Recommended Citation: Kotrly, Tomas: "The Lawful Selection of a Grave according to the Gratianus Decree", In: Church Law Review 49,2 (2011), ISSN 1211-1635, p. 37 - 48.
"When she is dead, bury her by me in one grave."
The article is adapted from a chapter of the dissertation "Funerals and Cemeteries in the Legislation of the Code of Canon Law, " written under the supervision of advisor Professor Antonín Ignác Hrdina and defended at the Catholic Theological School of Charles University in Prague in 2009.
In my contribution I am going to address in details canonic arrangements of the right on a free selection of a burial plot for a married couple and its theological implications. The attention of the first Christians gradually shifted to a place of the last rest, which they were related to spiritually, not ethnically or matrimonially. Today it seems to us again to be natural that relatives and first of all wife and husband are buried one beside the other or one above the other in the same grave.
One of the Decrees by Pope Urban III prescribed that as concerned the choice of the grave wife and husband were equal and matrimony should not be applicable in this respect.
On the other hand the Gratianus´s Decree claimed that those who were coupled through matrimony should be coupled in the grave, too (with reference to Bible´s quotation in an Old Testament book Tobias 4. 4).
Debates on this practical topic were conducted among certain canonists in early Middle Age Western Europe. The Gratianus's Decree has been of significant importance for the development of secular cemetery law, which is comparable to the significance of archaic Roman civic law, particularly in Western Europe.
Eine rechtmäßige Auswahl der Grabstätte nach dem Decretum Gratiani
Der Kurzreferate ist eine modifizierte Version der Kapitel aus der Dissertationsarbeit "Begräbnis und Begräbnisstätte in den Gesetzbüchern des Codex des Kanonischen Rechtes", die unter der Leitung von Univ. -prof. JUDr. Antonin Ignác Hrdina, DrSc, im Jahre 2009 an der Katholischen theologischen Fakultät der Karlsuniversität in Prag verteidigt wurde. Decretum Gratiani spielt eine entscheidende Rolle in der Entwicklung des säkularen Bestattungsrechts, die in Bezug auf das ganze Westeuropa mit dem Einfluss des archaischen Römischen Rechts vergleichbar ist.
La scelta legittima della sepoltura secondo il Decreto di Graziano
Quest'articolo č scelto dalla dissertazione "La sepoltura e il cimitero nella legislazione del Codice di Diritto Canonico", difesa nel 2009 alla Facoltŕ di Teologia Cattolica della Universitŕ Carolina a Praga, sotto la supervisione del prof. JUDr. Antonin Ignác Hrdina, DrSc. Il Decreto di Graziano. ha un significato particolare, paragonabile al significato del diritto romano arcaico, per lo sviluppo del diritto cimiteriale secolare soprattutto nell'Eu-ropa occidentale.
The collection of Gracianus, Bologna Master of Laws at the monastery school there, called "Concordantia discordantium canonum", compiled in the 40´s of 12th century, deals in its second part Negotia ecclesiastica with genuine and fictitious court cases, not only in the field of property, monastic and matrimonial laws, but also in the field of cemetery and funeral laws.
Gracianus used various forms of the word "to bury - sepulturae" - 80 times in total in tens of codes, first of all in 13th (q. 13),16th (q. 1) and 23rd (q. 8) cause. Codes providing for ecclesiastical funeral rights and the grave separated thanks to Gracianus care from dogmatic, liturgy, pastoral or other theology. Early medieval lawyers were very well aware of a public nature of the grave and placed locus publicus in contradiction to loci solitarii of a pagan burial grounds. Let us have a look in detail at Canonical arrangement of the right to a free selection of a burial plot, however, not parish or family, but only of a matrimonial one.
An attentive visitor to a Judaist or Catholic cemetery must feel a distinctive atmosphere of a marital intimacy, while in certain Protestant graveyards he/she will find that burial plots are occupied strictly according to the order of the death. Today it seems to us to be natural that relatives and first of all wife and husband are buried one beside the other or one above the other in the same grave. Debates on this practical topic were conducted among certain canonists in early Middle-Ages Western Europe.
