, so that the power of the keys may perfect what is imperfect in him, he is in danger. Hence it seems almost a sacrament of necessity that it could lawfully be received from a heretic in that case, as has been said.

Second Question

De tempore ordinandorum.

SECONDLY, inquiry is made concerning the time for ordinations, and in particular it is asked whether a curate is bound to be promoted to the priesthood within a year — otherwise the benefice falls vacant by operation of law [Extra, de electione, c. Licet canon., lib. 6]. 2 On the other side: [Extra,] de plebano, c. tit., c. Statutum. 3 I respond: here five things must be considered. First, concerning the necessity of receiving orders. Second, concerning the time for ordinations. Third, concerning the time of the orders themselves. Fourth, concerning the age of benefice-holders. Fifth, concerning the time within which a curate must be ordained. 4 Regarding the first, there are three conclusions. The first concerns compulsion in fact: here it must be known that by absolute necessity no one can be compelled to receive an order, just as no one can be compelled to baptism. And if someone is ordained entirely against his will, he receives nothing — as with baptism [c. Maiori]. But with conditioned will, someone can be compelled; and one who consents under fear does receive the character, because a coerced will is still a will — but not grace, since he acts in bad faith, being unwilling, and accordingly approaches without devotion. Yet he does receive the execution [of orders], unless something else impedes, since there is no law suspending him on that account. In neither mode, however, is anyone to be compelled to receive any sacrament in itself — though in the matter of their children, bad Christians or heretics can be compelled by rulers to deliver for baptism the children they are concealing, just as the Maccabees circumcised boys by force of arms, perhaps against the will not only of the pagans but also of the fathers, who had made themselves foreskins [i.e., submitted to Gentile custom] in passing over to the Gentile rite.

5 The second conclusion concerns conditioned compulsion through a legal penalty to be inflicted for the sake of the Church’s need. Here it seems that, since greater obedience is owed to the ruler in spiritual matters for the sake of good governance, just as in temporal matters obedience is owed to the ruler in those matters, and since the public good must be preferred to the private — just as one is compelled to accept the guardianship or custody of an orphan, or of an adult who is mad or prodigal, because this is in the public interest — much more so must the office of judging in the commonwealth be made obligatory: for example, that one be a provost or bailiff, if the commonwealth requires it, for whose welfare a good citizen must even expose himself to death, as nature interposes the arm to protect the body. Much more so, therefore, if the Church requires such a person to be a curate or bishop, he can be compelled to this by his superior through precept and excommunication, just as some hermits have been compelled by bishops and are bound to obey — since according to Gregorius, one who refuses to feed the flock of the chief shepherd proves that he does not love him, who says: “Feed my sheep, and feed my lambs.” 6 The third conclusion concerns conditioned and consequent compulsion through deprivation of a benefice by sentence of a human judge — excepting what will be said below concerning the simple curate. 7 It must be known that if someone holds a benefice requiring an order by law or custom, he is to be admonished to have himself promoted as the benefice requires: for instance, if he is an archdeacon, to the diaconate; if a dean, abbot, or the like, or holds a prebend that is sacerdotal, to the presbyterate. If, having been canonically admonished, he has not done so within the due time, with no just impediment ceasing, he is to be deprived of the benefice [Extra, de electione, Cum in cunctis], except for what is said there regarding the bishop. If, however, he has an impediment, either temporary or permanent: if temporary — for instance, illness — he is excused for as long as it lasts; when it ceases, the same rule applies as before. If he has a permanent impediment, either it preceded the conferral of the benefice and was of such a kind that no right was acquired — and then, whether he knew it or was ignorant, he is to be deprived in fact, as is the rule in fact: for instance, because he is a homicide or illegitimate and did not know it, or something of the kind. If, however, the impediment was of such a kind that a right was acquired: if he knew and was silent, the benefice must be taken away as from an unworthy holder; if he was ignorant, the same applies as if the impediment had supervened, since one who acquired the benefice in good faith and with just title ought not to be deprived without his own fault. But if the impediment supervened without his fault — for instance, he was mutilated in

in the nose or eye, or if he has become a leper — affliction should not be added to the afflicted — and then he ought not to be deprived, but a vicar should be maintained from the revenues, or another should be assigned [to the cure], and he himself supported from those same revenues. But if [the impediment arose] through his own fault — for example, if he castrated himself, as Origenes did, or was castrated through his own fault having been caught in fornication — he must be deprived, because one does not appear to suffer harm that one has brought upon oneself through fault. This is how the laws understand the provisions concerning those physically defective and concerning a cleric taken ill throughout. 8 As to the second point, namely concerning the time for those to be ordained, there are six conclusions. The first: that from the age of seven and above the tonsure can be conferred; but whoever confers it before that age is suspended for one year from conferring the tonsure [de temp. ordi. c. ult. lib. vi], whoever he may be who can give the tonsure, unless perhaps [the candidate] were to enter religious life, as that canon states. For the child placed there is understood to be seven years old [C. de iure deli. l. Si infanti]. 9 The second concerns minor orders, which ought not to be conferred except on one who already has the use of reason, around nine or ten years of age; yet it is not necessary that he be of puberty, since this does not prejudice the vow of chastity; and minor orders and a simple benefice run in step with one another [de filiis presbyterorum c. 1 lib. 6]. A simple benefice can moreover be conferred on a ward, as will be said presently. 10 The third concerns the subdiaconate, which should not be conferred except on one who is of puberty and in his fourteenth year, because through the vow of continence he is bound by an obligation that requires an age firm enough that he could have contracted marriage, since contrary obligations are naturally formed around the same [threshold]. Those of puberty are indeed apt for vows and oaths [C. non pupilli; C. si adversus rem; Auth. Sacramenta]. 11 The fourth concerns the diaconate: a deacon ought not to be ordained before his twentieth year. 12 The fifth concerns the presbyterate: a presbyter ought not to be ordained before his twenty-sixth year. 13 The sixth concerns the episcopate: a bishop ought not to be ordained before his thirtieth year. Indeed, formerly a subdeacon was not to be ordained before his twentieth year [28 dist. de his; 77 dist. c. In singulis; c. Quicumque; c. Subdiaconus]; but today it suffices that he be fourteen, as the last canon of that distinction states. Formerly likewise a deacon not before his twenty-fifth year, nor a presbyter before his thirtieth, as this canon and 77 dist. Placuit and the said canons state; but today it suffices for a priest who is not a bishop that he be twenty-five, and by the same reasoning for a deacon that he be twenty [de elec. cum in cunctis]; but for a bishop it is required that he have completed [the age], whereas for the others it suffices to have reached it. Concerning one ordained to the diaconate at thirteen, it is said in extra de tem. ordi. c. ult. that he is not capable [of executing the order], and the bishop must be suspended from conferring all orders, and the one ordained there is suspended, namely until the due age.

14 As to the third point, namely concerning the times for [conferring] orders, there are five conclusions. The first concerns the tonsure, which can be given on any day, since it is not forbidden; and nonetheless every order, even one conferred outside the proper time, imprints a character [de tem. ordi. cap. Consultum]. 15 The second conclusion concerns minor orders, which can be given on Sundays and principal feasts, and much more so during those times [appointed] for major orders; and all four [minor orders] can be received together on one day [de tempore ordi. c. 1], where it also states that on Sundays virgins can be consecrated [de diebus festivis, eod. tit. c. de eo]. 16 The third conclusion concerns sacred orders, which cannot be given except on the Saturdays of the Ember seasons, and on the vigil of Easter, and on Passion Sunday; not, however, on the vigil of Pentecost, nor on any feasts, except that the Pope ordains subdeacons on Sundays [de tempori. ordi. c. 1 & 2]. 17 The fourth conclusion concerns the simultaneity of orders: two sacred orders ought not to be conferred at once, nor any sacred order together with a non-sacred one, nor one sacred order on one day and another on the next, even with continued fasting. Yet one ordained [as a priest] on Saturday with continued fasting may on the following Sunday be consecrated as a bishop [dicto tit. c. Ac literas; c. Dilecti filii]. One ordained outside the due time receives the character but not the execution [of the order] according to some; but it seems more correct that he is to be suspended rather than [already] suspended [extra c. consultum]. Furthermore, one ordained subdeacon by the Pope ought not to be [re-]ordained by an inferior, unless

18 The fifth conclusion concerns the consecration of a bishop, which must always take place on a Sunday. Minor orders conferred outside the time of major orders, however, ought to be conferred on few [candidates] at a time — say two or three — and not on many together, as is done on the Ember Saturdays, as is indicated in extra de co. The dedication of a church, moreover, can take place on any day, as is clear from custom. 19 As to the fourth point, namely concerning the time for those to be given benefices, there are three conclusions. The first concerns a simple benefice: if the benefice is simple, it suffices that [the recipient] be older than seven years, for a ward can be a canon even in a cathedral church, though he may not have a voice in the election [de elec. c. Ex eo, lib. 6]. Nevertheless, by human law such a conferral is not rendered void; yet by divine law it is illicit to give such benefices to such persons, unless no others can be found, because it is contrary to distributive justice if [a benefice] is given to one less worthy. Although this boy may not be positively unworthy on account of deficiency of life — since he is innocent — he is nonetheless unworthy in respect of one who has the life and learning that can immediately benefit the church. And therefore this person is unworthy because another is more worthy; hence, when a better, holier, and more just man is available, to give to another is a grave sin, as Augustinus says on James

2. 20 The second conclusion concerns a dignity not having the cure of souls, for which a bishop can dispense in favor of one who has completed his twentieth year [de aeta. & quali. c. 1 lib. 6]. And thus even an archdeaconate can be given to such a person, since it does not have the cure of souls in the penitential forum — which would require one to be a priest, requiring twenty-five years — but only in the external forum, and [the holder] need be a deacon, for which twenty years suffice, so that he is something less than a priest. But although [such a person] would otherwise, being under twenty-five, not be fit to be a judge, he can nonetheless be an archdeacon, which by custom amounts to being a judge. Hence it must be said that this is not [permitted] by common law but by dispensation of the bishop permitted by the Pope. 21 The third conclusion concerns the cure of souls, for which a man must be twenty-five years of age, but for the episcopate thirty, as has been said. In the first case the bishop cannot dispense; rather, the conferral of a parish upon one who has not reached twenty-five is null by operation of law — and likewise a commendation of a church made to one not of that age [de elec. c. Licet canon. §decernentes; c. fe.]. The Pope, although he can dispense, does not intend to do so unless he expressly states it; hence one who has obtained a benefice with cure, or without cure, cannot be provided with a benefice with cure unless he was twenty-five at the time of the rescript [de rescript. c. Si co tempore]. It happened that when certain persons had held a benefice with cure for two years by virtue of such a rescript, it was alleged against them that they had not been of the lawful age; and with witnesses produced on both sides, the judge pronounced that he had been of lawful age. My response: in case of doubt, the sentence must stand; and since it is not certain from the contrary, one should presume that the witnesses did not perjure themselves out of affection for him, nor that the judge judged wrongly. But if conscience cannot set aside the fact that [the holder] was a minor at the time of the rescript, he is bound to resign, because conscience dictates that no right was acquired for him. 22 As to the fifth point, namely concerning the time within which a curate must be ordained, there are three conclusions. The first: that by modern law a bishop can dispense with curates such that one devoting himself to literary study need not be promoted within the year except to the subdiaconate; but after seven years he must within one year be promoted to the priesthood — so that in the first year he shall have been ordained subdeacon, and within the eighth a priest. If the bishop so dispenses, the church falls vacant by operation of law [if these conditions are not met]; but likewise, unless the bishop had dispensed with him, or if he was dispensed yet was not devoting himself to literary study — in which case the bishop has no power to dispense — he must be ordained in full within the year; otherwise he is deprived by operation of law [de elec. Cum ex eo lib. 6]. 23 The second conclusion: although time may pass only with respect to that period and that year in which [the curate] cannot become subdeacon or priest, nevertheless the benefice does not fall vacant until the year has elapsed, and he may make [the revenues] his own if from the beginning he had the intention

