Corporate Jurisdiction, Academic Heresy, and Fraternal Correction at the University of Paris, 1200-1400 [1 ed.] 9789004311336, 9789004311329

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Corporate Jurisdiction, Academic Heresy, and Fraternal Correction at the University of Paris, 1200–1400

Education and Society in the Middle Ages and Renaissance Editors William J. Courtenay (Madison) Jürgen Miethke (Heidelberg) Frank Rexroth (Göttingen) Jacques Verger (Paris) Advisory Board Jeremy Catto (Oxford) Daniel Hobbins (Notre Dame) Roberto Lambertini (Macerata)

VOLUME 51

The titles published in this series are listed at brill.com/esmr

Corporate Jurisdiction, Academic Heresy, and Fraternal Correction at the University of Paris, 1200–1400 By

Gregory S. Moule

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Moule, Gregory S., author. Title: Corporate jurisdiction, academic heresy, and fraternal correction at  the University of Paris, 1200–1400 / by Gregory S. Moule. Description: Boston : Brill, 2016. | Series: Education and society in the  Middle Ages and Renaissance, ISSN 0926-6070 ; Volume 51 | Includes  bibliographical references and index. Identifiers: LCCN 2015047326 (print) | LCCN 2016007875 (ebook) | ISBN  9789004311329 (hardback : alk. paper) | ISBN 9789004311336 (E-book) Subjects: LCSH: Université de Paris. Faculté de théologie—History—To  1500. | Church and college—France—Paris—History—To 1500. | Academic  freedom—France—Paris—History—To 1500. | Education,  Medieval—France—Paris. Classification: LCC BV4160.U57 M68 2016 (print) | LCC BV4160.U57 (ebook) |  DDC 230.07/3244361—dc23 LC record available at http://lccn.loc.gov/2015047326

Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brill-open. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 0926-6070 isbn 978-90-04-31132-9 (hardback) isbn 978-90-04-31133-6 (e-book) Copyright 2016 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

To my parents

∵

Contents Preface xi Acknowledgments xii Abbreviations xv 1 Introduction 1 The Foulechat Controversy 10 The Monteson Controversy 18 The Factors Affecting the Facultyʼs Jurisdiction 27 Medieval Concepts of Jurisdiction 27 Corporate Theory and the Faculty of Theology 33 The Role of the Bachelors in the Faculty 39 Conclusion 41 2 The Early History of the Faculty of Theology: Evidence for the Model of Bishop and Chapter in the Faculty 42 The Office of the Chancellor 42 The Office of the Dean 56 The Chancellor and the Masters: Their Relations 61 Conclusion 76 3 The Corporate Development of the Faculty of Theology 80 The Conflict of 1219–1228 80 The Right to Make Statutes 85 The Model and the Secular-Mendicant Controversy 95 Conclusion 100 4 Jurisdiction and the Cathedral Chapter: Gratian and the Decretists 103 The Model of Shared Jurisdiction: The Contribution of Gratian 103 The Model of Shared Jurisdiction: The Contribution of the Decretists 108 Conclusion 126 5 Jurisdiction of the Cathedral Chapter: Episcopus Nullius and Irrefragabili 129 The Contributions of Johannes Teutonicus, Vincentius Hispanus, and Damasus 129

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The Contribution of Goffredus de Trano 137 The Contribution of Innocent IV 138 Bernard of Parma and the Ordinary Gloss 141 The Contribution of Hostiensis 143 The Contribution of Johannes Andreae 147 The Contribution of Baldus de Ubaldis 148 The Distribution of Jurisdiction within the Chapter 152 The Crime of Heresy and the Jurisdiction of the Chapter 157 Conclusion 163 6 Jurisdiction, Procedure, and the Censure of Academic Heresy in the Faculty of Theology 165 Jean Gerson and the Censure of Heresy 166 The Canon Law of Heresy and the Jurisdiction of the Faculty of Theology 174 The Roles of the Dean and the Chancellor in the Censure of Academic Heresy 177 The Role of Outside Agents in the Censure of Academic Heresy 187 The Investigative Process in Faculty and Chapter 192 Conclusion 199 7 The Debate over the Jurisdiction of the Faculty of Theology 201 John of Monteson and the Theological Faculty’s Jurisdiction 201 The Tractatus, or Apologia, of Pierre d’Ailly 203 Analysis of the Tractatus, or, Apologia 205 The Arguments from Papal Privilege and Human Law 213 The Argument from Divine Law 216 The Argument from Custom 216 The Role of Custom in the Legal System 221 The Territorial Scope of the Faculty’s Jurisdiction 222 D’Ailly’s Response to Monteson 228 Evaluation of d’Ailly’s Argument 230 The Chronological Development of the Faculty’s Jurisdiction 231 Conclusion 236 8 Judas, Monteson, and Fraternal Correction at Paris 237 Fraternal Correction and the Parisian Faculty of Theology 241 The Sources of Fraternal Correction 245 Fraternal Correction in the Process of Censure at Paris 250 Judas, Fraternal Correction, and the Parisian Faculty of Theology 253

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The Treatment of Judas by Christ at the Last Supper 256 The Rule of Augustine and Fraternal Correction 274 Conclusion 280 9 Fraternal Correction and Its Role in Academic Censure at the University of Paris 282 The Duty to Render Fraternal Correction and Its Possible Omission 282 The Contribution of Augustine 283 Judicial Correction and the Omission of Fraternal Correction 290 The Issue of Proof 291 The Revocatio Conditionalis and the Oath to Report Suspect Teaching 293 Suspect Teaching and the Definition of a Secret Sin 307 The Contribution of John Baconthorpe 312 The Issue of Incorrigibility 319 Public Correction and the Presence of Scandal 321 The Contributions of Humbert of Romans, OP, and Nicholas of Gorran, OP 327 Conclusion 330 Conclusion 338 Appendix A 345 Select Bibliography 347 Index of Legal Citations 363 Index of Biblical Citations 366 Index of Names and Subjects 367

Preface The present work began during my studies as a graduate student at the University of Wisconsin – Madison, culminating, at that time, in a master’s thesis and in my doctoral dissertation, both of which are cited in the bibliography. My master’s thesis dealt with political and social issues surrounding Foulechat’s condemnation that are not directly relevant to this study. I do, however, plan to revise it for publication in the future. The research and writing for this book has extended over many years. In the interim, I have added much new information gleaned from manuscript and other sources. Consequently, the current work supersedes my dissertation. Furthermore, as will be evident from the following, my views regarding the role of fraternal correction in the process of censure at Paris differ from those of Hans Thijssen. Such scholarly differences are an integral part of the advancement of knowledge and are wholly without rancor. In fact, on several points – particularly relating to the appeals process – I have benefitted greatly from Thijssen’s research. I also remember with fondness his visit to the University of Wisconsin – Madison and, especially, his openness to discussing and debating scholarly ideas with graduate students. Thus, it is in this fraternal spirit that I present my conclusions. In turn, I also look forward to the mutual exchange of ideas with other scholars, along with the intellectual camaraderie that is so much a part of our profession.

Acknowledgments No author completes a work for publication without the aid and assistance of many people, and without incurring many debts that merit both gratitude and recognition. I, certainly, am no exception. It is only fitting that I acknowledge the efforts of so many others who have played a role in this process. Above all else, I thank my parents for instilling in me a love of learning and for teaching me that determination triumphs over any hardship, limitation, or adversity. Together, my mother and father taught me life’s most important lessons, usually by their own quiet example. This book is lovingly dedicated to them. Just as my parents set my course in life, so this work would not be complete without remembering and honoring the contribution of my teachers across the years, both graduate and undergraduate. Edward M. Peters first inspired me with a love for Medieval History when I was an undergraduate at the University of Pennsylvania. Others, including E. Ann Matter, James O’Donnell, and Tom Waldman, also nurtured that love. I benefitted greatly from my study under these scholars. I also recall with much happiness my days as a graduate student. My professors, Robert Kingdon, David Lindbergh, Maureen Mazzaoui, John Barker, Fanny LeMoine, and Michael Shank all helped hone my skills. Sadly, some of these great scholars are no longer with us; but it is fitting to remember them and their contributions both to this work, and to the generations of medievalists that followed them. Words alone, however, cannot express the debt of gratitude that I feel toward William Courtenay. He has done so much for me. I could never repay his generosity. As a graduate student, he provided much support, both academic and financial. In the intervening years, his enthusiasm for my research has been a steadfast and constant source of encouragement even when, at times, the road ahead was difficult. The research for this book was undertaken at several libraries, including the Memorial Library of the University of Wisconsin and Van Pelt Library at the University of Pennsylvania, along with the Archives Nationales, the Bibliothèque Mazarine, and the Bibliothèque Nationale in Paris. The librarians at each of these institutions provided me with prompt, professional, and courteous service. Working as an independent scholar poses certain challenges: Chief among them, it is often difficult to obtain academic publications and articles. Special

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thanks, then, are due to the librarians and staff of Connelly Library at LaSalle University in Philadelphia, Pennsylvania. In particular, the staff of the Interlibrary Loan Department helped me to acquire books and articles from all over the world. Their professionalism and generosity facilitated my research in innumerable ways. But even more than merely providing research materials, the staff of Connolly Library welcomed me and made me feel at home. I will be forever grateful to them for their kindness, because without their assistance, this work could not have been completed. Furthermore, I can only hope that the publication of my book will highlight the challenges faced by independent scholars engaged in academic research, and that this awareness, in turn, will spur universities and libraries to craft access policies that will benefit bona fide scholars working in non-traditional settings. In the course of my research, many scholars offered help or advice. Katherine Tachau, James Brundage, Anders Winroth, Brendan McManus, Christopher Ocker, and Thomas Turley answered queries and provided helpful suggestions. Special appreciation goes Jürgen Miethke and to Kenneth Pennington for their many insights and suggestions that have greatly improved this work. Kenneth Pennington also permitted me to participate in the Tenth International Congress of Medieval Canon Law when I was still a graduate student. A portion of this paper was presented there; many scholars who attended the session pointed out additional avenues for further research, including Stanley Chodorow, John Baldwin, Wolfgang Müller, and Piero Bellini, among others. Thanks also go to Brother Thomas Sullivan, OSB for securing housing for me in Paris with the Redemptorist Fathers. The Redemptorist Fathers were very kind to me there, as was Hermana Casilda. Nicole Bériou, Zénon Kaluza, and Jacques Verger provided invaluable help to me during my first trip to Paris. In many ways, this present study builds upon the research of prior generations. The contributions of Stephan Kuttner, Gaines Post, and Brian Tierney in the fields of canon law and medieval corporate theory laid the foundation on which it is built. Many friends also played a part in bringing this book to fruition – each in a special way: Nelson Dimas, Don Daniel, Ramon Garcia-Castro, Charles Squires and Dan Ross, Gerry Burr, Bolton Morris, Peter Giorno, and Barry and Carol Thaler. Andrew E. Larsen has been a constant and faithful supporter of my work. His comments have often prompted many productive avenues of research. Of all my friends and colleagues, however, two deserve special acknowledgment: Kimberly Georgedes and Robert Dobie. Words cannot convey to them my enormous sense of gratitude for their enduring friendship and enthusiasm

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for this project. I am sure, too, that they now know more about medieval heresy and fraternal correction than they ever thought possible! Over the years, our discussions have been a source of great joy to me. I would be remiss if did not thank Marcella Mulder, Maaike Langerak, and the editorial staff of Brill Academic Press for their patience, helpfulness and professionalism in publishing this manuscript. I appreciate their efforts on my behalf. Lastly, although many people have helped this book to become a reality, any errors or omissions remain solely my responsibility.

Abbreviations

Books and Journals

D’Ailly, Apologia  Pierre d’Ailly. “Tractatus ex parte Universitatis Studii Parisiensis pro causa Fidei, contra quemdam Fratrem Johannem de Monteson, OP.” In d’Argentré, C, Collectio judiciorum de novis erroribus. 3 vols. Paris, 1728–1736; rpt. Brussels, 1963, 1.2:69–129. CIC  Corpus iuris canonici. Edited by Gregory XII. 3 vols. in four parts. Rome, 1582. UCLA Digital Library Program. CUP  Chartularium Universitatis Parisiensis. Edited by H. Denifle and E. Chatelain. 4 vols. Paris, 1889–1897. DDC  Dictionnaire de droit canonique. Edited by R. Naz. 7 vols. Paris, 1935–1965. DTC  Dictionnaire de théologie Catholique. Edited by A. Vacant et al. 15 vols. Paris, 1908–1950. PL Migne, J.P. Patrologiae . . . series latina. 221 vols. Paris, 1844–66. RTAM  Recherches de théologie ancienne et médiévale.

Theological and Legal Citations

1 Comp. Compilatio prima 2 Comp. Compilatio secunda, etc. a. Article C. Causa (division of the second part of Gratian’s Decetum) c. chapter Clem. Clementines: Constitutions of Clement V co. contra D. Distinctio d.a.c. Dictum of Gratian before chapter d.p.c. Dictum of Gratian after chapter Dig. Digest of Justinian Extrav. comm. Extravagantes communes of John XXII ff. Digest of Justinian I, II, III, IV Books I, II, III, and IV of the Sentences of Peter Lombard

xvi l. lex, law in Justinian’s Corpus iuris civilis q. quaestio r. responsio s.v. sub verbo VI Liber sextus of Boniface VIII X Liber extra or Decretales of Gregory IX

abbreviations

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Introduction In an article written some two decades ago, William Courtenay lamented the fact that, although there were over fifty instances of academic or academically related judicial proceedings with regard to heresy during the thirteenth and fourteenth centuries, there existed at that time no book-length study on the whole ensemble of cases that could reveal the less visible patterns among them, including issues such as the interaction of various forces (faculty, pope, bishop, king, chancellor), the presence of age/generational conflicts, the conduct of judicial procedures, and the like.1 Such a task, as Courtenay envisioned it, would be monumental in scope and would, no doubt, comprise several volumes. Indeed, for Paris alone, across the thirteenth and fourteenth centuries, approximately twenty or so cases survive in which academics were censured by various bodies or commissions. Because the historiography of heresy has generally approached the topic from a more popular perspective, these cases have not attracted the attention that they merit; the scholarly literature has only peripherally addressed the heretical views of those within medieval universities. In those instances where the censures of academics have been analyzed, this has been done on a case-by-case basis.2 These studies have tended to concentrate on the careers of better-known figures, such as William of Ockham, Durand of St. Pourçain, or Meister Eckhart but have not approached the issue from a more global or synthetic vantage point. Yet, even prior to the publication of Courtenay’s article, some attempts at synthesis had been undertaken, including most notably, the dissertation of Mary McLaughlin – originally completed in 1955 and updated for publication in 1977 – along with the lengthy article by Guy Fitch Lytle addressing the topic of universities, orthodoxy and reform.3 These studies, and those that followed 1  William Courtenay, “Inquiry and Inquisition: Academic Freedom in Medieval Universities,” Church History 58 (1989), 168–181. 2  The works of Josef Koch represent an example of this approach. Nevertheless, although he focused largely on individual cases, his work in its totality provides a window into the general trends and patterns regarding the handling of these investigations. Many of his writings have been collected together in Josef Koch, Kleine Schriften, 2 vols. (Rome, 1973). 3  Mary McLaughlin, Intellectual Freedom and Its Limitations in the University of Paris in the Thirteenth and Fourteenth Centuries (New York, 1977) and Guy Fitch Lytle, “Universities as Religious Authorities in the later Middle Ages and Reformation,” in Reform and Authority (Washington D.C., 1981), 69–97.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004311336_002

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them, tended to approach the phenomenon of heresy among the educated elites in terms of the limits of academic freedom.4 One notable exception was the work of Jürgen Miethke who looked at the early development of the role of the Parisian masters in the process of censure.5 In recent years, the dissemination and censure of heretical views by the educated elite of the medieval world has begun to receive more attention; this phenomenon has been loosely termed “academic heresy.” In any event, since Courtenay’s call for a synthesis, other scholars have contributed important studies, among them the work of Hans Thijssen on Paris and that of Andrew Larsen on Oxford.6 Whereas scholars previously had emphasized the theological views of those censured, or the limits of their free inquiry, Thijssen and Larsen, by contrast, have concentrated their focus more narrowly on the jurisdictional and procedural aspects of these cases. Nevertheless, thus far, no studies have analyzed in sufficient detail any of these cases with respect to the rules and procedures set down in canon law. Nor have the origins or sources of the procedures used at Paris been adequately identified. For example, how did the masters of theology develop their investigative procedures? Of particular interest, too, is the role played by the Parisian theologians in the process of censure. Although 4  P. Classen, “Libertas scolastica – Scholarenprivilegien – Akademische Freiheit im Mittelalter,” in P. Classen, Studien und Gesellschaft im Mittelalter, ed. J. Fried (Stuttgart, 1983) and Jürgen Miethke, “Bildungsstand und Freiheitsforderung (12. bis 14. Jahrhundert)” in J. Fried, Das Abendlandische Freiheit vom 10. zum 14. Jahrhundert (Sigmaringen, 1991), 221–247; L. Bianchi, Censure et Liberté Intellectuelle à L’université de Paris (XIII–XIV Siècles) (Paris, 1999); Edward Peters, “Libertas Inquirendi and the Vitium Curiositatis in Medieval Thought,” in The Concept of Freedom in the Middle Ages: Islam, Byzantium, and the West, ed. G. Makdisi, Dominque Sourdel, and Janine Sourdel-Thomine (Paris, 1985), 89–98, and idem, “Transgressing the limits set by the fathers: authority and impious exegesis in medieval thought,” in Christendom and its discontents: Exclusion, persecution, and rebellion, 1000–1500, ed. Scott L. Waugh and Peter D. Diehl (Cambridge, 1996), 338–62. 5  Jürgen Miethke has surveyed the early developement of censure at the University of Paris, including the advisory role played by university masters. See his “Papst, Ortsbischof und Universität in den Pariser Theologenprozessen des 13. Jahrhunderts,” in: Die Auseinandersetzungen an der Pariser Universität im XIII. Jahrhundert, ed. Albert Zimmermann, Miscellanea mediaevalia no. 10 (Berlin and New York, 1976), 52–94. 6  See William Courtenay, “Inquiry and Inquisition,” 168–181, as well as the work of J. M. M. H. Thijssen, Censure and Academic Heresy at the University of Paris 1200–1400 (Philadelphia, 1998), 1–5, and idem, “Academic Heresy and Intellectual Freedom at the University of Paris, 1200–1378,” in Centres of Learning: Learning and Location in Pre-Modern Europe and the Near East, ed. J. Drijvers and A. MacDonald (Leiden, 1995), 217–228. For the treatment of academic heresy at Oxford, see Andrew E. Larsen, The School of Heretics: Academic Condemnation at the University of Oxford, 1277–1409 (Leiden, 2011).

Introduction

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their contribution to the process is beginning to emerge, many aspects of their participation are not fully understood. It is unclear, for example, whether the Parisian masters served merely as advisors to pope, bishop, and inquisitor or whether, at times, they acted with any legally sanctioned jurisdiction that gave them the right to function independently of any external authority. The scholarly literature has often portrayed the masters as experts and advisors, but has hesitated to portray them as exercising any jurisdictional authority.7 This portrayal of the masters as experts or assessors derives from the fact that they were often consulted by outside authorities regarding the orthodox or heretical nature of suspect propositions. In the case of Stephen of Venizy, OP, for example, the local bishop, William of Auvergne, condemned certain propositions with the counsel of all the reigning masters at Paris.8 Yet, even Courtenay has observed, that after the death of Benedict XII in 1342, censures at Paris became almost routine.9 Given the routine nature of these condemnations, it is fair to ask whether the faculty acted with any independent jurisdiction. Interestingly, at the end of the fourteenth century, Pierre d’Ailly, a future chancellor of the University, made a bold claim on behalf of the masters of the theological faculty. At the time, d’Ailly was writing in response to the appeal of John of Monteson, OP, a Dominican master whose views on the teachings of Saint Thomas and the Immaculate Conception had been censured. In response to the friar’s claim that only the Holy See could condemn his teachings, d’Ailly countered, arguing instead that the Parisian faculty of theology possessed the necessary judicial authority to condemn heretical propositions of sworn bachelors and masters of the faculty.10 D’Ailly stated: Quinta conclusio est, quod Ad dictam Facultatem Theologiae contra certas personas, scilicet contra singulares Magistros et Baccalaureos ejusdem Facultatis juratos, quandoque pertinet, non solum doctrinaliter, 7 

See William Courtenay, “Inquiry and Inquisition,” 168–181, esp. at 173, 176, 179. See also, Idem, “Dominicans and Suspect Opinion in the Thirteenth Century: The Cases of Stephen of Venizy, Peter of Tarentaise, and the Articles of 1270 and 1271,” Vivarium 32 (1994), 186– 195, esp. 189. 8  Ibid., 189, and n. 11. 9  Courtenay, “Inquiry and Inquisition,” 177–178. 10  Although the text of Monteson’s appeal has not survived, Thijssen has deduced that the grounds of his appeal were essentially twofold. First, Monteson rejected the prohibition of his views as incomprehensible, claiming instead that he had followed the teachings of Saint Thomas, which were accepted by both the faculty and the pope. Second, he rejected the authority of the university and bishop to condemn his views, claiming that only the Apostolic See possessed this authority. Cf. Thijssen, Censure and Heresy, 38.

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sed etiam aliquo modo judicialiter assertiones haereticas aut erroneas condemnare.11 As part of his fifth conclusion, d’Ailly argued that, at times, it belonged to the faculty to condemn the heretical or erroneous assertions of sworn bachelors and masters of the university – not only doctrinaliter, but also, in some way, judicialiter, that is, not only, doctrinally, but also, in some way, judicially. D’Ailly chose his words carefully. By using these two terms – doctrinaliter and judicialiter – d’Ailly alluded to the keys of the kingdom given to Peter by Christ in Matthew 16:19, a theory of jurisdiction that found its classic formulation in Distinction 20 of the Decretum. Although Christ himself did not specify two keys, Bede had first glossed the passage as such, describing the keys as comprising the key of knowledge (clavis scientiae) and the key of power (clavis potestatis). The tradition stuck, and Gratian described jurisdiction in terms 11  D’Ailly’s claim is found in his Tractatus. See C. Du Plessis d’Argentré in his Collectio judiciorum de novis erroribus, 3 vols. (Paris, 1728–1736, rpt. Brussels, 1963), 1.2:69–129, at 78. This work is also known as d’Ailly’s Apologia. The Tractatus, or Apologia, is a defense of the university’s position against the appeal of John of Monteson, OP. It is an editing and expansion of a sermon that d’Ailly gave at the papal court. Hereafter, this work will be referred to by author, the short title, Apologia, and page number. Volume one of d’Argentré’s collection covers the period of this study. This volume is further subdivided into two separate sections, each with new onset pagination. D’Argentré’s collection of Monteson documents is found at Collectio judiciorum, 1.2:60–151. D’Argentré mistakenly listed the beginning date of the controversy as 1384, rather than the correct date of 1387. An online version of volume one may be consulted at https://books.google.com/ books?id=_2-XiHdYjlcC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=on epage&q&f=false last accessed July 10, 2015. Apart from d’Argentré’s collection, the documents relative to the Monteson case may be found in various sources, among them: Caesar Egassius Du Boulay and his foundational work, Historia Universitatis Parisiensis, 6 vols. (Paris, 1665–1673; rpt. Frankfurt am Main, 1966). Volumes three and four of Du Boulay’s work cover the history of the University of Paris during the thirteenth and fourteenth centuries, respectively. A convenient electronic copy of this massive work may be found at http://www.documentacatholicaomnia .eu/25_90_1601-1678-_Du_Boulay.html last accessed February 26, 2015. For the Monteson documents, see, in particular, 4:618–647. Du Boulay’s work is a history that also contains many transcribed documents. Modern scholars generally cite the edited collection of documents assembled by Heinrich Denifle and Émile Chatelain, Chartularium Universitatis Parisiensis, eds. H. Denifle and A. Chatelain, 4 vols. (Paris, 1891–1894). Further references to the Chartularium Universitatis Parisiensis will be abbreviated CUP. For the Monteson case, see especially CUP 3, nos. 1557–1583, 486–533. (Variant spellings include Jean de Monteson, Juan de Monzón).

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of the two keys given to Peter by Christ: the key of knowledge (clavis scientiae) and the key of power (clavis potestatis).12 On the one hand, by using the term “doctrinaliter,” d’Ailly declared that the theologians wielded the key of knowledge. However, d’Ailly went even further. He claimed that the masters of the faculty as a corporate body “in some way” also exercised jurisdiction, or the key of power, when condemning the suspect teachings of a fellow bachelor or master. In this regard, it is important to specify both what d’Ailly was claiming – as well as what he was not. D’Ailly was among the four members chosen to represent the university at the papal court. He faced a difficult task. On the one hand, he needed to counter Monteson’s claim that only the pope – and neither the faculty, nor the bishop – could rightfully condemn the friar’s teachings. On the other hand, d’Ailly bore the responsibility of defending not only the authority of the faculty, but also that of the local bishop – and by extension – that of the local inquisitor as well. At the same time, d’Ailly, of course, recognized the ultimate authority of the Holy See to whom his words were addressed. Given the parameters of his task, it should be clear that d’Ailly was not trying to usurp the jurisdiction of the local bishop, the inquisitor, or anyone else. The wording of his statement before the papal court makes this fact abundantly clear. First, d’Ailly recalled that the university had, in fact, previously acknowledged the authority of the bishop as judge ordinary in this matter.13 Second, d’Ailly also recognized the bishop’s right to excommunicate Monteson when, after three attempts, the defendant failed to appear before the bishop to answer the charges against him.14 Third, d’Ailly even went so far as to defend both the mildness, as well as the legality, of the bishop’s actions against Monteson. Even though the bishop 12  For a discussion of Distinction 20, as well as Gratian’s dictum, see Brian Tierney, Origins of Papal Infallibility: 1150–1350 (Leiden, 1972), 39–45. Stanley Chodorow, Christian Political Theory and Church Politics in the Mid-Twelfth Century: The Ecclesiology of Gratian’s Decretum (Berkeley, CA, 1972), 165–168. 13  See CUP 3, no 1564, 502–505, at 503: “7a est quod postquam Universitas et facultas antedicte quod potuerant et debuerant, quantum in ipsis erat, perfecerant, postea nunciaverunt hec omnia reverendo in Christo patri domino episcopo Parisiensi, judici ordinario in hac parte, et presentata eidem cedula facultatis predicte, sibi prout in similibus casibus fieri solitum est, requirendo supplicaverunt, quatenus super hiis vellet judicialiter procedere.” 14  Ibid. 8a est, quod . . . dictus Paris. episcopus precepit et precipiendo mandavit . . . [quod] ad certam diem tunc assignatam personaliter compareret [Monteson]. . . . Qui sic judicialiter evocatus per se aut per alium nullatenus sufficienter comparuit: ideo pro prima vice contumace penam incurrit. 9a est, quod, iterum bina vice interposito debito temporis spacio, dictus frater citatus fuit, nec comparuit, et sic tertio contumax reputatus est et excommunicatus.”

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could have proceeded against Monteson, d’Ailly recorded that the bishop provided Monteson with a fourth opportunity to appear.15 Despite Monteson’s continued failure to appear, d’Ailly observed that, although the bishop could have issued a harsher sentence, he chose, instead, only to prohibit the teachings of Monteson within the diocese under pain of excommunication and, further, ordered anyone who captured the friar to proceed according to the law.16 Fourth, d’Ailly then further recorded that the bishop had also informed the local inquisitor of heretical depravity regarding the situation.17 Fifth and finally, d’Ailly recognized the ultimate authority of the papal court as the final arbiter in this matter. Not only the faculty but also the bishop submitted their ordinatio and sententia to the ruling of the Holy See.18 D’Ailly and his fellow theologians, along with the local bishop of Paris, had long accepted that they were subject to ecclesiastical authority and, ultimately, to the “Holy Roman Church . . . to whom pertains . . . the approval or reproval of doctrines, the solution of dubious points, the determination of which opinions should be held, and the silencing of errors.”19 D’Ailly understood the place of the theological faculty and of the university within the broader ecclesiastical hierarchy; 15  Ibid. “10a est, quod, licet hiis attentis idem episcopus potuisset contra eum proferre sentenciam, tamen adhuc quarta vice et de superhabundanti prefato reo aliam dietam assignavit; et interim longo termporis intervallo matura deliberacione habita cum peritis et precipue cum theologie et juris canonici doctoribus.” 16  Ibid. “[T]andem in dicto termino, licet multo graviorem potuisset, tamen miciorem protulit sentenciam, ordinando scilicet et precipiendo quod dicte proposiciones xiiij sub excommunicacionis pena non dogmatizarentur aut publicarentur Parisius, et quod contra dictum reum, si apprehendi posset, ulterius, prout juris esset, procederet. 17  Ibid. “11a est, quod in dicto processu coram dom. episcopo in omnibus semper admonitus fuit inquisitor heretice pravitatis, aut ejus vicesgerens, ut se in hac causa juxta formam juris adjungeret; qui tamen pluries reverenter vocatus comparere aut noluit aut dissimulavit.” On the one hand, the text seems to say that the inquisitor, for whatever reason, did not take part in the proceedings (“qui . . . dissimulavit”). However, it is possible that d’Ailly merely forgot to reference Monteson and, thus, this clause could refer to the friar’s unwillingness to appear before either the bishop or the inquisitor. In any event, the point still stands that d’Ailly acknowledged the right of the local inquisitor to act in this case. 18  Ibid. “12a est, quod tam dicta facultas quam episcopus Paris. predictas ordinacionem suam et sentenciam semper ordinacionis s. sedis apostolice submiserunt et submittunt.” 19  Thijssen, Censure and Heresy, 96. This quote is Thijssen’s translation of CUP 2, no. 838, 280–282, at 280. Bishop Stephen, writing on his behalf and that of the masters and bachelors of theology, made this statement. “Nos igitur attendentes cum eis, quod sacrosancta Romana ecclesia . . . ad quam . . . pertinet approbatio et reprobatio doctrinarum, declaratio dubiorum, determinatio tenendorum, et confutatio errorum.” Cf. X 3.42.3: “Maiores

Introduction

7

nevertheless, within this framework, he claimed a measure of authority – both doctrinal and judicial – for the faculty of theology. It is important to note that d’Ailly limited his claim for the faculty’s jurisdiction only to those cases that originated from within the confines of the Parisian academic community and only so long as these cases remained within the boundaries of the faculty. In these instances, the accused were active members of the university, and the dissemination of academic heresy as well as its censure took place, at least initially, within the confines of the faculty of theology. Although aspects of the appellate process will be incorporated into the discussion where appropriate, the focus of this study will remain on Paris, at the local level. Thus, this study will focus principally on questions of jurisdiction and procedure as these relate to intra-faculty instances of censure at the University of Paris. Despite these limitations, the number of these cases was not insignificant. Of the twenty or so cases involving accusations of academic heresy from the middle of the thirteenth through the fourteenth century, roughly half, or eleven of them, fit this specific profile. And it is clear that this practice of intra-university censure continued into at least the beginning of the fifteenth century as well.20

ecclesiae causas, praesertim articulos fidei contingentes, ad Petri sedem referendas,” quoted in Taber, “Pierre d’Ailly,” 168, n. 13. 20  Unfortunately, limitations of space preclude giving extensive bibliographic references on these cases at this point, although bibliographic references will be cited in the text where appropriate. A more complete listing of sources and bibliography may be found in J. M. M. H. Thijssen, Censure and Heresy, 167–178. For now, let it suffice to list the cases used in this study and to provide basic references to them. The text of Frater Bartholomew’s revocation (1316), as well as an analysis of his ideas may be found in Konstanty Michalski, “La révocation par Frère Barthélemy, en 1316, de 13 thèses incriminées.” in Aus der Geisteswelt des Mittelalters, ed. A. Lang et al., in Beiträge zur Geschichte der Philosophie und Theologie des Mittelalters, Supplementband III.2 (Münster, 1935), 1097. Future references will be cited as: “Michalski, La revocation.” The documents for Nicholas Autrecourt may be found CUP 2, no. 1041, 505 and no. 1124, 576–587. For Jean de Mirecourt, Ocist., (1347) consult CUP 2, no. 1147, 610–614, as well as William Courtenay, “John of Mirecourt’s Condemnation: Its Original Form,” RTAM 53 (1986), 190–191. No studies of the following cases exist: John Guyon, (1348), CUP 2, no. 1158, 622–623; Petrus Berchorius, (1351), CUP 3, nos. 1195–1197, 3–7. (Note that Thijssen did not include the case of Petrus Berchorius in his list). Frater Simon, (CUP 3, no. 1201, 11–12; Aegidius de Medonta, OESA, (1354), CUP 3, no. 1218, 21–24; Louis of Padua, OFM, (1362), CUP 3, no. 1270, 95–97; Johannes de Calore, (1363), CUP 3, no. 1288, 108–109. The references to the cases of Denis Foulechat, OFM and John of Monteson, OP, will be noted below. For the case of Johannes Gorrel (also not included by Thijssen by reason of its date), see CUP 4, no. 1864, 162–164.

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D’Ailly’s claim in favor of the faculty’s jurisdiction stands in contrast to the view that the censures conducted at Paris were merely examples of fraternal correction, In this way, d’Ailly crossed a line in holding that the condemnations of bachelors and masters by the university were not merely disciplinary in nature but were, in fact, judicial acts.21 To be sure, fraternal correction did play a role in the censure of academics at Paris. Indeed, one of the goals of this work will be to examine the role of fraternal correction in the process of censure and to place it in its proper context. D’Ailly’s assertion of the faculty’s judicial independence raises several questions. Normally, cases involving heresy usually came under the purview not of the faculty of theology, but rather of the local bishop. The gloss to Perniciosam (X 1.31.1) permitted the bishop to inquire regarding a variety of crimes, including heresy. The decretals Excommunicamus (X 5.7.13), Ad abolendam (X 5.7.9), and Ille humani generis as well all consistently designated the local bishop or inquisitor as judge in matters relating to heresy.22 One of the goals, then, of this work will be to situate the offense of academic heresy within its correct legal context. Andrew Larsen, in his work on heresy at Oxford University, has provided an excellent account of the various factors that contributed to the phenomenon of academic heresy, including the definition of heresy, the issue of pertinacity, the semi-public character of the classroom, and the issue of punishment. Furthermore, following the leads of Courtenay and Thijssen, he has observed that what constituted heresy often comprised a gray area because, in many cases, a formal determination of orthodoxy on the suspect propositions in question did not exist prior to the eruption of controversy.23 These factors must be taken into account when analyzing the offense of academic heresy from a legal perspective. Apart from the nature of the offense, other questions arise which need answers. Did the masters, in fact, acquire this jurisdiction as

21  Although Thijssen analyzed the Apologia of Pierre d’Ailly, he opined that the censures ­conducted by the faculty were not judicial in nature, but rather, were disciplinary instances of fraternal correction. For a more detailed discussion of the Apologia, see below beginning at page 203. For Thijssen’s view, see below, page 228, and footnote 92. 22  For the gloss to Perniciosam, see CIC 2:396, X 1.31.1, s.v. secundum quod canones censent. The text reads: “[A]d episcopos enim pertinet inquirere de huiusmodi criminibus ecclesiasticis, de adulteriis, de consanguinitate inter virum et uxorem . . . . Item de haeresi.” The decretals, Ad abolendam (X 5.7.9) and Excommunicamus (X 5.7.13) gave this authority to bishops. Ille humani generis established the office of inquisitors. For an English translation of Ille humani generis, see Edward Peters, Heresy and Authority in Medieval Europe (Philadelphia and London, 1980), 196–198. 23  Larsen, School of Heretics, 5–14.

Introduction

9

d’Ailly claimed? And if so, how? Moreover, the procedures used by the faculty did not develop in a vacuum. What was their source? The answers to these questions are important for illustrating developments at Paris in the thirteenth and fourteenth centuries, but beyond issues of merely local interest, an analysis of the judicial authority of the faculty of theology in matters of heresy serves to highlight and to place in perspective the role of this body as an adjudicator of heresy in the later reformation period as well. For although it is true that during the sixteenth century, the Parisian masters were often called upon to determine whether teachings of those not directly connected with university were orthodox, the genesis of that authority has an important precedent, if not its source, in the capacity of the faculty to correct those from within its own ranks. One of the significant hurdles in describing the process of censure at Paris is, stated simply, the lack of surviving evidence. In most cases, only the list of censured propositions survives, with perhaps (though not always) a short preamble and/or a concluding statement attached. Fortunately, with respect to the fourteenth century, two cases in particular are well-documented: the censure of Denis Foulechat in 1364 and that of John of Monteson in 1387.24 In particular, these two cases provide important evidence for examining questions of jurisdiction and procedure because both sets of documentation are fairly complete. Hence, the documentation produced by these cases illuminates the often more obscure initial stages of academic investigation, in addition to providing a window into the appeals process at Avignon. Consequently, these two cases are useful for illustrating jurisdictional and procedural aspects of the inquiry within the faculty itself. They also illustrate the interaction between the faculty and other outside authorities, such as the local bishop and inquisitor of heretical depravity. Finally, because both cases occurred in the latter half of the fourteenth century, they provide a more chronologically precise indication of the practice in that period. In addition, they may also be 24  See Mary McLaughlin, Intellectual Freedom, pp. 228–230 and Pearl Kibre, Scholarly Privileges in the Middle Ages (Cambridge, 1962), 260. Kibre mistakenly stated that Foulechat was a member of the Dominican order. Henry Charles Lea briefly mentioned Foulechat in his History of the Inquisition in the Middle Ages, 3 vols. (New York, 1887; rpt. 1922), 3:260. More recently, see Thijssen, Censure and Heresy, passim; Gregory S. Moule, Politics, Patronage, and Learning in Fourteenth Century France: The Case of Denis Foulechat, (M.A. Thesis, University of Wisconsin – Madison, 1990), passim; Larsen, School of Heretics, 17, 205–207, 215, and 299, and idem, “Secular Politics and Academic Condemnation at Oxford, 1358–1411,” in Religion, Power, and Resistance from the Eleventh to the Sixteenth Centuries: Playing the Heresy Card, ed. K. Bollermann, T. Izbicki, and C. Nederman, (New York, 2014), 37–53, at 48.

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supplemented by documentation from other instances of censure in order to form a coherent picture of the investigative practice at Paris, based upon the whole ensemble of cases. The dramatic nature of the condemnations involving Denis Foulechat, OFM, and John of Monteson, OP, as well as the appeals process associated with each case, generated a wealth of documentation that, due to its length and complexity, is difficult to assess. Hence, it will be useful at this juncture to spend some time and space summarizing the events of each case in order to provide a firm basis for deeper analysis into the conduct of these investigations. Furthermore, it is important to keep in mind that, although the two cases were separated by almost twenty five years, they were, in fact, thematically and procedurally closely related. Several times during his justification of the faculty’s authority, d’Ailly, for instance, made specific reference to the Foulechat case in order to bolster his position. Bearing all this in mind, it is now time to turn first to the case of Denis Foulechat and to describe the events of this colorful controversy.

The Foulechat Controversy

In the early afternoon of November 21, 1364, the chancellor of the University of Paris, Grimerius Bonifaci, along with many other masters and bachelors, gathered at the convent of St. Jacques to hear the public revocation of Denis Foulechat, OFM.25 The friar, whose teachings on the poverty of Christ and the apostles had been condemned, stood meekly before his audience.26 25  Foulechat (variant spellings inlcude Foullechat, Soulechat, Soullechat) is mentioned in the Annales Minorum of Luke Wadding, as updated by Joseph M. Fonseca, 25 vols., 2nd edition (Rome, 1731–1886), 8:154, but there is no detailed discussion or analysis of the friar’s case. For the documents included by Du Boulay, see his Historia, at 4:373, 378, 382. See also CUP 3, no. 1267, 93–94; no. 1274, 102; nos. 1298–1300, 114–124; no. 1349, 182; nos. 1350–1352, 183–186; no. 1518, 397–398. D’Argentré’s collection includes important documents relative to the Foulechat case. Of note, d’Argentré’s collection includes a complete transcription of the letter of Urban V to Jean de Dormans as well as a complete copy of the revocation of friar Foulechat at Paris in 1369. The dating of d’Argentré’s documents must, at times, be modernized or corrected. D’Argentré, for instance, listed the initial date of Foulechat’s censure as 1363, not 1364. This volume is further subdivided into two separate sections, each with new onset pagination. These documents can be found in the Collectio judiciorum, 1.2:382–386. 26  Although this study will not focus discussion on the content of Foulechat’s teachings, these propositions concerned the absolute poverty of Christ and the Apostles. Henry Charles Lea briefly summarized the case and noted that Foulechat’s censure repre-

Introduction

11

In his hand, he held the list of propositions which the faculty of theology had ordered him to retract. He humbly entreated the chancellor for permission to speak. The chancellor responded to his request by offering the friar a choice: He could read the schedule of censured propositions, or they could dispute.27 But Denis chose neither option. Instead, he appealed viva voce to the Holy See, pulling from his sleeve a prepared text and reading it publicly in a loud voice, filling the room with shouts, wonder, and clamor by his bold and daring action.28 Foulechat appealed against the chancellor, and the masters, Nicole Oresme and Symon Freron, and their supporters. As required, he stated the causes of his appeal: He had been forced to recant and he had not been given an opportunity to be heard.29 Further, as required in appeals, he sented the only incident of this heresy in northern France. See, H. C. Lea, A History of the Inquisition in the Middle Ages, 3:168. The literature on the poverty controversy is large. Two indispensable works include Decima Douie, The Nature and the Effect of the Heresy of the Fraticelli (Manchester, 1932) and Malcom Lambert, Franciscan Poverty: The Doctrine of the Absolute Poverty of Christ and the Apostles in the Franciscan Order, 1210–1323 (London, 1961). For contemporary developments concerning the poverty controversy in England, see the study by Katherine, Walsh, A Fourteenth-Century Scholar and Primate: Richard FitzRalph in Oxford, Avignon and Armagh (Oxford, 1981). 27  CUP 3, no. 1298, 114–120, at 114–115. “[F]rater Dionisius dictus Foullechat . . . supplicans ibidem cum humilitate et magna instantia predicto domino cancellario quatenus sibi placere hoc dicere. . . . Tunc dictus dominus cancellarius dicto fratri Dionisio dixit et respondit: ‘Legatis cedulam, per magistros predicte facultatis vobis ordinatam, si vultis, et si non vultis, disputemus.’” 28  Ibid., 115. The notary, Petrus dictus Goin de Rosariis, recorded the events in a matter-offact way: “Quam siquidem cedulam, ut premittitur, sic ordinatam, in predictis scolis idem frater Dyonisius legere non voluit preterea. Hiis vero hinc inde sic actis, agitatis et auditis, tunc prefatus frater Dionisius predictam cedulam, appellacionem seu provocacionem continentem incepit legere, et eam in predictis scolis publice et alta voce de verbo ad verbum perlegit.” The chancellor, in a separate document, presented the drama of the situation. Cf. CUP 3, 1299, 120–122, at 121. “Postea, die jovis statuta, in disputatione predicta, in scolis Predicatorum Parisius, hora qua debuit dictam cedulam legere, me, cancellario predicto, disputante, et ipsum fratrem Dyonisium super hoc requiren[te, h]ec facere denegavit, sed de sinu suo quamdam cedulam appellacionis extraxit ac legit, in qua, a me, cancellario presente, et duobus aliis magistris absentibus appellavit, et cedulam, per nos ordinatam, se[cundum] cujus formam revocare promiserat, non legit, sed sic revocare recusavit, et totam scolam clamore replevit.” 29  CUP 3, no. 1298, 115. In his appeal, Foulelchat stated: “[D]ominum meum cancellarium adivi, submittens me correctioni sue, et aliorum magistrorum meorum in omnibus in quibus delinquissem (sic), humiliter supplicando, quatinus michi audiencia preberetur, ut possem declarare intellectum dictorum; item, in die sancti Martini, presentibus pluribus, idem repplicans, requisivi quatinus michi conclusiones dubias traderet, et (leg.

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requested from the chancellor the apostoli, or letters dimissory. Although not legally required to do so, he also sought support from members of his order when making his appeal.30 Then, the following day, despite the prohibition of the faculty, Foulechat, returned to lecturing and continued to seek support for his appeal.31 Thus, this Franciscan bachelor dramatically inaugurated a controversy with the faculty of theology which continued for five years until 1369. Grimerius, the chancellor, likewise, did not remain idle. He immediately informed both Stephen of Paris and Guillelmus Rochini, OP, the local bishop and inquisitor respectively, of Foulechat’s actions. He also summarized the status of the investigation in a letter to the pontiff, Urban V, dated November 23, 1365. Then, at some later date, but prior to January 31, 1365, Foulechat made the trek to Avignon.32 While at Avignon, Foulechat met with Guillelmus Romani, OP, Lector of the Sacred Palace, and a group of Parisian masters.33 The friar listened to their counsel and acknowledged that he had been given an opportunity to speak. Persuaded, he experienced a change of heart: He decided to obey the chancellor and masters in all things. He therefore agreed to renounce his appeal, and

30 

31 

32  33 

ut) ego manu mea propria intellectum meum, quem legendo protuleram plenius quam in scripto meo erat, planius declararem, – super quibus fui minime exauditus. Sicque michi data hec cedula, in qua michi plura sunt ad revocandum injuncta, quorum aliqua non dixi, alia revocanda sub forma sine meis demeritis nimis gravi, ad quod nunquam credidi dominum cancellarium tendere nec magistros: ea propter, predicta cedula reservata examini sacrosancte Romane ecclesie super hoc, contra reverendos magistros Grimerium Bonifacii, Symonem Freron, Nicolaum Oresme, eorumque super hoc consiliarios vel fautores, ad sanctam sedem apostolicam provoco et appello.” Ibid., 116. “Super qua provocacione et appellacione apostolos peto, tales quales petere possum et debeo, saltem testimoniales, supponens me, statum meum et Ordinis mei, tuicioni, defensioni et protectioni predicte sancte sedis apostolice, omnesque michi adherentes et adhere[re] volentes in hac parte.” On appeals and the apostoli, see the comments by James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008; rpt. 2010), 451–455. Further information on appeals is provided below on page 195. CUP 3, no. 1299, 120–122, at 122. Grimerius stated: “Et adhuc in majorem contemptum contra prohibitionem nostram et promissum suum veniens, in crastinum legit, et in presentia scolarium assistentium dictam appellacionem roboravit, et in quantum potuit approbavit, petito per eum a tabellione presente super hoc publico instrumento.” Foulechat arrived in Avignon by the end of January according to the date of CUP 3, no. 1300. CUP 3, no. 1300, 122–124, at 123. “[C]oram venerabilibus et discretis viris dominis et magistris Guillelmo Romani lectore sacri palatii apostolici, Ord. frat. Predicat . . . [et cum] in sacra theologia magistris Parisiens.”

Introduction

13

even swore an oath on the Holy Gospels to that effect. He then revoked his suspect teachings in their presence, according to the schedule of suspect propositions drawn up at Paris.34 Furthermore, he promised, henceforth, neither to teach nor to defend the suspect propositions; he even promised to return to the university and to reconcile with the chancellor and masters; to renounce his suspect teachings in public disputations at Paris according to their wishes; and to fulfill any correction or punishment imposed by them upon him.35 Under normal circumstances, the terms of this agreement would have put an end to the affair, but events did not turn out as planned. Foulechat returned to Paris, and although the exact details are not fully spelled out in the documents, certain facts are, nonetheless, obvious from the public record. Foulechat neither revoked his suspect teachings at Paris as he had initially promised, nor did he renounce his appeal as per the terms of his oath. The relationship between Foulechat and the members of the faculty clearly deteriorated. A series of papal letters from Urban V, as well as subsequent mention in the Chartularium, provides further information regarding the latter stages of this conflict. Mention of the Foulechat case resurfaces in a papal letter dated November 1368 addressed to Cardinal Jean de Dormans whom Urban V appointed to hear 34  Ibid. “Adiciens ulterius idem frater Dyonisius, quod ipse super dicto negocio locutus fuerat, et deliberacionem ac salubre consilium habuerat cum dominis et magistris predictis, qui nunc presentes erant ibidem; et idcirco ipse frater Dyonisius, nunc tanquam bene consultus, avisatus et salubriter informatus, volens tam predictis dominis et magistris quam dicto cancellario Parisiensi et aliis magistris Parisiensis facultatis ejusdem in omnibus obedire, predicte appellacioni sue, quam ibidem tenebat, et omni ejus effectui et prosecucioni renunciabat, ut dixit, ac etiam expresse renunciavit ibidem penitus et omnino, et juravit ad sancta Dei evangelia, quod decetero dictam appellacionem minime prosequeretur, per se vel alium seu alios quoquo modo, et predictas conclusiones erroneas, hereticas, falsas, et male per eum dictas, revocavit ibidem in presencia dictorum magistrorum et nostrum, notariorum ac testium subscriptorum, prout et per modum contentum in cedula revocacionis alias facte per eum Parisius, ex ordinacione cancellarii et magistrorum.” 35  Ibid., 124. “Et insuper prefatus frater Dyonisius, coram dictis magistris et in presentia nostrum, notariorum et testium subscriptorum, promisit quod dictas conclusiones erroneas, hereticas, falsas et male positas, decetero non tenebit nec defendet, nec adherebit eisdem, et quod ipsas in publicis disputacionibus Parisius ad omnimodam ordinacionem et voluntatem dominorum cancellarii et magistrorum dicte facultatis revocabit. Quorum quidem cancellarii et magistrorum voluntati, correctioni et ordinacioni, tam facte quam faciende, stare voluit et promisit, et eis ex nunc totaliter se summisit ac obtulit se paratum et etiam promisit emendari dictis magistris contra quos appellaverat, ut prefertur, ad omnimodam voluntatem eorum, ac tenere et complere penam et correctionem quam sibi duxerint imponendam.”

