Letter on Stephen 8: impotence and Stephen's penance

[p 105] We have also reckoned a necessary addition, so that by the statements of the saints we may recognise that a marriage can be dissolved, in which lying together does not follow for certain reasons. And because of incontinence they are able to run together to other women. But subtle investigation and a reasonable discretion is first to be used in these things, whether there may be impossibility of intercourse in men, as if naturally - since also there are some eunuchs, as is written, who are born thus from the mother's womb - or whether this impediment happens to them by the operation of the devil, as is accustomed to happen. If this happens through sorceresses or female magicians, but never or nowhere unjustly, with God's judgment allowing and the devil working, those to whom those things happen are to be exhorted, that with contrite heart and humbled spirit they may make pure confession to God and the priest about all their sins and with profuse tears and more generous alms and prayers and fasts satisfy the Lord. By whose judgment for his merit, against their will, they should have merited to be deprived from that blessing, which the Lord gave the first parents before sin in paradise, and also did not want the human race deprived of in total even after sin. And through exorcisms and the other gifts of ecclesiastical medicine let the ministers of the Church attend to healing such, as much as the Lord should assent to, who healed Abimalech and his house by the prayers of Abraham. Who perhaps if they will not be able to be healed, will be able to be separated. But after, if they should seek another marriage, with those alive to whom they were joined, there will be unable to be reconciled to the first one, whom they left, even if the possibility of lying together should be returned to them. But just as we have said, and say again, an incestuous marriage ought not to remain, because of the incestuous crime, which cannot have a sacrament of Christ and the Church, but let us acknowledge that the crime ought to be healed by separation and penitence.

[p 105] Indeed we judge that Stephen's marriage, the case here, ought to be dissolved in all ways, lest he may be admitted as incestuous. And we hold that marriage, which has the natural mystery, cannot be dissolved by any other means whatever, except only in the case of fornication, as the authority of truth teaches. Since even if by common consent, the spouses should vow continence, the more resolutely, the more spiritually they will remain joined in the Lord. No simulation will be able to intervene in his eyes in this joining and indivisible separation, since he is discerned to be the scrutiniser of the heart and loins.

[p 105] Therefore let Stephen, for the fornication, about which he would have been able to do penitence by secret confession, had it not been that forced by necessity he published it, and since he has added the fault of simulation to the sacred mystery of marriage, although compelled by necessity, just like the one who did not fear to sow tares over the wheat, and since after such a marriage, before it should legally be dissolved, which seemed started as if legally, he is said to have used a concubine, destroying others by evil example, according to the form of the fault with moderation of piety, since he showed reverence to God, lest he should add incest to fornication, receive regular penitence from his own bishop according to his judgement, since the canons thus decree, and let him accomplish with the worthy fruits of penance. So that he who, by his neglect has presumed to scandalise the Church and many sons of the Church, may make satisfaction to the Church and its rectors and sons and after satisfaction, if he will not be able to be continent, according to the statement of Pope Leo the Great to Bishop Rusticus of Narbonne and according to the decree of the holy council of Toledo, let him seek marriage with a legitimate wife, lest again he may incur the crime of fornication. In which yet, speaking with the same very holy father, we do not constitute a rule, but estimate what may be more tolerable. For according to true judgement, nothing better befits him, who will have done penance, then chastity persevering in both body and mind. To whom lest we initiate the snare, we extend the hand of remedy, not the command of action.

Letter on Stephen 2: next procedural steps

[p 90] But with him heard, the synod ordered him to withdraw. And once individuals had spoken according to how it seemed to them, it was decreed that you co-provincial archbishops with your fellow bishops in that kingdom should undertake a synod at a convenient time and place, and let there be a placitum where the prince with the primores of the land may be present, lest - may it not happen - those illustrious men from either side may come together with the help of relatives and friends, and by the devil's working, a seditious tumult may be able to arise. And let the King attend to pacifying this case between noble men with noble men, but you, by episcopal authority and canonical definition, take it apart and take care to lead it to the due and healthy finish. Stephen having been called, this proposition was put to him and very gratefully received by him. But since the very littleness of my little intelligence, by the order of the synod, took care to suggest what it thought accordingly about the method of this case and the order of definition (?), it pleased the common consent of holy unanimity, that I transmitted and commended these things in letters also to your wisdom, just as they were then accepted in council. And therefore, not as if to those not knowing these things which follow, which are necessary to you, nor as claiming special authority of knowledge for myself, or boasting audacity of definition, but as a servant of the Church and your servant, namely of all the servants of God and servant to the Lord's people, I have taken care to collect anything, not as I ought, but as I could, from obedience of devotion and collected to transmit to you. In which things I have taken care to place nothing from civil law, which bishops ought not to recognise, but to note down briefly, as much as occurred to the memory, those things which are known to agree with ecclesiastical definition.