with the intention of being ordained; otherwise, unless he has changed his purpose, he shall have himself ordained. And the one who knowingly gave [the benefice] to such a person is bound to preserve the church harmless. The year [within which one must be ordained] for the subdiaconate or priesthood does not begin to run except from the time when he was in peaceful possession, or when it was his own fault [that he was not]; from that point the year is also a useful year [annus utilis], since it does not run except when a just impediment has ceased. Moreover, the church thus vacant cannot be conferred on him that same occasion — that is, during that vacancy. For if he gives it to someone who does not accept, it is still vacant for the first time of vacating, and so it cannot be conferred during that first vacancy. Similarly, if he arranges for it to be given to someone who immediately resigns in fraud, then although it vacates a second time on account of this resignation, this is not valid before God. But if in good faith it was conferred on another, and that person dies, is deposed, or resigns, so that it vacates a second time, then it can be conferred on him, for there is no prohibition against this. De electione, chapter Commissa, Book VI [Liber Sextus 1.6.43].

24. The third conclusion concerns the cure of souls in non-simple [i.e., collegiate] churches, such as deans in colleges, priors and abbots in convents — and these are not bound by that statute. De electione, chapter Statutum, Book VI [Liber Sextus 1.6.14]. For there is not the same danger if these men are not priests, since there are many priests in colleges who, by concession of such a non-priest curate, would do what he would do. This is not the case in a simple cure, where there are no parish priests who can administer the ecclesiastical sacraments — which is why it was more necessary to impose a penalty there. Though these curates are more strictly barred from studying law or medicine than simple curates [extra, Ne clerici vel monachi, c. 1 [X 3.50.1]], because they are, as it were, religious, living in common — and if not in terms of food and clothing, at least in terms of the worship and service of God. The word collegium is taken broadly here, to include also a parish church that has chapels subordinate to it, in which there are priests who can supply [what is needed], as has been said. 25 To the argument on the other side, a response has already been given; but in connection with this, such a case in fact depends on circumstances: Canons ordained that there be certain chaplaincies, and that whoever held them should have themselves ordained within a year. Afterward, when one of these was conferred on a certain man, he appealed to the bishop to ordain him or refer him to another; the bishop, however, was unwilling to do either, saying that this man together with all the canons was excommunicated — while conversely the canons considered the bishop to be excommunicated. When the year had elapsed, the canons declared that this man had forfeited his chapel; the man pleaded impossibility, and the question is asked as a matter of law. The answer is that he is not deprived by the law itself [ipso iure], because the decretal that deprives one who has not been ordained speaks of a curate or another who is bound to be ordained by the statute of law, not of man; he would have to be deprived by sentence, unless he had just cause — and he appears to have had just cause. Nor is it an objection that he did not appeal, because he was not obliged to litigate or have recourse to a superior; for neither could a superior ordain him, nor license him, nor does it seem that he was obliged to go all the way to the Pope, since perhaps the income would not suffice for so many expenses, and he is not compelled to serve at his own expense.

Third Question

On the impediments to orders

Thom. 4. dist. 25, q. 2.

The third question concerns the impediment to orders. It seems that orders ought to have no impediment: for among beings, those of greater dignity have fewer impediments, as the heavenly bodies do; but orders, among the other sacraments after the Eucharist, is of the greatest dignity — and so on. 2 Against this: there are impediments that the laws set down. 3 I answer: three things are to be considered here. First, the impediment of nature. Second, the impediment of fortune. Third, the impediment of fault. 4 As to the first, concerning the impediment of nature, there are three conclusions. The first is that a woman cannot be ordained, either in law or in fact.

even with the Pope dispensing — who cannot change the matter of a sacrament [sacrum], though he could grant her the tonsure, because that is a positive institution. Now every order is a sacrament [sacrum], and not merely a sacramental [sacrale]. Hence if the opinion were true that holds that all orders other than the priesthood are merely sacramentals, related to the sacraments only as dispositive rather than essentially, it would seem that the Pope could change both the form and the matter and the recipient, just as he can in other sacramentals, such as the catechism and exorcism — unless one were to say the cases are not alike, because those sacramentals are instituted by God whereas these are not. The male sex is therefore a matter of the necessity of the sacrament, whose principal cause is the institution of Christ, both with respect to those who minister and to those who receive. For Christ ordained only men at the supper, when he gave them the power of consecrating, and after the resurrection, when he gave them the Holy Spirit, saying: “Whose sins you shall forgive” [John 20:23], etc.; nor did he advance to any grade of orders even the Blessed Virgin Mary, holiest of all women. The Apostle also, who handed on to us what he received from the Lord, as is found in 1 Corinthians 11, indicates that women ought not to be ordained or hold the grade of teaching in the church that belongs to the ordained, saying: “I do not permit women to speak in church” [1 Corinthians 14:34]. Nor can it be said that this is only from the ordinance of the apostles and not from the statute of Christ; because to take away from someone something useful for their salvation and granted by Christ cannot be done without injury — especially in spiritual matters. But the dignity of orders is useful for the advancement of salvation in those who use it rightly; therefore, if it had been granted by Christ that women could be ordained, it could not have been taken from them without injury. It must therefore be held that women cannot be ordained by Christ’s institution, nor preach, nor hear confessions, even an abbess. De poenitentia et remissione, c. Nova [X 5.38.12]. The fitting reason is: because through orders someone is placed in a grade of excellence above others who are not ordained; but such a grade does not befit women over men, but rather a state of subjection, on account of the weakness of the body and the imperfection of reason — on account of that word in Genesis 3: “You shall be under the power of your husband” [Genesis 3:16] — and so on. Thus therefore the female sex impedes the reception of orders, because the opposite is a matter of the necessity of the sacrament. Nor is the case the same for orders and the other sacraments, especially with regard to women, because the other sacraments are ordered against a defect common to men and women — such as baptism, the Eucharist, penance, and extreme unction — or else for an act common to both, such as confirmation, which is ordered toward the confession of faith, to which both men and women are ordered. But the sacrament of orders consists in a grade of excellence above others, and of teaching, which does not befit women, as has been said. Nor is there an obstacle in what is said at Distinctio 27, q. 1, chapter Diaconissa [Decretum C.27 q.1 c.23], nor Distinctio 32, c. Presbyter [Decretum D.32 c.18]: because the canons call a woman a deaconess not from the order of diaconate, but from a blessing by which it is fitting for her to read homilies at Matins — though not the Gospel at Mass, nor to minister around the altar at Mass as befits a deacon. And the canon calls a woman a presbyteress either as a widow who has custody of the church’s goods, as appears from the following chapter Si mulieres, or as the wife of a Greek priest, or as a hebdomaria [a woman who leads weekly prayers] who recites prayers.

5 The second conclusion is

A hermaphrodite ought not to be ordained, being a monster in nature and defective in body, and a disgrace to the clergy, and because of the danger: since we do not know whether such a person is a man or a woman. It must however be one or the other, because in higher beings the masculine and feminine characteristics can be perfectly conjoined — but never in perfect animals, and especially not in human beings. If therefore the male sex prevails, the person is a man and not a woman, and so can be ordained — though ought not to be; but if the contrary, then the person is a woman, and thus cannot be ordained even in fact. Digest, De statu hominum, lex Cum hermaphroditu [Digest 1.5.10].

6 The third conclusion is

Age impedes [ordination]: because no one ought to be ordained except at the appointed times. Thus childhood age impedes the reception of major orders, because the contrary is a matter of the necessity of precept — but not the reception of minor orders, except as a matter of suitability only. The reason for the first is that a vow of continence is annexed to major orders.

by statute of the Church: but no one can bind himself to this unless he possesses the use of reason and discretion; therefore no one ought to be promoted to major orders according to the statute of the Church before the age of discretion. The reason for the second point is that it is fitting that no grade be conferred on one who cannot perform its act; but the acts of any orders whatsoever, even minor ones, cannot be duly performed except by those possessing the use of reason and discretion. Therefore it is not fitting that anyone be promoted before this time, even to minor orders — unless perhaps necessity be present and there be hope of progress. Nevertheless, boyhood age does not, by the necessity of the sacred rite itself, impede the reception of orders, as it seems to some: because one can hold a power whose use one does not yet have. And therefore, although boys lacking the use of reason cannot exercise orders, they can nevertheless receive the power and in due course perform their acts.

But against this, certain persons argue with some probability and subtlety, if by “little ones” we understand boys who entirely lack the use of reason. First, because it seems quite absurd that such a little one could be made a priest or ordained a bishop. Second, because for the reception of any sacred order a proper intention of receiving is required — either express, if the recipient is an adult, or interpretive, if he is a child; but in a child being ordained to a sacred order there can be no proper will to receive the order, since he lacks the use of reason, nor can there be an interpretive one: because, although the will of parents or of those acting in place of parents can be the interpretive will of children with respect to those things that are of necessity for the children’s bodily or spiritual salvation — for which reason the intention of parents offering them for baptism suffices for the reception of saving baptism — nevertheless the will of parents does not seem to suffice for the reception of the sacred order, which is not of the necessity of salvation but belongs to the works of supererogation and establishes one in a grade of dignity; for in this respect it is not clearly apparent how the will of parents should be interpretive of children, since children may lawfully dissent from such [arrangements] once they have reached the age of discretion. And further, because baptism is ordered toward the deletion of original sin, which the child contracts through the act of the parents: it is fitting that the will of the parents should suffice for the child’s receiving baptism; but this reason has no place in the other sacred orders.