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and to conclude the dispute.36 A petition from Foulechat prompted Urban’s letter. Thus, the letter provides both a summary of the events from Foulechat’s perspective and a window into the friar’s motives in pursuing his case. According to the letter, Foulechat charged that the chancellor had initially proceeded against him in a less than truthful manner and that he himself had only complied and agreed to revoke his propositions at Paris out of force and fear. Consequently, the friar had appealed to the Holy See on the date scheduled for his public revocation at Paris. Nevertheless, even after his appeal, Foulechat claimed that the chancellor, the bishop, and the local inquisitor continued to proceed against him.37 Nevertheless, at the curia in January 1365, he was persuaded by the advice of the theologians there: He agreed to renounce his appeal and decided to return to Paris and to make up with the chancellor and the masters. According to Urban’s letter, Foulechat made this turnabout, hoping and believing that he would be given a fair hearing and would receive fair treatment. Nevertheless, the Franciscan contended that the chancellor subsequently continued to enlist the aid of the local bishop and inquisitor, proceeding even more harshly against him.38 Urban’s letter then indicates that after returning to Paris in 1365 and failing to reconcile with the chancellor and masters, Foulechat made a return trip to the papal court at Avignon. This return to Avignon and the resumption of his appeal occurred between the end of January 1365, when he left the ­household 36  CUP 3, no. 1349, 182. 37  Ibid. “Dilecto filio Johanni sancte Rom. eccl. presb. card. Parisius commoranti salutem, etc. Exhibita nobis pro parte dilecti filii Dyonisii Foullechat, Ord. fratrum Minorum professoris, bachallarii Parisius in theologia, petitio continebat quod olim dilectus filius Grimerius cancellarius eccl. Parisiens., minus veraciter procedens, quasdem propositiones per eundem Dyonisium factas fore hereticas, ipsum Dyonisium per vim et metum compulit ad hujusmodi propositiones revocandum, propter quod dictus Dyonisius ad sedem apostolicam appellavit, et tam idem cancellarius et episcopus Parisiens. qui tunc erat, quam inquisitor heretice pravitatis per se et alios eidem Dyonisio quamplurima gravamina irrogare presumpseri[n]t.” Since the local inquisitor was informed of Foulechat’s case by the chancellor only after Foulechat’s appeal, Foulechat was effectively claiming that the chancellor, the bishop, and the inquisitor continued to proceed against him while his appeal was pending. 38  Ibid. “Quique postmodum, licet dictus Dyonisius, tunc in Romana curia que tunc Avinione erat existens, ac amicabiliter intendens cum eodem cancellario componere ad quorumdam suggestionem ponendo se in determinatione magistrorum in dicta facilitate facta vel facienda, predicte appellationi sue renunciasset, sperans quod iidem cancellarius et magistri ipsum Dyonisium audirent et racionabiliter pertractarent: tamen idem cancellarius contra predictum Dyonisium per prefatum episcopum et inquisitorem heretice pravitatis durius procedi procuravit et fecit.”

Introduction

15

of Guillelmus Romani, OP and November 1368, when Urban V appointed the cardinal Jean de Dormans to decide the case, although no specific dates are noted in the record. In the papal letter to cardinal Jean de Dormans dated November 9, 1368, Urban V alluded to various commissions that the papacy had previously established in response to Foulechat’s request. In committing the case to Jean de Dormans, the pontiff revoked all prior commissions, including those established at Foulechat’s request.39 A subsequent letter from Urban to the cardinal dated December 23, 1368 also provides further information on the friar’s activities. In the letter, Urban stated that he had received faithful information indicating that Foulechat, moved by curiosity and by a reprobate spirit, had put forth unsound teachings. Urban then continued, noting that the friar had broken his promises.40 It is likely, then, that this letter reflects information gleaned from the chancellor and representatives of the university, as it seems to reflect their point of view. In any case, these two letters, taken together, show that Foulechat had managed to accomplish several things during the intervening years: Among them, the cardinals Jean de Blandiaco and William Bragose were appointed as auditors of the Roman curia to hear his case.41 As Thijssen indicates, these auditors did not issue a final determination or decree, but they did make inquiries and take down pertinent statements and information relative to the case.42 They further convened a group of Parisian masters, who were present at that time in the curia, for the purpose of hearing what Foulechat had to say. Yet, rather than aiding his cause, Foulechat invented 39  Ibid. “Quare pro parte dicti Dyonisii nobis fuit humiliter supplicatum ut providere ei super premissis de benignitate apostolica dignaremur. Nos itaque omnes et singulas commissiones super premissis per nos forsan factas revocantes, hujusmodi supplicacionibus inclinati, circumspectioni tue per apostolica scripta committimus et mandamus quatenus vocatis qui fuerint evocandi et auditis hinc inde propositis de consilio magistrorum in dicta facilitate Parisius commorancium, super premissis quod canonicum fuerit, appellatione remota, ordines et decernas, faciens que decreveris auctoritate nostra firmiter observari.” 40  CUP 3, no. 1350, 183–184. “Sane nuper non sine amaritudine mentis ex insinuacionibus percepimus fidedignis quod olim Dyonisius Foulechat . . . facto curiositatis . . . reprobo spiritu ductus, multas conclusiones recitavit et tenuit minus sanas et sinceritate fidei minime congruentes. . . . Tamen postmodum retro respiciens tacito de juramentis, promissionibus et summissionibus per eum in dicta curia prestitis atque factis.” 41  Ibid., 183. “[Dyonysius Foulechat] dilectum filium nostrum Johannem tituli sancti Marci et bone memorie Guillelmum tituli sancti Laurentii in Lucina, tunc S. Georgii ad Velum aureum dyaconum, presbyteros cardinales ad audiendum declaracionem suam super conclusionibus prefatis auditores per nos sibi obtinuit deputari.” 42  Thijssen’s summary of the appeal process may be found at Censure and Heresy, 36–38, at esp. 36–37.

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additional errors – more detestable and pernicious than those he had previously put forth.43 Furthermore, he also obtained the appointment of Cardinal Hugo de Sancto Martiali to his case. Although it is not clear at what point in the process Foulechat conducted this maneuver, nor what, precisely, Hugo accomplished, there is no doubt concerning Urban’s response. The pontiff scolded Foulechat for ignoring his oaths and promises.44 Then, the pope acted decisively. He held the cardinal blameless in the affair. When Urban revoked Hugo’s commission and declared void any actions taken by him on Foulechat’s behalf, he did so, not because the cardinal went beyond the bounds of the law, nor due to any defect in the mandate itself, but rather, because the friar had obtained the delegation under false pretenses.45 Urban then instructed Cardinal Dormans, who was resident in Paris, to conclude the matter with the counsel of the chancellor and the masters, maintaining the integrity of the actions taken by the bishop and inquisitor. Furthermore, Dormans was to assure that Foulechat performed the revocation, paid compensation, and submitted to punishment for transgressing his oaths and promises.46 Foulechat was still in Avignon and, thus, Urban cited him to appear at Paris under pain of excommunication by April 1, 1369. In the 43  CUP 3, no. 1350, 183. “Coram quibus necnon magistris in facultate predicta, qui tunc erant in curia memorata, et ad hoc per dictos cardinales vocati fuerunt, idem Dyonisius circa hujusmodi declarationis actum, si erronee depravationis augmentum declaracio dici posset, in quosdam alios expresse prorupit errores, detestabiliorem et perniciosiorem, quam conclusiones supradicte, perfidiam et insaniam continentes secundum eorundem redargucionem et judicium magistrorum.” 44  Ibid. “Quodque postea idem Dyonisius suo versuto more ad alia diffugia se convertens, adhuc premissis juramentis promissionibus et summissionibus relictis silencio, super hujusmodi negotio seu causa dilectum filium nostrum Hugonem Sancte Marie in Porticu diaconum cardinalem auditorem sibi per nos obtinuit delegari.” 45  Ibid. “Qui hujusmodi delegationis obtentu, ad nonnullos actus dicitur processisse, quos, non quia pretermissione judiciarii ordinis seu forme mandati aut in se laborarent vicio vel defectu, sed quia dicta delegatio, utpote subrepticie et obrepticie impetrata, nullam sibi tribuerat nec tribuere potuerat potestatem, irritos decrevimus et inanes, et eos quatinus consistebant in facto duximus revocandos et per dictum Hugonem cardinalem mandavimus retractari, ac nullos, cassos et irritos nunciari et totum negotium ad nostrum et dicte sedis examen duximus revocandum. 46  Ibid., 183–184. “Attendentes igitur quod hujusmodi negotium seu causa attentis circumstantiis universis commodius poterit tractari Parisius quam in Romana curia prelibata, . . . mandamus quatinus circa revocationem errorum predictorum per ipsum Dyonisium assertorum faciendam per eum ac circa penas eidem Dyonisio pro juramentorum et promissionum transgressionibus infligendam necnon emendam prestandam ab illo et correctionem ipsius, ascitis tibi et in hoc assistentibus cancellario predicto ac magistris in facultate predicta, de ipsorum consilio legitimis per dictos Stephanum cardinalem, tunc episcopum, et inquisitorem habitis servatis processibus appellatione remota

Introduction

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event that Foulechat failed to appear, the pontiff authorized Dormans to proceed, the friar’s absence notwithstanding.47 By September of 1368, Aymericus de Maigniaco had assumed the bishopric of Paris, replacing Bishop Stephen. On January 1, 1369, Urban wrote to the new bishop as well as to Grimerius Boniface and Guillelmus Rochini, OP, both still chancellor and inquisitor, respectively. He prohibited them from arresting Foulechat under the pretext of the suspect propositions.48 Foulechat, for his part, complied with the terms decreed by Urban V. The friar appeared in Paris on April 12, 1369. He dutifully and humbly revoked both the original list of suspect propositions drawn up at Paris in addition to the list of suspect propositions derived from his statements made in the presence of the auditors and masters of theology at Avignon.49 Foulechat never incepted as a master of theology, but he remained active within the university community. In 1385 he appeared as a witness in the Blanchard affair, listed as only a bachelor of theology.50 Despite never receiving the license to teach, Foulechat still had an illustrious career; he went on to work for Charles V of France, producing a French vernacular translation of the Policraticus of John of Salisbury around 1372.51

47 

48 

49  50  51 

previa ratione procedas, faciens quod decreveris auctoritate apostolica per censuram ecclesiasticam firmiter observari. Contradictores, etc.” Ibid., 184. “Ceterum ut ejusdem Dyonisii nunc in Romana curia constituti per te haberi possit copia personalis, nos eidem Dyonisio in dicta curia personaliter apprehenso sub excommunicationis pena, quam si nostro hujusmodi non pareret mandato eum incurrere voluimus et volumus eo ipso, mandari fecimus, quod prima die mensis Aprilis proximo futuri tuo conspectui se personaliter representet, ex tunc in hujusmodi causa et causis processurus usque ad diffinitivam sententiam inclusive ac facturus et recepturus quod ordinaverit tua discretio et consilium antedictum. Quod si forsan hujusmodi mandatum nostrum neglexerit adimplere, ut contumax melioris conditionis quam obediens non existat, tu juxta predictam formam in negocio seu causa vel causis ipsis procedas, ejus absentia non obstante.” CUP 3, no. 1351, 184–185. “Venerabili fratri . . . episcopo Parisiensi et dilectis filiis inquisitoribus heretice pravitatis in regno Francie constitutis, ac cancellario studii Paris. salutem et apostolicam benedictionem. . . . [M]andamus quatenus nullam in personam dicti Dyonisii, hujusmodi causa pendente, occasione seu pretextu dictorum articulorum seu conclusionum, injuriam seu novitatem noxiam attemptare aut contra eum ad arrestum seu captionem personalem procedere quomodolibet presumatis.” CUP 3, no. 1352, 186. The full text is reproduced in d’Argentré, 1.2.384–386. CUP 3, no. 1518, 395–399, at 397. Note the variant spelling of the name: “Frater Dionisius Fauchart, baccallarius.” The manuscript of Denis Foulechat’s translation of the Policraticus (Paris, Bibliothèque Nationale de France, fr. 24287), may be accessed electronically at http://gallica.bnf.fr/ ark:/12148/btv1b8449687z.r=foulechat.langFR last accessed June 30, 2015. Charles Brucker has studied and produced partial editions of the manuscript. See Le Policraticus de Jean de

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The Monteson Controversy

Like Foulechat, almost twenty five years later, the Dominican master, John of Monteson, also challenged the authority of the faculty. Around May 1387, Monteson, who had recently incepted in the faculty as a master of theology, put forth some suspect propositions in his vesperiae and resumpta lectures regarding the teachings of Thomas Aquinas and the doctrine of the Immaculate Conception.52 Initially, some bachelors, dismayed at what they Salisbury traduit par Denis Foulechat en 1372. Livres I–III, éd. Charles Brucker (Ph.D. diss, Université de Nancy, 1969); Le Policraticus de Jean de Salisbury, traduit par Denis Foulechat 1372, manuscrit no 24287 de la B. N. Livre IV, ed. Charles Brucker (Nancy, 1985,); Denis Foulechat, Tyrans, princes et prêtres: Jean de Salisbury, “Policratique” IV et VIII, ed. Charles Brucker (Montreal, 1987); Denis Foulechat, Le Policratique de Jean de Salisbury, 1372, Livres I–III, ed. Charles Brucker (Geneva, 1994); Denis Foulechat, Le “Policratique” de Jean de Salisbury (1372), Livre V, ed. Charles Brucker (Geneva, 2006); Denis Foulechat, Éthique chrétienne et philosophies antiques. Le Policratique de Jean de Salisbury, Livres VI et VII, ed. Charles Brucker (Geneva, 2013). 52  For the primary source documentation, see above page 4, footnote 11. See also P. Doncoeur, “La condemnation de Jean de Monzon par Pierre d’Orgemont, evêque de Paris, le 23 août 1387,” in Revue des questions historiques, 81 (1907), 176–187 for the history of events at Paris. For the entire affair, consult D. A. Mortimer, Histoire des maîtres généraux de l’ordre des Frères prêcheurs, 8 vols. (Paris, 1903–1920), 3:616–647. The seventeenth century historian, Louis E. Du Pin discussed both the Foulechat and Monteson cases and observed certain connections between the two, which will be discussed below. See his Nouvelle bibliothèque des auteurs ecclesiastiques, nouvelle edition, 20 vols. in 6 (Utrecht, 1731) 11:128–129, and 12:141‑144. The literature on the Immaculate Conception controversy is too large to cite here. For a discussion of this controversy within the Dominican Order, see Ulrich Horst, Die Diskussion um die Immaculata Conceptio im Dominikanerorden (Paderborn, 1987). A lengthy article that includes some discussion of medieval period, including the Monteson case, may be found in X. Le Bachelet, “Immaculée Conception,” DTC (Paris, 1922), t. 7/1, col. 845–1218. For a general discusssion of the Monteson case, see Marielle Lamy, L’Immaculée conception: étapes et enjeux d’une controverse au moyen âge, in Religion et société urbaine au Moyen Âge: Études offertes à Jean-Louis Biget, eds. P. Boucheron et J. Chiffoleau (Paris, 2000), 562–575. Lamy has also authored other important studies, including: “Les Dominicains dans la tourmente: les suites de l’affaire Jean de Monzon,” in Religion et société urbaine au Moyen Âge: Études offertes à Jean-Louis Biget, eds. P. Boucheron et J. Chiffoleau (Paris, 2000), 177–200, and “Les plaidoiries pour l’Immaculée Conception au Moyen Âge (XIIe–XVe s.)”, in Gli studi di mariologia medievale: Bilancio storiografico, Atti del I Convegno Mariologico della Fondazione Ezio Franceschini, Parma, November 7–8, 1997, ed. C. M. Piastra (Florence, 2001), 255–274. Also consult, Wenceslaus Sebastian, OFM, “The Controversy after Scotus to the End of the Eighteenth Century,” in The Dogma of the Immaculate Conception, ed. Edward D. O’Connor, CSC (Notre Dame, IN,

Introduction

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had heard, approached the dean of the faculty, Radulphus Glachardi, regarding what should be done. In response, Radulphus convened the masters of the faculty with the friar present and charitably admonished him without, however, mentioning his name. Monteson, for his part, rejected this rebuke, claiming instead that he would rather defend the propositions unto death.53 Then, d’Ailly recorded that the chancellor initially established a commission of three secular and three religious (regular) masters for the purpose of examining Monteson’s notebook, which he had shown to them. This group, in turn, requested the participation of an additional six masters as well as access to additional writings of Monteson. These twelve masters drew up a schedule of propositions drawn from Monteson’s writings that, in turn, was given to all of the masters – and even some of the bachelors of the faculty; each individual could then write his opinion regarding the orthodoxy of the individual propositions. No doubt, to preserve the integrity of the process, these forms were then collected by other deputies appointed by the faculty, so that, at length, the schedule was approved and agreed upon by 27 of the masters present.54 1958), 213–270. Zénon Kaluza has placed the Monteson affair within the context of the doctrinal controversies of the late fourteenth and fifteenth century, particularly Thomism and nominalism. See his series of articles, including: “Les sciences et leurs langages. Note sur le statut du 29 decembre 1340 et le pretendu statut perdu contre Ockham,” in Filosofia e teologia nel trecento. Studi in ricordi di Eugenio Randi, ed. L. Bianchi (Louvain-La Neuve, 1994) 197–258; idem, “Les étapes d’une controverse: les nominalistes et les réalistes parisiens de 1339 à 1482,” in La controverse religieuse et ses formes (Paris, 1995), 297–317, esp. 301–307, and idem, “Late medieval philosophy, 1350–1500,” in Medieval Philosophy, ed. John Marenbon, Routledge History of Philosophy Vol. 3 (Oxford and New York, 1998), 426–451, esp. at 438–440. For a brief biography of Monteson, see Goñi Gatztambide, Jose, “Fray Juan de Monzón, O.P., su vida y sus obras (c.1340–c.1412),” Boletín de la Sociedad Castellonense de Cultura, 50 (1980), 506–523. Additional bibliography may also be found in Douglass Taber, Jr., “Pierre d’Ailly and the Teaching Authority of the Theologian,” Church History 59 (1990), 168–72. 53  For a fuller discussion of the events of the Monteson case, as well as the role of fraternal correction in the process of censure, see the discussion below beginning on page 237. 54  Ibid., 503. “4a est, quod, non obstante predictorum xij magistrorum concordia, ut totum securius et irreprehensibilius ageretur, date fuerunt omnibus magistris et pluribus bachalariis predicte facultatis certe cedule antedictas asserciones continentes, ut quilibet suam super hiis opinionem scriberet; ex quibus cedulis per novos iterum deputatos recollectis, et concordatis xxvij magistrorum tunc presencium ac demum vj superveniencium opinionibus semper eas in miciorem partem trahendo, cedula illa, que dicitur facultatis theologie confecta est.” The version of events presented by Radulphus Glachardi substantially agrees with that presented by d’Ailly and differs only in detail; for example, Radulphus stated that 28, not 27, masters were present. Cf. CUP 3, no. 1557, 489.

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Radulphus stated that the investigation took over two months, with the schedule being drawn up on July 6, 1387.55 This would date the beginning of the investigation to late April or early May 1387. On June 13, 1387, some time after the investigation had begun and apparently at Monteson’s request, the chancellor, Johannes Guignicurte, convened a special meeting attended by five deputies of the faculty and by five masters of the Dominican order, who came in support of Monteson.56 Monteson began by stating that the five deputies of the faculty had been selected, or assigned, to dispute with him. He then requested that the five fellow Dominican masters be permitted to be present at the disputations to record both the faculty’s questions as well as his own responses, with the proviso that these masters would only listen and would not speak.57 Monteson further requested that if the faculty did not want these masters to be present, the faculty could, at least, allow some students of the order to be present to act, in some way, like witnesses.58 Finally, if the faculty did not wish to acquiesce to either of these alternatives, Monteson requested that the faculty provide him with a list of arguments, or questions, to which he could write down his responses and counter-

55  Ibid. “Et hiis in agendis occupati sunt menses duo et amplius scribendo, studendo, argumentando, in unum conveniendo, bachalariorum etiam in theologia opiniones recipiendo.” 56  CUP 3, no. 1558, 489–491, at 489–490. “[I]n venerabilium et circumspectorum virorum dominorum et magistrorum Johannis de Guignicurte bachalarii in theologia, cancellarii ecclesie Parisiensis, Gallerani de Pendre[f], Henrici Herout, Petri de Ailliaco, Henrici Ord. fratrum beate Katherine de Valle Scolarium, et Christiani Ord. fratrum Heremitarum, deputatorum ex parte facultatis theologie, ut dicebant ad infra scripta audienda, necnon fratrum Johannis Thome, Johannis Adam, Johannis Merici, Bernardi Bosquerelli, Oliverii de Went, magistrorum in theologia Ord. fratrum Predicatorum ac mei notarii publici . . . presentia.” 57  Ibid., 490. “Johannes de Montesonno . . . dixit et exposuit predictis deputatis, ac etiam requisivit, quod cum ipsi essent deputati ex parte dicte facultatis theologie, ut asserebat, ad disputandum cum dicto magistro de Montesonno, de et super quibusdam conclusionibus et propositionibus dictis et propositis in sua resumpta, que, ut dicebatur, male sonabant; quod dictos magistros superius nominatos de Ordine Predicatorum dicti domini deputati permitterent esse presentes in dicta disputatione, ut testificari possent de rationibus et responsionibus faciendis; qui magistri promittebant se juraturos nihil dicere in dicta disputatione, nisi solummodo audire.” 58  Ibid. “[S]i vero nollent dictos magistros permittere interesse, saltem permitterent aliquos studentes de suo Ordine interesse, qui in dicta disputatione possent modo consimili esse testes.”

Introduction

21

arguments.59 Additionally, in support of his case, Monteson provided various episcopal letters; on behalf of the faculty, Master Galleranus requested that a copy of these letters be made. He further requested that a comparison be made between the original codex provided by Monteson and the resumpta document. Galleranus further ordered copies of these documents to be kept by the faculty because the friar did not wish to surrender the originals.60 Radulphus Glachardi also remarked, at some point early on in the process, that some of the documents relating to Monteson’s vesperiae were unavailable. When asked to produce certain documents relating to statements arising out of his vesperiae, Monteson indicated that he had already sent the document in question back to his homeland of Aragon.61 Nevertheless, the faculty managed to obtain another copy of the Dominican’s vesperiae codex, of which he approved, along with various other writings and his own statements.62 Thus, by the middle of June 1387, the faculty had in its possession copies of all relevant documents pertaining to the investigation. In response to the friar’s various requests regarding the presence of the Dominican masters, Galleranus said that the masters selected by the faculty (“dicti domini deputati”) would not argue against Monteson in the presence of the Dominican masters unless the faculty were first consulted about the matter. The chancellor demurred, stating that, while he hoped that the whole world could be present in the disputations, he wished merely to do whatever the faculty desired. Pierre d’Ailly vigorously protested. He went so far as to claim that he was not involved in the matter; he did not want to argue against 59  Ibid. “[S]i vero nec hoc nec illud eis placeret, vellent rationes suas scribere, et dictus magister Johannes de Montesonno suas solutiones volebat subscribere, ut de rationibus et solutionibus prefati magistri dicte facultatis possent melius judicare.” 60  Ibid. “Prefatus vero magister Johannes de Montesono, tenens in suis manibus quasdam litteras signo publici notarii non signatas, sigillo domini Stephani, olim Parisiensis episcopi, necnon Vidimus ejusdem littere sigillo domini Guillelmi, olim Parisiensis episcopi, eorum sigillis sigillatas, ut prima facie apparebat; predictasque literas presentavit, dictis dominis deputatis intimavit et ad eorum notitiam deduxit. Qui quidem magister Galleranus prenominatus, nomine sepedicte facultatis petiit lecturam et copiam dictarum literarum, quam sibi obtuli fieri. Voluit etiam et petit dictus magister Galleranus, quod fieret collatio codicis sui originalis cum copia illius codicis sue resumpte, et remaneret facultati copia ejusdem codicis, quia ipse frater Johannes tradere nolebat originale.” 61  CUP 3, no. 1557, 488. “Jussus insuper tradere ea que in vesperiis suis paulo superius dixerat, ait se jam illa in Arragoniam transmisisse.” 62  Ibid., 489. “Postquam dogmata istius non modo volatili illorum voce, sed ex confessatis ac scriptis suis agnita sunt, habitusque est per alium codex vesperiarum suarum et ab eo approbatus.”

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Monteson; nor did he even wish to be involved. Furthermore, he denied that he had ever been selected or appointed by the faculty for the purpose of disputing with Monteson.63 Given Monteson’s requests, however, it is noteworthy that the faculty permitted bachelors to participate in the production of the list of suspect propositions, as their inclusion in the process appears to have represented an innovation not observed in the Foulechat case, or in any of the other known cases at Paris. In any case, the faculty subsequently censured Monteson on July 6, 1387. The bedel of the faculty, accompanied by a notary, brought him the list of censured propositions, the wording of which required him to retract them within three days. Then, as the Jews awaited the Messiah, and Arthur the Britons, so the faculty waited three days for Monteson.64 Like Denis Foulechat before him, Monteson refused to retract his opinions. But, unlike his Franciscan predecessor, Monteson simply never appeared. At first the faculty gave the Dominican the benefit of the doubt. Radulphus Glachardi, of course, realized that Monteson might have, willingly, broken his promise, but the dean also understood that some other impediment could have prevented him from appearing.65 Some time after July 6, 1387, the faculty informed the bishop who forbade Monteson from leaving Paris and ordered him to appear in order to answer the charges against him. When Monteson failed to show himself after a second and a third time, he was considered contumacious 63  CUP 3, no. 1558, 490. “Dixit insuper dictus magister Galleranus, quod non arguerent dicti domini deputati contra dictum fratrem Johannem in presentia magistrorum sui Ordinis, nisi prius consulta super hoc facultate. Postmodum vero dictus dominus cancellarius dixit quod sibi placebat, quod suis disputationibus totus mundus presens adesset, et quod semper volebat facere secundum ordinationem dicte facultatis. Prefatus vero magister Petrus de Ailliaco protestatus fuit, quod de dicto facto se non intromittebat, aut intromittere nec arguere volebat, nec umquam fuerat deputatus ad disputandum contra sepedictum fr. Johannem de Montesono. Simili modo responderunt magistri Henricus Herout, Henricus et Christianus prenoininati.” 64  CUP 3, no. 1557, 489. “Posthac cedulam modo qui premissus est confectam facultas theologie per bedellum suum cum notario ad illum misit, secundum cujus tenorem pollicitus est ea que dixerat infra triduum relractare. Sed Judei Messiam, Arturum Britones, illud nos triduum exspectamus.” Cf. CUP 3, no. 1560, 497–500, at 497. The rector stated: “[N]am illo [Monteson] tunc quo jurejurando pollicitus erat dicta sua ad predicte facultatis arbitrium retractare, minime comparuit.” According to the document summary, Denifle speculated that Pierre d’Ailly was its true author. 65  CUP 3, no. 1557, 489. “Utrum vero istius ficta fuerit promissio, an voluntaria, seu eam aliena suasio depulerit, incertum est.”

Introduction

23

and excommunicated.66 Then, in a superabundance of caution, the bishop cited him a fourth time. In this interim, the bishop also took the counsel of the periti in the faculties of theology and canon law. Moreover, as d’Ailly recorded, even though the bishop could have pronounced a harsher sentence against the friar, he opted for a milder one instead, only prohibiting the teaching, publication, and preaching of the suspect teachings and calling for the arrest and capture of Monteson according to the law.67 Most directly, the bishop excommunicated Monteson, not for being a heretic, but rather, for refusing to submit to ecclesiastical authority, for being disobedient and contumacious. These actions took place on August 23, 1387. The bishop of Paris, in the presence of the bishop of Autun, the rector, and various representatives of the theological faculty and university prohibited the teaching, preaching, or publication of the suspect teaching, either publicly or privately. In addition, as prelate, he issued a sentence of ipso facto excommunication on anyone who disseminated the suspect teachings, as well as upon their hearers, unless the latter reported the matter to the authorities within eight days, or as soon as possible. In all things, the bishop submitted his sentence to the authority of the Holy See.68 In closing, 66  CUP 3, no. 1564, 502–505, at 503. “8a est, quod ad hanc instanciam et requestam dictus Paris, episcopus precepit et precipiendo mandavit, ne predictus frater, qui adhuc Parisius presens erat, ab inde recederet, sed ad certam diem tunc assignatam personaliter compareret, responsurus in aula episcopali et coram dicto episcopo super hiis que obicerentur eidem. Qui sic judicialiter evocatus per se aut per alium nullatenus sufficienter comparuit: ideo pro prima vice contumacie penam incurrit. 9a est, quod, iterum bina vice interposito debito temporis spacio, dictus frater citatus fuit, nec comparuit; et sic tercio contumax reputatus est et excommunicatus. 67  Ibid. “10a est, quod, licet hiis attentis idem episcopus potuisset contra eum proferre sentenciam, tamen adhuc quarta vice et de superhabundanti prefato reo aliam dietam assignavit; et interim longo temporis intervallo matura deliberacione habita cum peritis et precipue cum theologie et juris canonici doctoribus: tandem in dicto termino, licet multo graviorem potuisset, tamen miciorem protulit sentenciam, ordinando scilicet et precipiendo quod dicte proposiciones xiiij sub excommunicacionis pena non dogmatizarentur aut publicarentur Parisius, et quod contra dictum reum, si apprehendi posset, ulterius, prout juris esset, procederet.” 68  CUP 3, no. 1559, 496. “Habita diligenti et matura deliberacione cum peritis, ordinamus et districte precipiendo mandamus, quatinus nulli decetero presumant predictas proposiciones quatuordecim, aut aliquam ipsarum dogmatizare, publicare, predicare, affirmare aut sustinere, publice vel occulte, alioquin in omnes et singulos rebelles et inobedientes et contra hujusmodi ordinationem nostram venientes ex nunc prout ex tunc, sentenciam excommunicacionis proferimus in hiis scriptis, et ipso facto volumus eosdem ipsam sentenciam excommunicacionis incurrere, necnon auditores earundem prefata

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the bishop ordered his letter to be read in sermons and in the schools. Only then did he issue the arrest warrant calling for the detention of Monteson and invoking the aid of the secular arm.69 The twin threats of excommunication and imprisonment, however, did not quell the conflict. Both sides remained active. A letter from the rector of the university to all the faithful dated February 1388 indicates that, by that date, key events had taken place.70 Monteson had sought refuge in an appeal.71 Monteson had refused to appear before either the faculty or the bishop’s court and, thus, only subsequently lodged an appeal with the papal court in Avignon.  The faculty, too, had been active. The theologians sought and received the support of the other university faculties who joined the theologians in opposing Monteson. The bishop and his chapter had acted appropriately, as would other local churches.72 The local inquisitor and his deputy were also informed although they, apparently, did not participate.73 The fact that the rector addressed the letter to all the faithful further demonstrates that the controversy, at this stage, had spilled beyond the confines of the university community.74 In April 1388, the faculty selected its proctors to pursue

69 

70  71 

72 

73  74 

sentencia volumus innodari, nisi infra octo dies aut quam cito commode fieri poterit, attenta distancia locorum, a tempore audicionis dogmatizacionem, publicacionem, ut supra, nobis aut officiali nostro revelent et detegant salva semper in omnibus sancte sedis apostolice ordinacione, reverencia et honore, cujus sentencie absolucionem nobis specialiter reservamus. Ibid. Et hanc presentem ordinacionem nostram volumus et precipimus publice et solemniter in sermonibus et scolis legi et manifestari. Contra vero personam ipsius magistri Johannis de Montesono, si apprehendi possit, ad arrestacionem et incarceracionem et examinacionem, invocato ad hoc si opus sit auxilio brachii secularis, et alias secundum juris remedia procedemus. CUP 3, no. 1560, 497–500. Ibid., 498. “Ecce enim ad appellacionem confugit, et eam que in refugium innocentis cause instituta est, nisus est ad sue punicionis diffugium assumere. Ceterum ad Romanam curiam et ad omnium aures eam incolentium, sicuti fideli relacione didicimus.” Ibid., 499. “Jam venerabilis capituli Parisiensis adjunccio atque favor impensus magnam nobis spem dant afferuntque, quia similiter facient reliquarum ecclesiarum collegia, cause, quam tuemur, cognita dignitate, et ad ita faciendum exhortamur in Domino.” Ibid., 497–498. “Qui, [Episcopus] . . . admonito repetitis vicibus inquisitore aut ejus vices gerente, ut sibi adjungeretur, eoque aut renuente aut dissimulante processerit.” CUP 3, no. 1560, 497–500, at 499. “Appellamus vos inprimis omnes et singulos reverendos in Christo patres in altis ecclesiasticarum dignitatum sedibus constitutos, clerumque totum evocamus. . . . [N]ullo pacto doctrinam hanc, quam condampnavimus, vanam ac peregrinam divulgari, aut palam vel occulte dogmatizari permittite, ejusmodi assertores aut promulgatores omni via racionabili compescendo.”

Introduction

25

the appeal at the papal court. These included three theologians: Pierre d’Ailly, Aegidius de Campis, Johannes de Novavilla, OCist., and Petrus de Allainvilla, OSB, a canon lawyer.75 Monteson sought the support of his order, and in May 1388, the order levied a tax to support the expenses related to the appeal.76 As noted above, the grounds upon which the Monteson sought relief appear to have been two-fold: First, Monteson rejected the prohibition of his views as unreasonable, claiming instead that he was only following the accepted teachings of Thomas Aquinas. Second, he held that only the papacy – and neither the bishop nor the faculty – possessed the requisite authority to condemn his views judicially.77 Thus, Monteson appealed on both substantive and procedural grounds. At Avignon, each side pursued its position. However, the details of the appeal process remain sketchy, as they are known mainly through only one surviving document: the excommunication of Monteson.78 Clement VII appointed a commission of three cardinals whose names included Guido, Leonardus, and Aemilius, to act as judges.79 The commission, in turn, appointed Robertus de Freto, a doctor of both laws, to act as an auditor in the case.80 Then, at some point early on in the process, Pierre d’Ailly delivered a sermon in the presence of the pope; he also submitted a proposition made in consistory against Monteson.81 Monteson, no doubt, responded, making his case. Then, Peter, the Cardinal of Embrun, forbade Monteson from leaving the papal court until the matter was concluded under pain of being considered guilty (“sub 75  CUP 3, no. 1561, 500. “Parisiens. Universitas ad appellationem Johannis de Montesono improbandam eminentis scientie viros merito nominandos, Petrum de Alliaco, Egidium de Campis, Johannem de Novavilla, Ord. S. Bernardi, in s. pagina magistros, necnon et Petrum de Allainvilla, Ord. S. Ben., doct. in jure can., ad Rom. curiam destinaverat jam Quadragesima transacta.” 76  CUP 3, no. 1562, 500–501. 77  See the brief discussion by Thijssen, Censure and Heresy, 36–38, and n. 191. 78  The description that follows is based largely on CUP 3, no. 1567, 506–512. I have also benefitted from the summaries provided by Thijssen, Censure and Heresy, 38–39, and Du Pin, Nouvelle bibliothèque, 12:141–144. 79  CUP 3, no. 1567, 506. “Miseratione divina Guido episcopus Penestrin., Leonardus tit. S. Sixti et Amelius tit. S. Eusebii sancte Rom. eccl. presb. cardinales, judices et commissarii per sanctissimum in Christo patrem et dominum nostrum Clementem divina providentia papam septimum cause seu causis ac partibus infrascriptis specialiter deputati.” 80  Ibid., 507. “prout in quodam publico instrumento coram venerabili viro magistro Roberto de Freta, legum doctore, sacri palatii causarum apostolici et a nobis ad presentem causam auditore deputato.” 81  D’Argentré, Collectio judiciorum, 1.2.66–69, and 69–74, respectively.

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pena reddendi se convictum”).82 Monteson, nevertheless, sensing that events had turned against him, absconded. Despite Monteson’s abrupt departure, the commission wished to proceed cautiously. In the presence of Robertus, and at the urging of the proctors of the faculty, the commission first verified that Monteson had been in residence at Avignon in the hospice of Johannes de Suessione for over three months but had departed from there August 3, 1388.83 Acting in good faith, the authorities attempted to contact Monteson. Their efforts included notifying various Dominican houses and local churches, and summoning Monteson to appear by means of public placards at these ­locations.84 Given that Monteson did not appear before the Avignonese commission, he was once again declared contumacious.85 The cardinals then excommunicated him on January 27, 1389. Shortly thereafter, the sentence was also pronounced at Paris on March 17, 1389.86 At this stage of the controversy, the ongoing papal schism favored Monteson. He returned to Aragon and switched his obedience from Clement VII at Avignon to Urban VI at Rome.87 Although Monteson managed to sidestep the curia at Avignon, his efforts at Rome aided him little. Urban VI did not issue any pronouncement in his favor.

82  CUP 3, no. 1567, 507. “[P]ater dominus Petrus cardinalis Ebredunensis inhibuit eidem magistro Johanni de Montesono de mandato dicti domini nostri pape, vive vocis oraculo, ut dicitur, sibi facto, quod sub pena reddendi se convictum de et super iis de quibus inter ipsum et Universitatem Parisiensem Iis pendet in Romana curia, non auderet se absentare ab eadem curia, donec et quousque de et super dubiis ipsius litis esset per sedem apostolicam determinatum.” 83  Ibid., 508. “[A]d hospitium seu albergariam Johannis de Suessione . . . in quo hospitio seu albergaria idem frater Johannes hospitatur et diu inhabitavit. . . . quod frater Johannes predictus fuerat in dicta albergaria per tres menses et ultra hospitatus et quod de hospitio predicto et curia Romana recesserat, ut ipsa credebat, die tertia mensis Augusti proxime lapsa.” 84  Ibid. “[I]deoque eundem fratrem Johannem de Montesono principalem per nostras citacionis litteras peremptorie et per edictum publicum in valvis majoris et fratrum Predicatorum Avinionens. ecclesiarum affigendum citavimus, ut . . . idem frater Johannes personaliter et per se ipsum compareret in judicio coram dicto magistro Roberto auditore.” 85  Ibid., 509. “Robertus auditor et commissarius antedictus eundem fratrem Johannem de Montesono principalem sic personaliter citatum et non comparentem . . . . reputavit exigente justitia merito contumacem.” 86  Ibid., 511–512, and n. 12. The excommunication at Avignon took place on January 27, 1389. Denifle, citing additional sources, provided information regarding the excommunication of Monteson at Paris. 87  On Monteson’s return to Aragon, see Quétif, Jacques, OP, and Jacques Echard, O.P., Scriptores Ordinis Praedicatorum 2 vols. (Paris 1717–1721; reprint Turin 1961) 1:692.

Introduction



27

The Factors Affecting the Faculty’s Jurisdiction

The spectacular drama of these cases causes them to stand out. They share many similarities but also key differences, as well, that will be pointed out as needed. Similarly, these two cases do not stand alone but alongside the other similar but less-well-documented cases at Paris. Yet, precisely because the censures of Foulechat and Monteson occurred in the latter half of the fourteenth century, they reflect a more mature stage of the faculty’s involvement in the censuring of its members and say little, or nothing, regarding the origins or the evolution of the faculty’s role in the censure of academics. Indeed, the unfolding and maturing of the faculty’s participation in the policing of academic heresy among its own members occurred over a considerable span of time and touched on many interrelated themes. Consequently, describing the development of the faculty’s authority and procedures in matters related to the censure of its members is a complex undertaking. This undertaking touches on a wide range of issues, including: 1) the general theory of jurisdiction in the Middle Ages; 2) the development of medieval corporate theory and its application to the faculty of theology; 3) the early development of the University of Paris and its theological faculty; 3) the relationship between the Parisian theological faculty and other external entities or authorities, such as the chapter of Paris, the local bishop, inquisitor, or pope; 4) the codification of a body of legislation governing the prosecution of heresy as set down in canon law; and, finally, 5) the contribution of fraternal correction in the censure of academic heresy at Paris. Each of these factors played a significant part both in establishing the authority of the faculty over its members and in developing the procedures through which that authority was expressed. In the remainder of this study, these aspects will be analyzed against the backdrop of the known cases of academic heresy at Paris, with particular reference to the Foulechat and Monteson censures. For now, in this introductory chapter, it will be useful to examine medieval notions of jurisdiction, both generally, and with specific reference to the faculty of theology.

Medieval Concepts of Jurisdiction

Unfortunately, few of the legal texts and commentaries deal in any specific or in-depth way with issues of jurisdiction in a university environment, much less with the Parisian setting. Thus, in order to provide a context for appreciating the authority which the masters and chancellors exercised over Foulechat, Monteson and others, it is necessary first to describe the forms of jurisdiction operative in the Christian community from the twelfth through the fourteenth

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centuries and, subsequently, to evaluate the Parisian practice in light of this assessment. In the broadest sense, both in theory and in practice, the medieval legal system was divided into two, generally separate but at times overlapping, venues of jurisdiction: ecclesiastical and secular. In turn, within each of these two systems of jurisdiction was contained a hierarchical set of courts designed to handle two types of cases: civil suits and criminal suits. What principles did the medieval lawyers use to determine whether a suit was brought in secular or ecclesiastical court, in a civil court or criminal court? The category of one’s complaint or offense as well as the status of the litigants most frequently determined whether the case was heard in a secular or ecclesiastical court and whether it constituted a civil or criminal matter. In the case of these university censures, several factors placed these cases in the ecclesiastical rather than in the secular court system. The specter of heresy in these censures ensured that the process took place within an ecclesiastical forum. First, ecclesiastical authorities considered heresy to be an ecclesiastical offense and, as such, to be judged in an ecclesiastical forum, before either a secular trial or punishment could be invoked.88 In addition, in terms of status, all of the litigants involved in these cases were clerics, further guaranteeing an ecclesiastical tribunal.89

88  That heresy constituted an ecclesiastical crime is confirmed by Hostiensis in Henrici de Segusio Cardinalis Hostiensis Decretalium Commentaria (Venice, 1581; rpt. Torino, 1965). X 5.7.13, no. 8, under the rubric: Haeresis crimen est de foro ecclesiastico, fol. 38vb, s.v. Velut haeretici: “Nec obstat, quod crimen haeresis est de foro ecclesiae: quia dicta constitutio fuit per Romanam ecclesiam non solum approbata, sed procurata, et sic ea usi possumus.” Future references to this work will be listed as Hostiensis, Commentaria, followed by the appropriate citation. 89  CUP 1, no. 15, 12 (= X 2.2.9). The text reads: “Coelestinus [episcopo Parisiensi]. Quod clericis, etc. Et infra: Nullus episcoporum vel clericorum ad judicia secularia est trahendus. Habent enim illi judices suos, nec quicquam est eis publicis commune cum legibus. Bonifacius vero Papa et Gelasius et alii plures antecessorum nostrorum antiquioribus Conciliis consonantes, sicut bene patet viris juris utriusque peritis, id ipsum in sacris constitutionibus ediderunt. Hac igitur ratione inducti per apostolica scripta precipiendo mandamus, quatinus si quas causas seculares clerici Parisius commorantes habuerint contra aliquos vel aliqui contra illos, appellatione remota jure canonico decidatis, nec permittatis juri scripto consuetudinem prevalere.” For more on the judicial status of students as clerics, consult M. M. Davy, “La situation juridique des étudiants de l’Université de Paris au XIIIe siècle,” Revue d’Histoire de l’Eglise en France, 17 (1931) 298 f., 310 f.

Introduction

29

Discussions on the theme of ecclesiastical jurisdiction occur most readily in the texts comprising the Decretum of Gratian and the Decretales of Gregory IX, as well as the commentary tradition associated with these writings. Unfortunately, the notion of jurisdiction expressed in these texts remains, at times, obscure. Initially, the authors lacked a consistent vocabulary to describe this jurisdiction. Over time, and only gradually, did a concept of jurisdiction emerge.90 Moreover, within the Christian community, the locus classicus of jurisdictional authority resided in the office of the bishop, so that these early discussions of jurisdiction principally described the exercise of episcopal authority. Consequently, the body of early church legislation, Gratian and the early decretists before Huguccio (1140–1188) did not frequently employ the term jurisdictio in a technical sense, but rather equated the law of the diocese (lex diocesana) – that is, the spiritual and administrative decrees of the bishop – with a general concept of jurisdiction, termed lex jurisdictionis.91 In this early period, the concept of jurisdiction as exercised by the local bishop encompassed a wide range of judicial as well as administrative and sacramental powers. It included both temporal and spiritual matters as well as both the internal and external fora.92 The internal forum addressed matters governing conscience and individual salvation and found its chief expression in the sacrament of penance. The external forum concerned the relationships among men in the world (which of course, could also affect one’s salvation), and was most frequently visible in the day-to-day activities of ecclesiastical courts. In the course of the twelfth century, Gratian added a major component to the medieval understanding of jurisdiction. He described jurisdiction in terms 90  For the contents of this section, I have relied on the article by M. Van de Kerckhove, “La notion de juridiction chez les Décrétistes et les premiers Décrétalists,” Études Franciscaines (1937), 420–455, especially 440, 453–455. The work was published as a book under the title, La notion de juridiction dans la doctrine des Décrétistes et des premiers Décrétalistes (Assisi, 1937). There also is a short summary in Latin entitled, “De notione jurisdictionis apud Decretistas et priores Decretalistas (1140–1250),” Ius Pontificum, 18 (1938), 10–14. An in-depth and valuable study of the office of bishop is Robert L. Benson, The Bishop-Elect: A Study in Medieval Ecclesiastical Office (Princeton, 1968). Benson discusses the contribution of Gratian and the decretists, especially Rufinus and Huguccio, as well as developments through the early thirteenth century, including the contribution of Innocent III. In particular, Benson addresses the wide range of terms used to convey the notion of jurisdiction. See especially, 45–55, 64–71, and 142–149. 91  M. Van de Kerckhove, La notion, 426, 453. 92  Ibid. 453–454.

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of two keys: the key of knowledge and the key of power. The key of knowledge enabled one to interpret the law; the key of power gave one the ability to enforce it.93 Apart from the innovations of Gratian, the period from Huguccio until the promulgation of the Liber extra, (1188–1234), saw the gradual introduction of a distinction between the temporal and spiritual authority of the bishop; and consequently, a gradual elimination of the administration of temporal goods from the notion of jurisdiction.94 It remained, however, for Raymond of Peñafort to separate the judicial activity of the bishop from his strictly sacramental functions – his potestas sanctificandi – which emanated from his sacerdotal status.95 Hence after Raymond de Peñafort, the exercise of jurisdiction did not depend on the ability to perform sacramental functions. According to Van de Kerckhove, jurisdiction was thus expressed as the public power of ruling society, a power that included three essential aspects: legislative function, judicial authority, and coercive power, but that was separated from strictly sacramental duties. Thus, by the time of Bernard of Parma (c.1250), some general parameters regarding the meaning of jurisdictio had been established.96 Nevertheless, the canonists continued to refine and differentiate this concept. For example, with the introduction of Roman law the canonists began to employ the distinctions of ordinary and delegated jurisdiction.97 Derived from Roman law, the term judge ordinary signified the individual who possessed 93  Gratian discussed jurisdiction in Distinction 20 of the Decretum. For a discussion of Gratian’s text and the concept of the two keys, see Brian Tierney, The Origins of Papal Infallibility, 1150–1350 (Leiden, 1972), 39–45, S. Chodorow, Christian Political Theory, 65–96, 165–168. 94  Van de Kerckhove, “La notion de juridiction,” 440. 95  Ibid., 440, 454. 96  Ibid., 454. 97  Van de Kerckhove did not discuss the nature of ordinary and delegated jurisdiction nor the differences between them. See Linda Fowler, Suspect and Incapable Judges in Civilian and Canonistic Thought (PhD dissertation, Madison, 1968), 13–25. One may also look under the appropriate titles in such works as Bernardus Papiensis, Summa Decretalium, De officio et potestate iudicis delegati, De officii ordinarii, (Ratisbonnae, 1860; rpt. Graz, 1956), 16–19 for some basic definitions. More detailed information is provided by Henry of Segusia in his Summa dominici Henrici Cardinalis Hostiensis (Lyon, 1537; rpt. Aalen, 1962), ff. 46v–52r and ff. 54r–56r, hereafter referred to as Hostiensis, Summa, followed by the appropriate citation. For particular studies of papal judges delegate, see Jane E. Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254: A Study in Ecclesiastical Jurisdiction and Administration (London, 1971), Robert Brentano, York Metropolitan Jurisdiction and Papal Judges Delegate 1279–1296 (Berkeley, 1959), and Rev. George E. Pavloff, Papal Judges Delegate at the Time of the Corpus Iuris Canonici (Washington, D.C., 1963).

