Hincmar of Rheims, De Divortio, Interrogatio/Responsio 6

Hincmar of Rheims, De Divortio, Interrogatio/Responsio 6

Written in 860 CE.

Source: Hincmar of Rheims "The Divorce of King Lothar and Queen Theutberga. Hincmar of Rheims’s De Divortio. Trans: Rachel Stone and Charles West." Manchester University Press (2016). pp. 143-150.

Question 6

'In the third chapter, we request that we be advised what to do about the above-mentioned woman, accused of debauchery and abortion, for which she has now undergone an ordeal (iudicium). what do you think about this? For some say that ordeals accustomed to be done by boiling or cold water, or by red-hot iron, are of no authority or credence, but that they are inventions of human opinion, in which, through deceptions (maleficia), very often falsehood takes the place of truth, and so they ought not to be trusted. And we ask you to write back to us what you think about purgation by oath, what authority this has; and whether it might be true, as some people say, that because of the secret confession that the woman [Theutberga] made, as he [Archbishop Gunther] is a witness who heard it, her champion who went to the ordeal escaped unharmed. And they also say that the woman was thinking of some-one else with the same name as her brother when she sent her champion to the ordeal, and therefore he was not harmed in that ordeal. And also [tell us]: if any cheating should be found in an ordeal or an oath after purgation has been given, whether that matter, cleared by ordeal or oath. might be brought back legally into judgement.'

Response 6

Well, if this is a question of debauchery and abortion before the marriage was entered into, which is what we understand has been ascribed to this woman, then we must first consider the ordeal of examination, according to which, we have heard, she was as it were cleared (quasi purgatam). Then we shall set out some of the other things we perceive. This way, if perhaps the purgation by oath should be considered valid, then the question can be put to rest without further effort, while if it is justly and reasonably proven to be invalid, then we shall turn to the main part of the question. For as St Paul says, `Faith is the substance of things hoped for, the evidence for things not seen [Hebrews 11:1]. John the Constantinopolitan expounds on this:

‘For those things which cannot be seen, but exist in hope, might be thought to be without substance. But faith gives substance to them, just as the resurrection has not yet happened, and as yet has no substance, but the faith of certain hope makes it remain in our soul. Faith is the evidence (argumentum), that is the interpretation (coniectio), of those things which are not seen. For an interpretation is for things already shown clearly; while faith is the vision of things which are not apparent, a vision which leads to the same satisfaction as those things do which are seen. It cannot be called faith unless someone has more satisfaction about those things which are not seen than about those things which are seen.'

Authority approves two means of investigating, testing and as it were bringing into sight any kind of doubtful and obscure matters à which cannot be proven or settled by the law in judicial procedure. ß These are the ordeal (iudicium) and swearing (iuramentum), which is usually called the oath (sacramentum), for in these a matter is seen by the eyes of faith, which is not perceived by earthly eyes.

Concerning the ordeal (iudicium), it is written in the Book of Numbers:

`Speak unto the sons of Israel, and say unto them, If any man's wife goes aside, and commit a trespass against him, and lie carnally with another man, and the husband be unable to prove it, and the adultery stays hid-den and there is no witness to it because she was not caught in the act: if the spirit of jealousy provokes the man against his wife, who is either defiled or is accused on a false suspicion ' [Numbers 5:11-14].

And after the judgement (iudicium) to which she should be put has then been explained, it continues: 'And if she should not be defiled, she will be innocent, but if she is found to be defiled, then shall the man be guilt-less from iniquity, and this woman shall bear her iniquity' [Numbers 5:27-28].

The apostle Paul writes about swearing or the oath in the letter to the Hebrews: ‘For when God made promise to Abraham, because he could swear by no greater, he sware by himself. For men verily swear by the greater: and an oath for confirmation is to them an end of all strife' [Hebrews 6:13,16]. The younger Pope Gregory [II] writing to Bishop Boniface through the priest Denwald said:

`If a priest or any ordained cleric (sacerdos) is accused by the people and there are no true witnesses who can vouch for the truth of the alleged crime, then let him swear an oath in the presence of all, and let him offer as a witness about the purity of his innocence Him to whom all things are uncovered and open, and so let him remain in his clerical grade.'