But although these arguments are stated with some probability, the common opinion of theologians and canonists is to the contrary. One may therefore say that boys ought not to be ordained [1 q. 1, c. Pueri]. If, however, a boy were ordained, it would be valid as regards the character, provided he had the use of reason. But if he lacked the use of reason — for example, because he is a babe in the cradle — in that case, in which he could not be baptized, for instance if his pagan parents were unwilling, he could not be ordained either, just as he could not be baptized: for unless he first received baptism, he would not receive ordination. But supposing the boy were baptized, if the parents were unwilling that the one they wished to have baptized should be ordained, I still do not think he could be ordained: for parents have more right to prevent a boy from those things that are not necessary for salvation than in matters that are necessary. If therefore a boy cannot be baptized against the will of his parents — which is necessary for salvation — much less can he be ordained, which is not necessary. If one should say that this is not analogous because, from the moment he is baptized, he is a subject of the Church, which can do as it pleases with him in spiritual matters and take him from his parents if they wished to raise him in heresy — this does not hold, for this cannot be a just cause for taking him from his parents. But what if they ordain him with the consent of the parents? As regards the episcopate — with respect to the obligation that is created by consent and acceptance, by which one is called the spouse of the Church — it is certain that one is not that spouse until, having the use of reason, one consents; nor is one a parish priest, abbot, prior, or the like: for although by civil law legacies are acquired for one who is unaware of them, yet by canon law no ecclesiastical benefice is acquired for a man until he consents. Hence, concerning prebends [de praebendis, c. Si tibi absenti, lib. 6], it is said that when a benefice is conferred on one who is absent, no right is acquired for him until he ratifies it: though meanwhile the bishop cannot give it to another; much less [can a right be acquired] in a benefice with cure of souls,

meanwhile to anyone else: much more so in a benefice having the cure of souls, for no one is obligated to that office except by his own consent. But with respect to consecration as bishop it seems the same as for the other orders: that is, that if the parents consented, or if they were not present, and he were ordained by the will of those standing in the parents’ place, he would receive the character. 9 To the first argument of these objectors one can respond to the major premise, which requires that the will of receiving be expressed or interpretive, that it may be denied in the case of a child: for where there were no parent in the world, and only a child and another person, neither father nor mother, one could still baptize the child, and so on the part of the one baptized no intention and no will would concur, and the sole will of the one conferring the sacrament would suffice. Thus also in the present case; but in one who has the use of reason, who has now been entrusted to himself by the Lord, a proper will is required. In a child, however, whom God has not yet released into the hand of his own will, no will is required. One may also say to the minor that the will of the parents is also the will of the child, not only in matters of the necessity of salvation but in others as well: hence by the will of a parent offering him, a child can be confirmed, since Christ also used to lay his hands upon children in blessing; and by the will of the father something can be acquired for the child, just as through a guardian.

10 As to the objection that the boy can afterward lawfully withdraw and dissent: if a father or mother has made a vow on his behalf, this is true. Hence even one who was ordained as a priest while in the cradle, upon coming to the age of discretion, is not bound to observe continence; but, being a true priest, he will be able to contract marriage, since he could not be obligated while unknowing.

11 What they say — and therefore the will of the parents suffices in baptism, because it is ordered toward the deletion of sin contracted through the parents — should be answered as follows: even the will of guardians suffices in the absence of the parent; indeed, even the will of the one baptizing alone suffices, where no one else appears; and yet the child did not contract that sin from the guardians — indeed it is certain that the will of close relatives suffices, from whom the child has contracted no sin at all, nor perhaps even original sin itself. If it be said that authority is less fitting for boys than for women, because the boy has none of the use of reason and less bodily strength — and therefore if a woman cannot be ordained even de facto, neither can a boy — 12 the answer is: it is not analogous, because authority is less fitting to boys in act, but more fitting in aptitude.

13 Regarding the second, namely the impediment of fortune, specifically homicide, there are three conclusions. The first concerns what is to be understood by homicide. Indeed, insofar as it causes irregularity, it requires the death of a human being or mutilation; and mutilation counts as much as killing [Extra, de clericis percussoribus, c. 1; dist. 55, c. ult.]. By “death of a human being” is meant the death of one having a rational soul, without which there is no human being; for this reason, one who kills a foetus in the womb before that animation, or who hangs an already-dead corpse or mutilates it, does not become irregular. By “mutilation” is meant the mutilation of limbs properly so called, which when cut off do not grow back; it is otherwise with others, as if one has shaved the hair or cut the nails, or even if one has torn such things off — therefore these are not in view, but others are. Not only the principal members are meant: for not only if one has cut off a foot or hand, but even if a finger or joint, and not merely an entire finger or eye or nose, but also if one has cut off a notable part that cannot return — whether from oneself or from another [dist. 55, Si quis semetipsum, c. Qui partem]. Not so, however, if one merely wounds skin or flesh, which by nature grows back however much, or sheds blood: for since lost blood is restored by nature, one does not become irregular; nor even if one wounds the head such that a considerable piece of skull bone has been removed, since this pertains to the external members, and penalties are always to be construed narrowly.

14 The second conclusion is: who is a homicide in this matter? And the answer is: one who is a cause of homicide through counsel, assistance, deed, or in any manner whatsoever — provided that it be reducible to the genus of efficient cause. Hence [Extra, de clericis pugnantibus in duello, c. 2] it is said that homicide committed both by deed and by command,

than by counsel or defense, there is no doubt that it [the homicide] is perpetrated. Hence in the same chapter Sacerdos: a priest who stationed a fighter who slew the defendant with blows is irregular, just as if he had done it himself. But if it was done against his prohibition, he is not irregular. De homicidio, chapter 1, Petrus diaconus. Likewise, if the end is the only efficient cause — for instance, because a man was killed on account of avenging him, without his having commanded it or ratified it — he is not irregular; and one who does not know of it is called simoniac, that is, said to have been promoted through simony, even when the simony was contracted on his account without his knowledge. Now an efficient cause is also one who does not personally touch [the victim] but who accompanies him, ready to defend him if need be: just as Paul, who guarded the garments of those stoning Stephen — yet in his promotion Christ dispensed, who said, “He is a vessel of election to me,” and the Holy Spirit, who said, “Separate for me Paul and Barnabas.” Hence it is said in De homicidio, c. Sicut dignum, that those are clearly not immune from the guilt of homicide who, even though they do not kill, nonetheless give aid to killers. But if death does not follow, nor mutilation, whatever he may have done he is not irregular, because the law of promotion requires the accomplished act. Hence a judge, a notary, and all such persons, unless death or mutilation follows, whatever they may have said or written in a capital case, are not irregular — just as neither is one who walked about armed and wounded someone and did everything in his power toward death, if death did not in fact follow — although some write the contrary concerning a judge and another who does this ex officio; but it is not plausible that, all else being equal, an innocent person incurs greater irregularity than a guilty one, except where the reason that applies in the one case does not apply in the other: as in bigamy, which arises from a matrimonial act rather than a fornicating one. But a cleric who fought in a duel, even if death or mutilation did not follow, is to be deposed, unless the bishop dispensed with him. Likewise, some say that a cleric who was a minister in a capital case is irregular, but that the bishop can dispense with him unless death or mutilation followed. Distinctio 236, last chapter, c. Saepe, and the following chapter. But this is not true, because it is not found expressly in writing, nor should irregularity otherwise be judged. Nor does it matter whether one killed a pagan or a Christian, because that man is a man just as this one. Hence it says in Extra, De homicidio, c. Petitio: clerics fighting against Saracens, if they are in doubt about killing someone, shall abstain from the priesthood. Distinctio 50, Miros. And for this reason those who supply the wood for burning heretics are irregular, if that wood by its burning contributes in any way to the death, even if they receive an indulgence.

15 The third conclusion is drawn from these points: what contracts irregularity on account of homicide. And it must be said that [it is contracted] only in two cases. The first is when someone is a homicide by knowledge, that is, by intention, whether lawfully or unlawfully — as is evident in the case of a judge. Hence one who kills a man in lawful self-defense but with intention is irregular. He is not excused because he acted lawfully, as a judge acts lawfully; nor because he acted out of necessity — because the necessity of avoiding mortal sin is greater than [the necessity of avoiding] death, and the necessity of avoiding the deaths of many is greater than that of one, and the damage to the commonwealth [is greater] than that of one person. A judge, however, cannot avoid mortal sin, nor sometimes the deaths of many, nor harm to the commonwealth, unless he condemns this public murderer to death — and yet he becomes irregular; therefore all the more does this one [become irregular] who killed a man to protect his own body, which he was not obliged to do. And this is true with respect to further promotion; but with respect to ministering in [orders] already received, unavoidable homicide does not depose from order or benefice — as homicide done ex officio does — because the latter seems to mark out a cleric who deliberately takes up the office of blood, whereas the former does not, since he unexpectedly kills an aggressor in self-defense. Distinctio 50, De his clericis, and through Extra, De homicidio, c. Interfecisti; Distinctio 51, Aliquotos. As for the fact that Peter, who cut off the ear of the servant, was [still] promoted: Christ dispensed, who afterward said to him, “Feed my sheep”; or else the church’s prohibition did not yet exist. But [note]

that David was forbidden to build because he was a man of blood, since Solomon also was a man of blood and yet built [the Temple], and he condemned Joab and others to death. And Phinehas merited the priesthood by killing, and the Maccabees were warriors and yet were priests. Concerning David, however, it was said on account of a figure, or if it was forbidden at the time, it was a judicial precept and did not bind after the death of Christ, except insofar as the church itself then enacted the same thing, following the Apostle’s word, “Not a striker.” The second case is when, apart from intention, someone is killed or mutilated by chance, yet through one’s own fault — for example, because one was engaged in an unlawful undertaking: as if one going to a brothel with weapons, not intending to fight, and a battle breaking out beyond intention, commits homicide thereby, or something of the sort; or if one who is not a physician meddles with medical treatment and death follows, he is irregular. Likewise, if one was engaged in a lawful undertaking but did not exercise proper diligence — for instance, a physician who omitted something among the precautions, or a pruner who threw a branch from a tree onto a public road and did not call out but killed someone — he is irregular. A physician, however, who amputates a member according to the rules of the art does not appear to be irregular, because this is not mutilating but preserving the body. But if apart from both intention and fault the death or mutilation of another occurs, he does not incur irregularity. It must be noted here that something is a fault for one person that is not a fault for another. Hence a case was put of a boy who, throwing an arrow, struck backward by chance, beyond his intention, the eye of a companion standing behind him and put it out — which was remarkable. And I said that, granted that had he been an adult he would have been irregular on account of that blinding, because it could rarely have happened without his fault, the boy nevertheless was not, because he was not at fault: since he was not required to apply the diligence he did not know how to apply — otherwise he would be held to an impossibility — and therefore he is not irregular. In a case of probable doubt, however, one must abstain just as in a case of certainty. But where the conscience is irrationally scrupulous, it is to be set aside; and if it cannot be set aside, in the meantime one must cease from ministry and promotion. De tempori. or. ad Aures; Distinctio 50, De his. As regards the third [impediment], namely the impediment of bodily defect: it must be said that it impedes in three cases. The first is when the defect is such as to cause danger, so that a man cannot perform the acts of orders without peril — for instance, if he cannot make the fraction [of the host], or if his hands tremble so that he cannot hold the chalice without danger of spilling the blood. The second case is when scandal is generated — for instance, because he has had his nose cut off or something of that sort. The third is when [the defect arose] by his own act and fault. As for the report that Saint Mark cut off his own thumb so that he might be found unfit for the priesthood, and yet was afterward Patriarch of Alexandria: this was by the dispensation of the Holy Spirit or of Peter, who was Pope, and consequently could dispense in every such defect; moreover, so little was amputated that he could still make the fraction. To the argument [from the hierarchy of beings] it must be said: nobler beings have less impedibility in themselves, but they have the greatest impedibility in terms of participation in them by others and in approaching them. For those things that are more perfect are immediately close to, and most perfectly participate in [the highest], while the rest are remote. Similarly, the sacrament of orders is not impedible in itself, given its proper causes; but those who approach it by receiving or exercising it must be most perfect, and the imperfect are impeded from this in many ways.

Question Four.

On Simony: Whether It Can Be Committed by the Supreme Pontiff.

Thom. 2. 2. q. 100.