[p 90] St Gregory demonstrates in a letter of instructions to John the defensor, the order of judgement about things not yet spontaneously confessed or convicted openly, since otherwise no one, as Pope Leo discerned, can be judged regularly. St Gregory says: First so that judgement may be made in an orderly way, to what extent some are accusers and others witnesses. Then so that the quality of the cases, if it should be worthy of exile or condemnation, may be explored, with that one being present, who is accused, let testimony be offered against him under oath, and implanted with writing of the acts and let the accused be allowed to reply and defend himself. But it is to be enquired subtly about the persons of the accusers and witnesses, of what condition or what repute they are, lest they are needy, or lest perhaps they may have some enmities against the accused, and whether they have said testimony from hearing or really testify they specially know themselves, and so that the sentence judged from the writings may be recited with the parties present (?), and thus all things may solemnly be confirmed.

[p 91] But about a clear case and one known to very many, or which he thus confesses, just like that one (if yet also the girl [Raymond's daughter] should say, just what Stephen says, since often we hear among the masculine and women, that what one says the other one very often denies) witnesses are not to be sought, as St Ambrose says in a letter to the Corinthians, explaining the statements of the Apostle about the fornicator: Judges should not condemn without an accuser since also the Lord, although Judas was a thief, since he was not accused by no means cast him off, although with that work known, he should have been banished from the meeting of the brotherhood. For all used to know his crime and did not accuse. For publicly he had his stepmother in the place of a wife. In which matter there is neither work for witnesses nor could the crime be covered by any subterfuge. And a little later: With the face being absent but the spirit being present by authority, who is absent nowhere, I have now judged him as present who admitted this.

[p 91] Therefore it is necessary that Stephen brings the girl to the synod and the father of the girl herself should come, and the girl should be questioned if it is true what Stephen says, that he has preserved her intact until now. And since we have heard about another woman, since she wanted to be freed from a husband, she was prevailed upon and then said other things about herself which were not true, as is reported, let due liberty be given to her and the peril indicated, lest, prevailed upon, she might confess a lie for the truth. And if she should say thus just as Stephen and then, if it should be necessary, belief befitting reason and authority should be received thence by oath, or satisfaction through suitable person, if necessity demands, should be demanded by judgement. Since not for the sake of fraud or any other cause whatever should Stephen remove himself from carnal bond of this girl, except for this reason, which he himself indicated to the synod, namely that he had had lain carnally with a blood-relative of the girl betrothed to him, a relative by connection of the flesh.

[p 91] For this Pope St Leo and blessed Gregory judge to happen in a doubtful matter, openly through an oath from a priest or from whatever man or woman, noble or ignoble, just as he who should want to read will be able to find. Among other things that blessed junior Gregory says in a letter to Boniface Bishop of Mainz directed via the priest Denwald: In the case in which they should not be sure witnesses, who may confirm the truth of the crime produced, it should be sworn on oath in the midst and let the accused offer back testimony about the purity of his innocence, to whom all things are naked and open, and let him have as a witness of his conscience, he whom he will also have as his judge. Which purging of the sacrament is very usual both in churches and in external laws and is also established to have arisen from the truth of faith from the earliest times. But judgement is not accustomed to happen except for the sake of concord, peace and charity among equals; but it is done by subjects for the satisfaction of greater. Which in this case, cannot be required by authority unless it should happen from the placitum.