Clearing oneself by an oath is extremely common, both in Church law and in laws outside the Church, and is known to have arisen even from the earliest of times, according to the truth of the faith. And let us respect in silence what is said in the Old and the New Testament, or by the Deity Himself, such as 'By myself have I sworn, saith the Lord' [Genesis 22:16]; and 'The Lord hath sworn and will not repent' [Psalms 110:4], and many other instances. Also:

‘"Amen, amen, I say to you." The Lord saying this promises much indeed, for in a way, if it is right to say it, this is His oath, 'Amen I say to you.’ For Amen is translated "truly", but it cannot here be understood as if He might have said 'Truly I say to you’; no Greek or Latin speaker would dare to translate it thus. Let it stay thus untranslated, not so that it should be denied, but so that it should be honoured under a secret veil, so that it should not be cheapened by being bared. For the Truth which surely could not lie at all, even if it had not said "Truly I say to you", says this to commend, to drive home in a certain way, to awaken the sleeping, to make them alert, and [He] does not wish to be scorned.'

For Abraham said to his slave, 'Put thy hand under my thigh and swear to me by the God of heaven' [Genesis 24:2-3]. And the king [Abimelech] said to Abraham, 'Swear unto me by God', and Abraham said 'I will swear' [Genesis 21:28-20] And Isaac and King Abimelech swore to each other in turn [Genesis 26:30]. And in Jeremiah: 'I have sworn by my great name, saith the Lord' [Jeremiah 44:26], and David, 'I have sworn and will perform it' [Psalms 119:106]. And in the New Testament we read the apostle to have said, 'God is my witness' [Philippians 1:8], and 'Behold, before God, I am not lying' [Galatians 1:20], and 'I die daily in your glory, brothers' [1 Corinthians 15:31]. And anyone who should wish to seek more will find plenty in the letters of Leo and Gregory.

à But the Lord shows in Exodus how much one should beware perjury in an oath, saying 'Thou shalt not take the name of the Lord thy God in vain; for the Lord will not hold him guiltless that taketh his name in vain' [Exodus 20:7]. In vain indeed, and for nothing, yet this is not of no consequence, but so that it may be harmful to him who takes the name of the Lord his God in vain, as it is to a man guilty of a crime. And again, the Lord says in Leviticus: 'Ye shall not swear by my name falsely, neither shalt thou profane the name of thy God: I am the Lord' [Leviticus 19:12]. And holy David said in the Psalms, 'He that sweareth to his neighbour, and deceiveth him not' [Psalms 15:4].

Cassiodorus says: 'To swear in human terms means promising something with God as a witness. For "to swear" (iurare) sounds like "to plead by law" (iure orare), that is to speak justly. Now, someone speaks justly when those things which he promises are fulfilled.' And St Ambrose in his letter to Emperor Valentinian: 'What is it to swear other than to confess the divine power of Him whom you attest as the protector of your good faith?' And again it is said in the Psalms: 'Nor did he swear by trickery to his neighbour' [Psalms 24:4]. Tor he swears by trickery who intends to do other than what he promises, believing it not to be perjury to wickedly deceive someone who makes the mistake of believing him.' And St Jerome adds: 'There are many who swear treacherously to deceive their neighbour, which the Father of heaven abominates, for as Peter says, "Thou hast not lied unto men but unto God"' [Acts 5:4].

And in the Book of Kings, it is written that:

'Then there was a famine in the days of David three years, year after year; and David enquired of the Lord. And the Lord answered, It is for Saul, and for his bloody house, because he slew the Gibeonites. The children of Israel had sworn unto them: and Saul sought to slay them in his zeal to the children of Israel and Judah' [2 Samuel 21:1-2],

saying that for the sake of Joshua, He had permitted those same Gibeonites to live. Here it is made clear how impious perjury is, for which the Lord imposed such a vengeance. And the prophet Jeremiah says: 'Behold, ye trust in lying words, that cannot profit ye to steal, murder, and to commit adultery, and to swear falsely' [Jeremiah 7:8-9]. Here is to be weighed up how much a crime swearing falsely is, since the prophet links it with adultery, murder and theft, the perpetrators of which the apostle said do not possess the kingdom of God [1 Corinthians 6:9]. And Jerome says in his commentary on this prophet:

‘it had come to pass that some could be found amongst the people who pretended to worship God and swear by the Lord. This he [Jeremiah] foresaw, that God delights not at all in vain speech, but in the truth of faith. And He says "I do not cherish those who swear by Me and swear in falsehood, but those whose hearts and tongues are in accord".'