Introduction

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routine (ordinary) jurisdiction over a specific region that lasted for the term of the incumbent. The canonists applied this concept to the jurisdiction of the bishop who became the judge ordinary over the territorial extent of his diocese. Roman law had permitted the emperor to delegate judges for the resolution of a particular case. The canonists, under the influence of revived Roman law, elaborated another form of jurisdiction, called delegated jurisdiction. In contrast to the judge ordinary, the judge delegate (appointed by the pope), judged only a specific case. Unlike a bishop who upon assuming his office obtained a well-defined, permanent set of powers, a delegate judge, though also invested with certain rights, found that his range of powers was dependent on the wording of the delegation and only of temporary duration. In another way, the medieval lawyers often described the difference between these two forms of jurisdiction by observing that ordinary jurisdiction attached to the office rather than to the person and survived the death of the incumbent (to be passed on to the successor), whereas delegated jurisdiction founded its legitimacy on the authority of the one delegating, and thus, expired with the death of the delegator, at the end of an allotted period of time, or when the delegated judge had fulfilled his duties. Finally, as the medieval world developed lay and ecclesiastical corporate structures (universitas), the lawyers developed concepts of jurisdiction appropriate to these groups.98 Briefly, medieval corporate theorists discussed two general forms of corporate structure: secular and ecclesiastical.99 The secular 98  For a general discussion of this point, see P. Michaud-Quantin, in Universitas: Expressions du movement communautaire dans le Moyen-Age Latin (Paris, 1970), 247–269. More will be said regarding jurisdiction in corporate structures at a later stage. 99  The foundational work on secular and ecclesiastical corporations is still Otto Gierke, Das deutsche Genossenschaftsrecht, 4 vols. (Berlin, 1868–1913), esp. at III, 517, n. 7; and 546– 550. Gierke, however, did not specifically discuss questions of jurisdiction and procedure. Consult also A. Ehrhardt, “Das Corpus Christi und die Korporationen im spätrömischen Recht,” Zeitschrift der Savigny-stiftung für Rechtsgeschichte. Romanistische Abteilung 70 (1953), 299–347; 71 (1954), 25–40. This distinction is briefly discussed with respect to the university in Alan Bernstein, Pierre d’Ailly and the Blanchard Affair (Leiden, 1985), 6, 9–10, esp. nn. 31,32. On the conflict between the view of the secular masters who conceived of the university as modeled on the Roman State, and the papacy who considered the university to be an ecclesiastical corporation, see the insightful article by P. MichaudQuantin, “Le Droit Universitaire dans le Conflict Parisian de 1252–1257,” Studia Gratiana 8 (1962), 577–599. The seminal articles by Gaines Post on corporate theory will be cited where appropriate. His essays have been collected in Studies in Medieval Legal Thought, Public Law, and the State, 1100–1322 (New York, 1964). Antony Black touched on the medieval legislation regarding corporate structures in Guilds and Society in European Political Thought from the Twelfth Century to the Present (London, 1985), esp., 12–31, 60–61.

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form of corporate structure was based largely on a Roman analogy likening the corporate body to a sovereign state. Like a sovereign state, the corporation consisted of a group of individuals drawn together into one body for a specific purpose, possessing specific rights, privileges, and obligations. By contrast, the ecclesiastical model of corporate structure was based largely upon the metaphor of the human body. Following the lead of the medieval canonists, Brian Tierney described the basic form of the ecclesiastical corporation according to this metaphor.100 The corporation was an organism composed of head and members which found its fullest expression in the union between Christ as head and the Church as his body.101 In everyday life the most concrete expression of this metaphor was the unit of a bishop and his cathedral chapter, where the bishop acted as head and the canons functioned as members of the body. The genesis of this model found expression in the decrees of Alexander III, included in the Third Lateran Council of 1179 and subsequently in the Decretales;102 and according to Tierney, this model became the basic pattern for all ecclesiastical corporations.103 Thus, in elaborating on the relationship between the bishop and his cathedral canons, Alexander III, subsequent pontiffs, and later canonists forged a new concept of corporate jurisdiction in which jurisdiction was not merely centered in the head, but instead was distributed between both the head and members.

100  Tierney, Foundations of Conciliar the Theory, enlarged edition, Studies in the History of Christian Thought 81 (Leiden, 1998), 98–120. Also see, Jean Gaudemet, “Evêsques et Chapitres (legislation et doctrine à l’âge classique),” in La société ecclésiastique dans l’Occident médiéval, Variorum Collected Studies Series, 116 (London, 1980) XII, 307–318. 101  Alan Bernstein, Pierre d’Ailly, 6, 9. 102  See the decrees contained in Novit, (X 3.10.4) and Quanto, (X 3.10.5), respectively. Novit portrayed the bishop and chapter as consisting of head and members, respectively: “Novit plenius, sicut credimus, tuae discretionis prudentia qualiter tu et fratres tui unum corpus istis, ita quidem quod tu caput, et illi membra esse probantur.” X 3.10.5, Quanto, mandated that, in the matter of making statutes, the bishop could not act alone but had to act with the chapter. “Fraternitati tuae per apostolica scripta praecipiendo mandamus, quatenus in concessionibus et confirmationibus et aliis ecclesiae tuae negotiis fratres tuos requiras, et cum eorum consilio, vel sanioris partis, negotia eadem peragas et pertractes, et quae statuenda sunt statuas, et errata corrigas, et evellenda dissipes et evellas.” 103  Tierney, Foundations, 81–120. Another important work to consult for the description and analysis of the chapter as a corporation is Paul Hinschius, Das Kirchenrecht der Katholiken und Protestanten in Deutschland, in System des Katholischen Kirchenrechts mit Besonderer Rücksicht auf Deutschland, 6 vols. (Graz, 1959), 2:124–153.

Introduction



33

Corporate Theory and the Faculty of Theology

With respect to investigations of academic heresy at the University of Paris and with respect to the role of the chancellor and the masters of theology, the principles of jurisdiction current in the mid-thirteenth century provide the basic framework for determining the nature, extent, and expression of judicial authority operative within the theological faculty. Moreover, the description of the faculty’s authority in light of this framework highlights three important points. First, in terms of the two keys of jurisdiction described by Gratian, Pierre d’Ailly clearly envisioned that the faculty exercised both keys when censuring bachelors and masters of the faculty. He asserted that the faculty acted both doctrinaliter, that is, with the key of knowledge, and also in some way, judicialiter, that is with the key of power.104 Among medieval contemporaries, no one doubted that, because of their expertise in theology, the masters possessed the key of knowledge: they could determine, doctrinally, if a proposition was heretical in content. The novelty of d’Ailly’s claim lay in his assertion that the faculty wielded the key of power as well. Second, the separation between judicial and sacramental functions meant that, even though an individual such as the chancellor did not necessarily perform priestly functions, he could still exercise jurisdictional power. Third, because the university itself was a corporate structure, the principles of corporation law were no mere abstraction but, instead, a practical reality of its existence. Although Tierney pointed out the usefulness of applying medieval corporate theory to other ecclesiastical bodies, and although many historians have acknowledged the relevance of medieval corporation theory with respect to university affairs, few have provided any detailed analyses of how these principles translated into concrete norms governing the day-to-day realities of jurisdiction and procedure in the medieval university.105 No one has discussed in any detail how the principles of medieval corporate theory applied to the theological faculty, both generally, in terms of the internal decision-making process, and more specifically, with 104  See above, page 4, footnote 11. 105  For the comments of Tierney on this point, see Tierney, Foundations, 90, n. 31 and 95–97. Alan Bernstein, for example, has recently acknowledged the importance of corporate theory in the development of the university and has even described the two dominant corporate forms – Roman and Ecclesiastical. Yet, his work did not investigate in detail how the corporate principles shaped policy and procedure within the university. See his article entitled “Magisterium and License: Corporate Autonomy against Papal Authority in the Medieval University of Paris,” Viator 9 (1978), 291–307 and his book, Pierre d’Ailly and the Blanchard Affair (Leiden, 1985), passim.

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regard to questions of jurisdiction and procedure in cases involving charges of academic heresy within the faculty. Indeed, one of the main goals of this study will be to demonstrate that the faculty of theology was, in large measure, organized and patterned after the corporate model of a bishop and his cathedral canons. Furthermore, an analysis of this model will also shed light on the practice of internal censure within the faculty of theology. Of these two forms of medieval corporate life, there are good reasons for suspecting that the ecclesiastical model of bishop and chapter contributed significantly to the development of the faculty of theology, as opposed to the Roman, secular corporation. In the early years of the twelfth century, as the masters of Paris taught in the Île de la Cité and formed themselves into a professional collective, they shared much in common with the other craftsmen and guildsmen of the city whose example they followed. Yet, if the masters at Paris adhered to an ethos and ideology regarding their profession that reflected contemporary urban practice, nevertheless, by the end of the century, these teachers and their students exhibited an important difference which set them apart from their urban colleagues: The teachers and students at Paris acquired clerical status. Celestine III, in 1193, placed the burgeoning guild of masters and their disciples under the protection of their mother, the church.106 This new status gave the masters both legal and social protections which other guilds did not possess. Yet, in exchange for the benefit of church courts, safety in travel, and other clerical advantages, the privilege imprinted a decidedly new and ecclesiastical character on the corporation. And it made the scholars of Paris unique and something of an anomaly, having a foot each in both the secular and ecclesiastical worlds. This ecclesiastical imprint exerted considerable influence on the internal corporate structure of the theological faculty. While it is true that all students were by definition clerics, students in arts, once they left the university returned to lay status. By contrast, clerical status became the hallmark of the theologian. In addition, from an historical point of view, there was a close connection between the faculty of theology and the cathedral chapter of Paris. The chancellor of the theological faculty was, after all, more properly called the chancellor of the cathedral. In addition, the very fact that the schools of Paris initially came under the jurisdiction of the chancellor and developed in the shadow of the cathedral school betrays a strong connection between the theological faculty and the cathedral chapter which cannot be overlooked.107 106  See above page 28, footnote 89. 107  See, for example, Astrik Gabriel, Garlandia. Studies in the History of the Medieval University (Notre Dame, Ind., 1969), 51. It would be interesting to chart the interactions and relations between the cathedral chapter and the faculty of theology from the 12th–15th centuries.

Introduction

35

During the early years of the university’s coalescence, the use of the seal of the cathedral chapter by the masters of the university (including the masters of theology) illustrated not simply a close connection between these two groups but, moreover, a specific legal dependence of the masters upon the cathedral chapter.108 The university masters did not receive their own official seal until 1246, suggesting that ecclesiastical authorities both perceived and maintained at least one judicial bond uniting the chapter and the masters of the university.109 It is also clear, however, that the early members of the theological faculty were themselves familiar with the norms of capitular practice. Jacques Verger has observed that, at its beginnings in the twelfth century, many of the theological students were also members of the cathedral canons of Paris.110 Furthermore, because neither the principles nor the procedures that guided the faculty’s censure of its own members developed in a vacuum, and because these masters in union with the chancellor constituted a corporate entity, it would seem reasonable to suspect that the principles of medieval ecclesiastical corporate theory guided the manner in which the faculty of theology reached decisions and issued correction. Unfortunately, not enough is known about the internal workings of the cathedral chapter of Paris to determine to what extent the specific practice of the Parisian chapter may have influenced the faculty of theology. However, it is possible to compare the structure and functioning of the theological faculty with the general legislation regarding cathedral chapters, and to supplement this, where possible, with information about the actual practice at the Paris cathedral, or elsewhere. Yet the very complexity of medieval corporate life demands that any such analysis be carried out with subtlety. Brian Tierney has described the early thirteenth century Church as a “federation of semi-autonomous units, a union of innumerable greater or lesser corporate bodies,” of which the University of Paris and its faculty of theology represented only a small part.111

108  This episode has been summarized by Pearl Kibre, Scholarly Privileges in the Middle Ages (Cambridge, MA, 1962), 91. Gordon Leff has also commented on this event and has corrected Kibre with respect to some details. See Gordon Leff, Paris and Oxford Universities in the Thirteenth and Fourteenth Centuries (New York, 1968), 30–31. For the involvement of the theological masters in these actions, see CUP 1, no. 41, 99, n. 2. For a discussion of the status of the masters as a corporation with respect to the seal, see Gaines Post, “Parisian Masters as a Corporation,” Speculum 9 (1934), 438–443. 109  CUP 1, no. 41, 99 and also CUP 1, no. 165, 194–195. Innocent IV permitted the masters to use their own seal for a period of seven years. The right to have a seal was renewed again in 1252. See CUP 1, no. 205, 234, dated May 30, 1252. 110  Jacques Verger, Les Universités au Moyen Age (Paris, 1973), 25–36. 111  Brian Tierney, Foundations of Conciliar Theory, 90.

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For a fuller understanding of practice of censure within the faculty, it is also necessary to consider the contribution of other forms of corporate life as well. The University of Paris in general and the theological faculty in particular were not established by decree. In fact, the secular corporation, the cathedral chapter, the monastic and mendicant orders, and the faculty of theology as institutions all came into being throughout the course of the twelfth and early thirteenth centuries.112 None of these institutions, it must be remembered, developed according to a predetermined plan, but instead, each of these structures grew up influenced by the interplay of overlapping circumstances. For example, the formation of professional guilds based on the principles of the Roman law occurred in the course of the twelfth century. Likewise, the initial coming together of the masters also occurred during this period. Hence, it is not surprising that the masters viewed themselves as joining together to form a secular guild. Like the other professional corporate guilds, the masters banded together in a free association, controlled admission to the guild, and swore a mutual oath to protect the interests of the group.113 Yet, during the twelfth and early thirteenth centuries, the faculties of the university were not even fully formed or differentiated from one another. Moreover, at the same time, the organization of cathedral chapters was still being worked out. Likewise, the new mendicant orders were formed in this period and established their own systems and structures. Overall, the structural definition of the university did not reach a stage resembling maturity until the middle of the thirteenth century, with the crisis over the admission of the mendicants. Neither were the constitutional struggles within the university put to rest, nor the structure of the organization settled until this period, or shortly after. The university’s long period of structural formation in the midst of rapid corporate development within society meant that the university as whole and its individual faculties were subject to a variety of influences. Consequently, the university’s formation did not follow a predetermined plan but, rather, these various forms of corporate life each contributed – in greater and lesser degrees – to the formation of the institution as a whole. Accordingly, any analysis of the of the corporate development of the faculty of theology must take into account all these factors and, in particular, must be sensitive to the complexities of these historical trends. Like the faculty of 112  See P. Michaud-Quantin, Universitas, 78–90 for discussion of the terms, ecclesia, collegia, and capitulum. 113  Rashdall discussed several of these topics in his Universities of Europe, 1:281–295. John W. Baldwin has provided a convenient summary of these themes in his Scholastic Culture of the Middle Ages (Lexington, MA, 1971), 40–44.

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theology, the monastic, canonical, and mendicant communities at Paris functioned as corporations as well. Hence, the presence of these communities at Paris, for example, opened up multiple avenues of contact with the faculty of theology, where many of the students and masters of the faculty were also members of monastic and mendicant communities as well. Moreover, these communities independently monitored and disciplined their own members through the practices such as fraternal correction and internal censure.114 Although Tierney was correct in championing the unit of bishop and chapter as the primary model for ecclesiastical corporate structures, the contribution of these other entities to the formation of the theological faculty must also be taken into account. By analyzing the interplay of these various elements, the present study will identify the sources and explicate the rationale behind the policies and procedures used in the carrying out of academic censures at the University of Paris. Apart from sensitivity to the intricacies of historical circumstances, an analysis of the corporate development of the theological faculty requires that an important assumption be articulated and examined: namely, that the theological faculty comprised a separate and distinct corporation, apart from the larger 114  The secondary literature on the practices of fraternal correction and internal censure within the religious orders is sparse. On the case of Durand of St. Pourçain, see the comments by Courtenay, “Inquiry and Inquisition,” 175 and Isabel Iribarren, Durandus of St. Pourçain: A Dominican Theologian in the Shadow of Aquinas (Oxford, 2005). Thomas Aquinas discussed the issue of fraternal correction in several places. The most succinct discussion occurs in his Summa theologiae 2.2ae, q. 33. The full text may be found in S. Thomae Aquinatis Opera Omnia, ed. R. Busa, S.J., 6 vols. (Stuttgart-Bad, 1974–1980), 2:571–574. All references to Aquinas’ works will be cited to this edition, unless noted otherwise. In his Sentences commentary, he address this topic at Ibid. I:549–552. For the Franciscans, see E. Longpré, O.F.M., Quaestiones disputatae du B. Gauthier de Bruges, in Les Philosophes Belges: Textes et Études (Louvain, 1928), I–x. Some primary materials have been collected by: E. B. Fitzmaurice and A. G. Little, Materials for the History of the Province of Ireland, A.D. 1230–1450 (Manchester, 1920), 45–46. Other important sources include P. Glorieux, “Le Correctorium Corruptorii ‘Quare’, Edition critique, Bibliothèque Thomiste, IX (1927), 259–267, 397–407. An Augustinian perspective from a somewhat later period can be found in Gabriel Biel Canonis Misse Expositio, eds. H. A. Oberman and W. J. Courtenay, et al., 5 vols. (Weisbaden, 1963–1976), 3:217–264. Among the Carmelites, John Baconthorpe wrote on fraternal correction in his Sentences commentary, Quaestiones in Tertium et Quartum Libros Sententiarum, et Quodlibetales, 2 vols. (Cremona, 1618; rpt. Ridgewood, NJ, 1969), 2:439–445. Sentences commentaries of medieval theologians remain an untapped source for understanding fraternal correction. Discussions of fraternal correction frequently appear in the fourth book at the nineteenth distinction. Equally untapped are biblical commentaries surrounding Matthew 18:15–18, and other texts.

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corporation of the university as a whole. Only on the basis of such autonomy can the faculty of theology be examined independently, without reference to the other faculties of the larger university corporation. Fortunately, the validity of this assumption is easily established. It had long been believed from Rashdall onward that the faculties functioned independently. Gaines Post, in part through a study of procuratorial mandates and seals, demonstrated that, although the University of Paris in toto included the four faculties of arts, medicine, law, and theology, nevertheless, each faculty essentially functioned as a separate and independent corporate body that joined with the others as a single unit only under periods of stress, or when it benefited the needs of the university community as a whole.115 In addition, the linguistic terminology used to designate the faculties testifies to their independence from one another. P. Michaud-Quantin, in discussing the term congregatio, has observed that by the thirteenth century this term was used to identify an independent assembly of a particular faculty of the University of Paris whose purpose was to consider and resolve particular issues of common interest. In addition, the congregatio over time became recognized as a judicial institution, endowed with judicial personality, and possessed of a head.116 Indeed, the congregatio of the theological faculty headed by the chancellor often met to discuss its own affairs. Not surprisingly, when conducting the censure of Denis Foulechat, the corporation of theological masters met as a congregatio.117 Thus, both in 115  Gaines Post has amply demonstrated this point in his article on “Parisian Masters as a Corporation, 1200–1246,” 421–445. Stephen Ferruolo, in his Origins of the University (Stanford, 1985), 309–315, has discussed the separability of the individual faculties and the possible reasons for their joining together to form a single corporation. 116  P. Michaud-Quantin, Universitas, 106. His text reads: “La congregatio y acquiert le statut d’une collectivité juridique douée de personnalité, elle n’existe pas par le simple rassemblement de ses membres, mais du fait qu’elle a été reconnue comme une institution, et cette existence lui confère des prérogatives spéciales. De ce développent que reçoit le sens du mot, on peut donner deux raisons, l’une dans l’ordre des faits: comme le montre l’établissement des titres 3,10 et 11 des Décrétales, les droits et devoirs respectifs des prélats et des groupements collégiaux qui les entourent et participent a l’exercice de la même autorité se précisent, et les ‘chapitres’ qu’ils soient réguliers ou séculiers, se voient conférer un statut de collectivité plus net à mesure que leur rôle se précise. Dans l’ordre du vocabulaire lui-même, d’autre part.” 117  CUP 3, no. 1299, 120–122. There, the faculty of theology is referred to as a congregatio. Grimerius Bonifaci began the letter that he wrote with the words: “Universis presentes litteras inspecturis, Grimerius Bonifaci, cancellarius eccl. Paris. et facultas theologie Universitatis studii Parisiensis, salutem in Domino sempiternam,” (p. 120). He observed that the schedule of propositions against Foulechat was drawn up “in nostra congregacione, apud Sanctum Maturinum,” (p. 121). In concluding and dating the letter, Grimerius

Introduction

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general, and especially when considering the actions of the faculty in conducting censures, it is reasonable to consider the faculty of theology as an independent corporate structure, without necessary reference to the other faculties of the university. On the one hand, Michaud-Quantin has argued that an assimilation among various ecclesiastical corporate structures, and the rules governing them, occurred and was complete by the time of the Fourth Lateran Council. On the other hand, this separability and independence of the faculties from one another has important implications.118 The factors favoring the assimilation of ecclesiastical corporate structures help to explain the similarities observed among various structures, such as a cathedral chapter and the faculty of theology. At the same time, the separability and independence of each of the faculty explains why, for instance, the arts and the theological faculties developed different sets of internal structures. The theological faculty may have been more influenced by the unit of bishop and chapter, while the faculties or arts, medicine, or law may have been subject to other independent historical influences.

The Role of the Bachelors in the Faculty

Yet before moving ahead with a discussion of the correspondences, similarities, and connections between the faculty of theology and the unit of a bishop and his cathedral chapter, an important difference between the two structures must be acknowledged and addressed – namely, the presence of, and the role played by, the bachelors in the faculty of theology. In reality, there existed no group or body in the cathedral chapter that functioned as an analogue or counterpart to the position occupied by the bachelors in the faculty; nor did any group or body within the cathedral chapter play a similar role or fulfill a similar duties, as did the bachelors. Bonifaci again referred to the faculty of theology as a congregatio: “Datum Parisius, in congregatione nostra, in claustro ecclesie Beate Marie Parisiensis celebrata, die vicesima tercia mensis Novembris supradicti,” (p. 122). Although the term “congregatione,” as used in this context, may also mean “meeting,” the text refers to an independent meeting of the faculty to discuss its own affairs. 118  Michaud-Quantin, Universitas, 40. “‘Dans les commentaires sur le 4th Concile du Latran – ou sur la Compilatio quarta qui en contient les canons – l’assimilation entre diverses collectivités ecclésiastiques et l’universitas juridique dont elles représentent des espèces et suivent les règles est complète.’” He noted as a reference Jean Le Teutonique, Comp. 4a 1.3.2 (= X 1.6.36) in A. Agustini, Antiquae, 613.

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At first glance, this lacuna may appear vexing. But the difficulties presented by the faculty’s somewhat lopsided structure are easily surmounted. First, as Michaud-Quantin observed, external authorities recognized that the bachelors were, in fact, actual members of the corporation. Many papal letters, for instance, were addressed to the “corporation of masters and scholars.”119 Although the bachelors of the faculty had no direct parallel with respect to the cathedral chapter, their mere presence alone did not alter the ecclesiastical character of the corporation. The bachelors were, after all members of the clergy and they obtained and shared in the protections of scholarly and clerical privilege along with the masters who taught them. Second, among the student body, their status as bachelors was only temporary and transitory in nature. Generally speaking, they did not participate in the governance of the faculty, nor in the decision-making activities of the faculty, such as the granting of the license to teach. As bachelors, they remained, essentially, passive members of the corporation.120 Hence, apart from individual teaching and learning, they did not contribute significantly to the day-to-day administration of corporation. Hence, although they were members of the faculty, and of the university, their role was somewhat circumscribed and their contribution limited. Consequently, as a group, their impact on the structural development of the faculty was not significant enough to overshadow or substantially alter the recognizable parallel between the cathedral chapter and the theological faculty. Their presence, in the final analysis, represented merely a variation in the corporate structure necessitated by the specific needs of the faculty: Bachelors were needed in order to replenish the ranks of the masters. Barring unusual circumstances – as in the Foulechat case – membership in the corporation as a bachelor was itself only temporary because, eventually, by achieving recognized benchmarks or milestones, each bachelor progressed through the educational system until he became a master and, thus, a full-fledged member of the corporate structure. Similar variations in the ecclesiastical corporate structure can be found in contemporary medieval society among the religious and mendicant orders. These bodies or groups were also ecclesiastical corporations that, as a result of the schools that they operated, managed successfully both to incorporate aspects of the capitular model and, simultaneously, to provide a recognized space for the bachelors in their overall corporate structure. Consequently, bearing in mind this variation in corporate structure, it is now possible to proceed with the current discussion demonstrating the influence

119  Michaud-Quantin, Universitas, 55. 120  Ibid.

Introduction

41

of the capitular model on the development of the university in general, and of the faculty of theology in particular. Conclusion The historical and legal connections between the theological faculty and the chapter of Paris suggest, in particular, that the application of the model of bishop and chapter to the inner workings of the theological faculty should prove fruitful for understanding the jurisdiction and procedures operative within the faculty, especially with respect to cases involving suspect teaching or heresy. For example, in a cathedral chapter, the bishop, the dean and the cathedral canons each played a specific role in capitular governance. Hence, if in the process of its own formation, the theological faculty drew upon the model of the cathedral chapter as a source of inspiration, one would expect to see the chancellor, the dean, and the masters of the faculty, by extension, behaving in a fashion similar to that exhibited by the bishop, the dean and the cathedral canons of the chapter, especially when resolving important issues or making decisions affecting the group as a whole. The first goal of this study, then, will be to demonstrate that the ecclesiastical corporate model of a bishop and his chapter exerted influence over the structural development of the faculty of theology, with the result that the faculty of theology, structurally and procedurally, was, in large measure, conformed to this model of capitular governance. In order to achieve this goal, it will be necessary to return to the early history of University of Paris and its faculty of theology.

CHAPTER 2

The Early History of the Faculty of Theology: Evidence for the Model of Bishop and Chapter in the Faculty

The Office of the Chancellor

As noted in the prior chapter, there existed a historical connection between the cathedral chapter and the theological faculty. Thus, it is perhaps not so surprising that both corporate entities shared certain structural similarities as well. From a purely structural point of view, comparing the Parisian theological faculty to the Parisian cathedral chapter yields certain obvious, yet important, correspondences. As noted, the chancellor, the dean, and the masters of theology each found a counterpart in bishop, the dean, and the cathedral canons of the chapter, respectively. Yet, apart from the mere structural resemblance between the two corporate bodies, the deeper and more salient question remains: Did the members of faculty of theology function and interact with one another according to the same or similar principles that governed the relations among the members of the cathedral chapter? If the answer to this question is ‘yes,’ then certain facts should be apparent. The chancellor of the faculty, like his analogue, the bishop, should possess ordinary jurisdiction and should function in a manner similar to that of the bishop. Likewise, the dean in the faculty should fulfill duties similar to those carried out by a capitular dean. And finally, the masters of the faculty should interact with the chancellor of in a fashion that mirrors or parallels the interaction between the canons and their bishop. The most striking parallel between these two corporate structures concerns the correspondence between the role of bishop within the chapter and that of the chancellor within the faculty. The striking nature of this parallel is not unexpected given the unique set of historical circumstances that united these two corporate entities. The bishop, of course, was head of the cathedral chapter. But the chancellor of Notre Dame also occupied a position of importance in the cathedral chapter. He was one of the eight dignitaries of the Parisian chapter, in addition to being the chancellor of the theological faculty. In fact, he stood in a special relationship to the faculties of theology and canon law.1 1  Astrik Gabriel, “The Conflict Between the Chancellor and the University of Masters and Students at Paris During the Middle Ages,” in Die Auseinandersetzungen an der Pariser © koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004311336_003

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This relationship is detailed in the decree Parens scientiarum issued in 1231.2 The decree covered many facets of university life; with respect to the faculty of theology, it mandated that two masters (one each presumably from theology and canon law) were present at the institution of the chancellor. The wording of the document declared that the chancellor was responsible for the governance (regimen) of theology and canon law while, at the same time, it omitted any mention of the remaining faculties, thereby strengthening the chancellor’s association with these two faculties.3 Thus, just as the bishop was head of the chapter, so the chancellor was head of the faculty of theology.4 In addition, from the origins of the university, the earliest university documents record that, like the bishop, he was also a judge.5 Several issues or questions, then, are relevant when considering role of the chancellor as head of the theological faculty and as an analogue of the bishop. The primary question concerns whether the chancellor exercised ordinary jurisdiction within the faculty of theology? Yet, in order to answer this question, another more basic question must first be posed and resolved. How, from a legal point of view, was ordinary jurisdiction established? Normally, the head of an ecclesiastical corporation acquired ordinary jurisdiction through a two stage process. Innocent IV described the process in his commentary on the Decretals. Commenting on Cum ab ecclesiarum (X 1.31.3), Innocent stated that heads of ecclesiastical corporations received ordinary jurisdiction through election which was subsequently confirmed by a Universität im XIII. Jahrhundert, Miscellanea Mediaevalia 10, ed. A. Zimmermann (Berlin, 1976), 106–155. 2  The decree was issued in 1231 in order to resolve a conflict that had erupted in 1229 involving the university community, the townspeople, and the ministers of the king in which members of the university were injured or killed. The masters and the students called a strike and left Paris for two years. Parens scientiarum addressed their concerns, whereupon they returned. 3  C UP 1, no. 79, 136–139, at 137. “Circa statum itaque scolarium et scolarum hec statuimus observanda, videlicet, quod quilibet cancellarius Parisiensis deinceps creandus coram episcopo vel de ipsius mandato in capitulo Parisiensi, vocatis ad hoc et presentibus pro Universitate scolarium duobus magistris in sua institutione jurabit, quod ad regimen theologie ac decretorum bona fide secundum conscientiam suam loco et tempore secundum statum civitatis et honorem ac honestatem facultatum ipsarum non nisi dignis licentiam largietur, nec admittet indignos, personarum et nationum acceptione summota.” This study is limited in scope to the theological faculty, although a similar study, conducted on the faculty of canon law would be useful. 4  In this study, I have not pursued the role of the chancellor as head of the faculty of canon law. 5  C UP 1, no. 16, 75. The decree recognized that the chancellor acted as judge in cases involving the university community. However, the decree forbade the chancellor from exacting a monetary fine. “Cancellarius etiam in causa, in qua ratione cancellarie judex est, non exiget nec recipiet pecuniariam emendam pro injuria facta uni scolari ab alio, vel clerico vel laico.”

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­superior.6 This method, for example, was the traditional way in which a bishop acquired jurisdiction in his diocese. He was elected by the cathedral canons, and his election was confirmed by the pope.7 However, no election records for the chancellor’s office survive; thus, it is unclear whether the chancellor received ordinary jurisdiction through the usual means. In addition, the matter is complicated by the seemingly conflicting trail of documentation left behind. Astrik Gabriel, for instance, uncovered evidence in the twelfth and early thirteenth centuries pointing to the selection of the chancellor by the bishop, as a diocesan official.8 Yet, surviving evidence indicates both papal and royal involvement in the selection of candidates for this office in the later thirteenth and throughout the fourteenth centuries, particularly during the period of the Avignon papacy.9 Then, the documents again suggest episcopal prerogative in the choice of chancellor in the fifteenth century. When the king sought the impeachment of the chancellor, the masters, the rector and the corporate body insisted that the bishop conferred this dignity, and therefore, they had no authority to deprive the chancellor of his office.10 Since both bishop and pope could delegate their authority to create a delegated judge, the chancellor’s authority must be addressed in relation to the issue of his “appointment” by either bishop or pope. Could such appointment, in fact, represent delegation and, therefore, a form of delegated jurisdiction? 6  Innocent IV, Commentaria . . . super libros quinque Decretalium . . . (Frankfurt, 1570), f. 148. X 1.31.3. s.v. Praelatis: “Illos autem praelatos, vel rectores dicimus ordinariam iurisdictionem habere, qui eliguntur in praelatos ab universitate et confirmationem recipiunt superioris.” Hereafter references to this work will be cited as Innocent IV, Commentaria. On Innocent IV, see the insightful study by Alberto Melloni, Innocenzo IV: La concezione e l’esperienza della cristianità come regimen unius personae (Genoa, 1990), 101–134. 7  For a detailed discussion of the development of this principle, see Robert L. Benson, The Bishop Elect, esp., 45–55, 115–149. 8  Gabriel stated that the chancellor was appointed by the bishop but provided no direct evidence for this statement, relying instead on B. Guérard, Cartulaire de l’église Notre Dame de Paris, in Collection de documents inédits sur l’histoire de France (Paris, 1850) I:civ–cv. See also his Garlandia: Studies in the History of the Medieval University (Frankfort, 1969), 51. 9  See, for example, the papal letters regarding the “appointment” of Robert de Bardis in 1336 (CUP 2, no. 998, 459–460), and Johannes de Calore in 1370 (CUP 3, no. 1362, 193–194). 10  Gabriel, “Chancellor,” 136. Here he noted that the university and the rector defended the chancellor against accusations and impeachment proceedings initiated by the king. To what degree this position reflected reality or, conversely, functioned as a convenient loophole to sidestep the king’s wishes, requires more detailed study into these events.

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From a judicial point of view, whatever role that the bishop played in “appointing” the candidate had little effect on the chancellor’s exercise of ordinary jurisdiction. Bernard of Parma noted in the gloss to Cum ab ecclesiarum (X 1.31.3) that prelates of colleges usually acquired ordinary jurisdiction through election; or, by being placed in charge of the college (collegio) or corporation (universitate) by one who had administration and jurisdiction, such as the bishop.11 In this regard, it must be remembered that the university in general and the faculty of theology in particular were collegial bodies.12 Furthermore, the jurist Baldus addressed this issue of election versus appointment with respect to ordinary jurisdiction in his commentary on the Decretals. When commenting on Cum ab ecclesiarum (X 1.31.3), he followed Innocent and first noted that in a corporation election followed by confirmation typified the normal means of acquiring ordinary jurisdiction. But then, Baldus went on to state further (while still quoting the former pontiff), “many without election have ordinary jurisdiction such as a lord over a vassal. . . . Innocent says that inferior prelates to the bishop are considered general and perpetual vicars in their office and have ordinary jurisdiction.”13 Hostiensis, moreover, commenting on Tua nobis (X 1.28.5) under the rubric, De officio vicarii, observed that a vicar 11  CIC 2:398, X 1.31.3, s.v. Ecclesiastica sententia. “[Q]uilibet prelatus collegiatae ecclesie, licet subsit episcopo, est tamen iudex ordinarius in plebe sua, et habet iurisdictionem cognoscendi et excommunicandi . . . et illum dico prelatum hoc facere posse et talem iurisdictionem habere, que est electus a collegio sive universitate . . . et idem intelligo si praeficiatur collegio vel universitati ab eo qui habet administrationem cum iurisdictione, puta episcopo.” As Michaud-Quantin demonstrated, the concept of ecclesia was a broad one in medieval society, one that also may be applied to the faculty of theology. See his Universitas, 77–82. 12  For confirmation of this fact, consider the language used by Alexander IV to refer to the body of masters – especially the theological faculty – as a collegial body. See CUP 1, no. 247, 280. There he speaks of the “collegium magistrorum”. And again, he notes: “ne ullus magister in quacumque facultate ad collegium magistrorum vel consortium Universitatis eorum aliquatenus admittatur.” Throughout the document, the pontiff spoke specifically to the faculty of theology. In closing, (CUP 1, 284) he stated: “Predictos insuper Predicatorum Ordinis fratres theologice facultatis magistros ad magistrorum consorcium ipsosque ac auditores eorum ad Universitatis collegium de nostre potestatis plenitudine restituentes omnino et decernentes, ad eadem consorcium et collegium a vobis in dulcedinis ubere sine difficultate qualibet admittendos.” 13  Baldi Ubaldi Perusini . . . in Decretalium Volumen Commentaria, (Venice, 1595; rpt. Torino, 1971), f. 114r. X I.31.3, no. 15. “Dict Innoc. [IV] quod multi sine electione habeant iurisdictionem ordinariam ut dominus in vassalos ut in [D]e foro competenti [E]x transmissa = X 2.26]. . . . Dicit Inno. quod prelati inferiores episcopis censentur vicarii tamen quia

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normally possessed ordinary jurisdiction and generally exercised all aspects of the jurisdiction of the person he replaced, except that the vicar could not subsequently transfer his position to another individual.14 Hence, the ability of the chancellor to exercise ordinary jurisdiction did not depend on whether he was appointed or elected. Moreover, the chancellor functioned like a vicar. This principle, that an inferior prelate was like a vicar and that a vicar had ordinary jurisdiction, clearly had applicability to the circumstances the chancellor who, after all, was a diocesan official within the episcopal hierarchy. For, essentially, in his capacity as chancellor he functioned as a vicar, in loco episcopi. In fact, it seems clear that the bishop treated the chancellor like any other vicar within his diocese. As a general rule, canon law required perpetual vicars to maintain residence in their churches and did not permit them to employ a substitute; hence, the prohibition against transferring the position.15 Not surprisingly, like a vicar, the bishop of Paris required the chancellor to swear an oath to remain resident in Paris, and to be absent for no more than three months at a time for as long as he occupied the office.16 It is only in the fifteenth century that the office of vice-chancellor appears with any regularity.17 If presence of this inno-

14 

15 

16 

17 

generales in suo officio et perpetui habent iurisdictionem ordinarium.” Further references to this work will be cited as Baldus, Commentaria, followed by appropriate reference. Henrici de Segusio Cardinalis Hostiensis . . . in Primam [-Quintam] Decretalium librum [sic] Commentaria (Venice, 1581; rpt. Torino, 1965), f. 132r. X 1.28.5, no. 1, s.v. Vicarii: “Vicarius tamen generaliter habet omnia, quae pertinent ad iurisdictionem eius cuius vices gerit . . . his exceptis, quae sine speciali mandato non transeunt. . . . [No. 2], [s.v.] Iurisdicio: Ordinaria habet enim vicarius ordinariam iurisdictionem, quod sic probat dom. nost. [= Innocent IV].” Future references to this work will be cited as Hostiensis, Commentaria followed by the appropriate reference. See Hostiensis, Commentaria, X 1.28.6, no. 1, f. 132r, s.v. Resideant: “Nec alios perpetuos vicarios aliquatenus sibi substituant: haec enim res, sicut et excommunicatio in tertiam non transit personam.” CUP 1, no. 6, 65–66, at 65. “Odo Dei gratia Parisiensis episcopus, Hugo decanus et universum capitulum Parisiense omnibus presentes litteras inspecturis in Domino salutem. Notum facimus universis quod nos residentiam cancellarii Parisiensis attendentes necessariam esse nostre Parisiensi ecclesie et cummunitati (sic) scolarium, de bonorum virorum consilio et cummuni assensu statuimus in capitulo Parisiensi ut quicumque de cetero cancellarius Parisiensis fuerit, teneatur in persona propria bona fide Parisius residere, et post institutionem suam teneatur juramentum in capitulo exhibere, se facturum residentiam bona fide in ecclesia Parisiensi, quamdiu cancellariam tenuerit, et quod per se vel per alium nullatenus procurabit, quod relaxetur a juramento predicto. Statuimus etiam quod nichil de fructibus cancellarie percipere possit, donec pretaxatum exhibuerit in Parisiensi capitulo juramentum.” See Gabriel, “Chancellor,” 151, where he lists some of the vice-chancellors.

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vation suggests on the one hand that the chancellors of the fifteenth century ignored the residential requirement of the office, as was common for vicars of that period, it equally suggests on the other hand that the chancellors of the thirteenth and fourteenth centuries more scrupulously observed their oaths to maintain residence, as true perpetual vicars to the bishop. The residency requirement provides additional evidence that the chancellor, as an inferior prelate of the bishop, was, in effect, a perpetual vicar. Finally, in addition to ordinary jurisdiction conceded by written law, custom, or unwritten law gave the chancellor independence to act. Custom often removed jurisdiction from the bishop and gave it to an inferior. In those circumstances, the bishop could not then involve himself in the jurisdiction of the inferior and, barring appeal or complaint, he could not interfere in the decisions of his inferiors.18 In sum, then, whatever role the bishop played in the selection of the chancellor apparently had no effect on the chancellor’s jurisdiction. If the chancellor were elected, and the bishop’s appointment represented merely confirmation, then the chancellor acquired ordinary jurisdiction in normal course of affairs. But, likewise, even if the bishop appointed and did not merely confirm the chancellor, the latter’s status as vicar or prelate of an ecclesiastical corporate structure still ensured his ordinary jurisdiction. In a similar way, the same could be said regarding appointment by the pope. Such appointment did not alter the ordinary jurisdiction held by the chancellor. Moreover, the passage of time and custom served to solidify the chancellor’s jurisdiction and to prevent the bishop or pope from interfering in the exercise of his autonomous judicial authority without good reason. The evidence thus far has shown that appointment by the bishop or pope had practically no effect on the chancellor’s exercise of ordinary jurisdiction. It is in this light that the comments of Clement VII in his papal letters regarding Johannes de Guignicurte and Pierre d’Ailly are most instructive. Clement allowed Guignicurte and d’Ailly to exchange benefices, effectively making 18  Baldi Ubaldi Perusini . . . In Decretalium Volumen Commentaria (Venice 1595) X 1.31.3, no. 15, f. 114r. The text reads: “Consuetudo potest abstrahere in aliquo casu iurisdictionem ab episcopo et tradere inferiori prelato et tunc episcopus non potest se intromittere de iurisdictione inferioris.” Hereafter, references to this work will be, Baldus, Commentaria, followed by the appropriate citation. In support of this view, Baldus cited the commentary of Guido de Baysio. For the text of Guido de Baisio, see C. 11, q.1, c.33, f. 191vb in Guido de Baisio, Rosarium super Decreto (Lyon, 1497), accessed May 17, 2014, http://bildsuche .digitale-sammlungen.de/index.html?c=viewer&bandnummer=bsb00073101&pimage=0 0001&v=pdf&nav=&l=en. The text may be found s.v. in .e. gl. ibi: “sed finaliter dicit consuetudinem antiquam et approbatam admittendam.”

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Pierre d’Ailly chancellor of the church of Notre Dame and of the theological faculty. In the course of ratifying this arrangement, Clement VII made some important remarks. He observed that the office of the chancellorship customarily had been elective.19 Similarly, in the appointment of Pierre d’Ailly, Clement VII repeated that the chancellorship of Paris had customarily been an elected office.20 Clement’s references are tantalizing and, regretfully, Clement did not indicate who was responsible for electing the chancellor – the canons of Notre Dame or the masters of theology. This reference, indicating that the office of the chancellorship should have been elective, illustrates that the office conformed to the principles governing ordinary jurisdiction – election followed by confirmation. Moreover, by acknowledging that he was making an exception in this case Clement demonstrated that the principle of election still applied to the office – at least in theory, even if its officeholder had actually been appointed for almost a century. Finally, apart from the theoretical discussions of the chancellor’s position as ordinary, one of the most important pieces of evidence for substantiating his ordinary jurisdiction comes from the main opponent of Johannes Blanchard and later chancellor himself, Pierre d’Ailly. In his sermon against Blanchard’s simoniacal practices Pierre d’Ailly observed that “the chancellor is a spiritual judge and ordinarius because even with the death of the pope his judiciary power does not expire.”21 In this statement, Pierre d’Ailly used a definite and well known criterion by which to establish the ordinary authority of the chancellor. Bernard of Pavia and Hostiensis, each in his respective Summa, conceded that the authority of a delegated judge, expired in a number 19  CUP 3, no. 1527, 424–425. “Dudum siquidem omnes dignitates. . . . reservavimus. . . . [N]os volentes tibi premissorum meritorum tuorum intuitu gratiam facere specialem canonicatum ejusdem ecclesie cum plenitudine juris canonici ac cancellariam predictam sic vacantem cum omnibus juribus et pertinenciis suis, etiam si canciliaria ipsa dignitas, personatus vel officium existat et curam habeat animarum, et ad illam consueverit quis per electionem assumi, motu proprio, non ad tuam vel alterius pro te super hoc nobis oblate peticionis instantiam, sed de nostra mera liberalitate apostolica tibi auctoritate conferimus et de illis etiam providemus.” 20  Ibid., no. 1553, 483. This text mirrors much of the language of the above-cited text, using the phrase, “et ad eam consueverit quis per electionem assumi.” 21  Pierre d’Ailly, “Radix Omnium Malorum est Cupiditas,” in Bernstein, Pierre d’Ailly, 224. The text reads: “Modo cancellarius est iudex spiritualis et ordinarius, quia eciam mortuo papa, non expirat eius potestas iudiciaria.” Similarly, in the sermon, “Super Omnia Vincit Veritas,” in Pierre d’Ailly, 237–291, at 277, d’Ailly acknowledged routinely in a passing remark that the chancellor was a judge ordinary. There, the text reads: “Et sic fortiori, dico de cancellario cum sit iudex ordinarius.”

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of ways, among them, the death of the one delegating.22 By indicating that the judiciary power of the chancellor did not expire with the death of the pope, d’Ailly thereby established that the chancellor was not a delegated judge. Because the chancellor was never reconfirmed upon the accession of a new pontiff, his authority did not expire and, like a bishop, he exercised ordinary jurisdiction.23 D’Ailly’s recognition of the chancellor as a judge ordinary is significant, too, because the chancellor, through his excesses had lost the right to excommunicate students in 1222.24 Nevertheless, despite this limitation, d’Ailly still recognized the chancellor as an ordinary. Although the chancellor exercised ordinary jurisdiction over the faculty, this jurisdiction was normally limited with respect to exempt clerics. Since many members of the university community hailed from religious orders which were exempt from ordinary jurisdiction, the authority of the chancellor with respect to these clerics must be examined. In matters of heresy, the decretal Ad abolendam gave a bishop the right to proceed against exempt clergy within his diocese, not in his capacity as ordinary, but rather, in his capacity as a delegate of the Holy See.25 Yet, apart from the condemnation of frater Stephen’s teachings in 1241/7, the local bishop did not participate in the initial censure of academics at Paris. Therefore, it is important to understand whether any of these “exempt” clerics could invoke or employ an exemption, and what effect such a privilege had on the jurisdiction of the chancellor and the theological faculty. 22  Bernardi Papiensis, Summa Decretalium, De officio et potestate iudicis delegati, 16–17, at 17. The text reads: “§ 4. Finitur autem eius potestas . . . ; praeterea finitur si re integra mors interveniat alterutrius, i. e. delegantis vel delegati.” Hostiensis Summa, fol. 46b, similarly observed: “Et qualiter finitur [jurisdictio delegati]?. . . . Item finitur mortuo impertrante [sic] . . . Item per mortem delegantis.” The authority of the delegate, however, persisted – even with the death of the delegator – if the delegate had begun to hear the case; similarly, if the delegate died, he could be succeeded in office if he had been appointed ratione officii. See X 1.29.19 and X 1.29.30. The letters appointing the chancellor contain none of these clauses; hence the fact that the chancellor’s authority persists with the death of the pope indicates that he was a judge ordinary, as d’Ailly argued. 23  This fact can be easily established by comparing the dates of the papal reigns with the dates of the chancellors’ terms of office. Several chancellors spanned the reign of more than one pope. 24  CUP 1, no. 45, 102–104. 25  X 5.7.9. “Si qui vero fuerint, qui a lege diocesanae jurisdictionis exempti, soli subiaceant sedis apostolicae potestati, nihilominus in his, quae superius sunt contra haereticos instituta, archiepiscoporum vel episcoporum subeant iudicium, et eis in hac parte tanquam a sede apostolica delegatis, non obstantibus libertatis suae privilegiis obsequantur.”