FOURTH, it is asked whether the Pope can commit simony. It seems that he cannot: for he is no less lord over spiritual things than the Emperor is over temporal things — indeed more so, since the Emperor does not depose princes at will as the Pope deposes prelates. But because all things belong to the prince, he cannot commit lay simony, which is punished under the lex Iulia de ambitu [the Julian law on electoral corruption]. Hence the law says, “the lex Iulia de ambitu does not apply in the city” [Digest, Ad legem Iuliam ambitus, l. 1] — because, that is, the dignities of the city are conferred by the prince — and so on. 2 Against this: the Pope was Peter, who feared incurring simony when he said to Simon: “May your money perish with you” [Acts 8:20], and so on. 3 I answer: three things must be considered here. First, the conclusions that all concede. Second, the distinction that the jurists draw among simoniacs. Third, a doubtful conclusion.

4 As to the first, there are three conclusions. The first conclusion is that the Pope can commit the sin of simony in general, just as any other inferior prelate can, with respect to the graver fault. Some explain this as follows, and well. Every sin is a deviation from some natural, divine, or rightly enacted human law — hence Ambrosius says that sin is something said, desired, or done against the law; and every law speaks to those who are under the law, as Romans 3 [:19] says. From this one may argue thus: every person who acts against the law to which he is subject sins; but every person who sells a spiritual thing for a temporal thing sins against the natural and divine law, to which all are subject — the Pope as much as others — therefore such a person sins, and not with any sin other than simony. And so on. The major premise is evident from what has been said; the minor will be evident from what will be said. 5 The second conclusion is that the Pope cannot commit simony with respect to the penalties of positive law, to which he is not subject. Hence he does not incur suspension or penalties of that kind under the law — just as, if he strikes a cleric, he is not excommunicated — because the prince is released from the laws [Digest, De legibus, l. Princeps]. 6 The third conclusion is that a person who were to purchase a benefice or an order even from the Pope would not incur the penalties of canon law either: because just as [the Pope] could dispense with penalties already incurred so that they would not stand, so he could grant a privilege to someone such that by striking a cleric he would not be excommunicated — though he would not readily do so. But when he gives [a benefice] for money, he appears to be dispensing [that person] to retain it lawfully, just as when he knowingly grants [something] to an irregular person, by that very act he dispenses with him. Hence someone who obtained a benefice through simony in the Roman court, if he is aware that it issued from the awareness of the conferring Pope, need not resign it but may retain it, doing penance for the sin. 7 As to the second: first, the jurists’ familiar distinction will be set out. Second, arguments against it will be raised, as some have raised them. Third, the statements made in its rejection will be examined. 8 As to the first point, it should be known that certain people distinguish that something can be simoniacal in two ways. In one way, by its very nature, and is therefore prohibited in law. In another way, solely by reason of legal prohibition. Things that are simoniacal by their very nature are those whose sale is prohibited in the Old or New Testament, such as sacred things; all other things are simoniacal only because they are prohibited. This distinction is found in the extra de officio iudicis delegati [Decretals, X 1.29], chapter Ex parte, in the ordinary gloss, and Innocentius and Hostiensis agree. 9 As to the second point, some say that the distinction is not true as set out in the second part, though it may be true in some sense. They prove the first claim in four ways. The first argument is this: concerning something that is not evil by its nature but only because it is prohibited, one can only sin with the sin of simple disobedience — because in such cases the entire reason for sin consists in the transgression of the prohibition. If, therefore, the sale of a simple benefice is not simoniacal by its nature, it is impossible that from its prohibition in law there arises anything there but simple disobedience. The second argument is this: simony is the sale of a spiritual thing for a temporal thing; but a legal prohibition does not change the natures of things so as to make a temporal thing spiritual or vice versa. Therefore where there is no simony by the nature of the thing, there cannot be simony by legal prohibition. The third argument is by example: for eating

multiple times a day is not illicit by its nature, but [becomes so] by legal prohibition on fast days; yet a person who eats multiple times on such a day sins only with the sin of simple disobedience. And so on. Similarly, fourth: to tell a trivial lie is a venial sin; but if a superior adds a precept that one must not lie, then when one does lie, the simple lie is burdened only with the additional sin of disobedience — and so it is in all cases, because a human prohibition or a legal prohibition adds only the sin of simple disobedience. 10 Second, they palliate this distinction by saying:

Palliation

since this distinction is established in law, and lest it seem to be altogether rejected, the statement of the jurists can be interpreted as follows: that what is not simoniacal by its nature is simoniacal by prohibition — not with respect to fault, because there the sin of simony cannot be present but only that of disobedience, as was said — but with respect to penalty, because one who acts against such a legal prohibition is punished with the same penalty as if he were a true simoniac. It sometimes happens that sins are reckoned under the same name when they are punished with the same penalty. And in this sense something is called simoniacal because it is prohibited — as, for example, the exchange of benefices without the authority of a superior is not simoniacal by its nature. For one could licitly exchange one’s canonry for another’s canonry, if one did so with the intention of serving the Church better in the other church than in the one one holds — were it not for the contrary legal prohibition, on account of which this is judged simoniacal unless it is done with the authority of a superior, whose office it is to judge that no one passes from one church to another out of desire for greater gain rather than out of genuine zeal to advance [the Church’s good]. 11 As for the third point, by way of inquiry:

The Doctor Examines Durandus

it could be said, in reply to the first argument against the jurists’ distinction,

Reply to Durandus’s First Argument

that a prohibition can well constitute a sin other than disobedience: because in every virtue the mean is fixed by reason — and not only from what bears on it directly, but also from what bears on it indirectly. Hence when a man eats forbidden food, there is not only the sin of disobedience but also the sin of gluttony — because, even though he did not exceed the bounds of gluttony as such, he nonetheless exceeded them indirectly. For right reason dictates that one abstain from food not only as much as bodily health and good condition directly requires, but also as much as indirect considerations require. For if someone were to fornicate out of fear of death, whereas he would not otherwise have done so out of love of pleasure, he would sin not only with the sin of timidity opposed to fortitude, but also with the sin of intemperance. And similarly in the present case: one would be very gluttonous indeed who wished to eat where, by eating, he would break a fast

Reply to the Second Argument

established by precept. 12 Against the second argument it seems that, although a legal prohibition does not change natures in reality, it does change them according to reason: for some things are called spiritual solely by legal or human ordinance — as all things that are called sacred by reason of ecclesiastical consecration, such as chalices and the like. Whatever, however, has no holiness or spirituality except by ecclesiastical statute can be rendered non-holy and non-spiritual by the Pope, and thus can be bought or sold without simony, once that spiritual character has been removed.

Reply to the Third Argument

13 To the third [argument] it must be said: if a man eats twice on a fast day, he sins not only with the sin of disobedience — even though at other times he would eat soberly — but also with the sin of intemperance or gluttony: because sobriety attends to the mean not only with respect to those circumstances that are always present, but also with respect to those that arise in the particular moment when one is to act. 14

Reply to the Fourth Argument

To the fourth, concerning the trivial lie: it can be said that once a precept is added, the sin is not only one of disobedience but also a sin of the tongue. For sometimes there is a double deformity in a sin, yet one deformity only exists when the other is presupposed — as taking something belonging to another in a church is a double sin, namely of theft and of sacrilege; yet if it were not theft, it would not be sacrilege, because taking one’s own property in a church is no sin at all. So too, where speaking [in a given way] would be no sin at all: if it is prohibited, it is not only a sin of disobedience but also a sin of the tongue — though it is not a sin of the tongue except on the supposition of disobedience. 15

On the Palliation, etc.

Regarding the exposition: [the claim] that certain things are called simoniacal because prohibited — with respect to penalty rather than fault. The answer is: not everything that is prohibited from being bought or sold thereby becomes simoniacal; for example, Church property is prohibited from being sold, yet its sale is not for that reason simony —

neither by positive law nor by divine law. Rather, those things which are prohibited from being sold or bought by law — because they ought to be regarded as sacred and spiritual by legal recognition and ordering, even though they were not such by divine law — are called simoniacal because prohibited. And they are simoniacal not only with respect to penalty but also with respect to fault.

On the Exchange of Benefices

The example of the exchange of benefices is deficient [as a counterargument], because even if it were never prohibited by law, it still ought not and cannot be done without the authority of a superior. For granted that anyone may resign his own benefice, still one person cannot institute another. And even if it is done with the authority of a superior, if it is done by means of a pact, it is simony — and not merely simony with respect to penalty but also with respect to fault. For this is to exchange a spiritual thing for a spiritual thing, and a temporal thing for a spiritual thing, since canonical right is spiritual. And it is remarkable how an exchange is considered intrinsically less simoniacal than a sale: for the right of electing a bishop and of officiating in a church — which one does not have through conferral — one does obtain through exchange, since in an exchange there is a true conferral, and more, because in an exchange there is a double right, whereas in a conferral there is only one. 16 As to the third [article], first the opinion of the Jurists is set forth with its supporting arguments; second, a probable objection [impugnatio]

Article 3

from certain [theologians] will be set forth and examined; third, replies are given to the arguments of the Jurists and to the principal [question]. As for

Opinion of the Jurists (as above), according to which the Pope may sell a simple canonry

the first: the Jurists, on the basis of their distinction, hold that the Pope would commit the sin of simony in all matters that are intrinsically simoniacal, but not in the others. To sell a simple canonry is not simoniacal except because it is prohibited, as the same gloss states; hence one who is not bound by any prohibition of positive law does not commit the vice of simony in this case, even with respect to fault. And this position is proved

Argument [in support]

by four arguments, the last of which is stated in the form of an objection. 17 The first argument is as follows: what is not intrinsically simoniacal but only by prohibition of law does not bind the Pope, nor those inferiors with whom the Pope dispenses. But to confer a simple canonry — one to which no cure of souls is attached, nor any sacred order — is not intrinsically simoniacal but only by legal prohibition. Therefore, etc. The major premise is clear, because the statutes of the canons do not bind the Pope, nor one with whom the Pope dispenses, just as the laws do not bind the Emperor. This is proved at ff. de legibus, l. Princeps [Digest 1.3.31]; and 9 q. 3 c. Cuncta [Gratian, Decretum]. The minor is proved: first, by Hostiensis, who states this explicitly, extra de simonia [X.5.3], on the last chapter. It is also proved by reason, because nothing appears to be intrinsically simoniacal except the buying or selling of sacred things, as is clear from Acts 8, from which the root of simony seems to derive. For Simon, from whom simony takes its name, wished to purchase with money the power of conferring the Holy Spirit, which he saw visibly given in the sacred rite of confirmation through the laying on of the apostles’ hands. But in a simple canonry or benefice without cure of souls, and without a sacrament, and without a sacred order, there is no obligation to receive or administer a sacrament. Therefore to sell or buy such a benefice is not intrinsically simoniacal. 18

Second Argument

The second argument is: when spiritual and temporal things are joined together, it is lawful for a spiritual thing to pass by means of the sale of the temporal, provided the price is not increased on that account — as is clear from the law concerning the right of patronage, which passes with a sold estate, as held in extra de iure patronatus, c. 9, In oculum [X.3.38.9]. But in a simple canonry, spiritual and temporal things are joined — namely the office with the prebend. Therefore, since the prebend can be sold, it seems that the canonry may lawfully pass along with it, provided one does not sell the prebend at a higher price on account of the canonry. 19

Third Argument

The third argument is: things antecedent to sacred things are no less spiritual than things consequent upon them. But things antecedent to sacred things — such as sacred vessels — can lawfully be sold, provided one does not sell them at a higher price on account of their consecration, as will be shown. Therefore any ecclesiastical benefice whatsoever, since it is consequent upon or destined to become consequent upon something sacred, can lawfully be sold, provided one does not sell it at a higher price on account of its spiritual character.