In respect of persons the Canonic Law indentified three pre-conditions for the selection of a grave to be considered as lawful: to be adult, to be legally competent and to act without bad intentions. The first two pre-conditions for the validity of the selection have not been sufficient by themselves. It was expressly prohibited to leave a family or parish grave "ex illectione et odio", to opt for a grave in a monastery and to divest the church itself, propria ecclesia, of its parish rights. Simultaneously the monks and secular clergymen were prohibited to use treacherous practices so as to obtain the promise from certain persons to select the place for their burial just in their church or monastery or not to take back the decision already taken. Such a ban issued by the Pope Bonifacius VIII was reproduced a bit later in the Decree by Clementus V; punishments for misdemenaour referred to therein were sharpened by declaring even guilty Church dignitaties to be excomunicated as legally well founded.
"When she is dead, bury her by me in one grave", can we read in verse 4, chapter 4 of the book by Tobias. This biblical quotation introducing our brief contribution is referred to in the Gracianus Decree in an attempt to justify a common grave of husband and wife. In respect of the selection of the grave by married women medieval canonists got in between self-contradictory provisions.
One of the Decrees by Pope Urban III prescribed that as concerned the choice of the grave wife and husband were equal and in this respect matrimony should not be applicable. On the other hand the Gratianus Decree claimed that those who were coupled through matrimony should be coupled in the grave, too (with reference to the Bible´s quotation in the Old Testament book Tobias 4. 4).
Unless the deceased in the course of his/her lifetime has chosen location the last resting place, he/she sho uld be buried together with his/her predecessors - this is a fundamental rule provided for in one of the first Decrees by Pope Leo III in the year 816 in the section titled De sepulturis and repeated in Decrees by Pope Gregory IX. The same rule was taken over by Pope Innocent II (1130 - 1143), who - on the basis thereof - even banned Church authorities to refuse wishes of the faithful to be buried into their (though pagan) family tomb.
The principle of ethnicity in the selection of a grave came out after all from the ancient tradition. Burchard, bishop of Worms in the first quarter of the eleventh century and compiler of an encyclopedic collection of canons representing the practice of the early medieval church, included four texts admonishing wives to be buried in the same tombs as their husbands: two passages of St. Jerome; these passages were followed by an excerpt from St. Augustine; finally a passage from Gregory the Great.
The desire to rest abreast of one´s close relatives is absolutely natural. It was very strong even with the Hebrews. From the story about the Machpela cave (Gn 48,29-33) or about carrying the Joseph´s bones out of Egypt to Šechem (Joz 24,32) we get to know about the position of graves, which they occupied in the life of a Biblical man. Tora does not miss a single opportunity to underline in what manner and from whom Abraham gained the Machpla cave. He became its single and sole proprietor and it was simultaneously Abraham´s first and single holding of soil in the land promised to his descendants. Thereby Hebron became an exceptional and unique place in an old Jewish world. Bethlehem, where Rachel was buried, joined Hebron. And following Jerusalem, it was Tiberiada in the graves of which members of significant families used to be buried. Similarly the Old Testament speaks about the place of funeral of Jude kings. Moses whose grave "nobody knows until today" (Dt 34,6) is an exception. The only prophet the location of whose grave is mentioned in the Bible is Samuel (1 Sam 25,1; 28,3). Under the Bible presentation his native town in Ephraim mountains, today called Ráma, is such a place.
Those who had needed means at their disposal arranged for their family tombs. Sarah, Abraham and Isaac were gradually laid in the Machpela cave in Hebron mentioned above, in order to be linked with their people for eternity. Jacob who spent last years of his life in Egypt also insisted on being posthumously unified with his people and thus buried with his predecessors. He had just that in mind when in the context of his burial begged for "chesed ve-emet" (collection and transfer of bones), mercifulness and faithfulness, two closely related words. Joseph mourned for his father for seven days (Gn 50,10) and expressed his wish for the Hebrews to transfer his remains to the Chanaan land selected by God. The Old Testament man so much wished to be unified with his people, it means to rest close to his ancestors in a family tomb that in the case it did not happen so and the man concerned was buried not with his closest, it was considered to be a punishment.
The Hebrew tradition was the direct source of a quoted deed of the Pope Leo III, which is proven by words "ut Patriarcharum existus docet". It is, however, impossible to deduce thereof that it involves specifically the Hebrew custom. Familial tombs are after all often mentioned by Rome lawyers. In the society where a family had such cohesion it was quite natural to be buried next to one´s intimates. Persons that did not mark the place of their final resting place and did not possess a family tomb had to be buried at the cemetary of their parish. It is also a very old rule, which is confirmed in Liber Sextus of Noniface VIII. He who dies on his trips must be buried in his family tomb or returned to his parish, if the corpse may be transferred. In the opposite case placing in the grave will be held in the locality the person concerned deceased.