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On the one hand, it is likely that as a vicar of the bishop, the chancellor also possessed the requisite authority to censure exempt clerics suspected of heresy. In fact, both the legislation of Ad abolendam (X 5.7.9) and Volentes (VI 5.7.1) support this conclusion. Furthermore, in addition to the chancellor, the terms of Volentes, in particular, imply that this authority was extended to and conferred upon the theological faculty as a whole, arising from the oaths of obedience and reverence which the bachelors and masters swore as members of the university community. Kenneth Pennington has discussed the position of exempt clerics in relation to their local bishop.26 In analyzing whether or not an exemption removed one from local jurisdiction, many canonists grappled with a set of complex issues, including whether or not the offense under consideration concerned a matter that was exempt or not exempt (res exempta, res non-exempta), according to the wording of the privilege; whether the crime injured a second party; and whether the crime was secret or notorious.27 But from within this discussion of alternatives, no clear consensus emerged. In order to solve the difficulties in this debate, Innocent IV, between 1250–1251, issued an inviolable decree detailing under what conditions exempt clerics were subject to local ordinaries.28 This decree, Volentes, was subsequently incorporated into the Liber sextus of Boniface VIII. In settling this issue, Innocent, to be sure, incorporated the notions of exempt and non-exempt matters (res exempta et res non exempta) developed by earlier canonists such as Johannes Teutonicus.29 But in addition, the pontiff made other factors crucial in determining whether the exemption applied. Innocent considered the place where the crime was committed an important, but not exclusive factor in determining the extent of ordinary jurisdiction over exempt clerics. When the offense constituted a res exempta – an exempt matter covered by the wording of the privilege – the exemption clearly applied, regardless of where the offense was committed. When the transgression concerned a non-exempt matter (res non exempta), Innocent narrowed the place of exemption to the monastery itself, although later canonists argued that this included the cemetery, houses, and lands of the monastery as well. Hence, if the non-exempt offense was committed 26  Kenneth Pennington, “Papal Privileges: Papal Exemptions from Episcopal Government,” in Pope and Bishops (Philadelphia, 1984), 154–189, esp. 177–186. 27  Ibid., 177–184. 28  Ibid., 184–185. 29  Ibid., 184. VI.5.7.1 “Numquid ergo carent omnino in his commodo libertatis? Non utique, quia nec coram ordinariis ipsis, dummodo sit in loco exempto commissum delictum, vel contractus initus, aut res litigiosa, nec ubi domicilium habent.”

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outside the walls of the monastery, the defendant came under the local ordinary’s jurisdiction. Innocent further nullified the privilege under certain conditions. He decreed that when an otherwise exempt individual transgressed, or made a contract, or the thing itself happened in another place, the individual could be summoned [to that place by the ordinary] on account of these matters.30 The issues of contract and location, as well as the characterization of suspect teaching as a res non exempta, all had particular relevance to the circumstances of masters and students at Paris. First, as a general rule, it seems obvious that the exempt clergy fell within the purview of the chancellor’s jurisdiction pursuant to the terms of Ad abolendam. Second, it is clear that the bachelors and masters were bound by a contract, that is, by their oaths taken as a condition of membership in the faculty of theology. Before being admitted to determine or read or before doing any other act, each candidate swore to give honor, reverence, and obedience to the faculty, the dean, and the individual masters, and also promised to preserve the laws, statutes, rights and customs of the faculty, as well as the honor of the individual masters to whatever state he should come.31 The wording of the statute was comprehensive. By including the phrase “to whatever state he should come,” the law bound both bachelors and masters, both those within and outside the confines of the faculty. Moreover, the statute bound the candidate to the faculty as a body as well as to the dean and the masters as individuals. Yet, in keeping with the privilege of the masters, the law did not bind masters with obedience to the chancellor. The bachelors, by contrast, did not share this privilege and, not surprisingly, each bachelor, as noted, swore an oath of obedience in the hand of the chancellor, thereby securing the chancellor’s authority as head over each of them.32 In any case, with respect to these oaths, the bachelors and masters 30  VI 5.7.1 “[S]i alibi delinquant, vel contrahant, aut res ipsa consistat, conveniri possunt aliquatenus super istis.” English translation quoted from and Latin text found in, Pennington, Pope and Bishops, 185, and n. 117. 31  CUP 2, Appendix, 699, no. 23. “Item, quod nullus admittatur ad determinandum, legendum, aut alios actus faciendum, nisi prius juret quod deferet honorem, reverentiam et obedientiam facultati, decano et singulis magistris, necnon servabit leges, statuta, jura, libertates, privilegia, et consuetudines laudabiles facultatis theologie et honorem singulorum magistrorum ad quemcunque statum devenerit.” 32  Grimerius Bonifaci referred to the oath when writing to Urban V. CUP 3, no. 1299, 120–121. The chancellor noted: “ea propter predecessores nostri theologi Parisienses olim salubriter inter cetera statuerunt, fuit et est hactenus Parisius observatum, quod lectores Sententiarum, videlicet quilibet bachalarius, antequam ad lecturam Sententiarum admittatur, jurat quod in suis principiis et lecturis, necnon et in aliis

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were subject to the faculty as a whole, whose head was still the chancellor; and the bachelors were, furthermore, subject to the chancellor in a special way, as a result of the oath of obedience taken prior to lecturing on the Sentences of Peter Lombard. Third, based on the location where the suspect teachings were put forth, the bachelors and masters also appear to come under the authority of the chancellor and the faculty. Conceived of as a crime by medieval theologians, heretical teachings injured the faith of orthodox Christians. Using the example of monks to illustrate a general principle regarding exempt clergy, medieval commentators addressed this type of situation by asking what happened when an individual standing in an exempt place threw a stone injuring someone else standing outside of the exempt place.33 Johannes Andreae argued that if the offense occurred while the monk was in an exempt place, then the matter was judged by the abbot. If, however, the offense occurred when the monk was outside the exempt place, then the bishop or local ordinary judged the matter.34 In relation to the Foulechat case, and others like it, it was clear that although Foulechat taught within his order, he debated the other bachelors in public disputation; hence, the debates took place in a non-exempt setting. In sum, as an analogue of the bishop, the chancellor exercised ordinary jurisdiction over actibus quibuscumque, non dicet, tenebit aut dogmatizabit aliquid quod sit contra fidem catholicam, aut contra determinationem sancte matris ecclesie, vel contra bonos mores, seu in favorem articulorum in Romana curia vel Parisius condempnatorum, aut quod male sonet in auribus auditorum, sed sanam doctrinam tenebit et dogmatizabit; insuper, et quod si audiverit aut sciverit aliquem contrarium facientem bachellarium, vel alium, infra septem dies a tempore notitie, domino episcopo aut cancellario Parisiensi, qui pro tempore fuerit, revelabit.” 33  Ioannis Andreae . . . In Sextum Decretalium Librum Novella Commentaria (Venice, 1581; rpt. Torino, 1963), bound together with Ioannis Andreae In Quinque Decretalium Libros Novella Commentaria, with an introduction by Stephan Kuttner, 6 vols. in 5 (Venice, 1581; rpt. Torino, 1963). I have used the more common spelling, Johannes Andreae, in my text. References to the Johannes’ commentary on the Liber sextus will be cited as Johannes Andreae, Sextum. References to his commentary on the Decretals will be cited as Johannes Andreae, Commentaria. At the decretal Volentes in the Sextum, VI.5.7.1 no. 1, f. 147va, the rubric reads: “Monacus monasterii exempti, qui stans in loco exempto percussit lapide existentem extra locum exemptum, an ab abbate, vel ab ordinario iudicetur.” 34  Ibid., 148ra, s.v. [in loco exempto]: “[D]e monacho vero, qui extra monasterio exemptum incedit sine habitu, videtur per hanc litteram quod ordinarius eum punit, secus si intra locum exemptum, et sic posset intelligi, quod nota Inn. supra. . . . Item approbat haec littera solucionem Stephani provincialis, qui disputando tenuit exemptum delinquentem in loco non exempto ligari per statutum episcopi dumodo statutum religioni congruat, disciplinae conveniat et saluti proficiat.”

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the exempt clergy within the faculty of theology with respect to their teaching responsibilities. The status of the chancellor as ordinary of the faculty raises several questions. As ordinary, did the chancellor behave in ways comparable to that of the bishop? For example, in his capacity as ordinary, the canonical texts made it clear that the bishop embodied two personalities with respect to the chapter. He was, of course, always bishop. But, in 1212, in the decretal Postulastis, Innocent III confirmed that the bishop could sit in chapter in two capacities, either as a prelate and head of the chapter (ut praelatus) or merely as another canon of the chapter (ut canonicus).35 In his commentary, Innocent IV remarked that the bishop, in effect, possessed two personalities.36 Depending upon the nature of the business being transacted, the bishop might sit in the chapter in either capacity. The chancellorship of Etienne Tempier also illustrates the capacity of the chancellor sit in the faculty, either as head or as member. In 1264, Stephen Tempier assumed the position of chancellor when he began to reign in the faculty as a master of theology. Thus, he clearly attempted, simultaneously, to exercise both the office of master and that of chancellor; and, in fact, he was both chancellor and head of the faculty at the same time that he was also a master and a member of it. His dual role, in effect, created friction between the masters and himself. This dispute arose because the apostolic constitution Parens scientiarum required each master, when he began to reign in the faculty, to swear an oath that he would give faithful testimony regarding those bachelors to be examined

35  For the text of Postulastis, see X 3.8.15. The text dealt with the issue whether a right of conferring devolved to the bishop, chapter, or a superior. A pertinent part of the text addresses the capacity of the prelate (in this case, the archbishop) to sit in chapter ut canonicus or ut praelatus and the implications of his position on the outcome. Addressing the chapter, Innocent III responded: “quod, si vos et idem archiepiscopus infra tempus praescriptum circa hoc negligentes exstiteritis, sicut nec ab illo ad vos, ita nec a vobis ad illum potestas devolvitur conferendi, sed secundum statuta Lateranensis concilii ad superiorem transit donatio earundem, nisi forte archiepiscopus, non ut praelatus, sed ut canonicus, vobiscum ius habeat conferendi. Et in hoc casu, quum dolose forsitan impedierit, dolus ei suffragari non debet.” For a discussion of this issue, see Brian Tierney, Foundations, 103–108. 36  Innocent IV, Commentaria, f. 152. X 1.31.13, no. 2, s.v. Per ipsum: “Nos dicimus quod si episcopus interest capitulo non tanquam episcopus sed quodam iure segregato tamquam canonicus . . . ita fingitur gerere duas personas.” Also quoted in Tierney, Foundations, 104 and n. 25. For Innocent’s views on corporate theory, see Melloni, Innocenzo IV, 116–125.

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and licensed in the faculty.37 A master in the faculty of theology, Tempier felt himself to be exempt from this rule, by virtue of his position as chancellor. He claimed that since the act of licensing belonged to him by right as chancellor, he was, therefore, not required to give testimony about those to be licensed. In response, the masters agreed to exempt the chancellor from giving testimony while he was chancellor, but still required him to take the oath.38 When Tempier refused and proceeded to lecture over their protestations, the masters, for their part, appealed to pope Urban IV and refused to admit Tempier to their membership unless he agreed to swear the oath.39 Interestingly, the masters did not question whether Tempier could be simultaneously both a member of the faculty and chancellor, but only whether he was required to swear the oath. Inasmuch as Tempier was still a master while chancellor, the masters exercised their corporate authority over him. The pontiff’s decision mirrored exactly the solution originally offered by the doctors of theology. Urban decreed that the chancellor was required to swear the oath upon beginning to reign in the faculty. At the same time, however, as long as he occupied the office of chancellor, the incumbent was exempted from giving testimony regarding candidates.40 Pope Urban’s solution recognized that Stephen and any future chancellor could both reign in the faculty and act as chancellor at the same time.41 37  CUP 1, no. 396, 438. “Magistris regentibus Parisius in theologica facultate. Ex parte vestra fuit propositum coram nobis, quod per sedem apostolicam est statutum, ut magistri postquam licentiati fuerint in theologica facultate, antequam in ipsa regere incipiant, prestent corporaliter juramentum de perhibendo fidele testimonium de bachallariis in facultate licentiandis eadem.” 38  Ibid. “Sane magistro Stephano cancellario Parisiensi incipiente regere in facultate predicta vos attente monuistis eundem, ut hujusmodi juramentum prestari ab aliis consuetum exhibere curaret, ita tamen quod ipse dum esset cancellarius Parisiensis ad perhibendum testimonium minime teneretur. Verum predictus cancellarius in sua inceptione dictum prestare noluit juramentum, pretendens quod licentiare bachallarios pertinet ad eundum, propter quod prestare tale juramentum aliquatenus non tenetur.” 39  Ibid. “Ceterum vobis asserentibus ipsum pro magistro, donec hujusmodi juramentum prestiterit, in vestrum consortium et ad tractatus vestri collegii nullatenus admittendum.” 40  Ibid. “[V]olumus et auctoritate presentium declaramus, quod prelibatus cancellarius et successores sui cancellarii Parisienses, qui regere in facultate inceperint supradicta, juxta predictum statutum prestare teneantur hujusmodi juramentum, ita tamen quod ad perhibendum tale testimonium quamdiu cancellarii Parisienses fuerint minime teneantur.” 41  Ibid. The document clearly states that Stephen was chancellor when he began to reign as master. “Sane magistro Stephano cancellario Parisiensi incipiente regere in facultate predicta [theologicae]. The papacy also acknowledged that future chancellors could also

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That the chancellor was also a master of theology was not unusual. Indeed, from the end of the thirteenth through the fourteenth centuries, the incumbent was almost always a master of theology upon his accession to the chancellorship of Notre Dame.42 In permitting the incumbent to exercise both functions, Urban thus demonstrated an awareness of the chancellor’s dual role. At the same time, however, the pope also distinguished between the chancellor’s dual personalities. Inasmuch as the chancellor was a member of the body, he was subject to its regulations. Urban required Tempier (and his successors) to swear the oath like any other master of the faculty. At the same time, the pope recognized the unique requirements imposed by the chancellor’s position as head of the faculty. As head of the faculty, the chancellor acted as final judge of a candidate’s fitness for the license. The chancellor accepted the testimony of the masters but, ultimately, made the final determination regarding the award or denial of the degree.43 According to the conciliar canon, Statuendum, which Gratian incorporated into the Decretum, a judge in a case of the first instance could not then be a witness if the case were appealed to a higher court.44 In a similar fashion, the chancellor, could not both give testimony about and assess the qualifications of a candidate for the license. Consequently, in deference to the chancellor’s position as head and judge, the masters and the pope exempted Tempier and future chancellors from giving testimony while occupying that office. Overall, Urban’s solution confirmed that the chancellor could sit in the faculty in two capacities. His decision, furthermore, demonstrated special sensitivity to the chancellor’s position as head of the faculty, while simultaneously, preserving the rights of the masters to compel one of their membership to obedience – even if the member in question was also the head of the corporate body! The incident involving Tempier is interesting, furthermore, because it reign in the theological faculty while being chancellor (if, of course, they were also doctors in theology). Ibid. “volumus et auctoritate presentium declaramus, quod prelibatus cancellarius et successores sui cancellarii Parisienses, qui regere in facultate inceperint supradicta.” 42  See Appendix A for a listing of the fourteenth century chancellors and the academic degrees that each held. 43  CUP 1, no. 79, 137. “Ante vero quam quemquam licentiet, infra tres menses a tempore petite licentie tam ab omnibus magistris theologie in civitate presentibus quam aliis viris honestis et litteratis, per quos veritas sciri possit, de vita, scientia et facundia necnon proposito et spe proficiendi ac aliis, que sunt in talibus requirenda, diligenter inquirat, et inquisitione sic facta quid deceat et quid expediat bona fide det vel neget secundum conscientiam suam petenti licentiam postulatam.” 44  C.2, q.6, c.38. The gloss ad Vel cognitor reads: “Prohibitur igitur ne iudex vel advocatus vel assessor fiat testis in causa illa.”

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shows that, although the chancellor was a member of the faculty (as the bishop was a member of the chapter), the chancellor, too, fulfilled dual roles, both as head of the faculty and as a fellow master or member of the group.

The Office of the Dean

In terms of its internal structure, the faculty of theology was composed of the chancellor, the dean, and the masters, while the cathedral chapter was composed of a bishop, a dean, and the canons. Hence, both the cathedral chapter and the theological faculty possessed an office occupied by a dean. Unfortunately, not enough is known about either of these officers. The limited information that survives, however, suggests that the incumbent in each office performed similar duties and functions. Little is known about the duties of the dean within the Parisian chapter. As Kathleen Edwards observed, the history of the office of the cathedral dean is obscure. In northern France, the office of dean as the head office of a cathedral chapter dates back to the tenth century, and was subsequently introduced to the English landscape in the late eleventh century. Hence, the English and the northern French chapters share many similarities. The rise of the office of the dean was gradual. It included both temporal and spiritual authority. Slowly, the archdeacons were forced to give up their rights of correction to dean.45 Further, according to Tierney, the practice among the English cathedrals corresponded closely with the theoretical principles expounded in the Decretales.46 Thus, it is also very likely that the French cathedral chapters – which served as the model for the English cathedrals – also conformed to the practice outlined in the Decretales. In typical practice, the dean fulfilled his duty to draw the chapter to himself. One of the principal functions of the dean in these chapters was to call the canons together and to preside over a meeting when important business was to be discussed. In fact, none of the English chapters could meet unless the dean of the chapter summoned the canons.47 For some time, the offices of praepositus and dean co-existed in many chapters. Hostiensis designated the praepositus (or the one placed in charge of the chapter) as responsible for congregating the chapter to deal with its own affairs. The praepositus drew the chapter to himself, that is, he brought the

45  Kathleen Edwards, The English Secular Cathedrals in the Middle Ages, 2nd ed. (Manchester, 1967), 138–140. 46  For the comments of Brian Tierney, see Foundations, 103 n. 21. 47  Kathleen Edwards, English Secular Cathedrals, 144.

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chapter together in congregation.48 Hostiensis apparently used this term as a synonym for the dean of the chapter for, in another place, he observed that praepositi and deans were accustomed to have first voice in the chapter.49 But, clearly, in any chapter, only one individual could have first voice. Furthermore, the history of the two offices shows that they became synonymous in terms of function. Historically, the praepositus and dean each occupied a place within the French chapters. However, rivalries between the two led chapters over time to suppress one of the offices in favor of the other. Thus, at Paris in the eleventh century, the praepositus headed the chapter, assisted by several deans. Nevertheless, by the beginning of the twelfth century, the dean had replaced the praepositus, whose office became non-existent.50 In the theological Parisian faculty, the office of the dean appears late – not until 1264, although this document indicates that it had long been the custom of the faculty to have an officer known as the dean. In a similar fashion, the canonist, Panormitanus in the late fourteenth century noted that it was the duty of the elder canon to congregate the chapter.51 In making this observation, Panormitanus undoubtedly recorded a traditional practice and not an innovation of the fourteenth century. The term “antiquior,” as used by Panormitanus, could designate the eldest, the most senior, or the highest ranking (in terms of orders) member of the chapter. Although Panormitanus did not designate this senior canon as dean, this is probably who he had in mind. In any event, at Paris, the first mention of the dean by Urban IV in 1264 specified that it had been an established custom at Paris to elect the senior reigning master as dean.52 Interestingly, the pontiff used the term “antiquior” 48  Hostiensis, Commentaria, X 1.6.23, no. 2, f. 50v, s.v. Metuebant: “[N]ota quod praepositus, qui est caput capituli, trahit ad se ex causa capitulum.” 49  Ibid., no. 7, f. 50v, s.v. Legitime: “Tales enim, scilicet, praepositi et decani consueverunt habere primam vocem in capitulo.” 50  Emile Amann and Auguste Dumas, L’Église au Pouvoir des Laïques (888–1057), Histoire de L’Église depuis les Origines jusqu’a nos Jours, vol. 7 (Paris, 1943), 252–253. 51  Abbot Panormitanus, Commentaria . . . in Primum [- Quintum] Decretalium Librum (Venice: apud Iuntas, 1591). X 3.10.2, no. 3, 67vb. The text reads: “licite antiquior canonicus habeat congregare capitulum, respectu vocis dandae vocis.” Regretfully, Panormitanus did not specify whether this elder canon was, in fact, the dean. Further references to this work will be cited as Panormitanus, Commentaria, followed by the appropriate reference. 52  CUP 1, no. 399, 440–441. In 1264, the papacy remarked on the custom of the masters in choosing the dean: “de antiqua et approbata et hactenus pacifice observata consuetudine Parisius sit obtentum ut antiquior ex eisdem magistris in actu regendi nomen decani habeat inter eos.” Moreover, in 1359, in the conflict with the rector, the masters of theology reiterated the principle that masters in each faculty were listed in the rotulus in order of antiquity. The dean, if present, is always listed first. CUP 3, no. 1246, 63. “quia in rotulo

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to describe the individual selected as dean. The term, as used in the theological faculty, seems to have referred to both the longest-reigning master of theology, as well as the eldest reigning master.53 This practice of selecting the “antiquior” secular reigning master as dean continued throughout the fourteenth century. The preamble to the statutes redacted in the fourteenth century declared that from its foundation, both by custom and statute, the “antiquior” secular master was chosen as dean.54 Moreover, the actual record from the fourteenth century shows that this custom was followed. For example, when elected dean in 1365, John of Hesdin had reigned for almost thirty years and was close to eighty years of age. Likewise the dean Radulphus Glachardi in 1387 was also over eighty years old and had been a reigning master for more than thirty years.55 Each of these individuals was, without a doubt, both the eldest and most senior member of his respective faculty in terms of years of service. Often, in fact, the longest reigning master and the eldest master of the faculty were both one and the same person. Other examples of deans who seem to exemplify this principle include Guillelmus de Lumbris and Symon Freron.56 The record thus shows that the principle enunciated by Panormitanus matched the practice of the theological faculty throughout its history. The record also shows that, as the elder member the group, the dean performed his duty to congregate membership. For example, in the conflict between the dean of theology and the rector in 1341, the rector reminded the dean of the dean’s failure to call the masters of theology to the general congregation. The dean acknowledged this failure and immediately remedied the

53  54 

55 

56 

cujuslibet facultatis inscribuntur magistri secundum antiquitatem [et antiquiores] preponuntur.” This fact can be gleaned by noticing that the descriptions of the dean generally mention both his age as well as the number of years that he taught in the faculty. CUP 2, no. 1189, 697. “Isti sunt statuta, tam papalia quam alia, facultatis theologie, regulantia magistros, licentiatos, baccalarios, tam formatos, quam cursores, et studentes in eadem tamen in actibus scolasticis exercendis . . . et aliis facultatem concernentibus, in qua a fundatione, statuto et consuetudine semper presidet antiquior magister secularis, qui vocatur decanus, qui habet primum locum, et presidere, convocare et concludere in singulis tractandis per facultatem.” CUP 3, no. 1305, 127. The rotulus reads: “Primo fratri Johanni de Hesdinio, Ord. S. Johannis Jherosolimit., decano ad presens theologice facultatis Parisius, qui per xxv annos fuit quasi continue Parisius actu regens, excepto tempore quo in Avinione cum domino cardinale Boloniensi peregit lecturam supra Job, quam Parisius inceperat.” CUP 3, no. 1538, 446. The rotulus of 1387 reads: “Et primo Radulpho Glachardi . . . a xxxvj annis citra sacre scripture doctori, decano facultatis theologie Parisius, etatis octoginta quatuor annorum vel circa.” CUP 3, no. 1262, 78 and no. 1429, 247.

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fault by bringing together the masters to deliberate on the matter at hand.57 Similarly, in 1387, Radulphus Glachardi recalled that he had gathered together the faculty of theology on several occasions to investigate the teachings of John of Monteson.58 As part of their right to call the chapter together, the deans of the English chapters had a special right to speak in chapter.59 In addition, Hostiensis noted that the dean had first voice within the chapter. Indeed, a similar prerogative obtained in the faculty of theology. For example, during the censure of John of Monteson’s teachings, Radulphus Glachardi exercised his right as dean to speak in chapter. He delivered a lengthy sermon against the views held by the accused.60 The participation of the dean of theology in the correction of Monteson also seems to highlight an important connection with the practice of cathedral chapters. Canon law recognized that the dean of the chapter might exercise rights of correction over an erring canon.61 The practice of the English secular cathedrals likewise revealed that, frequently, the dean played a major role in 57  CUP 2, no. 1051, 515–519, at 515–516. “[P]roposito contra venerabilem doctorem magistrum Symonem de Manseliis, decanum et magistrum regentem in facultate theologie in Universitate Parisiensi, scilicet quod ipse magister Symon ad denunciationem et requisitionem rectoris pro tempore recusaverit seu indebite distulerit vocare magistros facultatis theologie ad congregationem generalem. . . . Et statim magister Symon respondit, quod ipse vocaverat dictam facultatem theologie super hoc, et quod magistri ejusdem venerant et erant congregati in dicta domo Sancti Maturini, et quod libenter loqueretur super hoc cum eisdem. Et incontienti dictus magister Symon cum prefatis magistris in theologia sibi assistentibus accesserunt ad dictam facultatem theologie et magistros ejusdem existentes in claustro dicte domus in loco ubi Normanni facere consueverunt deliberaciones suas, quando fit congregato generalis.” 58  CUP 3, no. 1557, 489. Glachardi reports: “Postquam dogmata istius . . . deputati sunt 6 solemnes magistri ipsius facultatis . . . et comissi iterum sex magistri cum predictis sex ex xxviij cedulis (totidem enim magistri erant) unam omnibus concordem cedulam ediderunt.” Consider also Glachardi’s actions when approached by some hearers in Monteson’s audience, as recorded in Glachardi’s oration against Monteson. See Ibid. There Glachardi speaks of his role in conducting the admonition and investigation of Monteson. Likewise, the schedule of condemned propositions was drawn up by the “decanus et facultas theologie Parisiens,” thus illustrating Glachardi’s role in congregating and heading the faculty in this activity. See CUP 3, no. 1559, 491. 59  Edwards, English Secular Cathedrals, 144. 60  The text of Radulphus Glachardi’s sermon is preserved in CUP 3, no. 1557, 487–489. 61  Consider, for instance, the gloss to Irrefragabili (X 1.31.13). Where the text spoke about correction administered by the chapter, the gloss also referenced the dean. Cf. CIC 2:411, s.v. per capitulum, the text reads: “vel per decanum.”

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correcting erring canons.62 Viewed in this light, Glachardi’s part in correcting Monteson was not unusual, but rather, corresponded closely to the common practice of cathedral chapters. Apart from the specific powers exercised by the dean of theology, his mere presence suggests a connection with structure of the cathedral chapter. The office of dean in both chapter and faculty helped offset the exclusive exercise power by bishop or chancellor. The records of the English cathedrals illustrate the importance of the dean in maintaining the independence of the chapter.63 By the same token, one of the several conflicts between Tempier and the theological masters also demonstrates that the masters followed a similar line of thinking. In 1264, in the first reference to the office of dean in the Parisian records, Stephen Tempier is shown as attempting to occupy the offices of the dean and the chancellor simultaneously. However, the masters protested and appealed to the pope. Just as the canons used the office of dean to preserve their liberties with regard to the bishop, so the masters of theology seemed concerned to preserve the integrity of the dean’s office. They felt that Tempier had injured their rights, and hence their independence, by attempting to act as chancellor and dean. Since the theological faculty, like the arts faculty, could have developed without the office of the dean, the surviving evidence indicates that the masters of theology organized the faculty in accordance with the principles governing a cathedral chapter. No document states this fact; however, a comparison of the two offices shows that, by the fourteenth century, medieval contemporaries viewed the two decanal offices as similar in structure and function. Moreover, the deanship in the faculty and in the chapter both operated according to a unified and shared set of principles that ultimately derived from the regulations governing cathedral chapters. Indeed, an incident occurring in the early fourteenth century in the cathedral chapter at Paris highlighted contemporary concern for the integrity of the offices of the chancellor and the dean within that body. Symon de Guibervilla was chancellor of the chapter in 1308. When he was subsequently elected to the office of dean of the chapter, he first had to resign from the office of chancellor before accepting his new position as dean.64 This requirement caused Symon 62  See Edwards, English Secular Cathedrals, 124–126, 144, 151. This issue will be analyzed in more detail below. 63  Ibid., 139–140. 64  CUP 2, no. 673, 136–137. In 1308 Symon stated: “nos venerabilem et discretum virum magistrum Symonem de Guibervilla, virum providum, sacre pagine doctorem . . . in decanum ejusdem ecclesie eligisse. Qui electioni hujusmodi consensit cum protestatione

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some concern, as he wanted first to make sure that his election to the office of dean was secure before renouncing his position as chancellor. Just as Stephen Tempier could not be both chancellor and dean of the faculty simultaneously, Symon de Guibervilla could not be both dean and chancellor of the chapter of Notre Dame. The two sets of events thus illustrate a consistent approach to the management of offices within both the faculty and cathedral chapter of Paris. In various ways, then, the dean of the cathedral chapter and the dean of the faculty fulfilled similar functions and duties. First, the offices of dean and chancellor were kept separate in both corporate bodies. Similarly, just as the eldest canon of the chapter was typically selected as dean, so the eldest master of the theological faculty was also selected as dean. In both chapter and faculty, he convened the group in order to meet and to act on business. Hence, in each body, the dean also spoke in chapter for the group. Finally, the dean in faculty and chapter each issued correction to erring members.

The Chancellor and the Masters: Their Relations

Given that the chancellor and dean within the faculty performed functions similar to those of bishop and dean within the chapter, it seems logical to ask whether the masters within the theological faculty functioned in a fashion parallel to that of the cathedral canons. In asking this question, however, it is first important to put forth some clarifications. In terms of their functions or roles, the masters and the canons did not fulfill similar duties, as did, say, the dean in either a cathedral chapter or the theological faculty. Although one or two canons of the chapter might instruct others in letters or theology, the canons as a whole did not perform teaching functions in the same way as masters did; nor were the masters responsible for the running of the faculty in the way that the canons assisted the bishop in running the cathedral or diocese. Indeed, to compare the canons and masters in terms of teaching functions or ecclesiastical duties is to miss the point of the analogy. Rather, what is of crucial importance in the behavior of both groups is the role each played within the corporate structure in relationship to the head. Throughout the period of the twelfth and thirteenth centuries, canonical legislation defined the corporate tamen: si sibi dictus decanatus deberetur de jure et non aliter, ita quod si contingeret dictam suam electionem quoquo modo impediri, ita quod dictum decanatum pacifice habere nequeat, non intendit officio cancellarii Parisiensis ecclesie renunciasse nec renunciat, immo jus, quod habet et habebat in dicto officio, penes se retinuit et retinere intendit.”

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rights and obligations of the bishop and his cathedral canons, thereby establishing a set of relationships between the bishop and his cathedral canons with respect to the administration of the chapter. Hence, a better question to ask would be: Did the interactions between the chancellor and the masters with respect to the governance of the theological faculty reflect the same pattern of relationships that obtained between a bishop and his chapter with regard to the governance of the cathedral chapter? The church of the twelfth and early thirteenth centuries “ ‘has been characterized as a federation of semi-autonomous units, a union of innumerable greater or lesser corporate bodies’. . . . all jealous of their own autonomy but also seeking to elaborate the principles of their own internal structure.”65 Emerging in this period of rapid corporate development, the University of Paris and its faculty of theology did not remain aloof from this trend nor immune to the struggles it produced. In fact, the development of the theological faculty’s corporate structure as well as the regulations governing the interactions between the chancellor and the masters had their origins in a series of conflicts between the parties. Indeed, just as in the twelfth and early thirteenth centuries, bishops and chapters established corporate structures and worked out the rights of each party in governing the cathedral, so from the dawning until the middle of the thirteenth century, the chancellor and the masters worked out the governance of the university and its theological faculty. In particular, several issues underscore this process and provide apt parallels with the functioning of the cathedral chapter: the decision-making regulations regarding the granting of the license, the desire of the masters to be free from an oath of obedience to the chancellor, and the issue of whether the masters could make statutes without the consent of the chancellor. The chancellors of Paris, the masters, and the papacy developed and codified these regulations in the period roughly between 1210 and 1264. Moreover, the distinctions regarding conferral of the licenses in arts, theology, law and medicine represent the nascent stages of definition according to faculties. This differentiation, in turn, illustrates that a different type of relationship existed between the chancellor and masters of each of the faculties and, in particular, that a special relationship existed between the chancellor on the one hand and the masters of theology on the other. Perhaps more than any other issue, the regulations governing the conferral of the license to teach 65  Alan Bernstein, Pierre d’Ailly and the Blanchard Affair, (Leiden, 1978), 8, quoting Tierney, Foundations of the Conciliar Theory, 90. N.B.: Bernstein quoted the older edition of Tierney’s work.

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reflect an important parallel with the cathedral chapter because the granting of the license was, in fact, the primary decision making issue that concerned the chancellor and the masters. That fact, accordingly, provides a useful paradigm against which to compare decision-making procedures within the chapter. Moreover, in terms of its function, the granting of the license shared an important parallel with the capitular process known as institution. Without stretching the analogy too far, one may suggest that the rights which the masters demanded in the granting of the license had a counterpart in the rights of the canons to participate in the process of granting institutions. The canonist Bernard of Pavia in his Summa decretalium defined the act of canonical institution as the admission of an individual into bodily or physical possession of a prebend or dignity.66 In a similar way, Bernard also observed that the license to teach conferred a dignity on a master that was not to be marred by the taking of money for the license.67 The decretal Quanto Gallicana made this point even more explicitly by stating that someone who assumed the title “master of scholars” also assumed a dignity;68 and, finally, an anonymous author adduced no less of an authority than Bartolus of Saxoferrato to show that an academic doctor possessed a dignity.69 Thus, just as the canons participated in the canonical institution of prebends and dignities with respect to the chapter, so the masters, in a similar fashion, participated in the granting of the license to teach, a canonical dignity. With respect to the licensing of candidates in the theological faculty, Alexander IV, in his famous bull, Quasi lignum vitae, cited Parens scientiarum and stated unequivocally that the power to license belonged manifestly 66  Bernardus Papiensis, Summa Decretalium, at 3.7. De institutionibus, 71–72. The text reads: “Institutio est dignitatis vel praebendae in corporalem possessionem inductio, licet istae non proprie possideri, sed quasi possideri dicantur.” 67  Ibid., 5.4. De magistris et ne aliquid exigant pro licentia docendi, 209. The text reads: “Magisterium etenim sive docendi licentia nec vendenda est nec emenda, ne quod absit, vilescat dignitas magistrorum aut discipulorum profectus impediatur.” 68  X 5.5.3. “[Q]ui nomen magistri scholarum et dignitatem assumunt.” 69  Vat lat. 5607, f. 149v. The text reads: “Et notatae, quod doctor dicitur habere dignitatem secundum Bar in prima constitutione C., ex quo sequitur singulariter, quod spurius vel naturalis tantum non potest de iure doctorari.” Thus, those of illegitimate birth could not be licesened de iure, without a dispensation. The full text is edited in Ingrid Baumgärtner, “ ‘De Privilegiis Doctorum’ über Gelehrtenstand und Doktorwürde im Späten Mittelalter,” Historisches Jahrbuch 106 (1986) 298–332, at 323–324, and n. 4, which cites: “Bartolus de Saxoferato, in Constitutione prima, lex 1 (Commentaria in primam codicis partem, [Lugduni, 1547] f. 3r.)”

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and clearly to the chancellor.70 In making this claim, Alexander did nothing unusual. A monopoly with regard to granting the license was nothing new. In the twelfth century, a bishop, a schoolmaster or an abbot often possessed the sole right to grant the license to teach.71 To Alexander, looking back from the vantage point of Parens scientiarum, the situation seemed clear-cut. For the masters of the early thirteenth century, however, the issue of who possessed the right to grant the license remained unsettled. Not surprisingly, a series of disputes brought this issue to the fore and resulted in clarifying legislation. The first conflict between the chancellor and the masters occurred during the chancellorship of Johannes de Candelis who occupied the chancellorship from the years 1209 to 1214 or 1215. The exact origins of the conflict are not fully known. However, the settlement between the parties survives and provides some clues as to the origin of the quarrel and the issues at stake in the dispute. Apparently, the masters perceived that the chancellor had injured them and their rights in a variety of ways, and consequently, appealed to Rome seeking justice. Innocent III, in turn, forced the parties to work out a compromise with the help of papally appointed arbiters. One of the principal points of contention between the chancellor and the masters concerned the role played by the each in granting the license. Was the chancellor required to grant the license to those candidates recommended by (a majority of) the masters, or could he exercise his own discretion and refuse to grant the license to students who had been recommended by the masters? Could the chancellor license men of his own choosing without the approval of the masters? Conversely, could the masters compel the chancellor to grant or refuse the license to candidates of their choosing? In essence, this aspect of the conflict was reduced to a question of how much weight the chancellor’s opinion or vote carried vis a vis that of the masters in determining whom to license and whether the chancellor was required to have the counsel or the consent of the masters in making the determination. 70  Although Alexander addressed his letter to all the masters and scholars at Paris, he directed his words primarily to the members of the faculty of theology. In the body of the letter, Alexander himself refers “to the remaining faculties of canon law, medicine, and arts.” CUP 1, no. 247, 284. Speaking of the right of the entire university to suspend lectures, he stated: “Sane si super observantia hujus statuti de lectionibus suspendendis . . . dummodo due partes magistrorum theologice facultatis et eodem modo due partes magistrorum singularium facultatum reliquarum, videlicet canonistarum, physicorum et etiam artistarum suum super hoc voluerint prestare consensum.” 71  P. Delhaye cites several examples of this in his work, “L’organisation scolaire au XIIe siècle,” Traditio 5 (1947), 253–254.

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In resolving the controversy, the arbiters distinguished between provisions to be observed perpetually and provisions to be observed only for the duration of Johannes de Candelis’ tenure in office. In the former category, the compromise forbade the taking of money or the requirement of an oath of fidelity or obedience in exchange for the license. This portion of the compromise also forbade the chancellor to imprison scholars or to fine them without the authority of the bishop or a suitable superior.72 None of these permanent provisions addressed the actual decision making process with respect to the conferral of the license in theology or in any of the other disciplines. With respect to the license, the document made binding regulations only for the duration of Johannes’ tenure in office.73 The arbiters organized their remarks according to each discipline. For the term of Johannes’ chancellorship, the papal legates prescribed a complex procedure for granting the license in arts. The chancellor and the masters of Arts each chose a panel of three masters to make the determination. If a majority of these six masters pronounced the student fit to receive the license, the 72  CUP 1, no. 16, 75. The text reads: “Videlicet, quod cancellarius sacramenta fidelitatis vel obedientie vel aliam obligationem aliquam pro licentia legendi danda non exiget ab aliquo lecturo Parisius, et etiam relaxabuntur prestita juramenta. Item pecuniam non exiget cancellarius nec aliquam aliam rem loco pecunie aliquo modo pro licentia danda. Preterea clericos non incarcerabit, ubi non presumitur, quod pro enormitate delicti examen judicis fuge presidio debeant declinare, vel nisi pro alia justa et evidenti causa; et si dubium sit, utrum sit justa vel evidens, statim recurratur ad nos vel officialem nostrum ad determinandum utrum sit justa et evidens. Et si circa sufficientiam cautionis questio oriatur, per nos vel officialem nostrum determinetur, sicut et alio casu superius est expressum; et si incarceratus fuerit, per sufficientem cautionem prestitam a carcere liberetur, nec clericos citandos nec capiendos capi vel citari faciet per publicos ministros, dum sui ad hoc sufficiant. Cancellarius etiam in causa, in qua ratione cancellarie judex est, non exiget nec recipiet pecuniariam emendam pro injuria facta uni scolari ab alio, vel clerico vel laico; nec etiam, si ipsi cancellario fiat injuria, emendam pecuniariam poterit exigere, nisi auctoritate episcopi vel superioris; sed injuriantem poterit condempnare in pecuniam leso prestandam. Hec autem ordinaverunt perpetuo observanda.” 73  Ibid., 75–76. “Alia vero sequuntur ad tempus tenebunt, quamdiu videlicet predictus cancellarius cancellariam tenebit. Porro petenti licentiam de theologia non poterit cancellarius denegare licentiam, si major pars theologorum legentium perhibuerit ei testimonium et asseruerit pro vero, quod idoneus sit ad hoc, salvo hoc ipsi cancellario, quod ipse possit dare licentiam cui viderit esse dandam etiam non habito testimonio aliquorum magistrorum vel alicujus magistri. Et iste articulus maneat, quamdiu non erit taxatus numerus theologorum; et si forte fuerit taxatus, sit de hoc articulo sicut erat ante compromissum. Quod si forte denegaverit, ex tunc quandocumque voluerit auctoritate nostra habeat legendi licentiam.”

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c­ hancellor could not refuse to grant it. Even if he did refuse, the license could be granted by papal authority, through the bishop of Paris.74 In effect, the chancellor could not deny the license to students approved by the masters. He still, however, remained free to license men of his own choosing, without hearing the testimony of any of the masters in arts.75 A similar result obtained in the faculty of medicine. The chancellor could license those whom he wished without hearing the testimony of the masters. Those who presented someone to lecture in medicine had to give a faithful account and, if the chancellor denied the license, the individual could receive it on papal authority through the bishop.76 The terms of the license in theology and canon law likewise reflected an almost identical pattern. According to the terms of the compromise, the chancellor could not refuse the license in theology to candidates approved by a majority of the masters of the faculty. Even if the chancellor did refuse to license them, the license then was granted on papal authority, as in the other faculties.77 As a result, the masters effectively won the right to compel the chancellor to license candidates of their choosing, at least on a temporary basis. Nevertheless, at the same time, the chancellor remained free to license candidates of his own choosing without seeking the advice or testimony of the masters.78 This procedure held during the chancellorship of Johannes as long as the number of reigning masters did not exceed the number set by 74  Ibid. The author of this letter is the bishop, who enforced the decision of the papal legates. Hence the term “nostra auctoritate” refers to the bishop, acting on papal authority. The text reads: “De magistris quoque artium sex eligentur, tres ab ipsis magistris et tres a cancellario; et ille cui isti sex vel major pars perhibebunt testimonium fide corporaliter prestita quod idoneus sit, cancellarius non poterit ei denegare licentiam. Quod si forte denegaverit cancellarius, ex tunc quandocumque voluerit auctoritate nostra habeat legendi licentiam” 75  Ibid. “. . . aliis tamen quibus [cancellarius] voluerit dare poterit licentiam sine testimonio illorum.” 76  Ibid., 75–76. “Aliis etiam quibus voluerit [cancellarius] dare poterit licentiam sine testimonio illorum vel alicujus magistri. Et idem fiat de phisicis, excepto hoc quod de idoneitate ejus quem presentabunt de phisica lecturum dabunt fidem; quod si forte denegaverit cancellarius, ex tunc quandocumque voluerit auctoritate nostra habeat legendi licentiam.” 77  Ibid., 76. “Porro petenti licentiam de theologia non poterit cancellarius denegare licentiam, si major pars theologorum legentium perhibuerit ei testimonium et asseruerit pro vero, quod idoneus sit ad hoc. . . . Quod si forte denegaverit, ex tunc quandocumque voluerit auctoritate nostra habeat legendi licentiam.” 78  Ibid., 76. “. . . quod ipse [cancellarius] possit dare licentiam cui viderit esse dandam etiam non habito testimonio aliquorum magistrorum vel alicujus magistri.”

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Innocent III. If the number of theologians exceeded this limit, licensing was done in the old manner.79 The controversy over granting the license and its outcome highlight important aspects of corporate development in relation to the faculty of theology. From a historical point of view, the timing of this dispute seems more than coincidental. As noted previously, at the heart of the controversy lay the question of how much weight the vote of the chancellor carried in relation to that of the masters. This issue also concerned the bishop and his cathedral canons when they met to conduct business. The ability of the bishop to sit either ut prelatus or ut canonicus represented an innovation of thirteenth century corporate theory and the first known mention occurred for the first in the decretal Postulastis issued by Innocent III in 1212.80 As noted above, the principle gained wide acceptance, and Innocent IV, in his commentary, remarked that the bishop, in effect, possessed two personalities.81 From its appearance, the duality of the bishop’s position provided a convenient way to handle the many complexities of medieval corporate life. Johannes Teutonicus applied the distinction to the questions concerning the devolution of rights in the chapter when he published his commentary on the Compilatio tertia in 1216.82 The bishop might sit in the chapter in either capacity. His position either as member or as prelate determined, in turn, the weight his opinion carried in making decisions. When the bishop sat ut praelatus, his vote carried more weight than when he sat merely ut canonicus. At the time of the conflict with Johannes de Candelis, it had not yet been established that the chancellor could act in two capacities, although subsequent events confirmed this fact. Hence, although it is clear that the conflict between Johannes de Candelis and the masters did not arise in direct response to the innovation of the ut praelatus/ut canonicus distinction, but rather had its own unique origins, it is also true that one of the principal issues of the dispute concerned this principle and its implications. At the very least, the timing of the masters’ appeal suggests that they, like the canons to whom Innocent responded, addressed similar issues of corporate governance and, in 79  Ibid. “Et iste articulus maneat, quamdiu non erit taxatus numerus theologorum; et si forte fuerit taxatus, sit de hoc articulo sicut erat ante compromissum.” Unfortunately, the text did not supply the details of granting the license prior to the time of this compromise. 80  For the text of Postulastis, see X 3.8.15. For a discussion of this issue, see Brian Tierney, Foundations, 103–108. 81  See above, page 53, footnote 36. For Innocent IV’s contribution to corporate theory, see Melloni, Innocenzo IV, 106–125. 82  Tierney, Foundations, 103–105.

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all ­likelihood, were not unaware of this specific principle or the more general importance of capitular governance as a model for their own. The compromise of 1213 thus ended the first stage in establishing the regulations for granting the license in theology. Furthermore, it provided at least a temporary solution to the question of the chancellor’s role in awarding the degree. According to the terms of the settlement, the chancellor’s opinion regarding the worthiness of applicants for the license carried no special weight. In each of the faculties (if, indeed they may be so-called) the chancellor retained the prerogative to license men of his own choosing without hearing the testimony of the masters. Conversely, the masters as a body each effectively possessed the ability to license candidates of their own choosing. Although Johannes could refuse to license applicants approved by the masters, his refusal was moot because, in those cases, the settlement guaranteed the issuance of the license via papal authority. Hence, apart from minor procedural variations, the masters in each of the disciplines stood on an equal footing with the chancellor. It would appear, then, that the distinction played little role in this stage of the controversy. Although the licensing arrangements embodied in the 1213 pact were intended only as a temporary measure, some portions of the settlement, nevertheless, became permanent. In the course of establishing statutes for the university, Robert of Courson in 1215 decreed that licensing in the arts faculty would follow the rules set down in the compromise.83 As such, Robert’s constitutions for the arts faculty represented an important step in establishing a separate relationship between the arts faculty and the chancellor, rather than copying the terms of the relationship that obtained between the chancellor and the masters in the theological faculty. Although the details of dispersal of the university and its return to Paris in the years between 1229–1231 are not crucial for understanding the corporate developments with respect to licensing requirements, the reestablishment of the university in Paris did provide the pontiff, Gregory IX, with an opportunity to codify additional regulations concerning the bestowal of the license to teach.

83  CUP 1, no. 20, 78–80, at 78. “[E]xaminetur quilibet [in artibus] secundum formam, que continetur in scripto domini P. Parisiensis episcopi, ubi continetur pax confirmata inter cancellarium et scolares a judicibus delegatis a domino papa, scilicet ab episcopo et decano Trecensibus, et a P. Episcopo et J. Cancellario Parisien. approbata et confirmata.”

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In 1231 Gregory IX codified additional provisions of licensing procedures in the bull, Parens Scientiarum.84 Gregory said little about licensing in the faculties of arts and medicine; his remarks were limited to a single sentence, nothing more.85 At that, the sentence itself was vague. The chancellor promised to examine the masters and to admit the worthy and repel the unworthy. The fact that Gregory spent so little time on licensing issues in these faculties only underscores the special relationship that he indicated existed between the chancellor and the individual faculties of theology and canon law. In theology, Gregory established a complex process for determining who was fit to receive the license in these faculties. First, at his institution into office, the chancellor swore an oath to confer the license only on worthy candidates. Furthermore, when an individual requested the license in theology or canon law, within three months prior to granting the license, Gregory IX required the chancellor to inquire about the learning, character, life, and morals of the scholar, from all the masters within the city, as well as of others. Upon completion of this lengthy process, the chancellor could grant or deny the license according to his conscience.86 Hence, in keeping with the temporary nature of the provisions of the 1213 compromise, Gregory made it clear that the masters could no longer compel the chancellor to accept candidates of their choosing. At the same time, whereas the compromise of 1213 permitted the chancellor to license men of his own choosing without receiving the testimony of the masters, Gregory altered the procedure and now required the chancellor to hear the counsel of the masters before making the determination. Although the compromise of 1213 had permitted either side to license candidates, Gregory now placed the authority to license squarely in the hands of the chancellor, but balanced that authority by requiring the chancellor to hear the testimony of the masters before making his determination.