Confirmation

It is confirmed thus: what is purely spiritual can in no way lawfully be sold, while what is entirely temporal can be sold in every respect. Therefore what is partly spiritual and partly temporal — such as a canonry with its prebend — can in some manner be

Fourth Argument

be sold. 20 The fourth argument was touched upon at the beginning of the question in the form of an objection. 21 As for the second [point], certain [theologians] argue subtly for the contrary position with three arguments, the

First Argument [against the Jurists’ opinion]

first of which is as follows: the authority to officiate in a church is more spiritual than the authority to teach any human science whatsoever. But the authority, or the science, of teaching cannot be sold for money, as is held in extra, Ne pro licentia aliquid exigatur [X.5.5], throughout almost the whole title. Therefore by stronger reason the authority to officiate in a church can in no way lawfully be sold. But in a simple cano-

Second Argument

ny [canonry] there is the authority to officiate in the church. Therefore, etc. 22 The second argument is: the sale of a benefice is prohibited by divine law and the Gospel, as in Matthew 10 — not indeed in itself, but in its like. For the authority to elect a bishop and to officiate in a church is no less spiritual than the authority to preach. But in a simple canonry there is the authority to elect a bishop and to officiate in a church. Therefore, since preaching is prohibited from being sold, so too is the authority to elect a bishop and to officiate in a church, which exists in a simple canonry. 23 The third argu-

Third Argument

ment is: to confer a canonry for money is the sin of simony, and is intrinsically simoniacal and not merely simoniacal by legal prohibition. This is shown as follows: in a simple canonry there are two things — namely, the office to which someone is assigned, and the temporal benefice which imperfectly fulfills it; for the benefice is given on account of the office, for the sustenance of the minister. Now that benefice is nothing other than a certain temporal emolument given by the founders of churches and other devout persons for [service at] a place and office, for the sustenance of the minister who is to officiate at that place. But to institute a minister for such an office and such a place belongs to the prelate, whose function it is to judge the suitability of the minister. The fact that the one instituted receives the benefice, however, does not come from the gift of the prelate — who has no right over the benefice in this regard — but from the gift of the founder, who gave such a benefice to the minister who would serve in that place and in that office. This is sufficiently indicated in the Authentica, de sanctissimis episcopis et clericis, c. Si quis oratorii domum [Nov. 131.13], col. 9, where it is expressly stated that the founders of churches are obliged to provide expenses to the clergy, but that the clergy are to be instituted by the bishop, and once instituted they are bound to comply [obsecundare] — that is, to obey and serve their fellow clerics — and to fulfill the ecclesiastical ministry. From which the argument proceeds thus: to give a spiritual thing for a temporal thing is simoniacal and contrary to natural and divine law, as will be shown. But to sell a canonry is to give a spiritual thing for a temporal thing. Therefore it is intrinsically simoniacal and contrary to natural and divine law, and thus no one can be excused from sin. Therefore, etc.

Minor patet ex dictis: because the prelate gives no benefice except insofar as he institutes a minister to a place and office; and the institution of a minister for divine office is purely spiritual — speaking as we now do of the spiritual which in practice can be

The Doctor Inquires into the Truth of Durandus’s Opinion

sold. Therefore, etc. 24 Speaking inquiringly [i.e., examining the question critically]: what they say — that the sale of a simple benefice is [an act] of simony and prohibited by divine law — is true in this sense; but the primary cause is from positive human law. For it is not prohibited by divine law, nor is it simoniacal because it is a spiritual thing, but because such a spiritual thing — indeed, because what it is at all — it has from human institution. Since it is not sacred [in itself], it is something devised by man; hence

Note: In what sense the sale of a simple benefice is prohibited by divine law, and in what sense it is not

it can be called simoniacal because prohibited — that is, because it is not prohibited except insofar as it is constituted by legal institution, although once that institution is presupposed, it is prohibited by God. From this it appears: just as the Pope can lawfully sell a consecrated chalice — because one sells it with his permission — and if not on account of the consecration, at least on account of the material; so too a benefice can be sold by the Pope and with the Pope’s permission — and if not on account of the office, which is spiritual, nonetheless on account of the temporal benefice. For just as in a chalice there is the spiritual element [i.e., its dedication to the altar] arising from the institution of the consecrating church, and the temporal from the craftsman who made it; so also in a canonry there is the spiritual element — the right of officiating, electing, and the like — which derives from the institution of the church as so ordained; and the temporal — the temporal goods applied by the founders. Hence they seem

they are to be judged on equal footing, but his opinion is the safer and truer one, as I believe. §25. For a thing to be spiritual in such a way that selling it is of itself simoniacal, it suffices that it be spiritual in itself with a spirituality that is a relation of reason [relatio rationis], and it is not necessary that there be in it a spirituality that is a real entity, whether natural or supernatural — just as selling a consecrated chalice on account of the con-

Durandus’s opinion truer even than Thomas, ST II–II, q. 100, art. 4. Note.

secration, which places nothing real in it, is of itself simoniacal, just as it was once simoniacal to sell the priesthood — which at that time imprinted no character but only a pure relation of reason. Hence Augustine says that the sacrificial fire, which had survived under water through the seven years of the Babylonian captivity, was extinguished when Antiochus sold the priesthood to Jason. From this it is argued: the selling of the priesthood was not simony because the priesthood was instituted by God — for then selling every being would be simoniacal, since every being is instituted and created by God — but rather because the priesthood, by whomsoever instituted, was instituted for the worship of God, and from this it derives its spirituality.

The priesthood under the old law was only a relation of reason.

That spirituality at that time was nothing but a relation of reason. So too, since every ecclesiastical benefice now orders a man toward divine worship and service, even if he were not required to perform the church’s office, the very canonical right is spiritual by reason of its ordering toward divine worship, even though it contains in itself no spiritual reality. Moreover, for a thing to be of itself simoniacal, it is not necessary that it possess that divine spirituality, but only that it be formally such in itself. For even if the Pope had made a chalice, it would not on that account be more consecrated than if a craftsman had made it, since its spirituality formally consists in the consecration. Hence things of this kind, which are annexed to divine worship by statute of the Church, are formally spiritual of themselves, even though they are so effectively through the Church. Just as it was once of itself simoniacal to sell the priesthood, by which a man was ordered to divine worship in the ceremonial rites, so now it is simoniacal to sell a canonry, by which one is ordered to divine worship in the ecclesiastical offices. §26. As for the argument about the chalice, it must be said that the case is not parallel: for when a chalice is sold, only the bodily matter is sold, not the spirituality of reason. But when a canonry is sold, what is sold is not the income itself — for that can be sold separately to a layman — but the right to receive it, not just any right, but that very same right of performing office in spiritual matters; for just as there is one priestly character with the power of consecrating and absolving, so there is one canonry that is the right of performing office and of receiving what is owed to that office. Therefore, just as the Pope cannot licitly sell the consecration of a chalice to anyone, so neither can he sell a canonry. §27. Concerning the third point, it must be said

On the legal argument. Durandus, above.

that as to the first argument, some respond by denying the minor premise, to which Hostiensis says it is not necessary to follow [him] unless one wishes — for what he adds, namely that in sacred scripture nothing is found to be condemned as simoniacal except the selling of sacred things and the working of miracles, is false, as is plain from Matthew and John. And therefore all spiritual acts, for any one of which a simple canon is appointed, are prohibited from being sold. In the law [l. em ve.] it is condemned that anyone should become a minister for money, as is found in 3 Kings 13 [1 Kings 13]: whoever wished filled his hand and became a priest. §28. But against this solution there are three objections.

Against Durandus.

First, one might say that it is indeed true that it was once simoniacal for someone to become a minister of the temple for money, because the institution of the ministers of the Church was a matter of divine law, as was the sanctification of priests and Levites; the jurisdiction and ordering [of the clergy] was established by David. But the institution of canons is not a matter of divine law, as is the case with orders and sacred things. Second, [the solution] falls short because the authority cited speaks of a minister of a pagan temple, where nothing is holy but everything profane, and it does not say that the act was simoniacal, as is apparent — not just [from] the temple [alone]. Third, as to the authority Freely you have received, freely give [Matt. 10:8], it could be said that this pertains to those things received from God, not from man, such as simple canonries. But to the first and last objections, the answer has already been given: for to a formal spiritual thing a spiritual or divine cause accrues, making the selling of it simoniacal, since to be appointed to divine worship is spiritual — just as the wor-

ship itself, from whomsoever this appointment proceeds — provided it belongs to him by power derived from God thus to appoint — it is of itself simoniacal to sell that appointment.

29 On the second [argument]

some say, and the case of the right of patronage and the conferral of benefices is not parallel: for the right of patronage passes with the sale of a village or castle, and is not sold directly and in the first instance — because the sale does not fall primarily upon it, but upon the village or castle — nor should [a property] be sold or bought at a higher price on account of the right of patronage attached to it, for otherwise it would be simony. But if an ecclesiastical benefice were sold, the sale would fall directly upon what is spiritual, because a prelate has no other way to confer a benefice than by instituting the minister for the office; and therefore whatever he were selling, this he would sell first, and on account of this, whatever other temporal thing is annexed to it — and so the sale would fall directly upon what is spiritual, which could not occur without the vice of simony.

30 But

this solution does not seem sound, because a prelate has the right to confer not only what is spiritual but also what is temporal. For the Pope immediately confers the canonry, which is a spiritual right, and confers along with it the first prebend to fall vacant, which is a temporal benefice. Hence one might say: “I confer the canonry upon you freely; but if along with it you wish to have the prebend, you will give me such an amount” — given also that a half-canon with respect to the spiritual right is a full canon. Therefore, if the Pope were to make someone a full canon for money, the sale would fall upon what is purely corporeal. It can therefore perhaps be said otherwise, namely that an accessory follows the principal, and not vice versa. Hence when the principal is of itself corporeal, the sale falls upon it, and the spiritual follows freely — as is the case with the right of patronage. But when the converse holds, as in a benefice in which the spiritual is principal, then just as it must be conferred freely and not sold, so neither may the accessory [be sold]; and it is a matter of divine law that one who serves the altar should live by the altar [1 Cor. 9:13] — hence it would be against divine law if what he ought to receive for his office were not given to him except for money. If, however, a prelate were in practice to act in this divided manner, saying “I give you the canonry freely and sell you the prebend,” he would act unjustly, because he would be selling what he had already given: for in giving the canonry he gives the prebend by consequence. Nonetheless he would still commit simony, because he is not selling the fruits themselves but the right to receive those fruits; and that right is spiritual by its very essence, because it is the same thing in reality as the canonry — for just as the power of the priest extends to two acts, so the same canonical right is that by which one holds spiritual things, such as a place in choir, and that by which one holds temporal things.