The choice of a grave pursuant to Urban III assumes spiritual interests and as a consequence even a married woman must have an option at her disposal to make a choice freely as to where she wishes to be buried. Such a solution seems to be even more rational, because women received full capacity in the matter of the last will.
In the light of these two texts the canonists suggested the following solution providing for the importance of each of them. According to them the code of Gracianus decree covers the case when the woman dies without having expressed her will or designated the place of her grave. In this case it is natural for her to be buried in the same grave as her husband and in the case that she had more of them, then in the same grave as her last husband. When wife dies earlier than her husband she will be buried in the place selected by him, if he had chosen one at all. Unless husband expressed his will in respect of that, wife will be buried under common law together with her ancestors.
The Gracianus Decree interpreting an anticipated will of a married woman claims that where she failed to designate her grave, she is to be buried after her death together with her husband. If, however, husband dies earlier than his wife without having designated the place of his grave, and she - opposite her husband - designated the place of her grave, should that man be buried in the place designated by his wife? Most canonists who dealt with this issue assume that it is logical to apply in the case of husband the same solution as in the case of wife.
Husband or wife must not give up the option to select his/her grave or this right must not be denied thereto. Such an option is naturally denied to all of those who are denied ecclesiastical funeral rites. The denial of an ecclesiastical funeral rites - a very strict punishment under common law- was applied in the year 1353 by Prague Synod even to privately entered into marriages (without witnesses and an officiant, by a mere agreement of parties) - often called clandestine marriages. The persons who entered into and lived in such a marriage should have been sent to Prague to penitentiaries who assessed their punishment and unless they did it, they were to be prevented from entry into church and after their death they were to be denied a Christian funeral.
Every believer thus had an ancient right to be buried in the grave, which he/she chose himself/herself even in the case when the grave was located outside a relevant parish. This rule was clearly indicated in the mentioned Nos institute: "nobody is refused to select one´s grave, even someone else´s. " Jesus Christ himself set an example when he chose the place of the last resting not in his own or family tomb on the honorary place of the Jewish cemetery, but in somebody else´s in the garden, maintained by a gardener, not far from the execution ground.
The attention of Christians more and more and gradually shifted to the place of the last resting of those whom they are akin spiritually, not ethnically. When we return back to Gracianus Decree and study more deeply provincial councils and glosses on Nos institute Decree there immediately appear certain conditions of the validity of the grave selection. The abstract legal principle is particularized by Gracianus and that is why it locks into fairly narrow limits at the moment when it is applied following entry into wedlock or after making perpetual vows in the community of monks.
Under the Canonic law in force the choice of a grave falls under the competence of each believer. The Gracianus Decree applied this initially set general principle in practice: it modified it literally so as to comprise a specific limitation in respect of persons that cannot apply the right to a free selection of a grave. Contingent efforts to put in doubt an ancient rule of "ubi tumulus ibi funus" was the major reason to issue such a limitation. The axiom meant that where the placement in the grave should have taken place in a cemetery of a parish church or a monastery or a convent, ecclesiastical funeral rites had to be served in a given parish church or in the chapel of a given monastery or convent. The site of the placement in the grave and the church where ecclesiastical funeral rites were held could not fall under two different parishes. After Gracianus succeeded in assuming spiritual interests in respect of the choice of a grave and as a consequence in having the option to choose freely the place for burial available, the Canonic law could consider locus tumuli to be incidental element of ecclesiastical funeral rites and locus funeris, i. e. the place where ecclesiastical funeral rites are taken place as a major element, where the freedom of the selection is fairly strongly limited up to now.
However, only the emphasis put by the Gracianus Decree on the duty of a married couple to make a choice of the joint grave best witnesses a serious and exhaustive attention paid by the then Church to the last things of man. Neither in the period of general affiliation to the Church was the regular attendance at Church services, Church marriages and further participation in religious events was a common phenomenon. However, basic sacramentals of a life reversal, i. e. the Canonic form of ecclesiastical funeral rites and, in addition and with certain reservations, free selection of the grave were a general norm uncompromisingly required by the Middle-Ages Roman Catholic Church.
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