84  CUP 1, no. 79, 137. Gregory’s directives concerning the theological faculty are contained in a paragraph, beginning with the words: “Circa statum itaque scolarium et scolarum hec statuimus observanda, videlicet . . .” 85  Ibid. “De phisicis autem et artistis ac aliis cancellarius bona fide promittet examinare magistros, et non nisi dignos admittens repellet indignos.” 86  Ibid. “Ante vero quam quemquam licentiet, infra tres menses a tempore petite licentie tam ab omnibus magistris theologie in civitate presentibus quam aliis viris honestis et litteratis, per quos veritas sciri possit, de vita, scientia et facundia necnon proposito et spe proficiendi ac aliis, que sunt in talibus requirenda, diligenter inquirat, et inquisitione sic facta quid deceat et quid expediat bona fide det vel neget secundum conscientiam suam petenti licentiam postulatam.”

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Because the chancellor stood in a special relationship to the faculties of theology and canon law, it is not surprising to find that a closer, more cooperative pattern obtained. It thus should prove fruitful to analyze the quarrel between Johannes and the masters over the license in light of ecclesiastical corporate principles. The canonists of the twelfth and thirteenth centuries understood that different matters connected with the running of the cathedral touched the rights of the bishop and canons in varying degrees. In essence, these commentators developed a concept known as spheres of rights and applied it to the administration of the cathedral chapter.87 For example, matters under discussion could concern principally the rights of the prelate or primarily the rights of the chapter; or the issue at hand could touch a right common to both bishop and chapter. Although the guidelines for handling the interplay of these factors were suggested by Bernard of Parma in his gloss, their implications for transacting business were not fully settled until Hostiensis wrote his commentary on the Decretals. Hostiensis dealt with those issues touching the right of the prelate in a straightforward manner. When the matter under discussion concerned a prerogative belonging principally or solely to the prelate, the bishop sat ut episcopus. His vote equaled that of all the other canons combined. Furthermore, if a disagreement arose between the bishop and the chapter, the bishop could decide the issue. As Hostiensis observed, this was a complicated way of saying that, in certain instances, the bishop required the counsel but not the consent of the canons. Tierney recognized that, at times, Hostiensis had used ambiguous language; however, on balance, the canonist intended that the bishop would respect the counsel and the consent of the chapter.88 Hostiensis included the bestowal of prebends and institutions among those rights belonging solely to 87  For a discussion of this topic, consult, Gierke, Das deutsche Genossenschaftsrecht, III, 262–267. Also, see P. Gillet, La personalité juridique en droit ecclésiastique spécialement chez les Décrétalistes et dans le Code de droit canonique (Malines, 1927), 160–162, and Tierney, Foundations, 100–108. 88  Hostiensis, X 3.8.15, fol. 41rb. “‘Quando episcopus vocem habet in capitulo ut prelatus solus episcopus videtur habere vocem per se quantum omnes alii . . . idem in hoc casu dummodo habeat de capitulo secum duos vel unum saltem maiorem partem habet . . . et hoc considerato dicunt iura quod procedit episcopus de capituli consilio non consensu . . .’” Although Hostiensis recommended that the prelate have at least one canon with him forming a clear majority, the cardinal bishop of Ostia acknowledged that if the bishop and canons disagreed, the final decision rested with the bishop’. . . . “‘Ad X v.xxxi.1 fol 69vb, . . . in hiis in quibus episcopus habet vocem tamquam prelatus requiritur tam consensus episcopi quam capituli . . . verum si simul congregati discordent episcopi est

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the bishop. As Hostiensis observed, the bestowal of benefices and institutions represented matters that de iure communi belonged the bishop alone.89 The similarity between the bestowal of benefices and institutions on the one hand and the granting of the license on the other has been noted above. Just as, the bestowal of benefices and institutions comprised a right principally belonging to the bishop, so, according to Alexander IV, the granting of the license to teach represented a right belonging principally to the chancellor alone. This parallel, particularly with regard to the regulations governing the bestowal of each, merits further examination. According to the final regulations given by Gregory IX, when deciding whether to confer the theological license the chancellor received the testimony of the masters but, ultimately, he could grant or deny the license according to his conscience. In essence, then, the chancellor received the testimony – or the counsel – of the masters, but was not required to have their approval or consent. In the same way, the bishop received the counsel of the canons when making institutions, but was not required to have their consent. The right to grant the license in theology belonged principally to the chancellor. The decision regarding its conferral mirrored the decision-making process described by Hostiensis when matters under discussion touched the rights of the prelate alone. The decretal had mandated that the bishop could do nothing without the counsel the canons, particularly the granting of institutions. The requirement to take counsel was meant to be taken seriously, for the pontiff declared void any such institutions made without the counsel of the canons.90

diffinitio cuius stabitur . . .’ ” Quoted in Tierney, Foundations, 106, n. 28. For the full discussion of this issue, consult pages 105–107. 89  X 3.8.15, f. 41rb, “[S]ed et hoc intelligi debet quo ad collationes beneficiorum et institutiones . . . quae de iure communi ad ipsum [episcopum] solum spectant. . . .” Quoted in Tierney, Foundations, 107 and n. 32. See also, the statement by Tierney: Ibid. “Only in considering matters that de iure communi belong to the prelate alone does he have an overriding authority to act even against the opposition of his canons.” 90  X 3.10.4. “Novit plenius, sicut credimus, tuae discretionis prudentia, qualiter tu et fratres tui unum corpus sitis, ita quidem, quod tu caput, et illi membra esse probantur. Unde non decet te omissis membris aliorum consilio in ecclesiae tuae negotiis uti, quum id non sit dubium et honestati tuae, et sanctorum Patrum institutionibus contraire. Innotuit siquidem auribus nostris, quod tu sine consilio fratrum tuorum, abbates et abbatissas, et alias ecclesiasticas personas instituis et destituis, non considerans et attendens, quomodo te non sit dubium statuta sacrorum canonum transgredi, quum in huiusmodi causis et clericorum et laicorum circa te commorantium, qui de corpore ipsius ecclesiae non sunt, potius quam fratrum tuorum consilio uti dicaris. Ideoque id auctoritate apostolica

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Hence, in matters that pertained to his rights as head, the bishop still had to seek the counsel of the canons, or his decision was void. Although the right to license belonged to the chancellor, and although he could grant or deny the license in theology according to his conscience, the mandate that he hear the testimony of the masters before making his decision was also meant to be taken seriously. Just as the bishop could not ignore the counsel of the canons when bestowing prebends, dignities, or institutions, the chancellor could not omit the masters’ counsel or grant the license to anyone without at least first seeking their opinion. Again, the chancellorship of Stephen Tempier served as a forum for illustrating this regulation. When he attempted to license Ivo Britonis and Johannes de Aurelianis without first taking testimony from the masters, they, in turn, appealed to the papacy.91 The papacy ordered Tempier to be punished if he had indeed omitted the testimony of the masters.92 The determination made by Urban IV reinforced the principle that the chancellor, like the bishop, had to take the counsel of his colleagues, even when the matter touched a right belonging principally to the head. In the final analysis, the regulations for the license in theology copied procedures set down in canon law for cathedral chapters, based essentially on the same set of principles. In this light, it is useful to look again at the compromise involving Johannes de Candelis. Recall that in theology the terms of the compromise placed the chancellor and the masters on an equal footing with regard to the bestowal of the license. Moreover, these terms held only for the span of Johannes’ term in office. Johannes, instead of having the authority to grant or deny the license, had to share this authority with the masters as equals. Given that other prior pontiffs had granted other chancellors exclusive rights over prohibemus. (Et infra:) Nos enim tales institutiones et destitutiones, si quas amodo feceris, auctoritate apostolica cassamus, et carere decernimus robore firmitatis.” 91  CUP 1, no. 400, 441–442, at 441. Decano ecclesie de Abbatisvilla Ambianensis diocesis. Perlato ad audientiam nostram quod licet magister Stephanus cancellarius Parisiensis prestitisset corporaliter juramentum prout etiam prestare consueverunt predecessores sui Parisienses cancellarii, quod ipse nulli regendi Parisius in facultate theologica concederet licentiam nisi requisito testimonio magistrorum omnium ibidem actu regentium in hujusmodi facultate, tamen cancellarius ipse contra hujusmodi juramentum temere veniens magistris Ivoni Britoni et Johanni de Aurelianis licentiam regendi Parisius in facultate predicta magistrorum inibi actu regentium in eadem testimonio minime requisito propria voluntate concesserat.” 92  Ibid., 441–442. “. . . venerabili fratri nostro . . . Autisiodorensi episcopo nostris dedisse dicimur litteris in mandatis ut si esset ita et dicti magistri Ivo et Johannes non incepissent regere, ne inciperent inhiberet eisdem, et si forte incepissent, eos ab actu regendi suspenderet, dictumque cancellarium propter hoc canonica pena puniret.”

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granting the license, the temporary nature of these provisions suggest that they were designed primarily as a punishment for Johannes de Candelis for the abuse of his office, rather than as any meaningful attempt to legislate policy. When viewed against the final terms Parens scientiarum, it seems that these regulations probably reflected an intentional departure from what was the normally expected procedure. In their conflict with Johannes of Candelis, the masters complained to the papacy concerning several abuses. Important among these was the complaint that Johannes had begun exacting a fee for the license and, in addition, had demanded an oath of obedience or fidelity as a condition for granting it as well. In response to these charges, the papacy declared for all time that the masters were not required to swear an oath of obedience or fidelity to the chancellor, who also could not charge a fee or require anything in exchange for granting the license to teach.93 The reasoning behind this prohibition was simple. To the ecclesiastical authorities knowledge represented a gift of God which should not be sold.94 Thus, knowledge, and by extension, the license to teach were viewed as spiritual things or rights. In demanding money or something tangible in exchange for the license, the papacy – and the masters – clearly felt that the chancellor engaged in a form of simony, since he appeared to be selling a spiritual commodity in exchange for monetary gain. Alexander III had confirmed this line of thinking in the decretal Quanto Gallicana ecclesia (X 5.5.3), in which he had forbidden the taking of money or anything in exchange for the license, as well as in his decretal Prohibeas (X 5.5.2).95 Ecclesiastical strictures against simony 93  CUP 1, no. 16, 75. The text reads: “Videlicet, quod cancellarius sacramenta fidelitatis vel obedientie vel aliam obligationem aliquam pro licentia legendi danda non exiget ab aliquo lecturo Parisius, et etiam relaxabuntur prestita juramenta. Item pecuniam non exiget cancellarius nec aliquam aliam rem loco pecunie aliquo modo pro licentia danda.” 94  Gaines Post et al. traced the history of this concept in the article, “The Medieval Heritage of a Humanistic Ideal: ‘Scientia donum Dei est unde vendi non potest,’ ” Traditio 11 (1955), 195–234. Nevertheless, as the decretals incorporated into De magistris of the Liber extra show, various justifications were possible for charging fees for instruction. 95  X 5.5.3 Quanto Gallicana “[M]andamus, quatenus . . . ut, quicumque viri idonei et litterati voluerint regere studia litterarum sine molestia et exactione qualibet scholas regere permittantur. In X 5.5.2 Prohibeas, Alexander III wrote: “Prohibeas attentius de cetero, ne in parochia tua pro licentia docendi aliquos exigatur aliquid aut etiam promittatur. Si quid vero postea solutum fuerit vel promissum, remitti promissum facias et restitui appellatione cessante solutum, sciens, quod scriptum est.” Here Alexander considered the thing promised in exchange for the license as something tangible, since it could be returned, and not, for example, an oath.” It should also be noted that, in the decrees of

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were not new, but the idea that knowledge was a spiritual thing underlay the reasons banning the requirement of an oath of fidelity or acts of homage in exchange for the license. The decretal Ex diligenti (1a 5.2.19; X 5.3.17) issued by Alexander III (1159–1181) disallowed the oath of fidelity on these grounds and Indignum est (1a 5.37.13; X 5.41.11) promulgated by Lucius III (1181–1185) similarly prevented acts of homage in return for spiritual things. Subsequent to their issuance, these decretals were first incorporated into the Compilatio prima, and then, later, were included in the Liber extra Gregory IX.96 However, while it is clear that demands for money, fidelity, and homage given in exchange for the license constituted simony, the chancellor’s demand of an oath of obedience did not appear constitute a form of simony. From a legal standpoint, Johannes de Candelis’ demand for an oath of obedience was both licit and legally sanctioned. As Innocent IV had emphasized in his commentary on Indignum est, obedience in spiritual things and in matters touching the carrying out of an office was licit.97 On the grounds that knowledge was a spiritual commodity and that the position of theologian constituted an office, the chancellor stood on firm ground when he demanded obedience.98 The masters did not specify the reasons why they objected to this demand. But because the oath of obedience did not count as a form of simony, the reasons for their opposition to it must be sought elsewhere. What is clear is that the Third Lateran Council, this decretal was placed under the rubric concerning simony. Later, when incorporated into the decretal, it was placed in an independent section De magistris. 96  See Friedberg, Emil, Quinque Compilationes Antiquae Nec non Collectio Canonum Lipsiensis (Graz, 1956) for the canons of the Compilatio Prima. Both Ex diligenti, (1a 5.2.19; X 5.3.17) and Indignum est, (1a 5.37.13; X 5.41.11) prohibited doing homage in exchange for a spiritual thing. Such action constituted simony. The text of Ex diligenti reads: “Ex diligenti tua relatione nobis innotuit, quod H. Cantuariensis archidiaconus te multis promissionibus allexit et quorundam magnorum virorum commotione ac sollicitudine induxit, ut ei homagium faceres et fidelitatem praestares, ita quidem quod ipse tibi beneficium ecclesiasticum annis singulis exhiberet. Unde, quoniam huiusmodi obligatio illicita satis, et contra tuae salutis.” The text of Indignum est stated the principle more succinctly: “Indignum est et a Romanae ecclesiae consuetudine alienum, ut pro spiritualibus facere quis homagium compellatur.” 97  Innocent IV, Commentaria, X 5.41.11, f. 574v. The text s.v. Homagium reads: “alias autem licite ei iurarant obedientiam, ut not. supra . . . legabatur. Est autem obedientia in spiritualibus, et in his, quae ad Deum pertinent, et in his quae pertinent ad officium cuiusque prelati.” 98  For a discussion of the role of the theologian as constituting an office, see the article by M. D. Chenu, O.P., “Officium. Théologiens et Canonistes,” in Etudes dédiées à Gabriel Le Bras, 2 vols. (Paris, 1965), 2:835–839.

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the masters’ demand to be free from an oath to the chancellor bore a resemblance to a contemporary privilege recently acquired by the cathedral canons in 1203. In commenting on the decretal Antiqua, Hostiensis and Johannes Andreae both employed the relationship between the pope and his cardinals as a model for understanding the relationship between a bishop and his canons. The canonists held that, just as the cardinals were not required to swear an oath of obedience to the pope, so the cathedral canons were not required to swear an oath of obedience to the bishop (unless custom demanded otherwise). As proof of this privilege or exemption from the oath of episcopal obedience, Hostiensis and Johannes Andreae cited the decretal Cum clerici (X 5.30.23), issued by Innocent III in 1203.99 As the source of the capitular privilege, the dating of Cum clerici is significant. It indicates that the origin of the canons’ freedom from the oath of obedience preceded the conflict between the masters and Johannes de Candelis and, thus, provided the background for understanding the masters’ challenge to the oath of obedience exacted by the chancellor. Finally, although the practice within the cathedral chapter of Paris during the early thirteenth century remains obscure, an oath surviving from the fourteenth century indicates that the canons of the chapter swore an oath of obedience to the dean of the chapter, but, apparently, not to the bishop.100 While the oath likely reflects an earlier practice, at the very least, 99  For the extended discussion of Hostiensis, see Commentaria, X 5.33.23, nos, 5–7, f. 86v, s.v. Fidelitatis, et obedientiae. Note at no. 7 his statement: “quod canonici non coguntur prestare fidelitatem, vel obedientiam episcopis suis, nisi ubi talis est consuetudo, et potest intelligi infra de ver. signifi. Cum clerici.” Unfortunately, at Cum clerici, Hostiensis did not directly address this exemption of the canons. See his discussion at Ibid., X 5.40.19, f. 126v. The discussion of this issue by Johannes Andreae is more compact, but, nonetheless, follows Hostiensis closely. See his Commentaria, X 5.33.23, nos. 4 and 5, f. 108, s.v. Sibi: “Quaerit autem, quae sit ratio, quare presbyteri et diaconi cardinales non faciunt papae obedientiam, respondet, ut ostendatur, quod licet papa sit generale caput universalis ecclesiae, et singuli fideles eius membra generalia. Est tamen speciale caput cardinalium, et ipsi eius specialia membra, quod corpus adeo est unitum, et quod ab his specialibus membris papa fidelitatem non exigit, sicut nec a seipso. . . . per hoc arguit, quod parum, vel nihil debet papa facere sine consilio fratrum. Item arguit per hoc, quod canonici non coguntur praestare obedientiam episcopis suis, nisi ubi talis esset consuetudo, et sic potest intelligi, de ver. sig. cum clerici. quod dic ut ibi.” At Cum Clerici, Ibid., X 5.40.19, no. 6, f. 153v, s.v. canonicis, Johannes Andreae noted: “singularibus tamen canonicis per illud iuramentum [obedientiae] non obligantur.” 100  B. Guérard, Cartulaire de l’église Notre Dame de Paris, 3, 405. Each canon of the chapter swore: “Ego N, canonicus hujus honorabilis ecclesie Parisiensis, juro ad hec sancta evangelia, et promitto vobis reverendis dominis meis, decano et capitulo Parisiensi, obedienciam, reverenciam et honorem exhibere, jura, libertates, franchisias, exemptiones,

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by the fourteenth century both the chapter and the faculty followed similar procedures with regard to the oath of obedience. In considering the conflict over the granting of the license, it seems clear that neither the masters nor the chancellor approached the dispute with a predetermined plan to conform the theological faculty to the model of a cathedral chapter. Rather, the chancellor acted to assert his authority over the masters to whatever extent he was able, as evidenced by his abuse of power that initiated the appeal of the masters. The activities of the masters of arts and theology in the early years of the thirteenth century illustrate both an awareness by the masters of the privileges of cathedral canons as well as a successful attempt to accrue to themselves some of those privileges, such as exemption from the oath of obedience. Yet, it is unlikely that the masters consciously sought the privileges of cathedral canons out of adherence to any ideological viewpoint. It is more likely that they saw such privileges as being potentially available and to their advantage and, thus, attempted to acquire them for reasons of personal and corporate advantage. In the faculty of arts, after all, the masters managed to achieve considerable independence in the granting of the license – even against the wishes of the chancellor! Conclusion In closing this discussion of the similarities between the model of the cathedral chapter and the practice in the theological faculty, it is crucial to recall that the model represented the ideal; and although the decretals specified a standard set of procedures to be followed in the governance of chapters, these procedures were not inflexible. Local practice or long-standing custom could take precedence over the letter of the law in certain instances. For example, several cases deriving from the unpublished register of the cathedral chapter of Paris suggest that the bishop, at times, may have left decisions regarding bestowal of institutions and prebends in the hands of the dean and chapter as a matter of administrative convenience, when the bishop himself was absent. On June 16, 1328, when Guillelmus Bernardi through his proctor, Germanus Celati, was given his prebend and received into the chapter, the bishop, Hugh of Besançon, was not present. Again, on July 18, 1328, the bishop was absent privilegia, statua, consuetudines et observaciones ipsius ecclesie, et specialiter immunitatem claustri servare, secreta capitula tenere, et quod sum legitimo matrimonio procreatus, liber et immunis ab omni jugo servitutis.”

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when the rival claims of Johannes de Blessis (Jean de Blois) and Petrus de Vico for the vacant chancellorship were deliberated, and Jean was accorded the chancellorship. Another prebend was awarded on October 5, 1328 when the bishop, again, remained absent. However, the bishop did attend at a meeting of the chapter on June 25, 1328 that was concerned with the allocation of prebends.101 Whether the bishop acted through a proxy when absent, or whether those cases simply represented a customary departure from standard procedure, is not clear. In any event, that flexibility or custom permitted a departure from standard practice should not seem surprising. As both medieval commentators and modern scholars have observed, “in different churches, different customs” were followed.102 In the same way, it must be admitted that, at times, custom or other exigent circumstances might cause participants in the faculty to act in novel ways. These instances, however, do not alter the fact that, all things being equal, the faculty of theology as an ecclesiastical corporation tended to follow principles laid out in canon law that ultimately derived from the model of a bishop and his chapter. This chapter began by demonstrating that both the chancellor and the dean of the theological faculty in many ways resembled their counterparts, the bishop and the dean, in the chapter. Like the bishop who governed the chapter, the chancellor governed the faculty. Like the bishop, the chancellor also possessed ordinary jurisdiction. At one time, he even possessed the authority to excommunicate, although this power was stripped from him in the course of disputes with the masters. Nevertheless, like a perpetual vicar of the bishop, the chancellor’s jurisdiction endured and he, too, had to maintain residency in Paris. Similarly, the dean of the faculty performed functions similar to those of the dean of the chapter, particularly when the corporate body met to discuss or to handle its own affairs. With respect to the relationship between the chancellor and the masters, the outcomes of their various conflicts evidence

101  Private communication from William Courtenay citing the unpublished register of Notre Dame (Reg. ND, 54, 59, 73, and 57 respectively). 102  See, for example, Tierney’s comment in Foundations of Conciliar Theory, 103 and n. 21. For a complete understanding of the intra-chapter dynamics in these situations, the various steps in the selection process need to be analyzed, including, selection of an individual to an institution, prebend, or position, confirmation of the person selected, and installation of the individual into the chapter. An analysis of the register of the Paris cathedral chapter would provide valuable insight, not only into the practices of the chapter itself, but also into those of the theological faculty as well. This data, in turn, would shed light on the degree to which the faculty replicated or altered governmental norms operative within the Parisian chapter.

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a close adherence to the model governing the relations between a bishop and his cathedral canons. The degree to which the contestants in the faculty’s disputes actively appealed to the model of bishop and chapter as opposed to simply pursuing their own interests remains a matter for debate. In the final analysis, however, neither the chancellor nor the masters were responsible for determining the final settlement. Over the course of time, the settlement was determined by the intervention of outside parties, presumably somewhat more impartial. These outside agents themselves were also often bishops and deans of cathedral chapters. Their own day-to-day experience of government and dispute resolution had thus been shaped by the canonical legislation governing cathedral chapters. An important element of this legislation was its emphasis on balancing the rights and obligations of the parties. Given these facts, it is not surprising that these agents tended to propose solutions that were patterned on the model of a bishop and his cathedral canons. For example, the final settlement in the dispute with Johannes de Candelis closely followed the principles of ecclesiastical corporate theory. Whereas the chancellor and the masters had each pursued their own interests – invoking elements of capitular practice when advantageous – those responsible for the settlement applied the principles of ecclesiastical corporate theory in a more even-handed manner that respected the rights and obligations of each party. In particular, the principles governing the granting of the license to teach in the faculty mirrored closely the principles governing decision making within a cathedral chapter. The granting of the license to teach was viewed as an analogue or parallel to the bestowal of prebends, benefices, and institutions, within the chapter. Just as the bestowal of these belonged de iure communi to the bishop alone, so the bestowal of the license to teach represented a right belonging principally to the chancellor alone. In this regard, the theological faculty closely followed the pattern of the cathedral chapter. Indeed, because the right to bestow prebends, benefices, and institutions represented a right belonging solely to the bishop, he was required to have the counsel, but not the consent, of the canons. Thus, he could disregard their advice if he chose to do so. In a similar way, because the granting of the license represented a right belonging solely to the chancellor, he, too, was required to have only the counsel, but not the consent, of the masters. Consequently, the chancellor could also disregard the advice of the masters in making the final determination. Nevertheless, neither the bishop nor the chancellor could simply omit the counsel of either the canons or masters, respectively. In the final analysis, the conflict of the masters with Johannes Candelis makes clear that the corporate model of bishop and chapter exerted an important influence

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on the early constitutional development of the university and, furthermore, that the faculty of theology, in particular, was patterned, in important ways, according to this model. With respect to the granting of the license, the chancellor and the masters functioned like a bishop and his cathedral canons. In a similar way, the issue surrounding the oath of obedience also reflects adherence to the pattern of a bishop and cathedral chapter. Just as the canons were not required to swear obedience to the bishop, so the masters won a similar privilege; namely, they did not have to swear obedience to the chancellor. The oath of obedience and the granting of the license, however, did not represent the only connections between the cathedral chapter and the faculty of theology. Other connections will also confirm the close relationship between these two corporate bodies.

CHAPTER 3

The Corporate Development of the Faculty of Theology The conflicts over the license and the oath of obedience have shown that the chancellor and the body of masters each attempted to gain their own advantage and that, as a result of the compromises involved, the theological faculty bore in specific ways the imprint of the structure of a cathedral chapter. Likewise, the conflict over making statutes that surfaced between 1219–1228 also shows that each party attempted to gain its own advantage. Similarly, these events also suggest both a more direct connection with the norms governing the cathedral chapter of Paris, and even greater influence of the chapter’s structure on the overall development of the faculty’s constitutional framework.

The Conflict of 1219–1228

Only a few years after the settlement of the conflict with Johannes de Candelis, during the first quarter of 1219, a new dispute broke out between the bishop of Paris, the chancellor, and the chapter on the one hand, and the masters of arts and theology on the other. The events of the dispute are complex and known mainly through a series of five papal letters.1 A brief summary will serve to bring into focus some of the more relevant aspects of the controversy. In a letter dated March 30, 1219, Honorius III responded to the appeal of masters and scholars of Paris who sought the aid of the papacy because, among other things, the bishop of Paris had excommunicated them for attempting to make statutes. The bishop complained that this attempt by the masters and scholars was an affront to his own authority, to that of the chancellor, and to that of the cathedral chapter of Paris as well. The masters and students, he claimed, attempted to enact statutes “without the consent of the bishop, or of the chancellor, or of the chapter of Paris.”2 The bishop, further1  The documents are edited in CUP 1, no. 30, 87–88; no. 31, 88–90; no. 41, 98–99; no. 45, 102–104; and no. 58, 113–114. 2  In the initial document, CUP 1, no. 30, 87–88, the date of the papacy’s response is March 30, 1219, indicating that the events recorded began prior to that date. Honorius III summed up the situation in this way: “quod venerabilis frater noster Parisiensis episcopus

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more, asserted that he was doing nothing new; in support of his position, he relied upon the precedent set by a former bishop of Paris, Octavianus, whom the bishop claimed had taken similar action in similar circumstances. Neither the bishop, nor his proctors, however, could produce the document authored by Octavianus.3 In response, the pope delegated the archbishop, the dean, and the cantor of Rouen to handle the issue and ordered them to revoke any measures taken against the scholars by the chancellor, the bishop, or the chapter.4

excommunicationis sententiam . . . de conspirationibus et conjurationibus scolarium minime faciendis jam dudum innovans eos, qui circa statum scolarium sine consensu ipsius vel capituli seu cancellarii Parisiensis conspirationem, conjurationem, constitutionem seu aliquam obligationem juramento, fide vel pena vallatam facere attemptarent . . .” As the note by Denifle observes (n. 1), the decree of the former bishop of Paris seems not to have survived and may not ever have existed. 3  C UP 1, no. 31, 88–89. “Set vicarii seu procuratores venerabilis fratris nostri . . . Parisiensis episcopi ac specialiter . . . cancellarius Parisiensis, qui unus illorum existit . . . cursum doctrine videlicet, sistere presumpserunt. Sicut enim gravis nobis eorundem doctorum querimonia patefecit, cum procuratores predicti eis ipsius episcopi litteras obtulissent continentes, quod idem episcopus innovans id, quod a bone memorie Octaviano Hostiensi episcopo apostolice sedis legato et predecessore jam dicti Parisiensis episcopi factum erat excommunicabat omnes illos, qui decetero sine consensu et auctoritate ipsius vel Parisiensis ecclesie circa statum scolarium vel magistrorum facerent aliquam conspirationem seu constitutionem aut obligationem quamlibet juramento vel fide seu alia quacumque pena vallatam, ipsi doctores attendentes, quod ejusdem episcopi factum innitebatur facto supra dicti episcopi Hostiensis, ejus super hoc litteras sibi exhiberi petierunt humiliter et instanter, nec potuerunt ullatenus obtinere.” 4  C UP 1, no. 30, 87–88. “Archiepiscopo . . . decano et . . . cantori Rothomagensibus. . . . per apostolica scripta mandamus quatinus predictas sententias et alias consimiles, si quas inveneritis promulgatas, revocantes.” In addition, out of this conflict, the masters obtained one of their most important privileges. Henceforth, Honorius forbade the promulgation of any general sentence of excommunication against the teachers and students of Paris. This privilege appears in two of the documents, first in CUP 1, no. 30, 88, where the text continues: “protinus ad cautelam dicto episcopo et suis firmiter inhibere curetis, ne ipsi seu quisquam eorum aliquas consimiles sententias generales in magistros aut scolares Parisienses audeant decetero sine Romani pontificis conscientia promulgare.” Subsequent documents refer to the archbishop, dean, and cantor of Troyes as will be evident. Honorius also repeated this provision in his May 11, 1219 letter (CUP 1, no. 31, 89–90: “Nolentes igitur tantum doctorum et scolarium sepe dictorum gravamen tantamve ipsius cancellarii ac prefatorum sociorum ejus insolentiam ulterius sub dissimulatione transire per apostolica vobis scripta mandamus, quatinus magistros et scolares ipsos sublato appellationis obstaculo auctoritate nostra publice nuntiantes hujusmodi sententia non

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Not much changed quickly. Two months later in a letter dated May 1219, Honorius recorded that the chancellor had also excommunicated all the masters and scholars who had contributed the expenses for prosecuting the appeal.5 Moreover, although the Archbishop of Troyes and the dean of the Paris chapter had interceded on behalf of the scholars, the chancellor still refused to lift the ban of excommunication.6 For his part, Honorius ordered his delegated judges to censure the chancellor for his excesses and declare void the ban of excommunication.7 Despite these papal interventions, both sides remained entrenched. The matter dragged on, but dropped from the record for two years. In part this lag in activity must have been due to the change in personnel for the office of the bishop of Paris; Guillelmus de Seignelay assumed the office in April 1220.8 Revival of the conflict is known through a subsequent papal bull dated April 1221. In that letter Guillelmus, the new bishop, abandoned the position

ligatos, ac inhibentes districte, ne quis decetero sine speciali apostolice sedis mandato in ipsorum universitatem tales audeat sententias promulgare.” 5  C UP 1, no. 31, 88–90, at 89. Whether the actions of the chancellor were known to the pontiff when Honorius wrote his initial letter is unclear. The text reads: “[P]redicti cancellarius et complices ejus contempto, quod ipsi doctores non solum verbo sed facto quoque nostram audientiam apellarant suum ad nos ut dictum est nuntium destinando, prima dominica Quadragesime tam magistros quam scolares qui fecerant collectam vel solverant ad prosequendam appellationem predictam admissi.” 6  Ibid. “Sane ipsi doctores super sui ruina studii anxiantes ipsi cancellario et sociis ejus, nunc universis, nunc singulis, supplicarunt humiliter et instanter, ut rigorem hujusmodi temperarent. Sed nec suis nec venerabilis fratris nostri . . . Silvanectensis episcopi et dilectorum filiorum . . . decani et capituli Parisiensis, qui pro eis intercessores humiles accesserunt, potuerunt precibus obtinere, ut prefati magistri et scholares artium reciperentur ad penitentiam non obstante denuntiatione predicta, cum eam appellatio legitima precessisset.” 7  Ibid, 90. “[P]er apostolica vobis scripta mandamus, quatinus magistros et scolares ipsos sublato appellationis obstaculo auctoritate nostra publice nuntiantes hujusmodi sententia non ligatos, ac inibentes districte, ne quis decetero sine speciali apostolice sedis mandato in ipsorum universitatem tales audeat sententias promulgare, injungatis sepe dictis cancellario et sociis ejus, ut ipse cancellarius personaliter, complices vero ejus per procuratores idoneos, in octavis beati Michaelis proximis, quas eis peremptorium assignamus, apostolico se conspectui representent, ut super predicte temeritatis excessu si poterunt se excusent, aut meritam sentiant ultionem, ipseque cancellarius famam suam, que apud nos multipliciter est gravata, tueatur si poterit, aut iniquitatis sue vinculis constringatur.” 8  C UP 1, no. 41, 99, n. 2. “Episcopus Paris. tunc temporis erat Guillelmus de Seignelay” (28 April. 1220 usque 23 Novemb. 1223).

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of defendant (with respect to the scholars’ appeal) for that of plaintiff.9 The bishop renewed the complaints of his predecessor. In addition he expanded the list of offenses and charged the masters and scholars not only with enacting statutes, but also with enforcing punishments, acting as judges, and procuring their own seal. In all these ways, he argued, they violated his rights and those of the chancellor, bringing the university to the verge of dissolution. Notably, Guillelmus did not remark that these actions violated the rights of the chapter.10 The papacy responded in a new way as well by coming instead to the aid of the bishop of Paris. Honorius sent Stephen Langton, then Archbishop of Canterbury, and the bishops of Troyes and Lisieux as his delegated judges. He ordered them to break the seal of the corporation, to arrange a suitable compromise, if possible, or simply to render a decision if no satisfactory arrangement between the parties could be reached.11 Activity in the suit again stalled. Exceptions multiplied against these judges and, in April 1222, the pontiff appointed new delegates, the archdeacon(s) of Rheims and Sens and Master P. de Collemedio, chaplain at Paris. At the same 9  On the shift in the episcopal position, note the comment by Gaines Post, “Parisian Masters,” 437. 10  CUP 1, no. 41, 98–99, at 98. “Archiepiscopo Cantuariensi sancte Romane ecclesie cardinali et . . . Trecensi et . . . Lexoviensi episcopis. Venerabilis frater noster . . . Parisiensis episcopus nobis insinuare curavit, quod magistri et scolares Parisienses fecerunt et frequenter faciunt constitutiones quasdam, que colligationes seu etiam conspirationes possunt merito appellari, juramentum non solum super observatione factarum sed etiam faciendarum decetero exigentes penis gravibus constitutis in illos, qui earumdem constitutionum fuerint transgressores. Abutuntur etiam quodam sigillo nomine universitatis magistrorum et scolarium nuper facto, et taxantes domorum pretium contra ordinationem auctoritate regia olim factam et ab eo, qui tunc presidebat Parisiensi ecclesie necnon a magistris et scolaribus acceptatam, et in ipsius episcopi et Parisiensis cancellarii prejudicium constituentes sibi pro sue voluntatis arbitrio judices, qui causas eorum audiant et decidant. Hiis et aliis modis coram vobis plenius exprimendis ipsorum episcopi et cancellarii jurisdictionem usurpent multipliciter et enervant, ac adeo inceperunt omnia pro arbitrio facere, quod nisi principiis obsistatur, gravia per hoc poterunt scandala suboriri, et dissolutionis Parisiensis studii periculum imminere.” 11  Ibid., 98–99. “Ideoque fraternitati vestre per apostolica scripta mandamus, quatinus ad locum personaliter accedatis, et vocatis quos propter hoc videritis convocandos juramentorum extorsionem hujusmodi et usum sigilli predicti auctoritate nostra inhibeatis omnino, sigillum ipsum penitus confringentes. Super aliis vero inquiratis sine contentione judicii, que videritis inquirenda, et partes ad amicabilem compositionem inducere studeatis. Que si per studium vestrum nequiverit provenire, statuatis appellatione remota quod videritis statuendum.”

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time, the bishop revoked his proctor’s mandate and the suit remained at a standstill while the parties waited for the bishop to appear or to appoint a new proctor. Finally, sometime before 1228, the parties eventually reached a compromise solution. The text of the arrangement, unfortunately, does not survive. Although the papacy confirmed the compromise, the sparse references do not supply sufficient information to describe the terms of the agreement. Nevertheless, the text includes some interesting bits of information. First, the compromise touched on various issues concerning the granting of the license, the making of constitutions concerning the ordering of lectures and disputations, the punishment of the rebellious by subtraction from the society, the taxing of hospices, and certain other matters. Second, and notably, the chapter of Paris was again listed in the text along with the bishop and the chancellor.12 The events of this decade long conflict and its importance for the development of the university as a corporate structure were first noted by Rashdall in his monumental study.13 Rashdall used the conflict to stress the development of the internal organization of the arts faculty, particularly the development of the system of nations and the selection of officers. Similarly, in attempting to define when the university became a legal corporation, Gaines Post noted the importance of the conflict for the development of the university as a corporate entity, especially the right to procuration and the use of a seal.14 More recently, Kenneth Pennington has addressed aspects of this conflict as they relate to the issue of corporate representation.15 But apart from these notices 12  CUP 1, no. 58, 113–114. The text reads: “Gregorius episcopus servus servorum Dei venerabilis fratribus . . . archiepiscopo Remensi et . . . episcopo Silvanectensi et dilecto filio . . . decano S. Quintini Noviomensis diocesis salutem et apostolicam benedictionem. Dilecti filii magistri et universitas scolarium Parisiensium nobis humiliter supplicarunt, ut compositionem, que inter ipsos ex parte una, et bone memorie . . . episcopum et dilectos filios .. cancellarium et capitulum Parisiense ex altera super danda licentia ab eodem cancellario magistris volentibus incipere in singulis facultatibus, et faciendis constitutionibus de ordinandis lectionibus et disputationibus, ac puniendis rebellibus per subtractionem societatis, et taxandis hospitiis ac quibusdam aliis articulis mediante . . . dignaremur munimine roborare.” 13  These events have been partially summarized by Rashdall in Universities of Europe, 3 vols., ed. Powicke and Emden, (Oxford, 1936), 1:310–313. 14  Gaines Post, “Parisian Masters,” 438–443. While the masters had employed proctors in previous disputes, as Post noted, in the course of this conflict, the masters also acquired their own seal. The seal, however, was subsequently broken. See Ibid., 438. 15  Kenneth Pennington, “Representation in Medieval Canon Law,” The Jurist 64 (2004), 361–383 and reprinted in Representatio: Mapping a Key Word for Churches and Governance,

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in the literature, this dispute has not been adequately exploited for what it reveals concerning the development of the corporate structure in relation to the cathedral chapter of Paris, nor for its relationship to contemporary developments in canon law.

The Right to Make Statutes

The central issue behind this contentious quarrel concerned whether or not the masters and students could make statutes without the consent of the bishop. As stated above, the decretal Novit made the general point that the bishop could do nothing without the counsel of his canons.16 Likewise, the decretal Quanto emphasized this point explicitly with respect to enacting statutes.17 The bishop needed the counsel of the canons when enacting statutes and conducting other business. Thus, when the bishop accused the body of teachers and students of having infringed upon his rights for doing so, he had in mind that the masters and students were like a cathedral chapter. Since the law obligated the bishop to seek the counsel of his canons, he and his predecessor, Octavianus, doubtless believed, conversely, that the scholars could not make statutes independently without his consent, or that of the chapter – or perhaps most importantly – without the consent of their head, the chancellor.18 Although the bishop could not produce the censure of Octavianus, neither the masters nor the papacy seems to have questioned its existence. Indeed, the manner in which the masters protested demonstrated that they engaged in a similar form of reasoning as the bishop. They saw themselves not as an ecclesiastical body but, rather, as a secular corporation; and they revealed this Proceedings of the Sam Miniato International Workshop, October 13–16, 2004, ed. Alberto Melloni and Massimo Faggioli (Münster-Hamberg-Berlin-wien-London, 2006), 21–40. 16  For the text of Novit, see page 71, footnote 90. 17  For the text of Quanto, see on page 32, footnote 102. 18  By requiring the consent of the chapter and the chancellor, the bishop indicated that each of these possessed some form of authority or jurisdiction over the faculty of theology. Such a statement regarding the chapter should not seem unusual, since the bishop and the chapter comprised one body and one could not act without the other. In this sense, the chapter exercised jurisdiction over the masters, inasmuch as the latter were clerics, just as the chapter with the bishop exercised jurisdiction over the clergy of the diocese. Moreover, by indicating that the actions of the masters injured the chancellor, the bishop showed that the chancellor stood in a special relationship to the masters, like a bishop to his cathedral canons.

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sentiment by the way in which they initially appealed to the Holy See. The masters questioned the wording of prohibition against “making any constitution or obligation whatsoever” (constitutionem aut obligationem quamlibet). They understood that the prohibition of Octavianus included the making of both licit as well as illicit constitutions. In turn, they opposed the attempt by the bishop to prevent them from enacting licit constitutions.19 The point is significant. Though they did not say so explicitly, they appealed to the Holy See on the basis of one of the major characteristics of a secular corporation. According to Roman law, secular corporations could create licit statues governing their own affairs, without the consent of a superior.20 Thus, by arguing that they could make licit statutes without the consent of a higher authority, the masters employed this principle of Roman law to bolster their position.21 At the same time, because the bishop condemned the effort of the scholars 19  CUP 1, no. 31, 89. “Deinde cum eadem instantia [magistri et scolari] quaesierunt interpretationem illorum verborum constitutionem aut obligationem quamlibet, utrum videlicet intelligerent generaliter tam de constitutione licita utili et honesta, quam de illicita erronea et injusta, quibus respondentibus, quod intelligebant generaliter de omni licita vel illicita, bona vel mala, ipsi gravamen non dubium attendentes se ad appellationis refugium converterunt.” 20  This right of “secular” corporations to make licit statutes was summed up by Innocent IV in his commentary on the decretal Cum accessissent, X 1.2.8, no. 2, f. 4, s.v. sedis: “De aliis tamen universitatibus [i.e. secular corporations] satis posset dici quod super rebus suis possent facere statuta.” Innocent cited Roman law, particularly the Digest, in order to butress his argument. For a discussion of the canonistic sources of Innocent’s thought, see Melloni, Innocenzo IV, 101–134. Antony Black’s work provides a discussion of development of both secular corporations [guilds] as well as ecclesiastical guilds. See Guilds and Civil Society in European Political Thought from the Twelfth Century to the Present (London, 1985), pp. 12–30, at 20. Black cited a passage from Innocent IV’s commentary on Cum ab ecclesiarum (X 1.31.3): “crafts ‘need no privilege or consent of a superior for them to be colleges approved by the law’ [see Digest 3.4.1] ‘all of their members, or the greater part, if they wish, can set up a judge for themselves and exercise the other rights of association (iura universitatis)’ ” The rights of associations and the ability to set up judges comprise the right to make statutes. 21  As Pennington has noted, canonists initially developed corporate theory with the help of the civilians but, ultimately, contributed far more both to its theoretical and practical development. Because Roman law did not have a highly developed thory of corporations, the Roman corporation was more limited in scope than its medieval counterpart. See his “Law, Legislative Authority, and Theories of Government, 1150–1300,” in The Cambridge History of Medieval Political Thought c.350–c.1450, ed. J. H. Burns (Cambridge: Cambridge University Press, 1988) 424–53; French Translation in: Histoire de la pensée politique médiévale 350–1450, ed. J. H. Burns; Trans. Jacques Ménard (Paris: Presses universitaires de France, 1993) 428–49. See also the article by J. P. Canning, “Law, sovereignty and cor-

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to make any kind of statute whatsoever, it is clear that, for his part, he actively tried to exercise control over the corporation of masters as if it were an ecclesiastical corporation similar to a cathedral chapter. In confirmation of his position, the masters as clerics came under the jurisdiction of the bishop and the cathedral canons. Nevertheless, although canon law mandated that the bishop could do nothing without consulting his cathedral canons, canon law as yet had not addressed the questions of whether the canons – or by analogy, the masters – could legislate without the consent of the bishop – or the chancellor. Indeed, the bishop had no real precedent upon which to base his claim. Apart from the similarity of thought between the bishop and the masters, the actions of the canons themselves deserve close examination because the conflict between the bishop and the masters concerned issues which affected the rights of the chapter as well. Indeed, one of the most interesting aspects about the course of these events is the changing role played by the dean and the chapter of Paris in them. The bishop claimed at the beginning of the conflict that the statutes of the scholars encroached upon his own rights as well as those of the chancellor and of the chapter. Hence, it would be logical to assume that the chapter would side with the bishop against the masters. However, according to the letter dated May 11, 1219, the masters of arts instead approached the dean of the chapter and requested that he, along with the chapter, intercede on their behalf in order to relax the sentences of excommunication laid by the bishop.22 Apparently the chapter complied with this request, as the pope did not indicate any opposition to this petition, mentioning instead that it was unsuccessful. Such a turn of events seems odd – given that the chapter and the masters, according to the bishop, were adversaries at the beginning of the conflict. This turn of events, effectively put the chapter at odds with its head, the bishop. This event was not the only anomaly in the participation of the chapter in these events. In a subsequent letter from the papal chancery dated April 2, 1221, the mention of the chapter is noticeably absent. There the pontiff had repeated the bishop’s complaint that the making of statutes by the scholars had allegedly injured the rights of the bishop and the chancellor. poration theory, 1300–1450”, in The Cambridge History of Medieval Political Thought c. 350– c. 1450 (Cambridge, 1988), 454–476. 22  CUP 1, no. 31, 89. “Sed nec suis nec venerabilis fratris nostri . . . Silvanectensis episcopi et dilectorum filiorum . . . decani et capituli Parisiensis, qui pro eis intercessores humiles accesserunt, potuerunt precibus obtinere, ut prefati magistri et scolares artium reciperentur ad penitentiam non obstante denuntiatione predicta, cum eam appellatio legitima precessisset.”

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But, in contrast to the bishop’s initial response to the masters’ appeal where the chapter was specifically mentioned, the chapter went unmentioned.23 Finally, the chapter reappeared again in the final notice regarding the conflict. When writing to Cardinal Romano of S. Angelo, the pontiff once again listed the chapter as party to the dispute, siding with its head the bishop. These events give rise to intriguing questions. What is the significance of the fact that the masters of arts approached the dean of the chapter of Paris to intercede on behalf of those excommunicated, given that the attempt to legislate injured the rights of the chapter? Is there any reason why the chapter seemingly disappeared from the middle stages of the conflict only to reappear in the final compromise worked out by Cardinal Romano? There are various possible explanations for the behavior of the chapter in the proceedings. First, the failure to mention the chapter in certain documents could be due to clerical or copying error. Such errors were not unheard of – even in papal documents. Second, the willingness of the dean and the canons to intercede on behalf of the scholars could merely have been an act of Christian charity without being an indication of anything else. But when these facts are placed within the context of contemporary legal developments, a different interpretation seems more plausible. In the midst of the controversy between the bishop and the scholars, on March 2, 1221, Honorius III issued a decree directed specifically to the chapter at Paris, which subsequently was incorporated into the Liber extra under the rubric De consuetudine. In the decree Cum consuetudinis (X 1.4.9), the pope forbade the chapter from altering its present customs or constitutions or making new ones without the consent of the bishop. Furthermore, the letter declared void whatever was done in prejudice of the bishop’s right.24 23  For the text of this document, see page 83, footnote 10. In the document dated March 30, 1219, the masters had reported to1 the pope that the bishop had excommunicated them for making statutes without the consent of the bishop himself, of the chancellor, and of the chapter. CUP 1, no. 30, 87. The text reads: “Dilecti filii magistri et scolares Parisienses nobis graviter sunt conquesti, quod venerabilis frater noster Parisiensis episcopus excommunicationis sententiam . . . latam de conspirationibus et conjurationibus scolarium minime faciendis jam dudum innovans eos, qui circa statum scolarium sine consensu ipsius [episcopi] vel capituli seu cancellarii Parisiensis conspirationem, conjurationem constitutionem seu aliquam obligationem juramento, fide vel pena vallatam facere attemptarent.” 24  X 1.4.9. The text reads: “Cum consuetudinis ususque longaevi non sit levis auctoritas, et plerumque discordiam pariant novitates, auctoritate vobis praesentium inhibemus, ne absque venerabilis fratris nostri episcopi vestri consilio et consensu immutetis ecclesiae vestrae constitutiones et consuetudines vestras approbatas, vel novas etiam inducatis;

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It can be no coincidence that the main issue touching both the scholars and the chapter of Paris concerned whether an ecclesiastical corporate body could enact statutes without the consent of its head, either the bishop or the chancellor.25 In addition to the chronological proximity, the case seem related on a personal level as well. The dean who absolved the scholars in 1219 was – barring his death in the interim – the same dean who, by right of his position, would have shouldered the responsibility for pursuing the case of the chapter against the bishop. This seems another probable link between these two cases. Furthermore, from a legal point of view, the fact that both the chapter and the masters were involved in a suit with the bishop over the same issue demonstrates a connection that is beyond the realm of the merely accidental. Recall that the chapter never actually spoke for itself in this conflict. It was the bishop who claimed that the activity of the masters injured the rights of the chapter. However correct the bishop’s statement may have been from a legal perspective, in order for the masters of arts to approach the dean of the chapter they must have felt that they and the chapter shared common ground. In fact, the issue raised by the masters offered the chapter a way to promote its own independence vis à vis the bishop. Consider that the decretal Novit had stated that the bishop and chapter had to act together, that neither one could act without the other, and further, that the bishop had to take the counsel of his clerics before taking action. As a point of law, however, the issue of whether the consent of the bishop was required for the chapter canons to enact statutes had not actually ever been addressed. Such a course of events would explain why the chapter interceded on behalf of the scholars and why the chapter is noticeably unrepresented in a later stage of the conflict. Viewed in this light, the case of masters and scholars offered the chapter an opportunity to pursue a bid for independence from the bishop. Hence, the ruling in this case is significant. Because the decretals Quanto and Novit had forbidden the bishop from enacting statutes without the consent of the canons, they effectively protected the rights of the canons to participate in the legislative and decision-making process of the chapter. si quas forte fecistis in ipsius episcopi praeiudicium, postquam est regimen Parisiensis ecclesiae adeptus, irritas decernentes.” 25  The connections among all these events with regard to the relations between the chapter and university have gone unnoticed in the scholarly literature. Rashdall, Universities, 1:300–314; Leff, Paris and Oxford in the Thirteenth and Fourteenth Centuries (Oxford, 1968), 29–30; Pearl Kibre, Scholarly Privileges in the Middle Ages (Cambridge, 1962), 88–94; Post treated this episode from the point of view of the ability of the corporation to have a proctor in “Paris Masters,” 421–445.