And in the prophet Zechariah:

'For every one that stealeth shall be judged; and every one that sweareth shall be judged likewise. I will bring it [a curse] forth, saith the Lord of hosts, and it shall enter into the house of the thief, and into the house of him that sweareth falsely by my name: and it shall remain in the midst of his house, and shall consume it with the timber thereof and the stones thereof" [Zechariah 5:3-4].

And in the prophet Ezekiel: 'As I live, saith the Lord God, surely in the place where the [Babylonian] king dwelleth that made him king, whose oath he despised, and whose covenant he brake, even with him in the midst of Babylon he shall die' [Ezekiel 17:16] 'For', says Jerome: `Zedekiah had spurned the oath, breaking the covenant, and since he did all these things, he will not escape.' And again Jerome, `Behold, he gave his hand to the king of Egypt and handed himself over and committed the sacrilege of perjury against God.' And Jerome once again:

'It [the passage of Ezekiel] continues In the prevarication in which he had despised me", so that we should not think the oath, the covenant and the agreement to be of the king of Babylon or of Zedekiah who made it. For he who despises an oath despises him by whom he swore it, and does an injury to him in whose name his adversary believed. Whatever Nebuchadnezzar did against Zedekiah, he did not by his own strength, but by the anger of God, in whose name Zedekiah had perjured himself For we read that Zedekiah was captured and taken to Riblah, and them his sons were killed, he was blinded, and like a wild beast he was shut up in a cage and taken to Babylon.'

And St Cyprian says in the ninth grade of abuse that the ministry (ministerium) of the king is `to make away with the impious from the land, and not to permit parricides and perjurers to live'. And St Gregory in his homily on the Gospel says about the martyrs 'The living who are sick come to their dead bodies and are healed; perjurers come and are afflicted by demons; those possessed by demons come and are freed.' Hence it should be considered how great a sin it is to commit perjury in the name of the Lord and His saints, which Jerome, as we have mentioned, says is a sacrilege. And one should be aware how greatly rashness in swearing should be avoided, unless great necessity demands it, or it is for the benefit of those who do not believe in the truth, in order that they might believe and the matter may be resolved through an oath (sacramentum), with peace and concord.

'The Lord shows this in the Gospel, saying "Do not swear" [Matthew .5:34] and James in his letter says: "But above all things, my brethren, swear not, neither by heaven, neither by the earth, neither by any other oath: but let your yea be yea; and your nay, nay; lest ye fall into condemnation" [James 5:12]. This is the judgement to which Herod fell so that he had either to commit perjury, or, fearing to perjure, to carry out another sin. But if it should happen perhaps that we swear incautiously, that is, an oath which if kept would lead to a worse result, then we should openly recognise that the oath can be changed by more healthy counsel. By force of necessity, we shall have to perjure, rather than fall into a more serious crime in order to avoid perjury.
For David swore by the Lord to kill Nabal, a foolish and impious man, soul to destroy all that belonged to him. But at the first intercession of his [Nabal’s] prudent wife Abigail, he revoked his threats, sheathed his sword, and did not grieve that he had committed something sinful by such perjury. And Herod swore to give to the dancer whatever she of him, and, lest he be called a perjurer by the banqueters, he defiled the banquet itself with blood, making the death of a prophet into dancer's reward. Moderation is to be carefully observed not just in but in all things that we do. So if perhaps we fall into the traps of the wily enemy, from which we cannot escape without some stain of sin, let us ask to escape it by seeking the approach in which we bear less risk. And so, following the example of those shut in by enemy walls, and who, desiring to escape, see all exits forbidden to them: it is necessary that they choose some place from which to jump down, a place where the wall is lower, so they run the least risk in falling.'

And a certain orthodox and famous poet wrote about this, among other things from the Holy Scriptures and the sayings of the catholic Fathers :

But if the matter demands and forces you to swear, Do it with pure words, do it with pious mind. Do not think that you can deceive the Thunderer with artifice of words. To Him nothing is hidden, to Him your heart is open. Who hears your oaths not as you swear, but as he to whom you swear thought you swore And so you are guilty towards both, certainly to God, whose name you wish to take in vain, and to your comrade, whom you prepare to deceive with black fraud. If you swear to do a crime, may your vow not be fulfilled. Though both are wounds, that one is worse The smaller wound torments less, the greater more, Happy he who goes away unharmed by any wound.’ ß