[p 92] Since it has been said to us to be required from Stephen that he designate by name the woman he has slept with, and demonstrates the certain affinity of relationship, for the sake of which he is not able to unite himself in carnal bond with this girl, we have reckoned to place this worthy thing here which the Apostolic authority discerns from this and the Catholic Church holds, with the truth on this account being known, that it is against reason and ecclesiastical authority and habit of Christian devotion to seek that from him, if perhaps it is sought from another. Leo, greetings to the universal Church in Campania, Samnium and Picenium and all provinces. I am moved with great indignation and saddened with much sadness that certain of you are learned to be forgetful of Apostolic tradition and entangled in zeal of their errors. And after a while: Namely about penance which is offered by the faithful: lest a written declaration should be publicised in the form of a booklet about individual sins, it suffices individual priests to have secret confessions of consciences indicated. For although a plenitude of faith should seem laudable, which because of fear of God does not fear to blush before men, yet since not all sins are of this kind, that those who desire penitence do not fear to publicise them, let the objectionable custom be removed, lest many are bent from the remedies of penitence, since either they blush or fear their deeds to be revealed to their enemies, by which they could be struck down by the law constitutionally. For that confession suffices which is offered first to God, then also to the priest, who he may approach as an intercessor for the sins of the penitent. For there are many who will be able to be provoked to penance, if their conscience is not publicised to the revealing ears of the people.

Interrogatio 20

[219] Concerning that which is asked, And if such matters are considered whence the king must do public penance, after she has been found to be criminous, tell us also whether that king is able to take a legitimate wife after public penance.

Interrogatio 18: Lothar's options

[217] In the seventh chapter, we ask to be informed as follows. If this woman again comes to the ordeal, and is found innocent, does her husband have to return to her, or can he unite with someone else? And if she is found guilty of those crimes of which she is accused, tell us whether the king is able to marry another woman. And if such matters are considered whence the king must do public penance, after she has been found to be criminous, tell us also whether that king is able to take a legitimate wife after public penance. And tell us whether, if she has been legally rejected, the king is able, after penance and if he so wishes, to take the concubine, whom he kept and with whom he is said to have committed adultery after the marriage was initiated, in marriage.

Interrogatio 11/Responsio 11: on public confession and penance

[174] We tried to show above by ecclesiastical authority that a husband cannot separate himself from his wife, or wife from her husband, by means of a written secret confession: just as a bishop cannot remove himself from the church entrusted to him or from his rank, nor can anyone in church orders remove himself from his rank. And nor should anyone have to undergo public penance on account of a booklet of secret confession passed around, and nor can someone be condemned on account of a guided text, or one submitted by somebody else. Rather, what should be judged publicly should be confessed or proven publicly, and in their presence. The great pope Leo wrote to Nicetas Bishop of Aquileia, saying “A sentence can justly be imposed on someone who, present and standing there, has been proven guilty or has confessed fully”, because it is against reason for them to discern the punishments of those whose motives they are not able to know.

Divine scripture also demonstrates the procedure for judging, accusers saying about an accused woman in a prepared judgment ‘“Send for Susanna the daughter of Elchias and wife of Joachim”. And they sent for her and she came with her kin and her children.’ And after testimony was given, the judges condemned her to death. But she was freed, freed by truth, and the false witnesses were punished since they had done harm to their neighbour.

But the woman caught in the act of adultery, and physically present, was not accused through someone else’s testimony or written deposition, which church and Roman laws forbid. Her confession is implied, when it was said to her by the Lord “‘Has no one condemned you?’ and she said ‘No one, Lord’. And Pilate too said about the Lord – though he was seized like a thief and tied up by a band of men, the legitimate procedure of power was maintained, as Augustine said – who was handed over to his prefectural responsibility by the ministers of the Jews, by Anna Caiphas and by Caiphas, “You have handed this man over to me”. Hearing that he was in the power of Herod, he sent him back to Herod. This teaches us to expect Christian and fair judgments from secular men of the world [?], and then to have to apply ecclesiastical healing ointment, ie judges’ medicine, to the infirm. The Apostle demonstrated the same thing, when the faithful were still mixing with the unfaithful, “Already indeed there is plainly a fault among you, that you are judged by outsiders, and not by the brethren. If therefore you have judgments of things pertaining to this world” amongst you, “set them to judge who are the most contemptible in the church.” And Gregory says in the Pastoral Rule “those unadorned with spiritual gifts should at least serve for earthly matters.” And Augustine in his Enchiridon shows that [?] such necessary judgments should not be prohibited, but should be judged amongst the faithful. And St Ambrose: “Since there are wise brothers, let some of these whose judgment the world will respect be chosen to judge. It is very shameful if amongst those who are said to know God none can be found who is able to conduct a judgment.”