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Moreover, as a general principle both of corporate theory and of equity, it made sense that the bishop and chapter should act together given that together they constituted one body, as head and members. Nevertheless, the lacuna in the legislation made it unclear whether the chapter could enact statutes without the bishop. Cum consuetundinis remedied this omission. It balanced the rights of the bishop against those of the chapter and made plain the principle that the chapter could not act or make statutes without the bishop. Without engaging in the fallacy of post hoc propter hoc, it nonetheless remains true that if the bishop were attempting to treat the masters and scholars in a fashion similar to the cathedral canons, it would have first been necessary to settle definitively the question of cathedral chapter’s autonomy in the matter of making statutes before proceeding further with the case involving the masters. This is, in fact, precisely how events turned out. Let us recall that the decretal Cum consuetudinis was issued on March 2, 1221. Prior to this date there had been a lull of approximately two years in the progress of the bishop’s case, from May 1219 until April 1221. Yet, within one month of that determination of the chapter’s right (or lack thereof), the case involving the bishop and the masters moved forward. Was this merely coincidence? Probably not. On April 2, 1221 Honorius issued another letter to his delegated judges informing them to address the complaints of the bishop against the scholars. Thus, the matter regarding the chapter was settled prior to the resumption of the case involving the scholars of Paris. Furthermore, as Gaines Post noted, the bishop at this point exchanged the weak position of defendant for the stronger position of plaintiff.26 This move on the part of the bishop would have been made possible by the strengthening of his position as a result of the issuance of Cum consuetudinis. The resolution in his favor of the dispute with the chapter doubtless gave added impetus and force to his case against the scholars. Indeed, the gap of two years between the initiation of the case against the university as well as its swift resumption upon completion of the issue involving the chapter is easily explained when the chapter case is viewed, not simply as an issue in its own right, but also as an interlocutory judgment governing a point of law which had to be decided before the conflict involving the university, the bishop, and the chancellor could be resolved. This interpretation of events, however, must also account both for the eventual about-face on the part of the canons who, in the final stage of the conflict, ultimately supported the case of the bishop. First, such a change on the part of the chapter should not seem unusual. To the extent that the chapter lost in its bid for independence, what course of action was left to it? Reconciliation with the bishop was the only practical 26  Post, “Parisian Masters,” 437.

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alternative. In order to prevent the masters from acquiring privileges which the papacy had denied to the chapter, the canons best served their own ultimate interests by reconciling with the bishop. Thus, in true medieval fashion, the chapter did the only thing that it could. It realigned itself with its former opponent – the bishop – against its former allies – the masters. The body and its head were once again peacefully reunited. The role played by the university masters in the promulgation of Cum consuetudinis should not be underplayed. As the bishop’s actions indicated, it had long been believed that the chapter could not make statutes without the consent of the bishop. However, as a point of law, Cum consuetudinis definitively settled the issue. The masters contributed significantly to this decision for, while pursuing their own autonomy, their actions contributed to the resolution of this ambiguous question and thereby shaped and influenced the legal principles governing bishops and chapters.27 Overall, at the heart of this drawn-out dispute lay important questions of corporate definition. Was the university to be organized along the lines of a secular corporation or according to the paradigm of a bishop and his cathedral canons? Was the university to possess the right of making licit statutes independently, or could it enact legislation only with the consent of its head? The issue of the right of the masters to make statutes then, needs to be put in its proper historical contest. Four documents, in particular, address the right of the masters to enact constitutions: Innocent III’s decretal Sicut expedire of 1207; the promulgation of Noverint by the papal legate Robert of Courson in 1215, the letter of Gregory IX referencing the compromise between the masters and the bishop and his suffragans; and finally, the papal bull Parens scientiarum issued by Gregory IX in 1231.28 Innocent addressed his bull to the doctors of theology, canon law, and arts. In it, he tacitly recognized the right of the masters to come together in order to enact statutes, to require an oath to uphold them, and also to expel those not adhering to the statutes or not wishing to take the oath.29 As such, his decree 27  The evidence seems to suggest that the masters began their quarrel with the bishop, and then the cathedral chapter became involved. Given this scenario, the actions of the masters led directly to a clarification of an important point of canon law. However, it is also possible, that the quarrel between the bishop and the chapter predated the quarrel between the bishop and the university. Even in this set of circumstances, the role of the university in contributing to the development of canon law should not be devalued. 28  CUP 1, no. 8, 67–68; no. 20, 78–80; no. 79, 136–139. 29  CUP 1, no. 8, 67–68. Innocent wrote: “[V]os cupientes vestre consulere honestati octo ex vobis juratos ad hoc unanimiter eligistis, ut super dictis articulis de prudentum virorum consilio bona fide statuerent, quod foret expediens et honestum ad illud imposterum observandum vos juramento interposito communiter astringendo, excepto dumtaxat

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represents the first recognition of the right of the masters to make statutes, even if it did not explicitly grant them this right. Several years later, writing to all the masters and scholars at Paris, Robert of Courson in his decree Noverint specifically granted the masters and the scholars the right to enact obligations and statutes, under pain of oath, both among themselves and with others. This newly granted power, however, was not unbounded, but limited to specific circumstances: 1) the killing or mutilation or atrocious injury of a scholar, when justice failed; 2) for the regulation or rents; 3) on matters of dress and funerals, and 4) on matters of lectures and disputations.30 Though limited in scope, these areas in which the masters and scholars possessed the right to pass legislation represented without question licit objectives. Consequently, the fact that the masters prior to 1219 had been granted the papally sanctioned right to pass at least some forms of legislation thus places into sharper perspective their subsequent conflict with the bishop, chancellor, and chapter. If the masters already possessed papal approval for enacting statutes before the dispute of 1219–1228, why did the bishop oppose their right to make licit statutes? During the twelfth and the early part of the thirteenth century, the organization of the university remained fluid. Before Celestine III granted clerical status to the masters and students at Paris, there was no hint that the corporation of masters and scholars was anything other than a secular corporation, like any other craft guild. Hence, the right to make licit statutes on matters pertaining to the craft of teaching would have been more or less unrestricted. Upon acquiring clerical status, the status of the masters and scholars began to change. Then, in 1207, Innocent III limited the number of reigning masters

magistro G. qui jurare renuens et formidans fidejussoriam pro se tantum optulit cautionem. Fuit . . . si quisquam magistrorum adversus alios duceret resistendum et primo, secundo tertiove commonitus infra triduum universitati parere contempneret magistrorum, ex tunc beneficio societatis eorum in magistralibus privaretur.” Though Innocent argued that Magister G had to be readmitted when he agreed to obey – since the expulsion had not been perpetual – what is important here is that Innocent recognized the right of the masters to act in this way. The document continues: “quia tamen constitutum non fuit ut in perpetuum hujusmodi privatio perduraret, . . . cum satisfactionem congruam exhibuerit, restitutionem optineat . . . mandamus.” 30  CUP 1, no. 20, 79. “Item facere possunt magistri et scolares tam per se quam cum aliis obligationes et constitutiones fide vel pena vel juramento vallatas in hiis casibus, scilicet in interfectione vel multilatione scolaris, vel in atroci injuris illata scolari, si defuerit justicia, pro taxandis pretiis hospitiorum, de habitu, de sepultura, de lectionibus et disputationibus, ita tamen, quod propter hec studium non dissolvatur aut destruatur.”

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in theology to eight and notified the bishop of Paris of this fact.31 Concern for orthodox teachings seems to have prompted Innocent’s decision to limit the number of masters. To the bishop of Paris, however, the restrictions on the number of theologians may have made the faculty of theology look more like a cathedral chapter in which the number of canons was similarly limited.32 In addition, after the 1213 compromise the masters in all the faculties acquired exemption from the oath of obedience – a privilege that made them look more like a cathedral chapter. Other changes continued to make the status of the masters and students unclear. In 1208, Innocent had at least tacitly recognized the masters’ rights to make statutes, although he did not specify whether the consent or counsel or any outside authority was required. And, in 1215, when Robert of Courson memorialized the provisions for granting the license in arts that were contained in the compromise with Johannes de Candelis, he widened the gap between the chancellor and the arts faculty. Hence, by 1215, the corporation of masters and scholars in some ways resembled an independent, secular corporation, but in other ways resembled a cathedral chapter. Thus, this set of legal ambiguities may explain why the bishop of Paris felt it necessary to revive the question of whether the masters and scholars could make statutes without the consent of the chancellor, the chapter, or himself. Given that the issue of corporate identity formed the focus of the 1219 conflict, what is perhaps most revealing about this dispute is that with each new development in the case, the participants behaved in a manner that demonstrated consistency with respect to this central question. The bishop excommunicated the scholars for enacting statutes; the scholars responded by seeking clarification regarding whether they could make licit statutes; the masters of arts felt they had common ground with the chapter and approached the dean and the chapter as intercessors; the dean and the chapter aided the scholars (alas, to no avail) and seem to have begun a similar suit with the bishop, when it bolstered their independence; the bishop shifted from the role of defendant to plaintiff when the interlocutory judgment of Cum consuetudinis favored his case; and, finally, once the advantage of supporting the scholars dissolved, the chapter seems to have rejoined the bishop in the conclusion of the matter. Moreover, inasmuch as the bishop saw the university of masters as an extension of the cathedral chapter, he felt their attempt to legislate injured his rights, as well as the rights of the chapter and the chancellor. The bishop thus 31  CUP 1, no. 5, 65. 32  William Courtenay has suggested that members of the theological faculty for economic reasons may have prompted Innocent to take this action. See his Teaching Careers at the University of Paris in the Thirteenth and Fourteenth Centuries,” (Notre Dame, 1988), 25–27.

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recognized that the chancellor stood in a relationship to the masters and students analogous to that of the bishop in relation to his cathedral canons. Overall, the issue of whether the university was to be organized along the lines of a cathedral chapter apparently played an important part in this conflict. A comparison of the notice of the compromise with relevant sections of Parens scientiarum shows that the two texts have some similarities.33 In essence Parens scientiarum reconfirmed the decree Noverint in that it granted the masters the right to make laws regarding similar specific matters.34 Thus, on the surface, it would appear that the masters had won the right to make licit constitutions, a right belonging to “secular” corporations. This conclusion, however, requires examination on several levels. First, both the compromise and Parens scientiarum were addressed to all the masters at Paris. Nor is it clear whether the ability to make statutes applied to each individual faculty or merely to the corporation acting together as a whole. Thus, it may have been possible for the entire university to enact a general statute without, say, the faculty of theology’s being able to legislate without the consent of the chancellor. Secondly, while these decrees granted the masters the power to make laws in certain areas, these proclamations should not be construed as rights in the same way that secular corporations possessed rights. The decrees issued by the papacy in favor of the masters and scholars were privileges and remained so.35 A privilege, by definition, represented an exception to ordinary 33  CUP 1, no. 58, 113. Gregory observed that the compromise concerned certain issues: “ut compositionem . . . super danda licentia . . . et faciendis constitutionibus de ordinandis lectionibus et disputationibus, ac puniendis rebellibus per subtractionem societatis, et taxandis hospitiis ac quibusdam aliis articulis mediante dilecto filio nostro R. Sancti Angeli.” In Parens scientiarum (CUP 1, no. 79, 137–138), the text reads: “Ceterum quia ubi non est ordo, facile repit horror, constitutiones seu ordinationes providas faciendi de modo et hora legendi et disputandi, de habitu ordinato, de mortuorum exequiis necnon de bachellariiis, qui et qua hora et quid legere debeant, ac hospitiorum taxatione seu etiam interdicto, et rebelles ipsis constitutionibus vel ordinationibus per subtractionem societatis congrue castigandi, vobis concedimus facultatem.” 34  For the relevant section of Noverint, see above page 92, footnote 30. 35  One of the ms. of Noverint, for example, refers to it as a privilege. See CUP 1, no. 20, 79–80 n. “Cod. Vat. Reg. 406, fol. 23, et Bibl. Phillipps in Cheltenham ms. 876 fol. 29b, offerunt hunc titulum: ‘Privilegium cujusdam cardinalis de statutis magistrorum et scolarium Paris.’ ” Similarly, at the end of Parens scientiarum, the document orders the king to show to the masters of Paris their privileges, should they decide to leave Paris due to some injury. See I, no. 79, 138–139: “Verum qui magistri et scolares, qui dampnis et injuriis lacessiti . . . a civitate Parisiensi dissipato studio discesserunt . . . volumus et mandamus, ut postquam a . . . rege Francorum magistris et scolaribus privilegia exhibita fuerint.” Clearly, this reference refers to the document in question, Parens scientiarum.

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legal procedure. As such, the privileges of Noverint and Parens scientiarum did not automatically transform the university corporation into a secular, Roman corporation. Rather, they remained special privileges granted to an essentially ecclesiastical institution. Finally, even if the faculty of theology received the authority to make its own statutes in these limited areas, this expansion of its authority probably remained in accord with the prevailing views concerning the authority of the bishop and chapter. Whereas, in 1221, the decretal Cum consuetudinis had forbidden the making of any statutes without the consent of the bishop, by the time Innocent IV had lectured at Bologna (c.1239), he observed that the chapter could nevertheless make statutes on certain minima.36 The issuance in 1231 of the privilege Parens scientiarum in 1231 – which permitted the masters to enact statutes in certain areas – seems therefore to correspond in timing with the contemporaneous views of Innocent IV on the ability of ecclesiastical corporations to enact limited legislation. In considering the areas in which the masters were permitted to make statutes, it becomes clear that redressing the death or serious injury of a member, the organization of lectures and disputations, and the regulation or rents, dress, and funerals all concerned matters that principally touched the rights of the masters alone. Noverint and Parens scientiarum confirmed these legislative rights; added to this, Innocent III’s bull of 1207, Sicut expedire, had limited the number of theologians, further making the theological faculty more closely resemble a cathedral chapter. All in all, this early thirteenth century legislation represented an important step in the process of transforming the theological faculty into an ecclesiastical corporation governed according to the model of a bishop and his chapter.

The Model and the Secular-Mendicant Controversy

A generation later, the secular-mendicant controversy provided another opportunity to revisit these constitutional issues; the outcome of this controversy also demonstrated that the theological faculty was being molded according to the unit of a bishop and his cathedral chapter. The details of the quarrel are long and complex, and the motivations of the actors are often seemingly contradictory and obscure. Not surprisingly, the historiography of the events tends to describe the major participants as either heroes or villains, depending upon

36  Innocent IV, Commentaria, X 1.2.8, no. 2, f. 4. The text reads: “Alii tamen dicunt, et forte melius, quod nullum statutum potest facere ecclesia, sive cathedralis, sive alia sine consensu Episcopi . . . nisi forte essent aliqua minima.”

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whether the author favors the seculars or the mendicants in the controversy.37 This brief discussion, then, will not rehearse all the details of the conflict and will only address those aspects of the controversy that have a bearing on the corporate development of the theological faculty. Often portrayed as the hero of the secular masters, Innocent IV, in reality, planted the seeds of discord that threatened the place of the seculars in the university. In 1250, he issued a papal bull in favor of the friars which directed the chancellor to grant the license both to worthy candidates who requested it as well as to those candidates who did not.38 Given that the mendicants, in keeping with the humbleness of their station in life, did not routinely request the license, the terms of the papal bull obviously favored them and threatened to increase their numbers to the point where the secular masters began to feel outnumbered and endangered. In response, in 1252, the secular masters promulgated their first statute, without the presence of the chancellor.39 Among other provisions, the statute included a variety of measures designed to limit the membership of the mendicants in the faculty. Henceforth, members were required to study at one of the approved colleges. In order to end the proliferation of religious masters, each order could have only one college and one master. Those who did not comply were to be expelled from the society. Such was the simmering background. At the surface level, the conflict erupted in 1253 when a scholar was killed, prompting the university to call for a cessation of lectures. Two Dominicans and one Franciscan, however, refused to comply the directive. As a result, the mendicants were expelled and excommunicated, initiating the full-blown controversy. While it is true that the quarrel might have been resolved differently had Innocent IV not died in 1254, the view that he merely favored the seculars, and Alexander IV the mendicants, is not fully accurate either. Rather, whatever their personal views, on the whole, both men handled the matter by following standard legal practices and by adhering to the precepts of medieval corporate theory. In response to the initial petition of the friars in 1250, Innocent IV ordered the chancellor to license even those candidates who did not seek the license – that is, the mendicants. This privilege certainly gave the mendicants 37  The literature on the Secular-Mendicant Controversy of 1252–1257 is large. For a brief summary of the events as these relate to the constitutional development of the university, one may consult Rashdall, Universities of Europe, 1:369–392; Decima Douie, The Conflict Between the Seculars and the Mendicants at the University of Paris in the Thirteenth Century, (London, 1954); and Gordon Leff, Paris and Oxford, 34–47. 38  CUP 1, no. 191, 219. 39  Ibid., no. 200, 226–227.

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entry into the theological faculty but, contrary to what is sometimes claimed, the bull did not give the chancellor the right to license friars according to his conscience without the consent of the masters.40 The chancellor already possessed that right! He was still required, however, to have the counsel of the masters as a matter of course; and this bull, apart from opening the door to the mendicants and other religious, did not otherwise alter any of the fundamental requirements or procedures with respect to licensing. Like his predecessors, Innocent IV treated the bestowal of the license as a right belonging de iure communi to the chancellor alone. His practice, like that of others before him, demonstrated that he viewed the faculty as functioning like a cathedral chapter. Innocent, furthermore, treated both sides fairly. He lifted the ban of excommunication against the friars, readmitted them to the university by a special grace, and suspended any statutes against them until their appeal was settled.41 These actions, practically speaking, represented nothing more than standard operating procedure. The pope restored the mendicants to their position prior to the injury that prompted the appeal. When the secular masters laid their case before him and all of Christendom in an open letter in 1254, Innocent proceeded to renew their right to make statutes and to confirm their ability to tax their members in order to raise money in support of the cause.42 These actions, too, were nothing remarkable. Innocent merely renewed the right to make statutes that he had first promulgated in 1247, while the right to tax members dated back to at least the compromise of 1228. After reading the open letter of the masters, Innocent IV does appear to have been convinced by some of their arguments. He did restrict the right of the mendicants to preach, to hear confessions, to celebrate mass, and to officiate at burials.43 But these aspects of the conflict have little to do with the constitutional and corporate development of the theological faculty. Nevertheless, it is possible that the pontiff’s views on the matter were evolving and that his issuance and/or reissuance of Quotiens may have indicated some sympathy with the masters’ view of themselves as a free, independent corporation, but the truth of this speculation will, unfortunately, never be known, for the Innocent IV died in the midst of the conflict, and his successor, Alexander IV, concluded the controversy. What is clear is that Alexander IV treated the fledgling corporation like an ecclesiastical corporation and the applied to the chancellor and the masters the same precepts governing the relationships between a bishop and his 40  41  42  43 

Rashdall, University of Europe, 1:373. Ibid., 1:378, and CUP 1, nos. 222, 223, 225, 226, pp. 247–251. Ibid., nos. 238 and 239, pp. 265–267. Ibid., no. 240, 267–270.

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chapter. Immediately upon accession to the papal throne, Alexander IV acted decisively. In his famous bull, Quasi lignum vitae, the pontiff annulled the strictures placed upon the friars by his predecessor, and he modified the statute enacted by the masters.44 Alexander acknowledged that the masters could enact statutes according to the terms of Parens scientiarum. They could not, however, exceed the boundaries of the statute. In defending his actions, Alexander, specifically cited the provisions of Parens scientiarum that dealt with the granting of the license to teach.45 Based on this decree, Alexander argued that the actions of the faculty of theology violated and prejudiced the rights of the chancellor in this regard.46 Alexander went even further. He essentially declared void those parts of the masters’ statute that concerned licensing, and he freely altered, as needed, other sections of the statute that dealt with a variety of issues. What Alexander IV did not say, but what was well-known as a result of the earlier conflict with Johannes de Candelis, was that the granting of the license represented prerogative belonging solely to the chancellor. Thus, the masters could not enact legislation that injured or weakened the chancellor’s rights in this area. Hence, when they attempted to limit the number of colleges or candidates among the mendicants, they effectively transgressed the chancellor’s authority. In Quasi lignum vitae, Alexander made specific reference to this fact, effectively annulling that section of statute.47 The foundation for Alexander’s claim, not surprisingly, had its origin in the decree Cum consuetudinis of 1221 which had stated forthrightly that any statutes enacted without the bishop and in prejudice of his rights were null and

44  Ibid., no. 247, 279–285, esp. 283. 45  Ibid., no. 79, 136–139. 46  Ibid., no. 247, 283. The text reads: “Cum ergo ex constitutione [Parens scientiarum] hujusmodi liqueat manifeste, que in licenciando scolares ad scolarum regimen cancellario sit facultas et quanta sibi super hoc religio fidei et circumspectionis necessitas indicatur, videri potest acutius intuenti, auctoritati constitutionis apostolice, que statui scolarum et scolarium providens certos cancellarii officio terminos potestatis indulget, per constitutionem vestram in propagandi studii dispendium derogari. Volumus itaque cancellarii potestatem in constitutione sepefati Gregorii circa statum Parisiensis studii declaratam nulla imminutione convelli.” 47  Ibid., “Ex eo autem, quod aliqua secularium vel religiosorum collegia de licencia cancellarii plures meruerunt habere magistros hactenus aut scolas, nolumus eis circa vel possessionem habendi, hujusmodi ius imposterum provenisse, sicut hiis, qui non plures vel nullum hactenus habuisse noscuntur, nolumus ex hoc viam aliquem vel plures habendi precludi, si cancellarius omnibus que considerari debent inspectis alicujus vel plurium licenciam eis viderit, prout sibi competit concedendam.

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void.48 Similarly, the actions taken by the masters without the chancellor and in prejudice of his rights were also void. Because the granting of the license represented a sole prerogative of the chancellor, the masters effectively had no authority to limit his decisions regarding the bestowal of the license. As long as the chancellor first sought their counsel, he remained free to act according to his own conscience. The pontiff, then, by his words and actions, made the faculty of theology (if not the whole university) subject to the chancellor in the same way that Cum consuetudinis had made the chapter subject to the bishop. Just as the chapter could not enact statutes in prejudice of the bishop, so the theological faculty could not enact legislation in prejudice of the chancellor’s rights. Thus, Alexander treated the theological faculty like an ecclesiastical corporation, modeled after the unit of a bishop and his chapter. The other principal element indicating status as an ecclesiastical corporation centered on whether the corporation – and the faculty of theology in particular – was a free association of individuals or whether, like an ecclesiastical corporation, it was subject to a higher authority. In this regard, the tension between these two conceptions of university corporate structure is clearly evident in the in the conflict between Alexander IV and the secular masters during the secular-mendicant controversy. When Alexander IV, in Quasi lignum vitae, ordered the faculty of theology to readmit the mendicants to their membership, the response of the masters, contained in their letter Radix amaritudinis, was dramatic.49 In the letter, the masters evidenced their belief that the corporation was a “free association.” They insisted that they were more willing to dissolve the university than to live under papal restrictions.50 Thus, in their letter, they emphasized one of the hallmarks of a secular corporation, 48  X 1.4.9. For the text of the decretal, see above page 88, footnote 24. Note the wording of Alexander’s defense of the chancellor’s right. He states that “ad scolarum regimen cancellario sit facultas” (CUP 1, no. 247, 283). In using this phrasing, he probably had in mind the phrasing of this decretal which declared in a similar fashion the “regimen Parisiensis ecclesiae” as the sphere of the bishop. 49  See CUP 1, no. 256, 292–297. 50  Ibid., 293. “Sed attendentes minus incommodum nobis fore beneficiis Universitatis carere, quam dictorum fratrum societate, quam nobis damnosam experimento cognovimus, et universali ecclesie periculosam fore timemus, ulterius pregravari; attendentes etiam quod societas non per violentiam solet, sed per amicitiam copulari; considerantes nichilominus quod secundum juris normam in communionem aut societatem nemo compelli potest vel detineri invitus: a predictis collegio et consortio, sicut nobis a jure conceditur, sigillatim discessimus, ipsius Universitatis beneficiis et privilegiis renunciantes expresse, et sic renunciando juri nostro sine juris et mandati vestri offensa societatem eorum per viam juris duximus declinandam, illa ducti potissimum ratione, quoniam non solum

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the ability to form and to dissolve it at will, a characteristic that stood in contrast to an ecclesiastical corporation – such as a cathedral chapter – which was subject, not to the will of its members, but instead, to the will of the pope.51 The masters of theology, in conjunction with the other faculties broke the seal of the university and disbanded the corporation. Nevertheless, after a long battle, Alexander IV succeeded in achieving the submission of the masters to his will and in forbidding the dissolution or transference of the university without papal permission. In subjecting the whole university to papal will, Alexander IV guaranteed that, henceforth, the university corporation was no longer a free, secular corporation, but rather, was an ecclesiastical corporation subject to papal authority.52 His actions applied generally to all the faculties but, given the context of this controversy, their impact on the faculty of theology cannot be underestimated, since the dispute originated from that faculty in particular. The conflict between the seculars and the mendicants represented the last major formative struggle with respect to the early development of the university. With the resolution of this dispute the tumultuous formation of the university’s corporate structure was, by and large, concluded. Consequently, at slightly past mid-century the university, and especially the faculty of theology, functioned as an ecclesiastical corporation modeled according to the pattern of a bishop and his cathedral chapter. Conclusion Like the conflict between the masters and the chancellor, Johannes de Candelis, concerning the licensing of candidates, the subsequent conflicts involving the faculty of theology during the early to mid-thirteenth century further betray the influence of the model of bishop and chapter on the internal development of the theological faculty. The conflict concerning right to make statutes, dating from 1219–1228, the promulgation of Parens scientiarum in 1231, and secular-mendicant controversy of 1250–1257 comprise key events in the faculty’s structural and constitutional development. inter nos, verum etiam per universam ecclesiam ipsi et eorum fratres dissensiones, offendicula, et alias inordinationes periculosas facere non verentur, cum dicat apostolus.” 51  For a brief discussion of the concept of free association and membership in guilds, see Black, Guilds and Civil society, 14. 52  A fuller discussion of this aspect of the quarrel is provided by P. Michaud-Quantin in his article entitled, “Le Droit Universitaire,” 577–599.

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During the almost decade long quarrel from 1219–1228, both the cathedral chapter and the faculty of theology were engaged in a series of disputes over the right to enact statutes. The cathedral chapter, obviously, was an ecclesiastical corporation subject to a superior. The secular theologians, by contrast, saw themselves as an independent, corporation. They believed that they possessed the right to enact statutes on their own matters without reference to an external authority. Not surprisingly, the bishop saw both the cathedral chapter and the theological faculty as corporate bodies subject to his authority, unable to legislate without his consent. In line with the norms established for cathedral chapters, the outcome of the conflict confirmed that the cathedral chapter could not make statutes without the consent of the bishop. The logical outcome with respect to the faculty of theology would have also favored the bishop’s position, reinforcing the principle that the masters, like the cathedral chapter, could not make statutes without the consent of the bishop or the chancellor. Regrettably, however, the terms of the final resolution have not been preserved. During the subsequent decades, a series of events took place which also shaped the development of the university in general and, especially, the faculty of theology. Parens scientiarum conceded certain rights and privileges to the masters of the faculty in a manner that, nonetheless, remained consistent with the general norms regulating cathedral chapters. First, Parens scientiarum preserved the rights of the chancellor with respect to granting the license. Because the granting of the license represented a right belonging principally to the chancellor, Parens scientiarum acknowledged and confirmed that he was required only to seek the counsel but not the consent of the masters when licensing candidates. Thus, while he had to involve the masters in the process, he did not have to follow their advice. At the same time, in line with developments in ecclesiastical corporate theory, Parens scientiarum recognized that certain actions or decisions of the corporate body mainly concerned the rights of the masters themselves without reference to chancellor in much the same way that certain actions or decisions touched the rights of the canons but did not concern the bishop. Parens scientiarum permitted the masters to legislate independently on matters that principally concerned their rights, including issues such as: dress, rents, funerals, lectures and disputations, and, especially, redress of death or injury to one of their members. At mid-century, the secular-mendicant controversy revisited questions concerning the nature of the faculty’s corporate structure and the degree to which it could legislate and function independently of external authority. Despite the attempts by the masters to regulate the licensing procedures and, thereby, to control the admission of the mendicants into the faculty, Alexander IV

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definitively ruled that these attempts violated the rights of the chancellor in granting the license. Neither did the pope recognize their attempt to legislate beyond the terms of Parens scientiarum, nor did he accept their characterization of the university as an independent, secular corporation that could be formed and dissolved at will. Instead, Alexander IV treated the faculty and the masters of theology as an ecclesiastical corporation subject, ultimately, to papal authority and, more generally, to terms and conditions that closely followed and resembled the model of a bishop and his cathedral chapter. He annulled the parts of the statute that transgressed the chancellor’s authority and he modified other aspects of the statute as needed. He commanded the readmission of the friars and the punishment of wrongdoers. The analysis of these events demonstrates that the faculty of theology throughout the early to mid-part of the thirteenth century gradually developed and conformed to the pattern of an ecclesiastical corporation, based upon the model of a bishop and a cathedral chapter. The various conflicts involving the chancellor, the local townspeople, and the mendicant friars each contributed to the constitutional development of the faculty as a corporate body, particularly with respect to its procedural and decision making process. Overall, the legislation governing the operation of cathedral chapters continued apace during the early thirteenth century, influencing the development of the faculty of theology. It is now time to turn to that legislation, to dig deeper, and to discover what jurisdiction, if any, the cathedral chapter acquired over the criminal activity of its members.

CHAPTER 4

Jurisdiction and the Cathedral Chapter: Gratian and the Decretists The foregoing discussion of the activities of the Parisian masters and of cathedral chapters indicates that the model of the cathedral chapter offers much insight into the patterns of governance within the theological faculty at Paris. Hence, it stands to reason that a further comparison between the cathedral chapter and the faculty of theology with respect to the policies and procedures used in correcting erring members should also prove to be a productive line of investigation. Ultimately, this comparison between the two corporate bodies should also provide greater insight into: 1) the nature and extent of the jurisdiction exercised by the faculty of theology, 2) the manner in which the theological faculty acquired this jurisdiction, and finally, 3) the procedures employed when the faculty conducted these investigations.

The Model of Shared Jurisdiction: The Contribution of Gratian

Consequently, the starting point for any discussion of the chapter’s or the faculty of theology’s authority must begin with the Decretum of Gratian.1 Yet, before analyzing this work, it is important to lay out some basic facts regarding its composition. The dating and composition of Gratian’s work is still a topic of great interest to scholars and one which still generates debate. Going back now almost twenty years, Anders Winroth argued that Gratian published 1  The literature on Gratian is immense, and it is impossible to include references to all of it here. The recent collection of articles on the history of canon law edited and assembled by Wilfried Hartmann and Kenneth Pennington is indispensable. For a general introduction to Gratian and his Decretum, along with additional notes and bibliography, see Peter Landau, “Gratian and the Decretum Gratiani,” in The History of Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX, eds. Wilfried Hartmann and Kenneth Pennington (Washington D.C., 2008), 49–52. Anders Winroth has theorized that there existed two recensions of Gratian’s Decretum. For his study, see The Making of Gratian’s Decretum (Cambridge, 2000). For an alternative view and a summary of recent work on this issue, see Melodie Harris Eichbauer, From Gratian’s “Concordia Discordantium Canonum” to Gratian’s “Decretum”: The Evolution from Teaching Text to Comprehensive Code of Canon Law. (Ph.D. diss., Catholic University of America, 2010).

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two recensions of the Decretum, an initial shorter version and, then, the final edition. According to Winroth, Gratian completed the first recension of the Decretum some time after 1139; as to the dating of the second recension, Winroth subsequently argued that the earliest unassailable date for its composition is some time between 1155 and 1158; initially, in an earlier publication, he had also suggested 1150 as possibility.2 Other scholars, such as Peter Landau, while taking into account Winroth’s work, have suggested that Gratian began editing the Decretum around 1125; he then finished the first recension by 1139; and, finally, the father of canon law produced the present or, vulgate, edition around 1145.3 Most recently, Melodie Eichbauer has further contended that Gratian did not publish two recensions at all, but rather, that the work progressively evolved, and, that each stage served a different purpose.4 Although the debates surrounding the composition and dating of the Decretum will not substantially affect the conclusions of this work, it is, nonetheless, important to bear this context in mind. In his Concord of Discordant Canons, Gratian included various texts that addressed issues related both to the judgment of cases and to the roles played by the bishop and his clerics in the conduct of those cases. Gratian himself did not comment on every text that he included; but when he did, his comments, or dicta, are instructive. In addition, the early glossators to the Decretum frequently offered their own analyses and insight with respect to both the texts and Gratian’s dicta on them. Together, the views of Gratian and the glossators provide a window into understanding the roles played by the bishop and the cathedral canons in the judging of cases during the twelfth and early thirteenth century. Moreover, this background is essential for understanding how the bishop and cathedral canons were to handle the adjudication of cases of heresy. With respect to the handling of cases, Gratian raised this issue in two principal places in the Decretum. At Distinction 86, Gratian included a letter of Pope Gregory I addressed to the bishop of Corinth, entitled Si quid vero that stated a bishop should not readily believe reports of wrongdoing on the part of his 2  See Winroth, The Making of Gratian’s Decretum, 136–145, esp. 136 and 144. In an earlier work, “The Two Recensions of Gratian’s Decretum,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 83 (1997), 22–31, he dated the period between the first and second recensions to the years 1139–1150. I have consulted the online version of this article, which may be found at: http://mahan.wonkwang.ac.kr/link/med/law/canon-law/ gratianus/paper.html last accessed July 8, 2014. 3  Landau, “Gratian and the Decretum Gratiani,” 24–25. 4  Melodie Eichbauer, From Gratian’s “Concordia Discordantium Canonum,” 1.

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clerics. Instead, the bishop had to consult his senior clerics when searching out the truth and passing sentence against any erring cleric under his authority.5 Later on, at C.15, q.7, Gratian included a series of seven canons that also addressed the correction of clerics and the manner in which cases were to be handled. Notably, at c.2, Gratian placed another of Pope Gregory’s letters, Si quid igitur (C.15, q.7, c.2), addressed to the bishop of Palermo, which was essentially a variant of Si quid vero, and which made the same point. Both variants, along with Gratian’s dicta, were included in the first recension of the Decretum.6 At Distinction 86, both Gratian’s dicta, as well as his placement of the text, reveal something regarding his views. First, in his dicta, he observed that the “bishop should not be a striker, that is, ready to use the rod.” In colorful language, Gratian thus expressed concern that the bishop not injure any of his clerics through a rush to judgment or punishment. Gratian then continued, following this advice with the words: “Whence, Gregory writes to the bishop of Corinth,” and there Gratian placed the text of “Si quid vero.”7 In this way, Gratian linked his concerns about injury to clerics directly to the text of Si quid vero. This linkage is interesting because the canon required the bishop to consult his senior clerics when judging cases. Thus, although Gratian himself did not make any explicit statement regarding the significance of Si quid vero, he seemed to imply that the presence of the canons was needed due to the potential for overzealous bishops to inflict undue harm or punishment on erring clerics. In Causa 15, q.7, Gratian revisited issues dealing with the correction of clergy. There, his dicta reveal that he was, in reality, concerned about the potential for abuse of authority when the bishop acted alone. At the opening of Causa 15, and immediately before the canon Sexta actione (C.15, q.7, c.1), Gratian stated that without a hearing at a synod (“sinodalis vero audientia”), a priest 5  D.86, c.23. The text reads: “Si quid vero de quocumque clerico ad aures tuas pervenerit, quod te iuste possit offendere, facile non credas, nec ad vindictam te res accendat incognita; sed presentibus ecclesiae tuae senioribus [clericis] diligenter veritas est perscrutanda, et tunc, si qualitas rei poposcerit, canonica districtio culpam feriat delinquentis.” The preliminary work of Anders Winroth and his team indicate that D.86, c.23 was included in this first edition of the Decretum. For the associated web site, see Anders Winroth, “Decretum Gratiani, First Recension, edition in progress, 168–169.” https://sites.google .com/a/yale.edu/decretumgratiani/home last accessed August 1, 2015. 6  C.15, q.7, c.2. Cf. Anders Winroth, “Decretum Gratiani, First recension,” 457. https://sites .google.com/a/yale.edu/decretumgratiani/home last accessed August 1, 2015. 7  Ibid. D.86, d.p.c.22: “ ‘Gratian. Similiter etiam oportet episcopum non esse percussorem, id est ad vindictam facilem. Unde Gregorius scribit Iohonni Episcopo Corintiorum:”

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could not be condemned.8 Obviously, the point of having a case heard before a synod was to prevent any individual bishop from acting unilaterally against the accused. In turn, the canon Sexta actione, in a manner consistent with Gratian’s dicta at D.86, d.p.c.22, underscored the potential for harm when the bishop acted alone. The canon stated that many condemned others through tyrannical power, and without a proper hearing (indiscussos). The canon further underscored the principle that, while a bishop could confer honor on his priests or ministers, he could not single-handedly take such honor away.9 Sexta actione touched on the deposition of clergy and required a bishop to act with other bishops when judging a priest or a deacon, but the text gave little information in the way of specifics, nor did it make mention of the bishop’s clerics or cathedral canons. Within the overall body of Causa 15, q.7, Gratian also included three other canons, Si quis tumidus (C.15, q.7, c.3), Felix episcopus (C.15, q.7, c.4), and Si autem presbyteri (C.15, q.7, c.5), that each addressed various aspects of cases in which a defendant was a bishop, a priest, or a deacon. Neither Si quis tumidus, nor Felix episcopus spoke to the role of the bishop’s clerics. In this regard, however, Si autem presbyteri is of special interest. This canon addressed cases in which bishops or deacons were accused of a crime. The canon specified that, in addition to the defendant’s bishop, six bishops were required to try case of a priest and three bishops were needed if the accused was a deacon. The canon then concluded by stating that with regard to the remaining cases of clerics (that is, clerics below the rank of deacon) “the bishop alone could investigate and conclude those matters.”10 Thus, while the canon addressed the number of bishops needed to depose a priest or a deacon, it apparently made no room for the participation of the bishop’s clerics. Nor did it mention them when discussing cases involving priests or deacons. 8  C.15, q.7, d.a.c.1: “Gratianus. 1 Pars. ‘Absque sinodali vero audientia sacerdotem damnare . . . sic prohibetur.” Cf. Anders Winroth, “Decretum Gratiani, First recension,” 456. https://sites.google.com/a/yale.edu/decretumgratiani/home last accessed August 1, 2015. 9  C.15, q.7, c.1. “Nam multi sunt, qui indiscussos potestate tiranica, non auctoritate canonica dampnant. Et sicut nonnullos gratia favoris sublimant, ita quosdam odio invidiaque humiliant, et levi opinionis aura condempnant quorum crimen non approbant. Episcopus enim sacerdotibus ac ministris solus honorem dare potest, solus auferre non potest.” 10  C.15, q.7, c.5. “Si autem presbyiteri vel diaconi fuerit accusati, adiuncto sibi ex vicinis locis proprius episcopus legitimo numero collegarum quos ab eodem accusati petierent, id est una secum in presbiteri nomine sex, in diacioni tres, qui ipsorum causas discutiant. . . . Reliquorum vero clericorum causas etiam solus episcopus loci agnoscat et finiat.”

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In fact, given the wording of the decree, it appeared specifically to exclude them from participating in trials involving those below the rank of deacon; for in those cases, the canon plainly stated that the bishop was to act alone. Si autem presbyteri thus appeared to contradict the earlier canons, Si quid vero and Si quid igitur referenced above. Yet, it is Gratian’s dicta placed immediately after this text that resolves the conflict among the various canons cited. Referencing the final paragraph of the canon, Gratian observed that the term “solus” excluded only other bishops, not his own [that is, the bishop’s] clerics. Moreover, Gratian explicitly stated that without their presence, the sentence would be void.11 In contrast to the plain wording of the decree, Gratian specifically gave the bishop’s clerics a role in judging cases. Thus, while it is not clear from this dictum alone whether Gratian intended for the canons to be present in all cases – including those involving priests and bishops – at the very least, a strict reading of his dicta indicates that he required their participation in cases involving clergy below the rank of deacon.12 Two points, however, must be kept in mind when assessing Gratian’s contribution. First, although it is reasonable to suppose that the bishop’s clerics were, in fact, the cathedral canons of the diocese, it must be remembered that Gratian did not identify or label them as such. And finally, although he enjoined the participation of the bishop’s clerics in judging some cases, he did not comment on the types of cases adjudicated, nor on the nature of each party’s rights, obligations, or judicial authority. In sum, Gratian, through his dicta, had emphasized the potential for harm when a bishop acted alone, the need for synodal cooperation when judging clergy at or above the rank of deacon and, finally, he favored at least a limited role for the bishop’s clerics when judging clergy below the rank of deacon.

11  Dicta Gratiani post C.15, q.7, c.5. “II Pars. Gratian. ‘Solus autem ad exclusionem aliorum episcoporum, non suorum clericorum dicitur, sine quorum presentia eius sententia irrita erit.” Cf. Anders Winroth, “Decretum Gratiani, First recension,” 456. https://sites.google .com/a/yale.edu/decretumgratiani/home last accessed August 1, 2015. There the dictum continues with the staement: “ Unde in Cartaginensi Concilio IV legitur,” apprently linking the dictum to Episcopus nullius. 12  A broader reading of Gratian’s dictum is possible, given that he placed the canon Episcopus nullius (C.15, q.7, c.6) immediately after his own words, as if to amplify his commentary. Episcopus nullius dated from the Fourth Council of Carthage and and stated that the bishop could hear no case without the presence of his clerics; otherwise, without their presence, the sentence would be void. Hence, according to Episcopus nullius, the canons paricipated in the judgment of all cases heard by the bishop.

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The Model of Shared Jurisdiction: The Contribution of the Decretists

It remains to be seen how Gratian’s early commentators, known as the decretists, interpreted both the master’s text and his dicta, as well as how they applied these principles to their own context. How did they address issues surrounding the judging of cases and, specifically, did they discuss the contribution of the cathedral canons in the resolution of cases? Gratian worked and wrote in Bologna, and it is from there that the decretists, as they are called, emerged. Scholars have traditionally described the decretists in terms of their geographical associations, these being the cismontane, or Italian decretists, on the one hand, and the transmontane, or northern European decretists, on the other.13 Let us now turn to analysis of their writings. Paucapalea, writing in the period between 1144 and 1150, authored the oldest commentary on Gratian’s Decretum and his Summa was very ­influential.14 Pennington noted that Paucapalea was concerned with various aspects of correct procedure.15 However, At D.86, Paucapalea glossed Gratian’s dicta observing only that one could strike or injure another in three ways; but he said nothing regarding the bishop’s clerics.16 Similarly, at C.15, q.7, Paucapalea omitted any discussion of the canons, Si quid igitur or Episcopus nullius, both of which addressed the role of the clerics. Nor did he discuss Gratian’s dictum placed after Si autem presbyteri. He did, however, gloss Sexta actione but 13  Like the literature on Gratian, the literature on the decretists is large and covers a wide range of issues. Again, the collection of articles edited by Hartmann and Pennington must be consulted. See Rudolf Weigand, “The Development of the Glossa Ordinaria to Gratian’s Decretum,” in The History of Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX, eds. Wilfried Hartmann and Kenneth Pennington (Washington D.C., 2008), 55–97. For the Italian school of decretists, see the article by Kenneth Pennington and Wolfgang P. Müller, “The Decretists: The Italian School,” in The History of Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX, eds. Wilfried Hartmann and Kenneth Pennington (Washington D.C., 2008), 121–173. For the Transmontane Decretists, see the additional article by Rudolf Weigand, “The Transmontane Decretists,” in The History of Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX, eds. Wilfried Hartmann and Kenneth Pennington (Washington D.C., 2008), 174–210. 14  Pennington and Müller, “The Decretists,” 128–129. 15  Ibid., 130. 16  Paucapalea, Die Summa des Paucapalea über das Decretum Gratiani, ed. Johann Friedrich von Schulte (Giessen, 1890), 45–46. http://web.colby.edu/canonlaw/2009/09/24/ decretum-decretists/ last accessed August 5, 2014.

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there, again, he said nothing regarding the cathedral canons. He observed that, although a bishop acting without a council or the metropolitan could remove (privare) someone from office; the bishop, acting alone could not degrade the individual from clerical status.17 Following Paucapalea, Master Rolandus, wrote in the 1150s and continued to revise his work through the next decade.18 Like Paucapalea, he demonstrated no apparent interest in the role of the bishop’s clerics. At D.86, he commented briefly on Gratian’s dictum, observing among other things, that prelates who were excessive in correction should seek forgiveness from God.19 At C.15, q.7, Rolandus did not address the role of the cathedral canons, but he did include a discussion of secret and manifest crimes and seemed to suggest that, under certain circumstances, the bishop could act alone – that is, without the participation of other bishops.20 Rufinus was a major figure at Bologna in the 1150s, completing his Summa around 1164.21 Initially, Rufinus offered commentary neither on Gratian’s dictum at D.86, nor on the text of Si quid vero.22 And at C.15, q.7, his comments were brief. Rufinus began by observing that a synod was required in order to condemn, that is, to depose, a priest or another bishop.23 Then, following the canons contained in the causa, he specified the number of bishops required: in the case of a bishop, twelve bishops with the [defendant’s] metropolitan, seven in the case of a priest, and in the case of a deacon, three.24 Finally, he stated 17  Ibid., 85. 18  Pennington and Müller, “The Decretists,” 132–133. 19  Rolandus, Summa Magistri Rolandi, ed. Friedrich Thaner (Innsbruck, 1872), 11. “D. LXXXVI. Ut si modum excesserint in corrigendo, praelati a Deo veniam petant, et quod histrionibus non sit aliquid tribuendum et venatoribus et de liberalitate discreta, et ut praelatus non sit facilis ad vindictam.” 20  Ibid., 35–36. The passage, which cites authorities omitted by Gratian, including Ambrose and Pope Nicholas, is interesting but too long to quote here. 21  Pennington and Müller, “The Decretists,” 135 and n. 71. 22  Rufinus, Die Summa Decretorum des Magister Rufinus, ed. H. Singer (Paderborn 1902), 155.  23  Ibid., 311. “Synodalis audientia intelligititur presentia et iudicium episcoporum, sine quibus sacerdos damnari, h. e. deponi non valet, sicut nec episcopus.” 24  Ibid. “Debent autem esse in causa episcopi XII, cum proprio metropolitano, in causa presbyteri VII, in diaconi, tres.” Although Rufinus called for the participation of seven bishops when deposing a priest, two possible explanations account for this apparent discrepancy in the number of bishops required. On the one hand, the defendant’s own bishop, along with six others, would total seven. Or, as the critical apparatus to Friedberg’s edition of the Decretum indicates, some manuscripts also listed seven bishops as a variant. Cf. Friedberg, Decretum cols. 757–758 and nn. 48 and 75 for the critical apparatus regarding variants within the manuscripts.