31 On the third [argument]

some say that the antecedents to a sacred thing, such as sacred vessels, can be licitly sold, provided nothing more is sold on account of the consecration — because the sale falls directly upon what is corporeal. But the office that follows upon a sacred thing is of itself spiritual, and therefore cannot be sold, nor [can it be sold] on account of the temporal annexed benefice that follows from it, since [the benefice] is not transferred except through the prior transfer of the office — by reason of which the sale would also fall upon the office, which is spiritual. This resolves the subsequent confirmation: for a thing that is partly corporeal and partly spiritual can in some way be sold by reason of what is corporeal, when the seller directly and per se can transfer that corporeal element to another, and not mediately through the spiritual — which is not the case in the present question.

32 On the fourth [argument]

which was put at the beginning of the question, it must be said that an emperor who sells a magistracy, though he does not sin against the Julian law on electoral corruption [lex Iulia ambitus], nonetheless sins against the natural law, to which he is subject. Likewise, if the Pope were to sell any ecclesiastical office, though he does not sin against canon law, to which he is not subject, he nonetheless sins against divine law.

33 But

what those who say this claim — that an emperor selling a magistracy sins against divine law — does not appear to hold of itself: for that power is temporal and could be instituted for the benefit of the commonwealth, and offices might be sold, as happens in some places, provided safeguards were in place and evils did not

this would not follow, just as in fact it does not — for which reason it is wrong only accidentally, and not simoniacal, as Thomas says in his letter to the Duchess of Brabant.

Fifth Question.

On the nature of simony and its species.

THE FIFTH QUESTION ASKED is whether mental simony obliges [the offender] to resign a benefice obtained through it. And it seems that it does: because the sin of simony is greater than that of usury; but usury, even without a formal agreement, must be restored by institution [of divine law]. Therefore, etc.

2 On the Other Side

On simony, the final chapter, where it says: when no agreement has intervened, penitence before God suffices.

3 My Response

Here, for clarity regarding simony, three things must be seen in general. First, what it is, how it is punished, and how dispensation is granted in it. Second, in what things simony has its place materially and objectively. Third, by what means or through what intermediaries it is committed, as it were formally.

4 As Regards the First

there are three conclusions. The first concerns its nature, for which definitions are given. The first is that of the jurists: that simony is the deliberate will to buy or sell something spiritual, or annexed to the spiritual. “Deliberate will,” because if something that would otherwise pertain to simony occurs without deliberation on the part of those who do not intend it and in no way will it, it is not simony. “Will” as regards God. “To buy” — any non-gratuitous contract, that is, an exchange, is prohibited unless by the authority of a bishop. Likewise an intrinsic or extrinsic transaction [is prohibited], but a friendly composition is permitted. “Or to sell” — those who do so are called Gehazites [cf. 2 Kings 5], or simoniacs. “Something spiritual by essence, or by its connection to the spiritual” — antecedently, concomitantly, or consequently. Now simony is an ecclesiastical crime, distinguished from a civil or secular one by three things. First, by its subject matter or object: because a crime committed against God is ecclesiastical, as heresy is; whereas crimes against the neighbor are civil, as homicide is. Second, by its jurisdiction: because knowledge of it belongs to the ecclesiastical judge. Third, by its penalty — [see] C. de episcopis et clericis, Authent. Clericis, in the gloss. Hence for every personal debt for which action can be taken to impose an ecclesiastical penalty — because if one does not pay the debt after prior admonition one can be excommunicated — so that action may be brought before an ecclesiastical judge: and similarly for earthly possessions, [the judge] will not then pronounce them to be of this kind, but will admonish that restitution be made and will excommunicate the unwilling — for which three reasons simony is an ecclesiastical crime. Simony is moreover called heresy, by reason of similarity of act, or as regards certain disciples of Simon who, together with their master, believed that the gift of God could be obtained with money.

5 The Second Definition

is that of Cantor Parisiensis: that simony is the non-gratuitous acceptance or conferral of spiritual things. Here it should be noted that privation is reduced to the genus of the habit; hence just as it is simony when something is given in exchange for electing someone, so also when it is given in exchange for not electing him: thus [giving] in exchange for not testifying is simony, just as [giving] in exchange for testifying; and just as it is lawful for an advocate to receive payment for pleading, so conversely for keeping silent, as it seems — because if the opposite [holds] in the opposite case, so the proposed [holds] in the proposed case.

6 The Second Conclusion

concerns the penalty, which is threefold. The first, beyond infamy and canonical disability, is suspension, according to the distinction of Thomas: for either the simony occurs in a received order, or in a benefice. If in an order, it admits of no excuse, but the offender is suspended by the law itself, both as regards himself and as regards others, whether the offense is occult or manifest — just as a notorious fornicator is [suspended]. Extra de symonia, Tanta. And this is how he interprets 1.q.1. Reperiunt. And this is so because [the order] bears a stolen character. If however the offender is a simoniac because he conferred an order simoniacally, or because he gave or received a benefice

simoniacally, or was a simoniacal intermediary: if the offense is occult, he is suspended only as regards himself, as is every criminal [offender], but not as regards others. If however it is manifest, he is suspended also as regards others; and this, says Innocentius, makes him irregular by consequence. For one who is unworthy in the possession [of an order] is much more unworthy in the acquisition of it. And one who is unworthy of a lesser dignity is unworthy of a greater. ff. de senatoribus, l. Qui indignus. Suspension, however, does not seem to follow except for simony in a benefice or an order. Hence in the Summa, in the gloss, it says that not every simony gives rise to irregularity — as, for example, if someone sells holy water or blessed bread.

The second penalty is restitution, which must always be made to the church in whose injury the thing was given or received: for instance, if it concerns a prebend, a parish, or an order, restitution must be made to that church by its bishop or by its judge — unless all members of the church share in the guilt. For then it can and should be distributed to the poor.

The third penalty is the resignation of a benefice obtained through simony, even if obtained in ignorance — as stated in the Summa, same title, Pœna, verse Item qui recipit — except in three cases. The first: if an enemy gave [the money] out of malice. The second: if a friend gave it against my will — in which case the recipient is not even a simoniac — Extra eodem, Nobis. The third: when [the simony was] without an agreement, whether tacit or express — Extra eodem, c. ult.

To the argument made in opposition [in the opening objection], it must be said that the restitution of usury is a penalty of divine law, which holds the interior act to the same standard as the exterior; but the resignation of a benefice is a penalty of human law, since the Pope, and sometimes even a bishop, can dispense from it. Now human law does not punish the interior act — ff. de pœnis, l. Cogitationis pœnam nemo meret [“No one deserves punishment for mere thought”]. Hence mental simony, which is an interior sin, does not oblige [the offender] as pactional simony does — although there is no purely interior simony when one has proceeded to an external giving, even if not to a formal agreement.

The third conclusion concerns dispensation: because the Pope can dispense in all things and through all means. A bishop can also [dispense]: first, in every simony other than that involving orders and benefices, as is said in the Summa of Raymund and in the gloss; second, with a simoniac who was ignorant of the simony contracted — provided however that he resign the simple benefice viciously received, and that it then be conferred on him again. But this is otherwise if it is a dignity, a rectory, or a benefice with cure of souls, and not merely a simple benefice without cure, as is also stated in the Summa. Third, [a bishop can dispense] as regards the reception of orders rightly received beforehand, so that the recipient may minister in them and retain a benefice previously legitimately obtained — since otherwise one is suspended from everything and subject to deposition, as is also said there. Fourth, [the bishop can dispense] with the ordainer, the promoter, and the petitioner, [when acting] without condition or agreement, as stated there. Fifth, [the bishop can dispense] with one entering religious life. Now just as [the bishop] can dispense with secular persons, so much the more with regulars subject to him. As for exempt persons, there is doubt, because no one can absolve one whom he cannot condemn; but since what has been introduced in favor of certain persons ought not to be turned to their injury — as stated in C. de legi., l. Quod pro fauore — it therefore seems that [the bishop] can dispense with them. And indeed it is certain that a bishop can dispense with those who are not exempt by the law itself, but only have by privilege the faculty of exempting themselves and declining his forum by way of exception — as scholars who have the option among three courts [according to] C. ne filius pro patre, authentica habita super hoc — or such as those who cannot be excommunicated or suspended by the ordinary. But as for those who are exempt by the law itself and subject to him in nothing, it is hard to see how he can absolve, bind, dispense with, or grant indulgences to them. Regulars, however, who have the privilege of dispensing — except in cases where recourse to the Apostolic See would be deservedly required — can dispense in all the aforesaid cases: because for a case that a bishop is able to handle, it is not necessary to have recourse to the Pope; but when in the aforesaid cases of simony the bishop is himself implicated, not he but the metropolitan can dispen-

sare [i.e., dispense]. In question 5 [of the relevant decretal], Extra, on clerics who are married, Diversis [X 3.3.4]: if something is given to a doorkeeper or to someone in the household, not so that he might intercede on behalf of a candidate for promotion, but only to gain access or entry, that is not simony. Sixth, the bishop dispenses when the simony was contracted through ignorance of positive law — as in the case of one who promised to ask nothing of the presenter. Ignorance does not excuse from simony (Extra, same title, Per tuas [X 5.3.28]); it does, however, excuse [the ignorant party] such that the bishop may dispense. Nor does the decretal Cum illorum (de sent. excom.) stand in the way, because if one could not absolve from excommunication, then neither could he dispense from the irregularity contracted on account of it, whether knowingly or unknowingly; otherwise, even in that case, he could act on grounds of ignorance of fact or of law. In the same way an abbot dispenses regarding an irregularity incurred by a monk through ignorance of law or fact on account of an excommunication from which the abbot himself could have absolved — but not for any other reason. And thus an abbot can do no more than a bishop in the matter of dispensation, except insofar as he has greater power of absolution: for a bishop [may absolve] only in cases of minor assault, an abbot [only] short of grievous harm. Yet this case is doubtful: for the bishop is not found to dispense with one who has received holy orders simoniacally, except when the simony was contracted by another party while he [the ordinand] was ignorant. But if the simony was perhaps contracted by him, ignorance of law does not excuse. Or one may say that when someone receives a benefice through simony contracted between the conferrer and a friend of his [the recipient] while the recipient was ignorant, the bishop cannot dispense — unless it is a simple benefice (de elec., c. penult.) — because in that case the conferral was vitiated by the intention of the conferrer; but when neither party believed he was committing simony, that is, neither the giver nor the receiver, through an error of law, then the conferral is less vitiated, and thus even if major orders or a dignity or a cure of souls were involved, the bishop may dispense, if he himself did not commit the simony, or a superior if he himself did commit it.

The second principal article concerns the object and matter of simony. On this topic, first a probable opinion held by certain [authorities] will be set forth; second, arguments will be raised against it by way of inquiry; third, by way of epilogue certain conclusions will be gathered.