[175] For how can a repentant murderer receive the peace of the church before he is pacified with the litigants? How is discord able to win forgiveness before it is united by the glue of charity? How can the rapacious man, who has exhausted himself in rapine, perform acts worthy of penance, before he has made a peace offering by making amends or satisfaction, according to the judgment of David and the example of Zacherias? Or how can a marriage be dissolved unless according to the Christian laws, by which it had been joined under the Lord? And if it was not initiated but rather usurped, how else should this be proven? So St Gelasius wrote to the Emperor Anastasius, “If bishops of religion obey your law in as much as it pertains to the order of public discipline [?], recognising your imperial power bestowed upon you by supernal disposition; so it is fitting and appropriate for you to obey them, who are endowed with elevating and venerable mysteries. As is written elsewhere, read it again “Return to Caesar what is Caesar’s, and to God what is God’s.” To Caesar then pennies, tribute and livestock, the honour owed so long he faithfully honours the Lord [!], the taxes; to God tithes, first-fruits, oblations and offerings, and continual service. Just as He returned tribute for himself and for Peter, and returned to God what was God’s, doing his Father’s will. And St Augustine says in his sixth sermon on the Gospel of John, “Don’t say ‘What’s the king to me?’ What are your possessions to you? For possessions are possessed by kings’ law.” So questions of secular business are to be sorted out through legal trials – just and Christian ones.

[176] And about the booklet or secret confession, Leo observed “to all the bishops in Campania, Samnium and Picenum. I am moved by great indignation and grieved by much pain, when I learn that any of you have been forgetful of apostolic tradition, and ruined in the zeal of your error.” And a bit later, “About penance indeed, which is demanded by the faithful: rather than making public a profession of every particular sin in a written booklet [?], let it suffice for the conscience to indicate [them] to the priests alone, in secret confession. Although the plenitude of faith which on account of the fear of God has no qualms about blushing before men is praiseworthy; yet not all sins are of the sort that those requesting penance would not fear to make them known. So let this uncommendable customs be removed, lest many should be kept away from the remedies of penance, because they are embarrassed or because they fear to reveal their deeds to their enemies, by whom they could be struck with legal action. Let that confession suffice which is offered first to God, then to the priest, who goes as an intermediary for the sins of the penitents. For they will then be able to push many to penance, if the conscience of the confessing person is not made public to the ears of the people.” Let them also consider (since the sacred canons order the excommunication of a bishop [?] for as long as he does not communicate with someone who he says confessed secretly to him) whether anyone ought or would dare to submit someone to the laws of public penance, on the grounds of a secret confession, whether a booklet or hearsay. And how much less should a legally initiated marriage be dissolved without certain and obvious reason, which Leo intoned terribly to all the bishops appointed throughout all the provinces, saying “Our warning denounces this too: that if any of the brethren tries to act against the constitutions and dares to ascribe to prohibited things [?], he should know that he will be removed from his office, and he who does not wish to be a companion in discipline will no longer be a participant in communion.”
[end of responsio 11]

Interrogatio 10

In the fourth chapter we ask you to inform us as follows. If this issue, for which we heard (and some of us witnessed) the ordeal was performed, is called back to judgement, how should the judgment be canonically arranged? And should the woman be judged by the secret confession which, it is said, she committed to the bishops, or by the booklet proffered forth in the judgment? And, if it happened that she proffered the booklet under coercion or signed it unwillingly, can she legally be removed from the marital bed in this fashion?

Interrogatio 13

And tell us in the sixth chapter, if this king, after he heard these things about his aforementioned wife and had suspended carnal business with her, had perhaps committed adultery with a concubine, and this came to the notice of many people, then by what medicinal judgement should it be healed? And if it happens to come about that a man obliges himself by oath to try to do something which is illicit, should he fulfil his oath so that he does not commit perjury, or should he not do what he wrongly swore to do, so that he does not usher in a crime? And whether it is true, as many men say, that there are women who by their evildoing are able to provoke inreconcilable hatred between man and wife, and to sow an ineffable love between a man and woman. [So that] a man is unable to engage in marital commerce with his wife, yet is able to sleep with other women; but that by the same evil doing, the power of sleeping with someone and of love, formerly enjoyed, can be restored by the art of witches. And tell us what is the reason for which God allows such things, it is said, to happen in legitimate marriage. And if such male sorcerers or female witches should be found, what should be done about them?