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that with respect to the cases of other clerics (those below the rank of deacon) there was need only for the presence of the bishop and his clerics. Together, they could discuss the matter and render a definitive sentence.25 Thus, Rufinus appears to be one of the earliest decretists to comment on Gratian’s dictum regarding the role of the bishop’s clerics. Like his teacher, Rufinus, Stephen of Tournai shed some additional light on this topic. Stephen completed his Summa some time between 1165 and 1167.26 At D.86, Stephen of Tournai did not comment on the role of the cathedral canons in judging cases. And although he did comment on Gratian’s d.p.c.22, he did so only in the context of whether the bishop should easily believe the reports made to him.27 Again, like Rufinus, Stephen did not comment on the individual texts contained within C.15, q.7. But he did highlight a contemporary debate regarding ability of the bishop to judge priests that also touched on the role of the bishop’s clerics. Stephen observed that, on the one hand, some believed that, presently, it was not possible for a bishop to depose a priest without the authority of the Roman pontiff, even if previously, bishops had been able to do this with a council of bishops.28 And certainly, only the Roman pontiff could depose a bishop.29 Then Stephen appeared to express his own view. “On the other hand,” he continued, “any bishop – not only a council of bishops, but also any bishop with his clerics – could legitimately condemn one of his own priests who had confessed or had been convicted.” In addition, 25  Ibid. “[C]eterorum autem clericorum causas solummodo proprius episcopus cum praesentia suorum clericorum potest disuctere et definere.” 26  For the dating of his Summa according to Herbert Kalb and Rudolf Weigand, see Pennington and Müller, “The Decretists,” 136 and nn. 81 and 83. A critical edition of Stepehen’s Summa is also needed; cf. Ibid., n. 84. 27  Stephen of Tournai, Die summa über das Decretum Gratiani, ed. Johann Friedrich von Schulte (Giesen, 1891; rpt. Aalen, 1965), 108. Stephen noted that while D.86, c.23 stated that the bishop should not easily believe the wrongdoing of his clerics, C.22, q.4, c.23, Innocens, seemed to offer a contrary interpretation. Stephen stated: “Infra et contra et contrarii solutionem habes c.22, q.4 Innocens.” At Causa 22, the edited version of the Stephen’s Summa indicates that, in large measure, Stephen copied from Rufinus and Rolandus. per the text as edited by Schulte, there is no reference to Question 4; it is omitted entirely. See Ibid., 230. The absence of any reference to Innocens in Stepehen’s texts is not surprising because Master Rolandus, for his part, did not mention or discuss Innocens. Similarly, Rolandus did gloss the causa but did not specifically address Innocens. See Rolandus, Summa, 84–86. 28  Tournai, Summa, 222. C.15, q.7, d.a.c.1. “Absque vero. sinod. Quidam dicunt hodie episcopum nec in synodo, nec extra synodum, absque auctoritate romani pontificis presbytyrum deponere posse, cum antiquitus hoc posset cum aliis episcopis in provinciali synodo congregatis.” 29  Ibid. “Et hoc quidem immutatum est in episcoporum depositione, ut solus romanus pontifex eos deponere possit.”

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Stephen stated: “Where provincial synods are not celebrated together by bishops, “nothing hinders any bishop from exercising his judicial power of condemning or absolving his clerics, so long as others are present.”30 Given that the bishop was meeting without other bishops, the presence of others mentioned in the text, (“aliis tamen presentibus”) likely referred to the bishop’s own clerics, that is, his cathedral canons. Stephen’s commentary is intriguing. His use of the phrase “quidam dicunt” as contrasted with his own views, as expressed in the passage, signaled the presence of a contemporary debate regarding the role of the bishop and his clerics in judging cases. Indeed, Stephen’s observations in this matter appear to be the earliest specific recognition of the potential for the bishop’s clerics to participate in cases involving priests. Moreover, by recognizing that the bishop’s clerics could participate in these types of cases, Stephen hinted at their participation in a wider range of cases as well; for, if the bishop’s clerics could be present when judging a priest, there was a strong likelihood that they could also be present when judging a cleric of lesser rank, such as a deacon.31 It should be noted, however, that Stephen did not specify the types of cases being tried.32 Overall, the influence of Stephen’s work cannot be discounted, for although he was a student of Rufinus and an Italian decretist, his work was also influential in Parisian circles as well.33

30  Ibid., “[C]eterum presbytyrum suum non solum in concilio episcoporum, sed etiam in presencia clericorum suorum quilibet episcopus legitime convictum vel confessum poterit condemnare. Ubi enim comprovinciales synodi ab episcopis non celebrantur, nihil impedit, quominus a quolibet episcopo iudiciaria potestas condemnandi vel absolvendi in clericos suos, aliis tamen presentibus, exerceatur.” 31  Stephen’s commentary, tantalizing in its own right, also raises many questions. First, Stepehen did not elaborate on the necessary conditions or types of cases that permitted a bishop and his clerics to condemn a priest. For example, he did not clarify his use of terminology as Rufinus had done. Did Stephen use the words “condemnare” and “deponere” as synonyms? Or did the use of these terms signify different approaches to different types of cases? Did he mean that the bishop and his clerics could condemn or depose a priest only if provincial synods were rarely held? Or, did he mean that the bishop and his clerics could condemn a priest of those crimes that did not lead to deposition, but that the bishop was still normally required to convene fellow bishops in order to depose a priest? It is not possible to answer these questions based on his brief commentary, but the questions illustrate the complexity of the issue. 32  Whereas Rufinus indicated that he used the terms ‘dampnari’ and ‘deponi’ interchangeably as synonyms, Stephen made no clarification regarding his use of the terms ‘condemnare’ and ‘deponere.’ 33  On Stephen’s influence, see the comments by Pennington, in Pennington and Müeller, “The Decretists,” 136–138. Also, see the comment made by Rudolf Weigand, “The Transmontane Decretists,” 180.

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The anonymous author of the Summa Parisiensis, writing in the period of 1160–1170 showed no interest in discussing the role of the bishop’s clerics.34 At D.86, he briefly glossed two meanings of the word ‘percussorem,’ but omitted any discussion of canon 23, or its interpretation.35 In like manner, at C.15, q.7, the Summa’s author did not gloss Si quid igitur (c.2), or Episcopus nullius (c.6), that is, he did not gloss any of the texts that dealt specifically with the participation of the bishop’s clerics. Nor, in glossing Si autem presbyteri (c.5), did he remark on the import of Gratian’s dictum. However, in glossing Sexta actione (c.1), he did note that although the bishop acting alone could not degrade a priest or deacon, he could, nevertheless, temporarily suspend or excommunicate the accused.36 The Summa ‘Elegantius in iure divino’, also known as the Summa Coloniensis, represented the major work of the short lived Cologne school, which flourished around 1165–1180.37 In contrast to the author of the Summa Parisiensis, the anonymous author of this work provided greater insight into the contribution of the bishop’s clerics. Although the author’s glosses to C.15, q.7, shed no significant light on this issue, his contribution to the topic, formulated around D.86, was significant.38 There, the author directly linked Gratian’s d.p.c.22, with the following text canon 23, leaving no doubt that he interpreted the texts as a single unit. Whereas Gratian may have only implied the connection between his dictum and the letter of Pope Gregory I, the anonymous author of the Summa Coloniensis made that connection explicit. Paraphrasing and 34  For the dating of the Summa Parisiensis, see McLaughlin, Summa Parisiensis, xxxi–xxxiii, who discussed various possibilities and suggested 1160. Most recently, Weigand, in “The Transmontane Decretists,” 181–182, dated the Summa to the same time period and school as the Summa Elnonensis, that is, between 1160–1170. 35  Summa Parisiensis on the Decretum Gratiani, ed. Terence P. McLaughlin (Toronto, 1952), 68. “[Dict. p. c.22] Similiter, percussorem. Duplici modo exponit: primo ne sit facilis ad vindictam, sequenti paragrapho ne propria manu percutiat nisi in casu.”   36  Ibid., 176. “auferre, i. e., degredare, non potest. Potest tamen eum ad tempus suspendere vel excommunicare.” 37  The school appears to date from approximately 1165–1180. See Weigand, “The Transmontane Decretists,” 182–183, where he discusses the conrtibution of Gerard Pucelle to the school. 38  Summa ‘Elegantius in iure divino’ seu Coloniensis, eds. Gérard Fransen and Stephan Kuttner, 4 vols. (New York and Vatican City, 1969–1990). The Summa consists of fifteen parts, each subdivided into chapters and published in four volumes. References are given by volume and page number, part and chapter. The author only glossed C.15, q.7, c.5, Si autem presbyteri. However, in doing so, he focused only on issues surrounding the handling of delays. Cf. 2:107, at 6.4.

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following the intent of Gratian’s dictum, he stated that the prelate should not be a lover of vengeance.39 Moreover, the author stated that it was enjoined upon the bishop as a prerogative of his dignity not to favor punishment or vengeance easily.40 For that reason, (“Unde”) he continued, Pope Gregory had written to Johannes the bishop, advising the bishop to seek the council of his senior clerics when judging the case of an accused. The author included the full text of the canon. Moreover, the context in which the author made this linkage cannot be ignored. He did so within a larger discussion that focused on the proper administration of discipline as well as on the potential for the bishop (or anyone) to injure or harm his clerics when administering correction or punishment.41 The author recognized the ways in which a prelate could injure another, along with the need to balance severity and leniency. Viewed against this background, it is not surprising that, in glossing Gratian’s dictum, he highlighted the role played by the bishop’s senior clerics. As the text of the canon made clear, their presence and participation prevented a rush to judgment on the part of the bishop and, further, functioned as a safeguard against the unbridled excesses of a vengeful or gullible prelate.42 Simon of Bisignano, one of the last major decretists before Huguccio, completed his Summa between 1177 and 1179.43 Simon, like Stephen of Tournai before him, evidenced an ongoing debate regarding the role of the bishop’s senior clerics. At Distinction 86, Simon glossed c.23, Si quid vero. He noted that some thinkers interpreted the canon to mean that a bishop with his clerics could depose any cleric; and, furthermore, they used this text to disparage any other texts that stated the contrary.44 For his part, Simon offered several 39  Ibid., 1:71, at 2.61. “Quod prelatus ecclesie non debeat amator esse vindicte.” Compare this with Gratian’s dictum referenced above at page 105, and note 7. 40  Ibid. “Prerogative etiam huius dignitatis non esse facile ad vindictam iniungitur.” 41  The author referenced D.86, c.23 at Ibid., 1:71, 2.61. Consider the surrounding chapter headings at 1:70–71. “[2.]58. Quod tribus modis dicitur percurssor. . . . [2.]59. Quod in catigatione lenitati severitas miscenda est. . . . [2.]60. Que in corporali castigatione adesse oporteant. . . . [2.]61. Quod prelatus ecclesie non debeat amator esse vindicte. . . .  [2]62. Ut minores magistratus subditos verbere percellant quos verba non emendant. . . . [2.]63. Seniores corporali castigationi subiciendos non esse. 42  Ibid, 1:71, 2.61. Consider the specific wording of the canon, as included by the author: “ne facile credas nec ad vindictam te res accendat incognita,” and “set presentibus ecclesie tue senioribus veritas diligenter perscrutanda est, et tunc si qualitas rei poposcerit, canonica districtio culpam feriat delinquentis.” 43  Pennington and Müller, “The Decretists,” 140. 44  Summa in Decretum Simonis Bisinianensis, ed. P. V. Aimone Braida, Monumenta iuris canonici. Series A: Corpus glossatorum, vol. 8. (Vatican city, 2014), 76. At D.86, c.23:

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solutions to the debate. First, he interpreted Si quid vero according to its original context. The text of Pope Gregory’s letter referred to an archbishop who, along with his senior bishops possessed the authority to depose. Second, in the case of a monetary fine, Simon felt that a bishop and his clerics could act, but not in a criminal case. And finally, the bishop alone, he argued, is not able to depose, but can suspend, a cleric.45 Hence, although Simon certainly did not favor any general expansion of authority with regard to the bishop’s clerics, he did seem to suggest that a bishop and his clerics could levy a monetary penalty. It is not clear from his commentary as written whether he believed that the bishop’s clerics could be present when the bishop suspended someone. In stating that the bishop could act alone when suspending a cleric, Simon seemed to mean without other bishops but, regrettably, he did not comment one way or the other with respect to the bishop’s clerics, or canons. In any event, when Simon glossed C.15, q.7, c.2, he added a few more details. He stated that a bishop and his clerics could impose a monetary fine, but could not judge a crime that led to deposition. In this way, he hinted that the bishop and his clerics could judge cases that did not lead to deposition. Then immediately thereafter, he mentioned cases of suspension, which a bishop could do alone. In stating that the bishop could act alone, he probably meant in this context to exclude only other bishops, not the bishop’s clerics, since he was glossing the phrase “presentibus ecclesie tue senioribus.” In that case, the seniores would have been his own clerics.46 In his Summa, Simon glossed neither C.15, q.7, c.5, nor Gratian’s dictum after this canon. Overall, then, in contrast to some of his contemporaries, Simon did not believe that the authority of bishop and his clerics to judge cases included the authority or the right to depose a priest or bishop. At the same time, he gave limited recognition for a bishop and his clerics to impose fines or, perhaps, to handle what would be termed civil cases. In addition, his comments suggest “Usque canonica districtio culpam feriat delinquentis. Hinc volunt quidam colligere episcopum cum suis clericis quemlibet clericum posse depondere et per hunc canonem omnibus derogari canonibus in quibus hoc fieri inhibetur.” 45  Ibid. “Solutio: hic loquitur de archiepiscopo qui cum suis episcopis hoc facere possit. . . . Vel in causa pecuniaria clericorum hoc habet locum non in criminali. Vel solus episcous clericum ferire potest non depositionis sed suspensionis sententia.” 46  Ibid., 292. C.15. q.7, c.2. “Si quid ergo usque presentibus ecclesie tue senioribus. . . . Dicamus ergo per seniores suffraganei episcopi huius archiepiscopi intelliguntur, cum quibus poterat Panormitanus archiepiscopus sacerdotem deponere. Vel cum senioribus sue ecclesie potest sacerdotem iudicare episcopus in causa pecuniaria, non de crimine quod depositionem inducit. Vel iudicare, idest suspendere, quod etiam sine episcopis facere potest episcous.”

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that he permitted the bishop and his clerics some limited space to deal with minor cases not involving deposition, which also seems to have included cases involving suspension of clerics. A product of the Anglo-Norman School, the Summa ‘Omnis qui iuste iudicat’, sive Summa Lipsiensis, was composed some time after 1185. It did not add significantly to the discussion. At D.86, c.23, the author interpreted the passage in two ways, neither of which addressed the role of the cathedral canons. On the one hand, the author held that, even though on the surface, the text appeared to state that that a bishop and his clerics could depose a priest or a deacon, this was, in reality, against the canons. Or, as he also noted, the text simply referred to the archbishop and his suffragan clerics.47 Nevertheless, the author’s use of the phrase, “dicunt quidam,” indicates disagreement on this issue, and thus, the matter was still subject to debate. Writing between 1185–1191, Master Honorius, in his Summa, also did little to address this topic.48 Honorius did not discuss the cathedral canons, only bishops, archbishops, and priests.49 At C.15, q.7, c.2, Honorius glossed the text only in terms of the archbishop and his bishops; the term, “senioribus” referred to the suffragans of the archbishop.50 Master Honorius died some time between 1210 and 1213.51 His death thus closes the discussion of the first generation of decretists from both Bologna and the Anglo-Norman school prior to contribution of the celebrated canonist Huguccio. Huguccio was the greatest of the first generation of commentators on the Decretum.52 In glossing, Si quid vero, Huguccio touched on the participation 47  Summa ‘Omnis qui iuste iudicat’ sive Lipsiensis, ed. Rudolf Weigand, Peter Landau, et al. 3 vols., Monumenta Iuris Canonici, Series A: Corpus Glossatorum, vol. 7 (Vatican City, 2007–2014), D.86, c.23, 1:346, s.v. senioribus: “Ex hoc dicunt quidam quod solus episcopus convocatis clericis suis presbiterem vel diaconem deponere potest. . . . Hoc tamen non videtur velle quod per canones debet ferire culpam delinquentis, ut per canones sex vel tres congregentur quod quidem verum est. Vel is Ioannes archiepiscopus erat. Unde suffraganeos vocat clericos sue ecclesie.” 48  Magistri Honorii summa ‘De iure canonico tractaturus,’ ed. Rudolf Weigand and Stephan Haering, 3 vols. Monumenta iuris canonici Series A, Corpus Glossatorum, vol. 5 (Vatican City, 2004–2010), 1:xi. 49  Ibid., D.86, c.23, 1:242. 50  Ibid., 2:240, C.15, q.7, c.2, s.v. senioribus: “sufrraganeis.” 51  Weigand, “Transmontane Decretists,” 197 and n. 136. 52  On Huguccio, see Wolfgang Peter Müller, ‘The Summa decretorum of Huguccio,’ The History of Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX. History of Medieval Canon Law; Washington, D.C.: The Catholic University of America Press, 2008: 142–160.

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of the bishop’s clerics in the course of trying cases. Huguccio began by glossing the text in general terms, as it applied to a bishop and his clerics, although he did not identify the bishop’s clerics with the cathedral canons. He began by observing that the bishop could not hand down a sentence without the presence of his clerics. He then went on to discuss the types of cases that a bishop and his clerics could handle. He first noted that, in a general sense, the passage concerned civil cases. But the passage could be understood as referring to criminal cases in certain circumstances: The bishop and his clerics could decide criminal cases involving those clerics who were at or below the rank of subdeacon. Huguccio then continued on and discussed the text more specifically, noting that the letter was addressed to an archbishop – that is, not merely a bishop.53 When glossing the variant of this text at C.15, q.7, c.2, Huguccio merely referred his reader to what he had written earlier.54 Maintaining consistency, Huguccio glossed Episcopus nullius briefly, but in a similar vein. He commented on the participation of the clerics in terms of the number required to form the maior et sanior pars; he also understood the text to apply to both civil and criminal cases.55 Overall, then, Huguccio allowed the bishop and his clerics to hear civil cases, but in criminal cases, he limited this right to those cases involving subdeacons or clergy of a lesser rank. The Summa Animal est substantia, formerly known as the Summa Bamber­ gensis, was completed at the University of Paris some time between 1206 and 1216. It is currently being edited as a work in progress and, thus far, D.86 has 53  Austria, Stiftsbibliothek, 7. Huguccio, Summa decretorum. There appears to be foliation; however, it is too light to be read from the microfilm. D.86, c.23, s.v. senioribus: “Id est clericis sine presentia clericorum suorum non dicitur episcopus ferre sententiam. . . . si causa est civilis tamen est quod episcopus potest causa decidere cum clericis suis, quod ergo hic dicitur intelligitur de casua civili. Potest etiam intelligi de causa criminali quam episcopus potest tractare et decidere cum clericis suis quod ergo hic dicitur si causa impetitur subdiaconus vel inferior clericus. . . . et restringitur in hoc capitulo nomen diaconi tamen ad subdiaconos et inferiores clericos. . . . sed iste archiepiscopus erat et . . . .” I am thankful to the librarians at Van Pelt Library of the University of Pennsylvania for providing access to their medieval manuscript micofilm collection, Mss. 1. I have also counsulted Huguccio, Summa super decretum Gratiani, Paris, B.N. lat. 3892, f. 94v. This item is available for download from http://gallica.bnf.fr/ark:/12148/btv1b52502900f last accessed August 14, 2014. 54  Admont, Stiftsbibliothek, 7. C.15, q.7, c.2: “Igitur hoc capitulum invenies expositum di. lxxxvi. Ponitur eisdem verbis, sed ibi scribitur archiepiscopo corinthiorum, hic panormitan.” 55  Ibid. C.15, q.7, c.6, s.v. suorum clericorum: “Quot sufficient cum episcopo, credo quod maior et sanior pars. . . . [E]t intellego hoc capitulum tam in causa civili quam in criminali, licet in civili male saepe obvservatur.”

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been tentatively edited. Given the late date of the Summa’s composition, it is not surprising that it makes use of some of the decretal collections. In commenting on D.86, c.23, the author of the Summa glossed the word senioribus, which, it is clear, he took to mean the clerics of the bishop. This is obvious because the author cited the rubric, De his que fiunt ab episcopo [sine capituli], in connection with this passage, noting that in the presence of these senioribus, or his clerics, the bishop should handle cases.56 Thus, it is clear that the author of Summa Animal est substantia accorded to the canons a role in the affairs of the chapter, but at this particular text, he gave no specifics regarding their participation. Consequently, at the end of the first generation of commentators on Gratian’s Decretum and just prior to the completion of the Glossa ordinaria by Johannes Teutonicus, one can say that some development in the role of the bishop’s clerics had taken place. Whereas, initially, the commentators, such as Paucapalea and Master Rolandus did not seem interested in this topic, the contributions of Rufinus and his student Stephen of Tournai demonstrate that the participation of the canons became a topic of debate after the middle part of the twelfth century. Other thinkers, including the anonymous authors of the Summa Coloniensis and the Summa Bambergensis also contributed to the discussion. The witness of Simon of Bisignano and the author of the Summa Bambergensis further reveals the influence of subsequent decretal legislation. In part, as a result of this legislation, the participation of the bishop’s clerics was becoming more accepted in practice, although there was not, as yet, any general consensus on the nature or extent of their participation, or the types of cases in which they might be involved. Nevertheless, some general trends had begun to emerge. Although a bishop and his clerics acting independently could not depose or degrade a priest, the understanding of the law, as expressed by Huguccio and other glossators, had begun to clarify that, generally, in civil cases, or in cases involving only monetary fines, the bishop could act alone with his cathedral canons. Likewise, with respect to cases involving clerics at or below the rank of deacon or subdeacon, it was becoming more acceptable for a bishop and his clerics to hear those cases without the need for any outside involvement.

56  Summa ‘Animal est substantia’, [formerly, known as the Summa Bambergensis], ed. E. C. Copens, http://medcanonlaw.nl/Animal_est_substantia/Distinctiones.html last accessed July 13, 2014. PDF files of work in progress may be downloaded from this site. D.86, c.23, s.v. senioribus: “Coram his debet causas clericorum tractare, extra De his que fiunt ab episcopo.”

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After the first generation of glossators on Gratian’s work, the period encompassing approximately 1210–1271 represented another important and productive stage of activity among the canonists. Innocent III approved the publication of the Compilatio tertia in 1210, and then in 1215, he concluded the Fourth Lateran Council, promulgating 71 canons.57 Laurentius Hispanus studied and taught at Bologna in the early years of the thirteenth century until 1215 when he left for Spain. It was during this period that he commented on the Compilatio tertia.58 Upon completion of the Fourth Lateran council, Johannes Teutonicus and Vincentius Hispanus produced commentaries on that body of legislation, although there is no evidence either knew of the other’s work.59 At this same time, Johannes, ever prolific, also completed his work on the Compilatio tertia, in addition to the monumental ordinary gloss to the Decretum of Gratian.60 Some few years later, the canonist Damasus penned his work interpreting the canons of the council.61 Active during this period and into the 1220s, Tancred of Bologna completed his Ordo iudiciarus some time after 1216.62 Gregory IX authorized the publication of the Liber extra in 1234, taking into account legislation subsequent to the Decretum. In the 1240s, Bartholomew of Brescia updated the gloss to the Decretum in light of these new advancements, while Goffredus de Trano and Innocent IV expounded the whole of the Liber extra. 57  On the Fourth Lateran Council, see Anne Duggan, “Conciliar Law, 1123–1215: The Legislation of the Four Lateran Councils,” in The History of Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX, eds. Wilfried Hartmann and Kenneth Pennington (Washington D.C., 2008), 318–366, esp. 341–366. 58  Brendan J. McManus, The Ecclesiology of Laurentius Hispanus (c.1180–1248) and His Contribution to the Romanization of Canon Law Jurisprudence, with an edition of the “Apparatus glossarum Laurentii Hispanii in Compilationem tertiam,” (Ph.D. diss., Syracuse University, 1991), 46–47. McManus speculates that it may have been completed as late as 1216. 59  A. Garcia y Garcia, “The Fourth Lateran Council and the Canonists,” in The History of Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX, eds. Wilfried Hartmann and Kenneth Pennington (Washington D.C., 2008), 367–378, at 371–376. Vincent produced two recensions of his commentary. 60  For the dating of Johannes’s works, see Kenneth Pennington, “The Decretalists 1190 to 1234,” in The History of Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX, eds. Wilfried Hartmann and Kenneth Pennington (Washington D.C., 2008), 211–245, at 234–236. 61  A. Garcia y Garcia, “The Fourth Lateran Council and the Canonists,” 371–376. 62  Pennington, “Decretal Collections,” 238–239. See also Tancred of Bologna, Libri de iudiciorum ordine, ed. F. Bergmann (Göttingen, 1842; rpt. Aalen 1965). This volume may be downloaded at https://books.google.com/books?id=jt1FAAAAcAAJ&printsec=frontcover &dq=libri+tancredus&hl=en&sa=X&ved=0ahUKEwiI76qXntnJAhVH5SYKHXDeAh8Q6 AEIKzAB#v=onepage&q=libri%20tancredus&f=false last accessed December 13, 2015.

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Subsequently, Bernard of Parma completed the ordinary gloss to the Decretals by 1265 and Hostiensis worked tirelessly on his Summa and on commentary on the Decretals. His death in 1271 brings to a close an era of immense activity and importance. The flurry of legislation and commentary in the early and mid-thirteenth century served to reshape the understanding of the texts contained in Gratian’s Decretum, particularly given Innocent III’s emphasis on inquisitorial procedure as an investigative technique, evidenced in his decretals, Licet heli (1199), Qualiter et quando (1206) and Qualiter et quando (1215).63 As noted above, the canon, Si quid vero, of Pope Gregory the Great required the bishop to investigate cases with his senior clerics. When Innocent described inquisitorial procedure in Licet heli, which he issued in 1199, he essentially copied the full text of Si quid vero into the decretal.64 In this way, he specifically linked the understanding and interpretation of Si quid vero with the new form of inquisitorial procedure. Thus, Innocent, at the very least, saw the senior clerics of the bishop as playing a key role in the inquisitorial procedure. Yet, Innocent stopped short of identifying the bishop’s clerics with cathedral canons. However, when glossing Qualiter (3 Comp. 5.1.4 = X 5.1.17) Laurentius Hispanus not only identified the bishop’s clerics with the cathedral canons but also labeled them as the major church of the diocese. In addition, Johannes Teutonicus, in glossing the Compilatio tertia, identified the bishop’s clerics with the cathedral canons and gave them a role in the conduct of an inquisition. He also linked Episcopus nullius with this innovation.65 Moreover, it is noteworthy that, while inquisitorial procedure existed neither at the time that the texts of Si quid vero and Episcopus nullius were written, nor at the time Gratian included them text in his Decretum, both Laurentius and Johannes reinterpreted Si quid vero in light 63  (3 Comp. 5.2.3 = X 5.3.31), (3 Comp. 5.1.4 = X 5.1.17 Cf. X 2.1.17) and (4 Comp. 5.1.4 = X 5.1.24), respectively. 64  X 5.3.31 “Nam iuxta canonicas sanctiones si quid de quocunque clerico ad aures praelati pervenerit, quod eum iuste possit offendere, non facile credere debet, nec ad vindictam eum res accendere debit incognita, sed coram ecclesiae senoribus diligenter est veritas perscrutanda, ut, si rei poposcerit qualitas, canonica districtio culpam feriat delinquentis.” 65  (3 Comp. 5.1.4 = X 5.1.17) Laurentius Hispanus, Apparatus glossarum, 569. s.v. descendam: “et debet prelatus descendat cum canonicis ecclesie sue, arg. lxxxvi [di.] Si quid maioris [sic] scilicet, quia nomine ecclesie maior intellegitur.” Kenneth Pennington is editing books III–V of Johannes’s Compilatio tertia commentary and is graciously placing this effort on the web. Johannis Teutonici Apparatus glossarum in Compilationem tertiam, [Books III, IV, and V] ed. Kenneth Pennington http://faculty.cua.edu/pennington/#Joh.%20Teu.%20 Baldus last accessed July 17, 2014. s.v.  descendam: “Prelatus debet descendere cum canonicis suis, ut lxxxvi. di. Si quid [= D.86, c.23] et xv. q. vii. Episcopus [nullius] [= C.15, q.7, c.6].”

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of this procedural innovation of Innocent III. Again, this was probably due, in large measure, to the fact that Innocent had copied Si quid vero into the text of Licet heli. Nor was it much of a stretch for Johannes Teutonicus to cite Episcopus nullius as referring to inquisitorial procedure. Because Johannes completed his commentaries on the Compilatio tertia, the canons of the Fourth Lateran Council, and the Decretum at relatively the same time, it is not always possible to separate them chronologically, for he cross-referenced his works.66 While it is clear that his commentaries on the Compilatio tertia and the canons of the Fourth Lateran Council provide a means for expressing his own views, the ordinary gloss to the Decretum, by contrast, reflects a mixture of both his own views as well as the contemporary consensus as updated by Bartholomew Brescia around 1245. In commenting on Si quid vero in the Decretum, Johannes, as revised by Bartholomew, summed up the three major points noted above. First, he interpreted Gregory’s letter as referring to the conduct of an inquisition. Second, he identified the clerics of the bishop mentioned in these texts with the canons of the cathedral chapter. And third, in general, he seemed to believe that, in cases of inquisition, the bishop needed only to consult his senior canons. He did acknowledge that the canon, Si quis abbas, seemed to argue against this interpretation. However, on balance, with citations to the Liber extra, Johannes, as revised, held that what was done in the major (i.e., cathedral) church of the diocese applied throughout the diocese.67 Even though, for instance, Johannes Teutonicus had been in the forefront of promoting the participation of the canons, he still exhibited concerns similar to those expressed by Simon of Bisignano.68 Johannes observed that, contrary 66  Although the Compilatio tertia dates from an earlier period than the canons of the Fourth Lateran Council, Johannes, when glossing Qualiter et quando (3 Comp. 5.1.4 = X 5.1.17) referenced his commentary on the Qualiter et quando from the Fourth Lateran Council (4Lat. c. 8 = 4 Comp. 5.1.4 = X 5.1.24). Cf. Johannes Teutonicus, Compilationem Tertiam, http:// faculty.cua.edu/pennington/#Joh.%20Teu.%20Baldus last accessed July 17, 2014. s.v. Qualiter: “De modo et ordine inquisitionis plene dixi in constitutione Innocenti Qualiter.” 67  CIC, I:551, D.86, c.23, s.v. ecclesie. The gloss states: “Cum hoc cap. de causa inquisitionis loquatur, ut extra de accus. qualiter et [quando] ergo in causa inquisitionis non habet necesse episcopus alios convocare nisi canonicos tantum. Nam nomine ecclesie tue maior ecclesia intelligitur arg. Extra de verb. sig. cum clerici. [= X 5.40.19]. Arg. contra 18.q.2. si quis abbas [= C.18, q.2, c.15]. Et extenditur hoc nomen, ecclesie tuae, ad omnes ecclesias diocesis. extra de usu. pal. c.1 [= X 1.8.1].” 68  Ibid. “Item, est arg. hic, quod episcopus non vocatis aliis episcopis posit sacerdotem condemnare. Sed dic quod seniores hic vocat episcopos: cum iste Corinthiorum esset archiepiscopus. Vel loquitur tantum de causa pecuniaria, quam potest tractare episcopus

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to other texts, Si quid vero seemed to indicate that a bishop and his cathedral canons could condemn a priest without the presence of other bishops. And like Simon of Bisignano, Johannes did not resolve this conundrum but, instead, offered alternative interpretations of the text. Ultimately, Johannes’s musings shed light on the contemporary understanding of the authority of a bishop and his cathedral canons to hear cases. For example, on the one hand, Johannes suggested that the text of Si quid vero referred to the metropolitan, who acted with his bishops, not with his cathedral canons, in which case there was really no issue or contradiction. But, he also listed other possibilities: The text referred to a monetary fine; or the original meaning of the canon [referring to the metropolitan and his bishops] had been diminished by the impact of subsequent legislation (“per alios canones”); or Si quid vero referred to the punishment of suspension; or, finally, it concerned criminal cases involving clerics below the rank of holy orders, which a bishop and his cathedral canons could hear and decide. Thus, while Johannes left open the possibility that a bishop and his canons might condemn a priest, that certainly was not his preference. Within the context of this passage, the alternatives that he suggested indicate what he considered to be the acceptable jurisdictional limits for a bishop and his cathedral chapter. Together, they could suspend clerics, issue monetary fines, and hear cases involving lesser clergy below the rank of holy orders. The seventy-one canons of the Fourth Lateran Council issued in 1215 represented a watershed moment in medieval legal history. Among the many issues raised at the council, Canon 8, Qualiter et quando, concerned procedures for investigating and prosecuting crimes. As noted, it confirmed the use of the inquisitorial method that Innocent III had introduced in earlier legislation, especially Licet heli, (4Lat. no. 8 = X 5.1.24).69 Yet, it did not dispense or do away with older methods of investigation and prosecution. Rather, it signaled that for each prosecutorial method – that is, for accusation, denunciation, or inquisition – certain prerequisite steps that had to be followed before a case tantum cum suis clericis. Vel est derogatum huic per alios canones. Vel canonica districtio dicatur pena suspensionis, quam episcopus cum suis clericis potest inferre. Vel loquitur de clericis infra sacros ordines constitutis: quorum causas etiam criminales potest episcopus cum cuis clericis tractare et decidere. arg. 15.q.7. si autem” [= C.15, q.7, c.5]. For the concerns of Simon of Bisignano, see above page 114, footnote 45. 69  (4Lat., no. 8 = X 5.1.24) “ ‘Qualiter et quando [quomodo] debeat praelatus procedere ad inquirendum et puniendum subditorum excessus, ex auctoritatibus novi et veteris Testamenti colligitur evidenter, ex quibus postea processerunt canonicae sanctiones,’ sicut olim aperte distinximus, et nunc sacri approbatione concilii confirmamus.” Innocent was quoting, in part, his prior decretal X 5.1.17, which also echoed D.86, c.23.

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could be brought before a judge. Accusation, required inscription, denunciation required charitable admonition, and inquisition required the presence of “clamorous insinuation,” or, fama, as it came to be known.70 Qualiter et quando ranked as an important decretal and was, therefore, included as part of the Liber extra. Thus, two important implications of this decretal need to be underscored. First, because Qualiter et quando retained denunciation as an investigative measure and required charitable admonition as a prerequisite, it brought charitable admonition, or fraternal correction, within the sphere of the legal system, even as fraternal correction remained, technically, separate from it. Yet, at the same time, Qualiter et quando highlighted the shortcomings of both judicial and evangelical denunciation. As the decretal Licet heli had recorded, problems arose because it was often difficult to prove that fraternal correction had actually taken place, according to the Gospel rule. In Licet heli, Innocent III discussed the case involving Abbot Pomposiano. Whereas, critics of the abbot insisted that they had admonished him prior to denouncing him of simony, perjury, malfeasance, and general incompetence, the abbot countered that no such admonition had taken place.71 As the jurist Tancred observed, if someone attempted to denounce another without prior admonition, the denouncer was, himself, repelled.72 Consequently, as a result of 70  Ibid. “Contra quos . . . tribus modis possit procedi, per accusationem, videlicet denunciationem et inquisitionem. . . . sicut accusationem legitima debet praecedere inscriptio, sic et denunciationem caritativa monitio, et inquisitionem clamosa debet insinuatio praevenire.” For the legal aspects of fama, consult Livingston, John Morgan. Infamia In the Decretists From Rufinus to Johannes Teutonicus (Ph.D. dissertation, University of Wisconsin, Madison, 1962); Peter Landau, Die Enstehung des kanonischen Infamiebegriffs von Gratian bis zur Glossa Ordinaria, Forschungen zur kirchlichen Rechtsgeschichte und zum Kirchenrecht 5 (Cologne, 1966); and Edward M. Peters, “Wounded Names: the Medieval Doctrine of Infamy,” in Law in Medieval Life and Thought, ed. Edward B. King (Sewanee, TN, 1990), 43–89. 71  (X 5.3.31 = 3 Comp. 5.2.3). “Cum igitur de abbate Pomposiano ea nobis frequenter insinuata fuissent . . . . [Q]uidam ex ipsis nobis ipsum de simonia, periurio, dilapidatione ac insufficientia detulerunt. Contra quos cum idem abbas excipiret, quod denunciationem huiusmodi fraterna correctio secundum regulam evangelicam non praecesserat, et iidem constanter assererent, quod correctionem huiusmodi praemisissent: licet ad probandum hoc duorum monachorum iuramenta fuissent exhibita, quia tamen super hoc ipsi nondum contendere desistebant: nos ut praediximus, frequentibus clamoribus excitati, ex officio nostro voluimus inquirere de praemissis.” 72  Tancred of Bologna, Libri de iudiciorum ordine, 152. “[U]nde, si denunciator non praemonuit, repellitur a denuncitatione.” The text is quoted in the important article by Richard Fraher on the role of the Qualiter et quando in the revolution in criminal procedure, entitled: “IV Lateran’s Revolution in Criminal Procedure: the birth of the inqui-

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the clamor that arose, Innocent decided to inquire about the matter, thereby establishing the beginnings of inquisitorial procedure. Bernard of Parma, in composing the ordinary gloss to the Liber extra, made a second important point about Qualiter et quando. Like Johannes Teutonicus and Laurentius Hispanus before him, he also gave the cathedral canons a role in carrying out inquisitions. Bernard cited Si quid vero and stated very clearly that when the bishop or prelate proceeded ex officio, he was to go down to the location with his cathedral canons to conduct the investigation.73 For practical reasons, of course, not every canon would always be able to participate. But, like that of Johannes Teutonicus, Bernard’s insistence on their presence had important ramifications for the adjudication of cases of heresy. Mention of the cathedral canons in the ordinary gloss assured that their participation in inquisitorial proceedings would become relatively widespread. Furthermore, although not every inquisitorial process concerned a crime of heresy, nevertheless, cases of heresy were routinely handled according to inquisitorial method. Hence, the generalized use of inquisitorial practice in matters of heresy further assured both the presence and participation of the cathedral canons when judging these types of cases. Overall, then, Qualiter et quando confirmed the procedure of inquisition. It did not eliminate older forms, such as denunciation, which, in turn, relied on fraternal correction. The decretal, however, did recognize and mandate the participation of the cathedral canons in episcopal inquisitions. Over the course of time, then, as the inquisitorial procedure gradually replaced the older forms of accusation and denunciation, the activity of the canons continued to increase. Hence, because Qualiter et quando gave the cathedral canons a prominent role, the decretal also helped to advance the model of shared jurisdiction between bishop and chapter as inquisitorial procedures gained ever more common ground. sitio, the end of ordeals, and Innocent III’s vision of ecclesiastical politics,” in Studia in honorem eminentissimi cardinalis Alphonsi M. Stickler, ed Rosalio Iosepho card. Castillo Lara (Rome, 1992), 97–111, at 102, n. 31. See, in particular, the discussion on 99–103. Fraher’s notes include additional bibiliography on this revoulution in procedure. Apart from his references, one should also counsult, Bruno Lemesle, “Corriger les excès. L’extension des infractions, des délits et des crimes, et les transformations de la procédure inquisitoire dans les lettres pontificales (milieu du XIIe siècle-fin du pontificat d’Innocent III)” Revue Historique, 660 (2011), 747–780. In addition to works cited perviously, see Winfried Tusen, “Der Inquisitionsprozess. Seine historischen Grundlagen und früen Formen,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 74 (1988), 168–230. 73  X 5.1.24, CIC 2:1596, s.v. Ad inquirendum. The gloss reads: “Et tunc distingue: quia aut [praelatus] procedit ex officio suo, aut aliquo postulante inquisitionem: Si ex officio suo, tunc praelatus cum aliquibus de canonicis suis debet descendere ad locum.”

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However much Qualiter et quando served to increase the participation of the canons in cases in a general sense, it did not discuss their jurisdiction or the extent of their authority. The tentative nature of Johannes’s comments and the apparent lack of any subsequent clarification by Bartholomew in the gloss suggest that just prior to the middle of the thirteenth century, there still existed considerable reticence regarding the model of shared jurisdiction between a bishop and his chapter. Two factors, no doubt, played a key role in setting the parameters of this debate. On the one hand, during the twelfth and thirteenth centuries a substantial body of legislation regulating the activities of a bishop and chapter emerged, while at the same time, canonists began to articulate the principles of corporate structures. A central issue in the development of medieval corporate theory concerned the locus of authority or, jurisdiction, within the corporate body. In discussing the locus of ecclesiastical jurisdiction, Brian Tierney has described two opposing views, one ascribed to Innocent IV, which placed jurisdiction almost exclusively with the head of the corporation, and the other, formulated by Hostiensis, which not only required the presence of the canons but also imparted to them an active role in rendering decisions and judging cases.74 Tierney’s general conclusion, that the practice of shared jurisdiction between bishop and chapter formulated by Hostiensis won more general acceptance by the middle to the end of the thirteenth century remains unchallenged.75 One can look, for instance, at the influential Summa super titulis decretalium of Goffredus de Trano, revised before his death in 1245, in which he provided a convenient summary of those instances in which a bishop and his cathedral canons had to work together.76 This mandate of cooperation entailed rights and obligations specific to each party, and, in turn, addressed three fundamental questions regarding jurisdiction within the chapter: 1) When, before acting or passing judgment, was the bishop required to obtain the counsel of the chapter, though not its consent; 2) When was the bishop required to obtain the consent of the chapter; and 3) When could bishop or the chapter each act independently, that is, in opposi-

74  Much of what follows is based on Tierney, Foundations of the Conciliar Theory, esp. 90–108. For the reference to Innocent, see X 1.2.8, no. 3, f. 4r. s.v. sedis: “Et est notandum quod rectores assumpti ab universitatibus, habent iurisdictionem, et non ipsae universitates. Aliqui tamen dicunt, quod ipsae universitates, deficientibus rectoribus, possunt exercere iurisdictionem, sicut rectores, quod non credo.” 75  Tierney, Foundations, 98–100. 76  Goffredus de Trano, Summa . . . super titulis decretalium (Lyon, 1519; rpt. Aalen, 1968) f. 130v–131v. Cf. sections X 3.10 and X 3.11.

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tion to the advice or consent of the other party.77 At this juncture, it will be useful to sketch the outlines of this model, and then subsequently, to return and to demonstrate, from a more historical perspective, the development of the independent jurisdiction of the cathedral canons. In general, two factors influenced how this mandate of cooperative jurisdiction was expressed in the chapter: the nature of the matter under discussion and – related to this factor – the position of the bishop in the proceedings. The bishop, by virtue of his status was not only a member, but also the prelate of the chapter. He could, therefore, sit in the chapter in either capacity, ut prelatus or ut canonicus, that is, as either head of the corporate body or merely as a member of the corporate body, respectively.78 The position of the bishop, either as head or as member, determined the weight given to his vote on the matter under discussion. According to Hostiensis, when the bishop sat ut canonicus, his vote equaled that of any other canon. By contrast, when the bishop sat ut praelatus, his vote equaled that of all the other canons put together; thus, with at least one or two, he formed a majority. Although there was some discussion of the matter until Hostiensis, the opinion of the bishop of Ostia won acceptance as the standard.79 In cases concerning the rights of the prelate alone, the bishop sat ut praelatus. Furthermore, if a disagreement arose between the bishop and the chapter, the bishop could act contrary to the counsel of the chapter. As Hostiensis observed, this was a complicated way of saying that the bishop required the counsel and not the consent of the canons.80 When the chapter met to consider matters touching the rights of both parties, the bishop normally sat ut praelatus, but was required, instead, to obtain the consent of the canons. Since the bishop could form a majority with the addition of only one vote from the chapter, the consent of the canons would 77  78  79  80 

Tierney, Foundations, 100–120. Ibid., 103–108. Ibid., esp., 105–107. Ibid., 106, n. 28. [Hostiensis], “Lectura ad X iii.viii.15, fol. 41rb. ‘Quando episcopus vocem habet in capitulo ut praelatus solut episcopus videtur habere vocem per se quantum omnes alii . . . idem in hoc casu dummodo habeat de capitulo secum duos vel unum saltem maiorem partem habet . . . et hoc considerato dicunt iura quod procedit episcopus de capituli consilio non consensu . . .’ ” Although Hostiensis recommended that the prelate have at least one canon with him forming a clear majority, the bishop of Ostia acknowledged that if the bishop and canons disagreed, the final decision rested with the bishop. ‘Ad X v.xxxi.1 fol. 69vb, ‘. . . in his in quibus episcopus habet vocem tamquam praelatus requiritur tam consensus episcopi quam capituli . . . verum si simul congregati discordent episcopi est diffinitio cuius stabitur . . .’ ”

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seem to carry little weight. However, Hostiensis emphasized that the ability of the bishop to outvote the chapter in these cases applied only to those matters which specifically pertained to the authority of the bishop such as collations of benefices and, notably, institutions.81 In other matters the consent of the canons was required; their consent was a serious consideration and the bishop could not blatantly disregard it. Indeed, canon law always permitted the maior et sanior pars to disagree and seek redress, if needed.82 In those instances where the chapter met to address issues that concerned only the rights of the canons, the bishop sat ut canonicus, merely as another member of the chapter. Since his vote was equal to that of any other canon, his opinion carried no judicial weight. The decision in cases of disagreement rested with the chapter. Hence, the chapter could act in opposition to the vote or opinion of the bishop. Conclusion Overall, the analysis of texts in Gratian’s Decretum – specifically D.86, c.23, and the canons contained in C.15, q.7 – along with the commentary upon them, have illustrated the development of a model of shared jurisdiction within the cathedral chapter. In D.86, c.23, and again at C.15, q.7, c.2, Gratian included canons that mandated the participation of a bishop’s clerics when making judgments. Further, Gratian’s dicta make clear that he, too, supported the participation of bishop’s canons in the judicial process because their presence and participation fostered a more even-handed decision and helped to prevent abuse or injury. Gratian also included a series of canons that specified the number of bishops required in cases of deposition or degradation. Gratian, however, provided few specific details, only general guidelines. It was left to the decretists and later commentators to determine precisely the types of cases that could be adjudicated by a bishop acting with other bishops vs. a bishop acting with his cathedral canons. Initially, the decretists did not show much interest in the role of the cathedral canons when passing judgments. Yet, over time, and by the end of the first generation of decretists, some general trends emerged, despite the lack of any 81  Hostiensis, X 3.8.15, f. 41rb, quoted in Tierney, Foundations, 107 and n. 32. “sed et hoc intelligi debet quo ad collationes beneficiorum et institutiones . . . quae de iure communi ad ipsum [episcopum] solum spectant.” 82  Jean Gaudemet, “Unanimité et majorité,” in La Société ecclésiastique dans l’Occident médiéval, Variorum Collected Studies Series 116 (London, 1980) II, 149–162.

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overall consensus. The commentaries begin to reveal the impact of ongoing decretal legislation. In addition, while a bishop could not depose a priest, it was becoming more acceptable for a bishop with his clerics to handle civil cases and monetary fines of clergy without reference to any outside authority. Similarly, a bishop and his clerics found it easier over time to handle the cases of those clerics below the rank of deacon or subdeacon in an independent fashion. After the first generation of decretists, the period form 1210–1271 represented a period of significant activity that included Innocent III’s promulgation of the canons of the Fourth Lateran Council, the commentary of authorities such as Johannes Teutonicus and Laurentius Hispanus, and finally the seminal contribution of the canonist Hostiensis. One of the most important developments concerned the promulgation of Qualiter et quando which confirmed the use of inquisitorial method that had earlier been introduced by Innocent III in the decretal Licet heli. These decretals, by referencing Si quid vero, gave the canons of the cathedral chapter a role in the conduct of inquisitions initiated by the bishop. Johannes Teutonicus confirmed this increased role. Nevertheless, neither the decretals, nor the commentary upon them, provided a satisfactory formulation regarding the jurisdiction of the canons. Hostiensis endeavored to fulfill this task and, as Brian Tierney demonstrated, the medieval canonist accomplished this goal admirably. Hostiensis presented a subtle and complex model that accounted for both the role of the bishop, sitting either as ut praelatus or ut canonicus, and coordinated this role with the types of cases under discussion: cases involving principally the rights of the prelate; cases touching the rights of both parties – that is, the bishop and the canons; and finally, cases involving the rights of the canons alone. Tierney’s work illustrated the rights of the corporate members in making decisions. Although Tierney demonstrated how this model formed the basis of much of later conciliar thinking, and how the model was used to solve grand issues arising from the Great Schism or the appearance of a heretical pope, he did not focus on how the model served the more mundane day-to-day affairs of bishop and chapter for which it was created. How were the rights of parties spelled out when judging specific cases? For example, Tierney used the term jurisdiction loosely and did not specify how the right of the chapter to give counsel or consent was tied to the legal concept of jurisdiction. The question remains: Did the chapter possess either civil or criminal jurisdiction and, if so, under what circumstances or conditions? From the foregoing discussion of cooperative jurisdiction, it would seem that the canons exercised only limited jurisdiction. In matters touching the rights of the prelate alone, the bishop could disregard the counsel of the

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canons, if he chose. He was required to obtain their counsel, but not their consent. In cases touching the rights of both parties, with the addition of one vote from the chapter, the bishop could form a majority and thus override the opinion of the greater number of canons in the chapter. The circumstance of the bishop outvoting the chapter, or of the maior et sanior pars of the chapter appealing the determination of the bishop probably did not represent the norm. From point of view of the canons, however, the ability to give consent did not represent a clear mandate of jurisdiction, but only a shared one. Consequently, only in cases where the matters principally touched the rights of the canons – and the bishop’s vote equaled that of any other canon – did the chapter seem to exercise any significant, independent jurisdiction; for in these instances, the bishop could not outvote the chapter. In analyzing the jurisdiction wielded by the chapter, it is perhaps easiest to begin with those instances in which the matter under discussion concerned the rights of the canons alone, for in these circumstances, the chapter seems to have exercised some independent jurisdiction. In order to achieve this goal, it will be necessary to return first to the Decretum and then to the canons of the Fourth Lateran Council in order to engage in an extended discussion of Episcopus nullius and Irrefragabili, respectively.