Regarding the first point, some hold that something can be called “spiritual” either by reason of the uncreated Spirit or by reason of the created spirit. If by reason of the uncreated Spirit, this can be in two ways: either it is spiritual by essence, such as grace and the gifts of the Holy Spirit, or by attribution, such as the sacraments, which are spiritual through [grace’s] causality — along with the things antecedent, concomitant, and consequent to these that are spiritual by essence. These last can in no way be sold, either in law or in fact. The reason is that in every sale the thing sold must be capable of being transferred from seller to buyer, whether in law or in fact; but grace and the spiritual gifts cannot be transferred from one person to another, either in law or in fact; therefore they cannot in any way be sold, and consequently no simony can be committed by the purported sale of such things. Sacred things, however, which are spiritual by [causal] attribution, can indeed be sold in fact, but never in law and licitly. The reason for this is threefold, corresponding to the three things to which the thing sold stands in relation in a sale: the price, the seller, and the act of sale itself. First, then, the proposition is evident from the comparison of the thing sold to the price: that sale is intrinsically illicit in which the thing sold cannot be recompensed by any price, for it is of the nature of buying and selling that the thing sold should be compensated by a price. But a spiritual thing cannot be compensated by any earthly or temporal price — as is said of wisdom in Proverbs 3 [cf. Prov. 3:15] — and with stronger reason this holds for grace and the spiritual things belonging to grace, because she “is more precious than all riches,” and “all the things that are desired cannot be compared to her.” Therefore the sale of any spiritual thing for any temporal consideration is intrinsically illicit. This argument is touched upon by the blessed Peter, condemning Simon, the originator of simony, in Acts 8 [Acts 8:20], saying: “Your money perish with you, because you thought that the gift of God could be purchased with money.”

Second, the same is evident from comparing the thing sold to the seller: that sale is intrinsically illicit in which the seller is not the owner of the thing sold but is merely a minister charged with dispensing it, not with selling it; but an ecclesiastical prelate is merely a minister, appointed

appointed to dispense spiritual things, not to sell them; therefore if they are sold, such a sale is intrinsically illicit. The major premise is established by C.1 q.1 c. Eos qui per pecuniam [Decretum C.1 q.1 c.1], which says: “Every owner may sell what he has, whether a slave or any other thing he possesses” — and this is applied to the case of simony. The minor premise is proved as follows: a prelate is not appointed by God as owner of spiritual things, but only as minister and steward. First, from 1 Corinthians 4 [1 Cor. 4:1]: “Let a man so account of us as of the ministers of Christ, and stewards of the mysteries of God”; and Peter the Apostle, the prince of the apostles and vicar of Christ, says in his first canonical epistle, chapter 4 [1 Pet. 4:10]: “As every man has received grace, ministering the same one to another, as good stewards of the manifold grace of God.” They received these things freely, not by purchase, as the Lord said in Matthew 10 [Matt. 10:8]: “Freely you have received, freely give.” Therefore it is in no way lawful to sell such things. Third, the same is evident from comparing the thing sold to the nature of the sale: that contract is illicit in which the nature of the thing is repugnant to the nature of the contract. But this is so in the case of the sale and purchase of a spiritual thing; therefore such a sale is simply illicit. The major premise is evident, because the nature of the thing must be compatible with the nature of the contract, and vice versa. The minor is proved as follows: an accessory follows the nature of the principal; but sacred things are accessory to grace, and therefore follow its nature; and the nature of grace is that it be given freely — otherwise it is not grace, as Romans 11 [Rom. 11:6] states — whereas the nature of buying and selling is that it is a non-gratuitous contract. Therefore the nature of grace and of the spiritual things annexed to it is repugnant to buying and selling. It is thus clear from all this that the buying and selling of sacred things is intrinsically illicit. The word “simony” derives from Simon [Magus], who wished to purchase the grace of the Holy Spirit — the grace of conferring the Holy Spirit — which he saw visibly bestowed in the sacrament of confirmation through the imposition of hands by the apostles, as Acts 8 [Acts 8:18–19] records. Those who sell [such things] are properly called Gehazites [Giezitae], after the account of Gehazi in 2 Kings 5 [2 Kings 5:20–27], although all who sell or buy can be called simoniacs, since Simon wished to buy that grace in order afterward to sell its exercise. The same must be said of things antecedent to the sacraments, such as sacred vessels and the right of patronage, which is the right of presenting someone to an ecclesiastical benefice. Sacred vessels, by reason of their consecration, cannot in any manner be sold — that is, one cannot demand anything additional by reason of their consecration; however, in necessity of the Church they can be sold for the value of what is purely corporeal in them, namely the material of gold or silver. And if they are sold to an ecclesiastical person, they may be sold whole; but if to others, and not for the use of the church, they must first be broken, lest sacred things be handled by persons other than the ministers of the Church. The right of patronage, for its own part, cannot be sold, nor can it be given in fief; but if the estate to which the right of patronage is annexed is sold or given in fief, the right of patronage passes with the whole — as is clear from Extra, de iure patronatus, cum secundum [X 3.38.2] — nor should the estate or castle be sold at a higher price on account of the right of patronage. Concomitant things — such as the bodily labor involved in administering the sacraments or in consecrating churches — can in no way be sold, because the labor of the worker never falls under a sale — only the work produced does, even in purely corporeal matters. For who has ever purchased the labor of a worker except for the sake of the product of the work? No one. Therefore it is absurd to say that ministers can sell their labor in cases where they cannot lawfully sell their work. If, then, an ecclesiastical minister who dispenses the sacraments receives anything, he does not receive it as the price of his work or his labor, but as the sustenance of the minister. The same must be said of the offices consequent upon holy orders received — as will be shown. As for those things called spiritual by reason of the created spirit: some are spiritual by essence, such as knowledge and acquired virtues, and these can in no way be sold, even in fact, for the same reason given above regarding grace and things spiritual by essence; others are spiritual by attribution, such as teaching, counseling, judging, and bearing witness. Selling such things is not simoniacal, though it is sometimes another kind of sin, and sometimes no sin at all. For when someone is obligated to render such services gratuitously,

to render such services without charge, it is unjust to sell them. Therefore, since a judge is bound by his office to render judgment, and a subject is bound — insofar as he is a subject — to give testimony in court, a judge cannot without injustice sell his judgment, nor a witness his testimony. A witness may, however, seek reimbursement for the expenses he incurred in traveling to the place of judgment and returning. From this it follows that, since the seal of a judge is nothing other than an attestation of his judgment, it is not apparent how a judge could charge anything for his seal, except perhaps the costs of the wax, the sealer, and the clerks assigned to that task. When, on the other hand, a person is not bound by office to render such services, it is not unlawful to sell them. Hence a legal expert may lawfully sell his advice, and an advocate his representation. So much for the first point. 15 As for the second point — namely, the inquiry into these matters — the following observations seem relevant. First, it is said that spiritual things by essence can be neither sold nor bought, whether in law or in fact. This is true with respect to the efficacy of transferring and acquiring them, since it is not within human power to transfer or bestow them; it belongs to God to give them and to transfer them miraculously — for God could transfer an accident from one subject to another. But there is an objection concerning the sacrament of the altar, which a Christian sold to a Jew and actually delivered, where a spiritual thing by essence was truly present; and yet this happened incidentally by reason of sensible corporeal matter, and there is no doubt that it was simony. Nevertheless, regarding spiritual things properly so called, it seems that they can in fact be bought and sold insofar as simony is contracted thereby — for Simon Magus sought by simony to purchase that freely given grace by which the apostles through the laying on of hands conferred the Holy Spirit, which grace was the episcopal character and the grace of miracles, whereby the Spirit visibly descended. Similarly, if someone believes that a heretic by giving his “consolation” [the Cathar ritual blessing] infuses the Spirit, and purchases this very thing with that erroneous intention, it is simony. Concerning things spiritual by cause — such as the sacraments — it seems that they are also spiritual by essence as regards the Eucharist, and likewise as regards every sacrament in which a spiritual power is present by essence, for the purpose of causing a character or an adornment [of the soul]. Hence the second argument touched upon here should be completed as follows: a sale by a steward against the will of the lord is unlawful; but if it is with the will of the lord, it is just as lawful when done by the steward as when done by the lord himself. Concerning judgment and testimony, what is said is true, but the argument is doubtful, because judging and testifying are sometimes free acts. For a judge is not always bound to judge in person — he may delegate, or may from the outset decline to accept the power. Likewise a witness is not always compelled to testify. Yet whether one judges or testifies voluntarily or under compulsion, he is not permitted to receive money for this act, though he may properly claim expenses if he is not an ordinary officer, since he is not required to serve at his own expense — and similarly for the salary of an assessor. There is, however, a prescribed form for this in de rescripto, Statutum, book 6. As for accepting the role of arbitrator, there seems to be no prohibition. As for the seal, however, the case seems truly to be different; but these matters are not merely unlawful to the degree they should be — they are also simoniacal, if they occur in a spiritual cause and in ecclesiastical jurisdiction, since they are accessories and annexed to things spiritual by a created spirit. But concerning counsel and advocacy, even in a spiritual cause — such as a matrimonial case, or one concerning prebends and tithes — no payment is to be demanded, because [the advocate] is not bound to render [such service] for free. Yet it also seems that even where he would be obligated, payment could not be demanded. For if a wealthy man were dying of hunger while possessing money, I would be obligated to assist him, but not for free — for it is not necessary to give what one is able to purchase, just as Tobias did not give [the money] but lent it to Gabael, because there was hope then that he could repay it [Tob. 4–5]. Similarly, a physician is bound by his office to aid a dying man with medicine when it is necessary for life, just as another person is bound [to offer] bread that he possesses — but not without charge if the patient is wealthy. And so if someone has no advocate, and for want of an advocate stands to lose the case involving his entire inheritance, the advocate is bound to provide representation and the legal counselor to provide advice — though not for free. The argument they touch upon concerning labor raises a doubt, because in that way it would not be lawful to sell the labor involved in administering the sacraments — since it is not the labor of the worker but

