c. In the Time of the Gospel Law before Lateran Council IV

35. Now before that time, there was for many years, for more than 800 years, the advice of Augustine, and he himself proved that confession is very necessary, as is plain in [Ps. Augustine] On True and False Penitence [in fact Augustine Sermon 392, To the Married, ch.3 n.3, and Expositions on Psalms ps.68 sermon 1 n.19], and certain of his authorities are put in the text [Lombard, Sent. IV d.17 ch.1 nn.8-9] and certain in Gratian [Decretum, p.2 cause 33 q.3, d.5 ch.1, d.6 ch.1]. Nor would a canonist easily find any Council of the Church, or any precept proper, where a precept about making confession, as we are here speaking of it, is expressed.

36. This opinion is held by the glossator, ‘On Penitence’ d.5 at the beginning [Gloss on Gratian’s Decretum, p.2 cause 33 q.3, d.5 ch.1], where, after reciting diverse opinions about the institution of confession, he adds his own saying, “The better statement is that it was instituted by a certain universal tradition of the Church rather than from the authority of the New and Old Testaments.”

37. But, saving his grace, he speaks unreasonably as a canonist. For it would be unseemly for a theologian to say that something is in the Bible and not know where it is found; and so should it to be for a canonist to say that something was instituted by the universal tradition of the Church and not to find it in Canon [Law] if Canon [Law] sufficiently contain the universal traditions of the Church. Now he does not allege any chapter of Canon [Law] for this tradition, but he only afterwards adds that “the tradition of the Church is obligatory” [Gloss on Gratian’s Decretum p.2 cause 33 q.3, d.5 ch.1], and for this he alleges the article ‘In these things’ in d.11 [Gratian, Decretum p.1 d.11 ch.1, “In these things, about which nothing certain has been established by divine Scripture, the custom of the people of God and the institutes of the ancestors are to be held as law”].

38. Again, if this opinion were true, the Pope would not be bound to confess because, as is contained in Boniface VIII Decretals Book Six V tit.12 ch.3, “an equal has no command over an equal.”The laws and traditions of the Church are sanctioned ultimately by the Popes, so that if the rule about making confession holds because sanctioned by a Pope, and a Pope is not under command of a Pope (for a Pope is equal to a Pope), then Popes are not bound to the rule about making confession (whereas the value and importance of confession holds for all Christians, including Popes). ⁵¹

Again, it would not seem that infidels were bound to the precept about confession, because according to the Apostle I Corinthians 5.12, “For what have I do to judge them that are without?”If the precept about confession comes from Church tradition, then infidels, who are not bound by the law or tradition of the Church, would not be bound to confess, but they are so bound by the law of nature [nn.22-33]. So obligation to confess cannot be Church tradition alone. ⁵²

39. However, the glossator hints at an argument for his opinion of this sort: confession is not necessary among the Greeks; but it would be necessary if the precept about it came from the authority of Sacred Scripture [sc. therefore the precept does not come from the authority of Scripture].

40. But the antecedent is not manifest; for just as baptism of water is necessary among them as the first plank (as also for us), so too (as it seems) is penitence, indeed the sacrament of penitence counts as the second plank [cf. supra d.14 n.13].

41. And if the antecedent is proved because there is no custom of confessing among them - I reply: the Greeks omitted many laudable customs after they departed from the Church, and so they could omit this custom, a custom not only laudable but necessary. Nor does the denial of that act introduce a custom. Nor is what he himself takes as antecedent, namely ‘that they are not bound [to confess]’, so known for Greeks but that their not confessing is not known the more.That is, if the glossator tries to prove his antecedent (‘the Greeks are not bound to confess’ [n.39]) by saying that the Greeks do not have the custom of confessing, then their not having that custom would be more known (to them and to others) than the antecedent. But it is not. For, as Scotus’ argument in the next lines continues, if it were thus more known, it would have been more a point of dispute between the Greeks and the Latins than disputes about the Eucharist and baptism, and it was not. ⁵³ And this [sc. the Greeks not confessing] is not expressed anywhere by any doctor who was writing against their other abuses, although however there would have been a noteworthy disagreement with the Roman Church if in this they had disagreed - more noteworthy, to be sure, than their confecting [the Eucharist] in fermented bread, or their using this form of baptizing, ‘may the servant of Christ be baptized etc.’, about which the Latins do not keep silent.