the work itself that a person intends to purchase, and it is not lawful to purchase the work itself. But there is an objection: on that basis it would not be lawful for a teacher to sell the labor he expends in teaching, since he cannot sell the knowledge itself — the opus operatum — either in law or in fact. 16 Furthermore, just as the buyer is more concerned with purchasing the opus operatum than with the worker, so conversely a seller is more willing to sell his labor than anything else. 17 In addition, it seems to some that if in such matters a person sells only his labor, he ought to receive more or less according as he labors more or less — not according to the size of the case or the means of the client. For a thing ought not to be sold for more than it is worth on account of the condition of the buyer or the end for which it is ordered; just as a hammer is not worth more because it is bought for working gold than if it were bought for working bronze or iron. Advocates, therefore, ought not to receive [payment] when they do not labor — unless they reckon an old labor [as still owed], just as a merchant selling goods considers not only what they originally cost him, but what they cost to transport, etc. But even this does not excuse them, since a seller ought not to sell a thing for more than it is worth in itself, however much more it may have cost him at the outset or thereafter. 18 As for the third point, by way of summary, there are three conclusions. The first is that sacred things ought not to be sold, as has been well demonstrated — and this is true even of things that are spiritual only by cause. Nor does it matter that the argument there proves all sacraments to be spiritual by essence, because even if that power is spiritual in its efficacy, it is nevertheless corporeal by essence, since it subsists in the body in such a way that it is not naturally suited to exist in a spirit. And this is true not only in general but also in particular for each sacrament. Baptism, together with all its sacramental rites, must be conferred without charge. And although in a case of necessity it may be lawful to sell a consecrated chalice, it is not in that same necessity lawful to purchase baptism; hence, given that a priest refuses to baptize a child unless he is paid, on no account should money be given to him. Indeed, in such a case it would be lawful for anyone to baptize the child, or to leave the child in the hands of the Lord, if it cannot otherwise be baptized except for money — because evil must not be done that good may come, as Thomas says here [cf. Rom. 3:8]. The same holds for confirmation, chrism, and the like. Nor [may payment be demanded] for the confirmation of an election — unless to redeem oneself from harassment; for just as civil law permits one to ransom one’s own blood, so canon law permits one to ransom oneself from vexation, which occurs when a person gives money not to acquire any right for himself but to prevent a right already acquired from being unjustly obstructed. Likewise not for the Eucharist. Voluntary offerings, however, may lawfully be retained, just as in other matters hired priests are excused, because in the sustenance of their livelihood they receive neither the price of the Mass nor of their labor. Similarly a prebend may have annexed to it the duty of celebrating [Mass], just as to any office belongs the duty of saying the canonical hours — for this pertains to the sustenance of the ministers. Likewise not for penance: hence priests who refuse to hear confession unless they first receive money are simoniacs. Nor should money be exacted for absolution in the external forum; contumacy, however, may be punished even by a monetary penalty according to the custom of the region — extra de sent. exco., the chapter Venerabilibus, otherwise beginning Caeterum, §Denique — unless one is a legate’s delegate in France, who by doing this would be excommunicated, as in the constitutions of Simon de offic. dele., the last chapter [Simon of Paris, constitutions on legates]. Likewise not for marriage, except that insofar as it is [a natural office], a dowry is given for the burdens of matrimony; for the blessing, however, nothing is to be demanded, though what is voluntarily offered may be received; and the judge’s office may be invoked for just customary [dues], not for the formal conduct of litigation — as is lawful in the case of tithes. Likewise not for holy orders, nor for the blessing of abbots, abbesses, and virgins. Likewise not for extreme unction. 19 The second conclusion is that simony has a place in spiritual acts deriving from the uncreated Spirit, in which nothing may be received even for labor, but only for the sustenance of life. As for anniversary [Masses], the judgment must be the same as for pre-

[Continuing the second conclusion:] when an anniversary [Mass] pertains to the sustenance of life, those who accept it are obligated to perform it, just as a canon is obligated to the canonical hours. 20 Likewise, prayer should not be offered for money but for God and out of genuine devotion. If money is given by contract for the recitation of a psalter, that is express simony. For preaching, one may not receive money, but a preacher may receive his sustenance. 1 Cor. 9. Likewise, it is permitted to preach for the purpose of gathering alms for others and oneself — as Paul [preached] for collections to be made for the holy co-apostles and disciples. 1 Cor. 16. But it is not permitted to make the accumulation of money the end of preaching, as do those who count godliness as gain, preaching for no other purpose than to collect money, for which they even invent indulgences and compose many falsehoods in their preaching. Such men ought not to be called preachers but hucksters [quaestores], against whom the Apostle [says]: “I seek not yours but you” [2 Cor. 12:14]; “not because I seek the gift, but I seek the fruit” [Phil. 4:17]. Likewise, giving money for correction and visitation is simony, as is receiving money from an ecclesiastical judge to conceal a crime or to clear the accused. The same applies if done through intercession or service. Likewise [simony applies] to not punishing a crime, or punishing it less [than it deserves]; but [a payment for] procuration of visitation and for the consecrating bishop is permitted — yet not for one who does not visit, as in the case of exempt persons, because when the office is removed on account of which the [right to the] payment is owed, the payment is no longer owed. Dig. de adimendis legatis, l. Alune, § Seia [Digest 34.4]. For it ought to suffice them that they reap temporal things from places that have been spiritually visited, in proportion to the days on which they administer spiritual things. Extra de censibus, c. Fœlicis, lib. 6 [Sext. 3.20.1]. Yet there is a certain one who demands his procuration, saying, “I do not wish to correct you; let the Devil correct you — but I wish to exact my procuration,” arguing that the legal texts which say that one who does not perform the office of visitation should not receive the benefit of procuration speak only of a case where it is the visitor’s own fault. Extra de censibus [et] procuratione [Sext. 3.20], against which stands the passage cited, since the Pope in transferring visitation is compared to a testator who transfers the execution [of a legacy]. Hence, one to whom a benefit belongs on account of an office, if by his own fault he is deprived of or suspended from the office, is thereby deprived of the benefit — just as in the case of one who by reason of a benefice is bound to holy orders: if by his own fault he becomes irregular, he ought to lose the benefice. But if, after both rights have been acquired by him, he loses the [exercise of the] office through no fault of his own, he does not for that reason lose the benefit — just as one who has become irregular through no fault of his own: although he cannot be promoted, he ought not for that reason to be deprived of his benefice. Hence when a diocesan bishop is deprived of the office of visitation through no fault of his own by reason of exemption [of a monastery], unless this is expressly provided, he does not seem to be deprived of the benefit of procuration. Nor does the cited passage pose an objection, since it speaks of a case where neither right had yet been acquired: for in that case, when the principal [right] is transferred, the accessory seems to be transferred along with it; but it is otherwise when both have already been acquired and one is transferred for a specific reason by means of a comparison to which the other is not accessory — and such is the case here. For it does not follow that if a man is exempt from one thing, he is therefore exempt from another. Concerning admission to religious life, one must say, as Thomas says, that for the necessities of life one may tell a person to bring [something] with him if he wishes to live [in the community]; but there are other acts for which it is permitted to receive [payment] for one’s labor, such as for teaching and other spiritual things [that proceed] from the created spirit. As for teaching itself, some say it is not simony, because it relates not to the Holy Spirit but to the human spirit; others say it is. But regarding theology, simony seems evident; regarding the other sciences, it is not [simony] for anyone to give or receive even a freely offered [payment] for a license to teach in any faculty, nor [is it simony] for one’s labor — though for teaching itself it is likewise not permitted — but to receive what is freely offered for one’s labor [is permitted], though not to demand it. Dig. de variis et extraordinariis [cognitionibus], lib. 1 [Digest 50.13]. Hence it is not permitted to retain books [as payment], except perhaps for things freely promised; but one who is obligated by office to teach receives shamefully — except from the wealthy, whom he is not bound to teach without charge. Extra de magistris [X 5.5]. As for the judge, witness, and legally learned advocate, it has already been stated. 21 The third conclusion concerns things annexed to sacred [objects and acts]. First, regarding sacred vessels, which may not be sold except in necessity — and then not at a higher price on account of their consecration than they would be sold to clerics, to whom they may be sold intact.

[Continuing the third conclusion:] They may be sold intact. To laypersons they should not be sold except melted down, to whom they may then be pledged as well. The same holds for relics, which may be sold and pledged for the value of their gold and silver, but not otherwise, since “let no one sell the martyrs, let no one trade in them.” C. de sacrosanctis ecclesiis, l. Nemo [Cod. 1.2.6]. Second, concerning burial the same principle applies: a cemetery may be sold only for the necessity of the church, the sustenance of the poor, and the ransom of captives — and then only for the value of the land, not on account of its blessing. Burial itself, however, ought not to be sold; and one who refuses to bury unless money is first obtained, and anyone who improperly delays a funeral until something is given or promised to him, commits simony. Other things are annexed to spiritual acts, such as the right of patronage, which cannot be sold but passes with a whole estate when it is sold; and if the estate were sold at a higher price on that account, it would be simony, even though it may accrue to a layperson — because [the right of patronage] is not spiritual by its own nature but by reason of that to which it is ordered. Likewise, concerning a canonry: its fruits may be sold, but not the right of receiving them, which is spiritual and does not accrue to a layperson. It is also permitted to redeem tithes from the hand of a layperson and to remove an impediment to one’s right. 22 With regard to the third main argument — namely, in what ways simony is committed — one should know that it is committed in three ways, which must be examined in order: first, through the gift of the hand [munus a manu]; second, through the gift of the tongue [munus a lingua]; third, through the gift of service [munus ab obsequio]. 23 Regarding the first, concerning monks: first, those who give something to abbots in order to obtain priories. Concerning these it must be said that if there is anything spiritual involved — such as tithes, offerings, the obligation of celebrating the divine office, or anything of that kind — it is simony, whether the gift comes from the resources of the monastery or of the priory or from elsewhere, insofar as the preposition “for” [pro] here denotes appraisement, proximate cause, or primary [cause]. Small gifts, however, which are accepted without corrupt intention, do not pertain to simony; this is against those who say that a visitor may not accept even a pen, the contrary of which the gloss states. Extra de censibus, c. Fœlicis, lib. 6 [Sext. 3.20.1], which is also understood of visitations by ordinary right — and so not of visitors sent by a canon, a [university] master, or a provincial [minister]. Concerning those who by reason of their office may receive nothing: it must be said that they ought to consider the intention of the person making the offering — whether he is otherwise a friend or a kinsman. For if he is a stranger who would not give it except in view of some [official] judgment, the gift must be refused, however small, because — although the law distinguishes, for the presumption of law [praesumptio iuris], whether the gift is large (which is plausibly likely to move the heart) or small (which is not plausibly likely to do so), and on this account the law permits judges to accept such small things since it does not seem they would be corrupted by them — such as food and drink that could be consumed within a few days — nonetheless in the court of conscience, whether small or large, if it is [given or received] in exchange for something spiritual, it is simony. 24 Second, simony is committed through the gift of the tongue, and a distinction must be drawn: whether a person intercedes for another or for himself. In the first case: if he intercedes for an unworthy person, it is simony; if for a worthy person, it is not. In the second case: if the [office at stake is one involving the] care of souls, it is simony; otherwise not. This distinction holds as regards the presumption of law in the external forum; because in the court of conscience, anyone who grants [a benefit] in consideration of another’s intercession, or who petitions with the intention that this be done on account of the intercession, commits simony. But if a prelate grants something at someone’s request that he would not otherwise have granted, because he supposes that the petitioner would only intercede on behalf of a worthy person — so that the petitioner’s words serve as a kind of testimony — it is not simony. One who knows or believes that the [superior] who conferred an order or benefice upon him did so principally on account of services or carnal intercessions made by himself or another: if he was unworthy, he must resign, since [the services] then take the place of a price; but if he was worthy, [the obligation to resign] does not hold — though he ought to do penance for the corrupt intention if he procured it. Extra eodem [tit.] Mandatum [X 5.3.28] and de aetate et qualitate, Tuam [X 1.14.14]. 25 Third, [simony is committed] through the gift of service, where the distinction is drawn: whether the service was honorable — in which case it is permitted — or dishonorable — in which case it is simony. This is true as regards the presumption of law. For according to the truth of the matter, if on account of ser-

service — even honorable service — as though in payment for a benefice of God, it is simony. And if someone serves with this intent, so as to acquire a prebend in exchange for his service, that too is simony. The courts of prelates are, however, probationary environments for clerics, as a certain person says. Hence, if someone would not have served a prelate except in the hope of obtaining a prebend from him — yet not in such a way that he wants it as a reward for his service, but rather wants to show himself worthy and well-deserving, so that he may receive [the prebend] according to merit and not according to service, and the prelate gives it not as a recompense but as to one who is worthy, on the testimony of his service — though the prelate would not otherwise have given it, this is not simony, because through this he proves himself the more meritorious. 26 To the argument on the other side, an answer was given in the second conclusion of the first article.