CHAPTER 5

Jurisdiction of the Cathedral Chapter: Episcopus Nullius and Irrefragabili

The Contributions of Johannes Teutonicus, Vincentius Hispanus, and Damasus

The participation of the bishop’s clerics in judging cases naturally raised the question of jurisdiction. The issue of jurisdiction among the cathedral canons was, in turn, discussed by the canonists in two primary locations: Episcopus nullius and Irrefragabili. Each of these texts presented a specific scenario in which judgment took place. Episcopus nullius (C.15, q.7, c.6), addressed cases where the bishop and the canons met together in order to resolve cases. Irrefragabili (4Lat. no. 7 = X 1.31.13) was issued by Innocent III at the Fourth Lateran Council in 1215 and, ultimately, was incorporated into the Liber extra. In contrast to Episcopus nullius, Irrefragabili provided some space for the canons to judge cases independently of the bishop. The commentary of Johannes Teutonicus, Vincentius Hispanus, and Damasus on these texts is instructive. Episcopus nullius, by requiring a bishop to have the participation of his clerics when rendering a sentence, had placed a premium on their participation, but the decree stopped short of addressing the question of whether their participation amounted to any form of jurisdiction. Unfortunately, as the survey of the early decretists has demonstrated, most of these authors did not gloss Episcopus nullius or, if they did so, they commented only briefly and did not provide any detailed discussion with regard to the issue of jurisdiction. It is against this background that Johannes Teutonicus raised the issue of whether or not the bishop’s clerics were judges of the accused. In the commentary on this canon, Johannes did not use the term ‘cathedral canons.’ However, because in other contexts, he had identified the bishop’s clerics with the cathedral canons, one can safely rephrase the question and ask whether Johannes believed that the cathedral canons were judges. Johannes posed the question directly and in a manner that showed he expected a negative answer, almost as if to say: “You don’t really think that these clerics are judges of this individual, do you?” Johannes then answered his rhetorical question. None of the clerics could be a judge because, when judging a case with the bishop, any one of them might

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be of a lesser status than the one being judged.1 In a sense, his answer was no surprise; it represented a common sense response. Bartholomew of Brescia updated Johannes’s gloss some time around the mid-thirteenth century. More interesting, though, were the alternative interpretations to the text that either he or Johannes had managed to include. Some thinkers declared that the council or chapter possessed ordinary jurisdiction, but no one individually was judge. Others believed that the clerics were assessors and, without their presence, the sentence would be null and void.2 In any event, the notion that the cathedral canons could be judges was not really so far-fetched. Citing the canon Scitote (C.6, q.3, c.2) as evidence, Johannes noted that some even believed that the cathedral canons were, in fact, judges.3 When commenting on Episcopus nullius (C.15, q.7, c.6), Guido de Baysio, in his Rosarium super Decreto, remarked that the canonist Laurentius had held that view as well.4 Whether any of the views expressed in the passage glossed by Johannes represented additions of Bartholomew of Brescia is a separate matter. Yet, even if some of these revisions reflect Bartholomew’s opinions, their inclusion merely indicates that the issue of jurisdiction was still a topic of debate in the 1230s when Bartholomew completed the gloss.5 In any event, although Johannes himself did not believe that the canons were judges, his gloss highlighted several contemporary views regarding their jurisdiction when they met with the bishop to hear a case. Put simply, the canons might or might not be judges. Or, the canons might be assessors of the bishop; or, the council or chapter as a whole could exercise jurisdiction. Given that neither Johannes 1  C.15, q.7, c.6, 1:1447, s.v. Episcopus . . . suorum: “Sed numquid et isti clerici sunt iudices istius? Non videtur, cum quilibet eorum sit forte minor eo.” 2  Ibid. “Quidam dicunt quod ipsum concilium sive capitulum habet iurisdictionem ordinariam; nullus tamen per se est iudex. Alii dicunt, quod sunt assessores episcopi; et sententia sine talibus assessoribus lata, nulla est.” 3  Ibid. “Quod tamen clerici sint iudices, est arg. vi. q.iii., Scitote.” [C.6, q.3, c.2] 4  Guido de Baysio, Rosarium super Decreto (Lyon, 1497), f. 228. For the electronic version, which may be downloaded in PDF form, consult http://bildsuche.digitale-sammlungen.de/ index.html?c=viewer&bandnummer=bsb00073101&pimage=00001&v=pdf&nav=&l=en last accessed July 25, 2014, At C.15, q.7, c.6, s.v. Episcopus: “In illa glossa ibi ¶iudices adde. dicit laur. dic eos iudices ordi. et tamquam iudices interesse debere; alias irrita erit sententia ipso iure.” 5  For the purposes of this discussion, the authorship of the gloss is not a crucial issue. Whether the gloss was authored or revised by either Johannes or Bartholomew does not materially alter the the fact that a debate was taking place during the early thirteenth century, circa 1215–1234. An examination of the manuscripts would reslove this question. For ease of discussion, I refer to Johannes as the principal author.

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nor Bartholomew selected any of these alternatives to describe the contribution of the canons, they effectively left the question of the canons’ jurisdiction unresolved; thus, the text, as it stands, indicates that, at least by 1234, no general consensus on the issue had been reached. Moreover, it is important to bear in mind that Episcopus nullius did not contemplate or address the issue of jurisdiction when the canons met to correct one of their own membership independently of the bishop. For an understanding of jurisdiction in that circumstance, it will be necessary to turn to a discussion of Irrefragabili. Promulgated by Innocent III in 1215 as part of the Fourth Lateran Council, the decretal, Irrefragabili, also discussed the correction of clerics. The decretal skillfully attempted to balance the seemingly conflicting rights of the bishop and his canons in matters related to discipline. It set limits for the bishop as well as for the cathedral canons, and it attempted to bring the parties together in harmony. It is, therefore, important to pay careful attention to the wording of the decree, which stated: By this inviolable constitution we decree that prelates of churches should prudently and diligently attend to the correction of their subjects’ offenses, especially of clerics, and to the reform of morals. Otherwise the blood of such persons will be required of their hands. In order that they may exercise freely this office of correction and reform, we decree that no custom or appeal can impede the execution of their decisions, unless they go beyond the form which is to be observed in such matters. The offences of the canons of a cathedral church, however, which have customarily been corrected by the chapter, are to be corrected by the chapter in those churches which until now have had this custom, at the instance and on the orders of the bishop and within a suitable time-limit which the bishop will decide. If this is not done, then the bishop, mindful of God and putting an end to all opposition, is to go ahead with correcting the persons by ecclesiastical censure according as the care of souls requires, and he shall not omit to correct their other faults according as the good of souls requires, with due order however being observed in all things.6 6  (4Lat. no. 7 = X 1.31.13). Decrees of the Ecumenical Councils. Volume One Nicea I to Lateran V, ed. Norman P. Tanner, S.J. (New York and Washington, D.C., 1990) 237–238. Both the Latin text and the English translation are from this work. The text reads: “Irrefragabili constitutione sanciumus, ut ecclesiarum prelati ad corrigendum subditorum excessus, maxime clericorum, et reformandum mores, prudenter et diligenter intendant, ne sanguis eorum de suis manibus requiratur. Ut autem correctionis et reformationis officium libere valeant exercere, decernimus ut executionem ipsarum nulla consuetudo vel appellatio valeat impedire, nisi

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Irrefragabili emphasized the right of the bishop to correct the excesses of his clergy and, further, it supported this principle by indicating that no custom or appeal should impede the bishop’s right in this matter. Moreover, the decretal was directed primarily to bishops and chapters, it was, in fact, addressed in more general terms to “prelates of churches,” thereby broadening the reach of the decree to include all those clergy who were not bishops but who were still prelates with care of souls. In addition, while decretal favored the rights of prelates to discipline subordinates, it also drew a distinction between the general clergy of the diocese and the cathedral canons of the bishop. Irrefragabili acknowledged that long-standing custom had, in many instances, given special rights to the cathedral canons to correct the excesses of their own members. Irrefragabili upheld those rights, but it did so in a way that formalized the procedure and included the bishop in the process. The chapter could not just rush ahead willy-nilly, issuing correction at its whim. The chapter was [henceforth] to administer correction at the command or advice of the bishop, within a time frame set by him. By these words, the statute contemplated that, after issuing the mandate for correction, the bishop would turn the matter over to the chapter for resolution. The fact that the bishop was required to set the mandate and the time-frame for correction presupposed that he had also been duly informed of the need for correction. Then, if the chapter failed to administer correction, the prelate, mindful of God, could proceed to correct the erring cleric on his own initiative. Such a statement was equivalent to saying that in cases of the chapter’s negligence, the right of correction devolved, or was transferred, to the bishop as head. The decretal Irrefragabili was important, for it recognized in a legal sense the generalized right of the canons as a body to exercise some measure of independent authority over their own members. Although the bishop might set the parameters for correction, nonetheless, where custom permitted, the chapter retained its traditional right to correct and to discipline its own members independently. Regrettably, Irrefragabili was short on details. It discussed neither the jurisdiction of the chapter nor the types of correction it imposed. Likewise, it speciformam excesserint in talibus observandam. Excessus tamen canonicorum ecclesiae cathedralis, qui consueverunt corrigi per capitulum, per ipsum in illis ecclesiis, quae talem hactenus consuetudinem habuerunt, ad commonitionem et iussionem episcopi corrigantur infra terminum competentem, ab episcopo praefigendum. Alioquin extunc episcopus, deum habens prae oculis, ipsos, omni contradictione cessante, ispos prout animarum cura exegerit, per censuram ecclesiasticam corrigere non postponat, sed et alios eorum excessus corrigere non omittat, prout animarum causa requirit, debito tamen ordine in omnibus observato.” I have only quoted the relevant portion of this text.

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fied neither the types of cases handled nor the procedures used to resolve them. These issues were left to the commentators, especially Johannes Teutonicus, Vincentius Hispanus and Damasus Hungarus. The commentary of Johannes Teutonicus is of particular relevance, given his commentary on the Decretum. These three major glossators each contributed to the initial interpretation and application of the decretal with respect to jurisdictional issues. Johannes Teutonicus made several comments of note. First, he directed his attention to the bishop, observing that the bishop should not exercise jurisdiction in prejudice of the archdeacon.7 Then, he turned his attention to the chapter. Second, he observed that offenses corrected by the chapter could be corrected by the dean.8 By these statements, he recognized that other individuals besides the bishop could exercise jurisdiction within the chapter, that is, the archdeacon and the dean. Next, as he had done in the Decretum, he pondered whether any of the individual canons possessed jurisdiction when the chapter as a group met to judge one of its members. Again, in an almost verbatim fashion, he posed the question: “You don’t think that any canon of the chapter could be the judge of another canon, do you? Then, in responding, he followed the same line of reasoning as previously: No canon could be the judge of another canon because any one of them might be only the equal or lesser of the one being judged. But here, he went further, taking into account the recent legislation collected in the Compilatio tertia. Basing his reasoning on Cum in iure, (3 Comp. 1.6.18 = X 1.6.33), he buttressed his argument by comparing the process of judging to that of electing. Just as the person who co-elects, does not elect, so someone who co-judges, does not judge.9 Then, with respect to criminal matters, Johannes stated that the bishop alone possessed jurisdiction.10 Thus, apart from the exceptions for the archdeacon and the dean, Johannes remained consistent in his own view that only the bishop 7  Johannes Teutonicus, “Apparatus ad Lateranum IV,” in Constitutiones Concilii Quarti Lateranensis una cum commentariis glossatorum, ed. Antonio Garcia y Garcia, Monumenta iuris canonici, Series A: Corpus Glossatorum v. 2. (Vatican City, 1981), 4Lat., no. 7, 193, s.v. Irrefragabili constitutione . . . nulla consuetudo . . . valeat impedire: “Tamen iurisdictionem talem non debet exercere in preiudicium archdiaconi.” 8  Ibid., 196, s.v. per ipsum . . . corrigantur: “vel per decanum ut extra iii, de appel. Dilectus [= 3 Comp. 2.19.13 = X 2.28.55].” 9  Ibid., 193–194, s.v. excessus tamen cannicorum . . . qui consueuerunt corrigi per capitulum: “Numquid in eo casu quilibet de capitulo est iudex canonici alicuius? Non videtur, cum quilibet eorum sit par vel forte minor isto. Respondeo non, set quilibet es coniudex sicut quilibet coeligit non eligit, ut extra iii de elec. Cum in iure [3 Comp. 1.6.18 = X 1.6.33].” 10  Ibid., 196, s.v. per ipsum . . . corrigantur: “Tamen, si directe ageretur de causa criminali, tunc solus episcopus haberet iurisdictionem, ut xi, q.1, De persona [C.11, q.1, c.38].”

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possessed jurisdiction. Nor, at this juncture, did he speculate on whether the canons might be judges. If the comments in the gloss to the Decretum reflecting the potential for the canons to act as judges were indeed his own and not Bartholomew’s, he showed no trace of such doubt or questioning here. Although Johannes did not grant the canons any jurisdiction, he clearly respected their rights. He had no problem with the canons’ acting in an advisory or consultative role to the bishop and believed that those rights should be upheld. In fact, he used Irrefragabili as an opportunity to reign in overzealous prelates who excluded the canons from any say in correction when the canons had been negligent. According to the terms of Irrefragabili, if the chapter were negligent in administering correction, the matter devolved, or was transferred, to the bishop; and the cathedral canons could not, thereby impede the bishop’s correction. The canons lost their right to correct as a chapter through negligence, but some prelates, apparently, attempted to exclude the canons from any further participation in the matter whatsoever. Yet, rather than favor the bishop’s position, Johannes, instead, came to their rescue and salvaged the situation for them. Even in this circumstance, he opined, the bishop could not act alone, without his canons. The canons lost their right to administer correction, but they did not thereby lose their right to advise the bishop. Johannes, of course, did not believe that they exercised any jurisdictional authority in this instance but, even in spite of their negligence, he still preserved the right of the canons to participate in judging cases, rather than siding wholeheartedly with the bishop.11 As the text makes clear, Johannes cited D.86, c.23, Si quid vero, and Episcopus nullius, C.15, q.7, c.6, in support of the canons. The canonist Damasus did not spend a great deal of time discussing the issue of jurisdiction. However, he included several important details in his commentary. Damasus noted that the archdeacon could not impede the right of the bishop to correct serious offenses; rather, the archdeacon had a duty to announce these to bishop. However, the archdeacon could issue correction in minor matters provided that he was not otherwise negligent.12 Thus, Damasus 11  Ibid., 193–194. s.v. excessus tamen canonicorum . . . qui consueuerunt corrigi per capitulum: “Praeterea si episcopus propter negligentiam capituli posset cognoscere de causa canonici, set certum est quod episcopus solus non potest, nisi cum senioribus ecclesie sue, ut lxxxvi. di. Si quid vero, vel etiam cum omnibus, ut xv. q. vii. c. penult. [C.15, q.7, c.6], ergo qui fuerunt negligentes adhuc possunt cognoscere.” 12  Damasus, “Apparatus ad Lateranum IV,” in Constitutiones Concilii Quarti Lateranensis una cum commentariis glossatorum, ed. Antonio Garcia y Garcia, Monumenta iuris canonici, Series A: Corpus Glossatorum v. 2 (Vatican City, 1981), 421. Cf. 4Lat., no. 7 [= X 1.31.13],

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characterized the archdeacon’s jurisdiction as being misdemeanor in nature, and he highlighted the procedure to be followed with regard to more serious offenses. Damasus, like Johannes, also accepted that the dean could issue correction on behalf of the chapter.13 Vincentius Hispanus also added important elements to the discussion. Although no custom could impede the bishop in issuing correction, Vincentius insisted on the participation of the canons when the bishop issued correction. The bishop had to proceed prudently and diligently, that is, with his brothers, the cathedral canons. Vincentius cited Si quid vero and Episcopus nullius as proof.14 Even when Vincentius acknowledged that some sources seemed to indicate that the bishop could act without the cathedral canons in civil cases, Vincentius, ultimately, interpreted the passage in a way that favored the inclusion of the cathedral canons: What was done in the name of the bishop did not exclude the canons, but rather, the term bishop signified the church, that is, the bishop with his chapter of cathedral canons.15 As a general rule, Vincentius believed that, in criminal cases, the bishop alone was judge.16 When glossing Irrefragabili as part of the canons of the Fourth Lateran Council, Vincentius did not discuss the status of the individual canons as judges. However, Vincentius also authored a commentary on the decretals. There, he posed the same question as his colleague, Johannes, and he reached the same conclusion, likewise citing Cum in iure. Vincentius indicated that when the cathedral canons met to correct one of their own, no one s.v. Irrefragabili . . . nulla consuetudo . . . valeat impedire: “Vel si archdiaconus dicat se consueuisse corrigere et velit impedire episcopum quasi diminuentem ius suum . . . non audietur, quia correctiones excessuum maiorum non pertinent ad ipsum, immo denuntiare debet episcopo. . . . In aliis minoribus relinquitur ei correctio nisi ipse neglexerit.” 13  Ibid., 422, s.v. qui consueuerunt corrigi per capitulum: “Idem est si per decanum consueuerunt corrigi.” 14  Vincentius Hispanus, “Apparatus ad Lateranum IV,” in Constitutiones Concilii Quarti Lateranensis una cum commentariis glossatorum, ed. Antonio Garcia y Garcia, Monumenta iuris canonici, Series A: Corpus Glossatorum v. 2 (Vatican City, 1981), 294. 4Lat., no. 7, [= X 1.31.13], s.v. prudenter et diligenter: “idest cum fratribus, di. lxxxvi. Si quid vero, xv. q. vii. Episcopus nullius.” 15  Ibid. Utrum autem in civili possit sine canonicis causam audire est arg. xi. q. q. Si quis cum clerico. [C.11, q.1, c.45]. Ibi tamen potest dici quod nomine episcopi intelligitur ecclesia, scilicet episcopus cum capitulo. vinc.” 16  Ibid. s.v. valeat impedire: “Vel hoc referas ad causam in causa criminali, de qua solus episcopus iudicat, xi. q.1. [c.38] De Persona.”

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was judge.17 Yet, when discussing the right of the canons by custom to correct the excesses of their own members, Vincentius provided a thoughtful response that suggested custom, outside of the norm, could grant the chapter extraordinary authority to judge criminal cases. Two variants of his comments are preserved. In both variant readings, Vincent was glossing the lemma: (Excessus . . . canonicorum. . . ). qui consueverunt corrigi [per capitulum]. In one version, he placed the word “extraordinaire” immediately after the lemma, as if to indicate that, the chapter possessed the authority or jurisdiction to correct its own members in an “extra-ordinary” sense due to a long-standing custom and even though, ordinarily, the bishop alone was judge in criminal cases. In this way, Vincentius also seemed to hint that, in an unusual circumstance granted by custom, the chapter could exercise some forms of criminal jurisdiction. In the second variant reading, his meaning is less clear. Vincentius seemed to say that extra-ordinarily someone is punished [by the chapter] whereas the bishop alone is judge in criminal cases. Thus, while Vincent appears to have believed as a matter of course that the bishop was judge in criminal cases, he left the impression that, in rare circumstances, long-standing custom might bestow this authority on the chapter apart from the normal course of events.18 Vincentius, like his colleagues, recognized that the dean could issue this correction on behalf of the chapter.19 But, like Johannes Teutonicus, he did not believe that the individual canons of the chapter were judges. Overall, the early commentators on the canons of the Fourth Lateran Council accepted as a matter of course that the bishop was judge in criminal cases. This is not so surprising, given that even in the model of shared jurisdiction discussed by Tierney, many of the issues on which the canons possessed the right to act generally concerned the administration of ecclesiastical property and income, and thus, were, by definition, matters of a civil, rather than

17  Vincentius Hispanus BNE, Mss. 30 Apparatus super quinque libros Decretalium, f. 69v. s.v. per capitulum: This manuscript may be accessed online as part of the BNE Biblioteca Digital Hispánica. http://bdh-rd.bne.es/viewer.vm?id=0000008462&page=1 last accessed August 2, 2015. “Numquid in eo casu quilibet de capitulo est iudex alicuius canonici. Non videtur. Cum quilibet eorum sit par vel forte minor isto. Respondeo non. Set quilibet est iudex, sicut quilibet coeligit non eligit.” 18  Ibid., 295, s.v. (Excessus . . . canonicorum . . .) qui consueverunt corrigi: “extraordinarie. Ordinarie enim in causa criminali solus episcopus est iudex, ut dixi.” (Excessus . . . canonicorum . . .) qui consueverunt corrigi: “Extraordinarie enim punitur in causa criminali ubi solus episcopus est iudex.” 19  Ibid., s.v. per capitulum: “Idem est si per decanum consueverunt corrigi extra iii. de appel. Dilecto [3 Comp. 2.19.10 = X 2.28.52].”

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a, criminal nature.20 Still, these early commentators easily recognized that the chapter might correct certain excesses. In addition, by using such phrases as “vel decanum,” they seemed to indicate that, either the chapter as a whole, or the dean acting alone on behalf of the chapter, could administer the correction; but they did not delve into the issue any further. Nor did they spend much time analyzing the types of offenses that the chapter acting alone corrected. Johannes Teutonicus ignored the issue. Damasus seemed to indicate that it probably concerned misdemeanor only offenses, since the archdeacon had to bring serious offenses to the attention of the bishop. But Vincentius Hispanus provided a tantalizing hint that, “extraordinarily,” in certain instances, the chapter might exercise criminal jurisdiction, as a result of a long-standing custom.

The Contribution of Goffredus de Trano

Irrefragabili was incorporated into the Liber extra. Consequently, the canonists routinely commented on its application to episcopal-capitular relations. The commentary by Vincentius Hispanus has already been noted. But there are other earlier commentators of note. Prior both to 1243 and to completing his Summa, Goffredus de Trano had authored an apparatus to the Decretals in which, as a matter of course, he commented on Irrefragabili.21 When glossing the lemma capitulum, Goffredus asked whether any canon of the chapter had jurisdiction. He answered in the negative and, like his colleagues, cited the now-familiar comparison between electing and judging. This much was nothing new. However, he then continued, adding: “So we speak generally regarding those things which look to colleges and [corporate] bodies.”22 In this 20  Tierney, Foundations, 100–102. 21  “Medieval and Early Modern Jurists: A Bio-Bibliographical Listing,” CUA.edu, ed. Kenneth Pennington, s.v. Goffredus de Trano, http://faculty.cua.edu/pennington/biobibl.htm last accessed July 28, 2014. Subsequent references will be cited as “Medieval and Early Modern Jurists,” followed by the entry title and last accessed date. 22  Goffredus de Trano, Apparatus decretalium, Digital reproduction of Ms. Montecassino, Biblioteca de la abbazia 266, CIRSFID, Università di Bologna, ed. Martin Bertram, 59. http://mosaico.cirsfid.unibo.it/266/montecassino/ last accessed July 28, 2014. X 1.31.13, s.v. capitulum: “Quaeritur an quilibet de capitulo habet iurisdictionem. Puto quod non, quia non quilibet iudicat, sed coniudicat. Sicut in electionem dicimus quod non quiblibet eligit sed coeligit. . . . Sic dicimus generaliter in hiis que ad collegia vel corpora spectant.” For background on this work, see Martin Bertram, Der Dekretalenapparat des Goffredus Tranensis, in Bulletin of Medieval Canon Law NS 1 (1971), 79–83.

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statement, Goffredus acknowledged the impact of contemporary corporate theory on his understanding of chapter dynamics. But Goffredus did more. Whereas other thinkers pointed to the status of the canons as co-judges in order to conclude that no canon was judge, Goffredus emphasized the fact that all were co-judges. In part, it was a matter of perspective. Johannes Teutonicus had stated that a co-judge was not a judge. Officially, the canons of the chapter did not exercise jurisdiction individually. Goffredus, however, appeared to reverse the emphasis, tacitly acknowledging the contribution of the group as a whole. “No individual canon judged, but rather, all co-judged; no individual canon elected, but all co-elected.” Goffredus did not cite Innocent IV, and he finished his commentary shortly before Innocent IV did. Nevertheless, given that both men were fellow students at Bologna, Goffredus may have been influenced by Innocent’s knowledge and ideas regarding corporate theory.23 Hence, it is now time to turn to the future pontiff’s contribution to this topic.

The Contribution of Innocent IV

Innocent studied law at Bologna and worked on his Apparatus to the Decretals over a long period of time, finishing it some time around 1245.24 His contributions to corporate theory are well-known and his Apparatus was highlyinfluential. When Innocent glossed Irrefragabili, he began by discussing the issue of jurisdiction, and he wasted no time in expressing his point of view. Glossing the lemma, per ipsum [capitulum], he declared: “And so, the chapter is judge, and within it is jurisdiction and not within the individual canons, for of no one can it be said, here is the judge or co-judge.”25 In these few short words, Innocent revolutionized the understanding of capitular jurisdiction. Whereas others had talked about co-judges and co-electors, Innocent dispensed with all of that as being superfluous. To say that someone judged or elected, or was a co-judge or a co-elector, was merely to employ a figure of speech that only echoed or resembled those actions; but, in reality, the words did not fully reflect the truth that the power of judging did not reside with 23  “Medieval and Early Modern Jurists,” s.v. Goffredus de Trano, http://faculty.cua.edu/ pennington/biobibl.htm last accessed July 28, 2014. 24  Ibid., s.v. Innocent IV. http://faculty.cua.edu/pennington/biobibl.htm last accessed July 28, 2014. 25  Innocent IV, Commentaria, X 1.31.13, f. 152, s.v. Per ipsum: “[E]t sic capitulum est iudex et penes ipsum est iurisdictio et non penes singulos canonicos, nam de nullo potest dici, hic est iudex, vel coniudex.”

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any one or several individuals, but rather, was something that belonged to, or resided with, the chapter as a whole.26 Alongside the options of judge or cojudge as holders of jurisdiction, Innocent IV underscored a third possibility, namely, that jurisdiction resided with the corporate body as a whole. The fact that Innocent located jurisdiction within the chapter as a whole and not within an individual like the dean – as the head of the cathedral canons – should give cause to stop and pause for moment. Innocent, after all, argued practically the opposite point with respect to corporations (universitates), claiming that jurisdiction within corporations resided solely within the heads of the corporations and not within the corporate bodies themselves. The manner in which, and the degree to which, Innocent resolved this discrepancy regarding the loci of jurisdictional authority is beyond the scope of the present study. What is important to recognize, however, is that into the traditional characterization of jurisdiction as something exercised by a person, Innocent offered an alternate model of capitular authority in which the cathedral canons as corporate entity, apart from their status as individuals, exercised jurisdiction. In stating that the corporate body exercised jurisdiction, Innocent included not only the right to offer correction, but also the ability to impose punishment. Coercive power was an integral feature of jurisdiction.27 By observing that corporations also possessed the right to enforce punishments, or coercive power, Innocent indicated that they wielded both keys described by Gratian, not only the key of knowledge, but also the key of power. Overall, the originality and forcefulness of Innocent’s ideas are without question. At the same time, it is also crucial to recognize that his views regarding capitular jurisdiction as a whole were not without precedent. After all, as noted above, a similar idea was expressed by Johannes Teutonicus when glossing Episcopus nullius. Because Episcopus nullius described correction that took place under the authority of the bishop with the participation of canons, it is safe to say that, when the glossator speculated that chapter as whole possessed jurisdiction, he conceived of this jurisdiction as including both the bishop and the canons. As a student of canon law, Innocent would have been 26  Ibid. “[S]ed verba resonantia actum de eis dici possunt, scilicet, ut canonicus iudicat, sicut electio est penes capitulum, et non singulos, et tamen coeligunt.” In essence, the chapter was an incorporeal entity. Melloni, Innocenzo IV, 117, cited this passage and recognized its importance for expressing the fictive nature of the corporation, but he did not discuss the issue of jurisdiction. 27  Innocent IV, Commentaria, X 1.2.8 no. 2, f. 4, s.v. Sedis: “[E]t poenas imponere pertineat ad iurisdictionem, si autem haberet [universitas] aliquam iurisdictionem, posset poenam adiicere.”

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familiar with the gloss to Episcopus nullius; and this fact, no doubt, represents the seed, or ultimate source of his own ideas regarding capitular jurisdiction. Innocent took the basic concept of a chapter or council exercising jurisdiction as expressed in the gloss to Episcopus nullius and applied that concept to a new circumstance. Initially, according to the ordinary gloss on Episcopus nullius, the idea of chapter as a whole exercising jurisdiction included both the bishop, as head, and the cathedral canons, as members, functioning together as a unit. Innocent, however, took this concept and turned it on its head. In contrast to Episcopus nullius, the details of Irrefragabili described those instances in which the chapter could act independently of the bishop as head. Hence, when Innocent glossed Irrefragabili and discussed the concept of the chapter exercising jurisdiction as a whole, he did so with the understanding that, in those circumstances, the bishop, if present, sat merely ut canonicus. Thus, instead of exercising jurisdiction with the bishop sitting ut praelatus, the chapter as a whole exercised jurisdiction independently, with the bishop, if present, sitting merely ut canonicus. In order to claim jurisdiction for the chapter, Innocent also had to deal with the implications of this principle, namely, that there could be more than one prelate over a given church or body. After all, if the chapter as a whole exercised jurisdiction without the bishop, could it be said that, in some way, the chapter took the place of the bishop, even though the bishop remained head of the diocese? In commenting on Cum non, (X 3.5.15), Innocent observed that there could be several prelates in a church (“ecclesia”). The bishop was prelate over all of these within the diocese, and yet, each had its own prelate because one power was placed under another. Moreover, following Irrefragabili, one could even call the college, (“collegium”), a prelate over the members, (“individuales”) with respect to the administration of both temporal and spiritual matters.28 In this way, Innocent interpreted the cathedral chapter’s jurisdiction through the contemporary lens of corporate theory with the result that he created a sphere of independent jurisdiction for the cathedral chapter without usurping the authority of the bishop. In this regard, his perspective and ideas

28  Innocent, Commentaria, X 3.5.15, no. 2, f. 357v, s.v. Unius, quoted in Melloni, Innocenzo IV, p. 115. “[Item] non est contra ius si in eadem ecclesia plures sunt praelati, sed uno sub alio, sicut apparet in episcopo qui est praelatus in omnibus ecclesiis et tamem singulae habent singulos praelatos. Sed hoc est ea ratione qu[ia] una potestas est sub alia. Vel dic ipsum collegium dicitur praelatus singulorum et praelatus in administratione tam temporalium quam spiritualium. argumentum. supra De officio ordinatio [X 1.31.13] Irrefragabili.”

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were highly original. Unfortunately, at least initially, his ideas were not always readily acknowledged, accepted, or put into practice.29

Bernard of Parma and the Ordinary Gloss

As noted above, based on the short comments by Goffredus de Trano, it is not possible to know whether his ideas were influenced by those of Innocent or whether his references to corporate theory merely reflect the wider contemporary interest in the issue. On the other hand, a lack of interest in Innocent’s views regarding the chapter’s jurisdiction is evident in the ordinary gloss to Irrefragabili composed by Bernard of Parma a decade after Innocent’s death. In composing the gloss, Bernard brought together the fruits of many labors. Yet, even though he wrote an extended gloss on this decretal, he did not mention Innocent or refer to his ideas on capitular jurisdiction. In fairness to Bernard, this oversight is not surprising or unwarranted given that one of the main goals of the gloss was to provide a common or ordinary understanding of the text. Indeed, many of the principles expressed by the early glossators of Irrefragabili also show up in the gloss. For instance, Bernard forbade the bishop from exercising jurisdiction in prejudice of the archdeacon unless the latter were negligent.30 Bernard, too, recognized that the chapter, or the dean, or, if custom dictated, another prelate of the chapter could correct excesses.31 He also noted the chapter’s ability to correct was supported by custom.32 As the wording of the decretal required, Bernard recognized the right of the chapter to correct offenses. But, despite his relative even-handedness, he favored the jurisdiction of the bishop over that of the chapter in criminal cases.33 He certainly did not believe that the chapter canons were judges, for he repeated the opinion of Johannes Teutonicus and others: The canons could not be 29  In discussing the acceptance of Innocent’s ideas, I have focused only on his concepts of jurisdiction. I have not examined nor do I make any claims regarding his views with respect to the transference of correction from chapter to bishop in cases of negligence. 30  Bernard of Parma, Glossa Ordinaria ad Decretales Gregorii IX, in CIC 1:410, X 1.31.13, s.v. Nulla consuetudo: “[T]amen in preiudicium archdiaconi iurisdictionem exercere not debet . . . nisi ille esset negligens, ut hic dicit de capitulo, tunc enim posset.” 31  Ibid., 1:411. s.v. per capitulum: “vel per decanum, vel per alium praelatum de capitulo si consuetudo est.” 32  Ibid., “et hoc [regarding the jurisdiction of the chapter] quod dicit hic de consuetudine est: unde dicit, consueuerunt.” 33  Ibid. “[D]e iure communi de causa criminali cognoscere debet episcopus qui solus ordinarius est 11, q.1. de persona [C.11, q.1, c.38].

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judges because one of them might be only the equal or lesser of the one being judged.34 Bernard did not spend a great deal of time on this issue. But, he did acknowledge that others disagreed with this interpretation and compared the canons to delegated judges.35 So, while he presented what was probably the prevailing opinion that the canons were not judges, his gloss demonstrates that the matter was still a topic of debate. Unfortunately, Bernard did not name his sources and, because he did not provide any details, one cannot read too much into this comment. However, one must recognize that delegated judges were, in fact, judges exercising a form of jurisdiction. Thus, at least some authorities considered the canons to be acting as judges with jurisdiction when judging one of their own members. In addition, the presence of delegated judges implies the presence of a delegator. Bernard himself had recognized that custom might give the dean or another prelate the authority to judge the offenses of the canons. Thus, it seems reasonable and may have been the case that in those chapters where custom granted jurisdiction to the dean (or to another prelate) in carrying out the independent correction of the canons, the remaining canons were treated like his delegated judges. Finally, like Johannes Teutonicus, Bernard believed that in cases where the chapter had been negligent, the chapter lost the right to correct one of its members, but the canons did not lose their right to participate in the judging of cases. Thus, when the bishop intervened and issued correction, he still had to call together the canons to give counsel on the matter.36 Overall, Bernard’s commentary accomplished an important task: With respect to the chapter and its rights, Irrefragabili highlighted those areas in which overall consensus had been achieved: 1) the chapter possessed the right to correct its own members; 2) by custom, dean or another prelate of the chapter could exercise this authority; 3) the jurisdiction of the archdeacon was to be respected; and 4) the right of the canons to give counsel even in case of negligence was preserved. On the other hand, although Bernard did not reference Innocent IV’s views on the chapter’s jurisdiction, the gloss indicated 34  Ibid. “Sed nunquid in illo casu quilibet de capitulo erit iudex canonici illius, contra quem inquiritur?” Non videtur, cum quilibet eorum sit par ei, vel forte minor illo.” Interestingly, by using the phrase “contra quem inquiritur.” 35  Ibid. “Dicas quod non: sed quilibet est iudex, sicut est in pluribus delegatis. supra de off. deleg. uno delegatorum [X 1.29.42].” 36  Ibid. “Sed cum ius corrigendi pertinet ad capitulum in ecclesia cathedrali de consuetudine, ut hic dicit: cum ipsi de capitulo sunt negligentes, ius tranfertur ad episcopum: ut hic habes expresse, et episcopus postea nihilominus de consilio eorundem debet corrigere: quia licet perdiderint ius corrigendi, non perdiderunt ius commune, quo debent cum episcopo in talibus interesse.”

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that, the question as to whether the individual canons were judges or whether they acted with jurisdiction was still a matter of debate.

The Contribution of Hostiensis

Despite the fact that Bernard of Parma appeared to ignore Innocent’s views, the opinions of the Innocent IV found a welcome adherent and propagandist in Hostiensis. The two figures may have known each other from their student days in Bologna in the 1220s, and Hostiensis subsequently became Innocent’s household chaplain.37 Yet before he acquired this post, Hostiensis was archdeacon at Paris in 1239, a fact he relates in his Summa. He also may have taught on the Decretals there. Among other accomplishments, he became the archbishop of Embrun from 1250–1261 and the bishop of Ostia in 1262. He died in 1271.38 Hostiensis authored a long gloss on Irrefragabili. Like all commentators, he glossed the standard text and repeated many familiar ideas. Nevertheless, he still managed to include many valuable pieces of information with respect to the topic of jurisdiction not found elsewhere. He began by observing, as others had done before him, that long-standing custom could give the canons the right to correct one of their own members. But, in addition, he also noted that the right to correct specifically included the ability to enforce punishment as well. Here, again, Hostiensis echoed the teaching of Innocent. Thus, the correction provided by the chapter was not merely advisory in nature. Without such a custom, punishment, as stated by Innocent IV and repeated by Hostiensis, belonged to the bishop.39 In effect, then, Hostiensis believed that the chapter could, at times, wield both keys, the key of knowledge and the key of power. 37  “Medieval and Early Modern Jurists,” s.v. Hostiensis, http://faculty.cua.edu/pennington/ biobibl.htm last accessed July 29, 2014. See also Kenneth Pennington, “Enrico da Susa, detto l’Ostiense (Hostiensis, Henricus de Segusio o Segusia),”  Dizionario biografico degli Italiani  42 (Roma: Istituto della Enciclopedia Italiana, 1993) 758–763 and in English, “Henricus de Segusio (Hostiensis),” in Popes, Canonists, and Texts 1150–1550, Variorum Collected Studies Series 412 (Aldershot, 1993) article XVI. Cf. http://faculty.cua.edu/pennington/1140d-h .htg/HOSTIENSIS.html last accessed August 2, 2015. 38  Ibid. Also, see Clarence Gallagher, Canon Law and the Christian Community: The Role of Law in the Church According to the Summa Aurea of Cardinal Hostiensis (Rome, 1978) 27–45, at 27–29. The date that Hostiensis became archdeaconn can be debated, not the fact that he was archdeacon at Paris. 39  Hostiensis, Commentaria, X 1.31.13, no. 5, f. 164v, s.v. Consueuerunt: “Alias nisi esset consuetudo, eis praetermissis, coercitio ad episcopum pertineret, ut no.s[upra].c.cum ab ecclesiaru[m]. secundum d[ominus] n[oster] [= Innocent IV.]”

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Hostiensis repeated the accepted principle that the chapter’s right to correct could be transferred by custom to the dean or another prelate of the chapter. However, he even continued, stating that this was the custom in the churches at Lyon and Vienne.40 Thus, Hostiensis provided a real-life example of a chapter where the dean or another prelate issued correction to the canons in place of the chapter. This is a useful piece of information in and of itself but, in this case, what Hostiensis did not say is as important as what he did. Because he had been an archdeacon at Paris, he would have been familiar with the practice there. Apparently no such custom involving the transfer of authority to the dean or another prelate existed among the cathedral canons at Paris, or Hostiensis surely would have mentioned it. In an oblique way, Hostiensis suggested that the Parisian chapter as a whole apparently corrected its own members. Hostiensis resumed commenting on the chapter’s jurisdiction. In response to whether the cathedral canons were judges, he answered negatively. An equal does not have authority over an equal. But, again, he added something new by spelling out how the dean was to proceed. If by custom, the right of correction belonged to the dean or another prelate, then he alone was judge and proceeded with the counsel of the other canons.41 Hence, even if custom transferred the right of correction to another prelate of the chapter, that individual could not act alone; the remaining canons retained their right to give counsel. Hostiensis then discussed the question of the canons’ jurisdiction when they acted as a group. Here, his debt to Innocent is evident throughout the passage. Hostiensis not only cited Innocent IV, but he also clarified the pontiff’s meaning for any who were confused. His argument is long and his wording is important: He stated: If such a custom [of giving authority to the dean or to another prelate] is not apparent, then the chapter alone joined together takes the place of the judge, and not the individuals of the chapter. For according to Innocent IV, of no canon is it able to be said that here is the judge or co40  Hostiensis, Commentaria, X 1.31.13, no. 5, f. 164v, s.v. Per capitulum: “Vel per decanum, vel alium praelatum de capitulo, ubi talis est consuetudo sicut in Lugdunen. et Viennen. ecclesiis.” 41  Ibid. “Sed nunquid in casibus illis, in quibus talis consuetudo valet, quilibet canonicus erit iudex, ubi agitur de correctione concanonici? Non videtur: quia par in parem non habet imperium. . . . Breviter dicendum est, quod si appareat de consuetudine, sicut dixi supra de decano, in prin[cipio] gl[ossae] ille solus iudex est, cui consuetudo hanc dat, et procedet de consilio aliorum.”

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judge, but, words resembling their actions, namely this canon co-judges, according to Innocent. But if he co-judges, therefore, he is a co-judge; that is, with others, he is a judge, but nevertheless, not a judge alone. Likewise, when election is within the chapter. . . . And so, it is obvious that, when jurisdiction belongs to the chapter, it is fitting that the college exercises jurisdiction, and not the individuals.42 In short, Hostiensis followed Innocent’s line of thought, and he made the reasoning more explicit. Hostiensis made clear that, if the custom of granting authority to the dean or another prelate was not in force, then the chapter “joined together at the same time” that is, as a whole, took the place of the judge, not the individual canons. For according to Innocent, with respect to no canon could it be said that here is the judge or co-judge. For someone who co-judges is a co-judge, but not a judge alone. Hostiensis applied the same line of argument to election within the chapter. And so, Hostiensis concluded by repeating his main point: It was obvious that when jurisdiction belonged to the chapter, the corporate body as a whole exercised jurisdiction, and not the individuals. The issue of the chapter’s jurisdiction also touched on questions of procedure in cases of negligence. In glossing this question, Hostiensis provided a key piece of information. He left a clue as to the date that he glossed this decretal; he mentioned that a past decretal addressed to “our chapter” – the chapter of Embrun – helped to resolve this issue. This fortuitous detail suggests that Hostiensis glossed Irrefragabili some time between 1250 and 1261 when he was bishop there or, at least, formulated his ideas on this topic at that time. Hostiensis then asked the standard question regarding how the power of correction was transferred to the bishop. He stated that if the bishop had a voice in the chapter as canon – which would have been the case when the chapter met to correct an offense – the matter was transferred to the bishop. Then, 42  Ibid. “Si vero non apparet talis consuetudo, solum capitulum simul iunctum vices iudicis obtinet, et non singuli de capitulo. Nam secundum d.n. de nullo canonicorum potest dici, hic est iudex vel coniudex, sed tamen verba de eis actum resonantia dici possent, scilicet, iste canonicus coniudicat, secundum d.n. Sed si coniudicat, ergo est coniudex, id est, cum aliis iudex, non tamen est solus iudex. Sic quando electio est penes capitulum. . . . Et sic patet, quod quando iurisdictio ad capitulum pertinet, oportet quod ipsum collegium iurisdictionem exerceat, et non singuli.” I have checked the Venice edition against the Strasburg 1512 edition and they are substantially the same, with only slight differences in wording, but not in meaning. Cf. Hostiensis, Lectura in Decretales Gregorii IX (Strasburg, 1512), ff. 171va–171vb. http://nbn-resolving.de/urn%3Anbn%3Ade%3Abvb%3A12-bsb000 18039–8 last accessed August 5, 2014.

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like Johannes Teutonicus, Hostiensis believed that when correction devolved to the bishop from the chapter, the canons retained their right to give counsel. But, again, in addition to stating the obvious, Hostiensis added important details; he made sure to mention that the canon being corrected was excluded from giving counsel. He also prefaced his analysis with an impromptu remark: “I do not think it absurd,” suggesting that, even in the mid-thirteenth century, some authorities, unlike Hostiensis, still had difficulty accepting that the canons could still provide counsel.43 In addition to promoting Innocent’s views regarding capitular jurisdiction and governance, Hostiensis contributed to the on-going discussion regarding the nature of the chapter’s jurisdiction and the types of cases that canons could hear. In his work there is a noticeable shift in favor of the expansion of the chapter’s criminal jurisdiction.44 Hostiensis observed that some of his colleagues treaded lightly on this issue and, obviously, did not want to address it. But unlike them, Hostiensis did not flinch. He granted the chapter canons the right to judge plain and simple crimes that were of a less serious nature. Hostiensis provided some benchmark for understanding the limits of this jurisdiction because he stated that the crimes were plain and simple and not grave, or serious, in nature; also if the crime led to degradation from clerical status, custom did not grant this power to the chapter.45 43  Ibid., no. 6. “[Q]uo devolvetur haec potetestas ad episcopum ut hic sequitur. Licet super hoc verbo multa scripta sint, tamen hec quaestio soluitur in decre[tali] ad consulationem capituli nostri, scilicet Ebredunensis [Cf. X 3.8.15]. . . . Per quam apparet, quod si episcopus habet vocem in capitulo tanquam canonicus, ad ipsum devolvitur hec potestats, nec absurdum reputo in hoc casu si excluso canonico de cuius correctione agitur, requirat consilium aliorum. [E]t sic non obstant iura signata hic contraria [C.15, q.7, c.6, D.86, c.23, X 5.1.24]. . . . quamvis et iura illa loquantur in criminalibus in quorum aliquibus consuetudo hanc iursdictionem non daret ut no[ta] s[upra] in p[ri]nci[pio]. gloss[ae].” Hostiensis cited Episcopus nullius, Si quid vero, and Qualiter et quando in support of this position. But he also acknowledged that in some instances, custom did not give this right, as noted in the beginning of the gloss. There, he seems to be referring to the text of Irrefragabili which stated that no custom could impede the bishop’s right to correction. 44  I do not wish to debate whether Hostiensis was responsible for these innovations, merely to show that in his work they were brought to prominence and from there, became part of the opinio communis. 45  Hostiensis, Commentaria, X 1.31.13, no. 5, f. 164v, s.v. Per capitulum: “Vel per decanum, vel alium praelatum de capitulo, ubi talis est consuetudo . . . intelligendum puto, quando agitur de correctione excessus plana et simplici, et non de criminibus gravibus, sed levibus. . . . Si nota ageretur ad degradationem, consuetudo hanc potestatem non daret talibus ut le[gitur] et nota infra de foro competenti, cum contingat.”

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Overall, the bishop of Ostia’s contribution to the understanding of capitular jurisdiction cannot be understated. With respect to capitular jurisdiction, Hostiensis repeated and confirmed many accepted principles of capitular governance. In addition, He underscored the principle first put forth by Innocent IV that the chapter as a corporate body exercised jurisdiction. He reminded his readers that the authority to correct an erring cleric presumed the ability to impose punishment as well. Consequently, the independent criminal jurisdiction over less serious crimes included coercive and punitive powers as well as the determination of guilt or innocence of the accused. He went beyond his contemporaries and specified the types of cases that the chapter could hear. Whereas previous commentators had been content to hold that in criminal matters the bishop alone was judge, or to suggest that either the bishop and chapter together, or the chapter alone, could handle civil cases, monetary fines, or brief suspensions, Hostiensis provided a standard by which one could begin to determine the nature and extent of the chapter’s independent jurisdiction. For the historian, he included significant details that helped both to date the gloss and to reveal in a suggestive fashion the capitular practice at Paris. Finally, Hostiensis’s contribution is significant because of his great influence. Even if his Lectura was not as widely read as his Summa, it was still very influential and, more importantly, it was read by the two major commentators of the fourteenth century, Johannes Andreae and Baldus of Perusia.

The Contribution of Johannes Andreae

Johannes Andreae was, undoubtedly, the most influential canonist of the Later Middle Ages. Among his many writings, he authored commentaries on all the official collections of law before his untimely death in 1348.46 His views, then, are crucial for demonstrating the acceptance of both Innocent’s and Hostiensis’s views on the topic of capitular jurisdiction. In general terms, Johannes, like his predecessors, accepted the jurisdiction of the chapter. In glossing Irrefragabili, he began, as others had done before him, by clarifying 46  “Medieval and Early Modern Jurists,” s.v. Johannes Andreae, http://faculty.cua.edu/ pennington/1298a-z.htm last accessed July 31, 2014. For a general introduction to his commentary on the Decretals, see Stephan Kuttner, “Introduction,” to J. Andreae, In quinque decretalium libros Novella commentaria (Venice 1581; rpt. Turin, 1963), vol. 1:v–xiv; reprinted with additions as, “Joannes Andreae and his Novella on the Decretals of Gregory IX”, Jurist 24 (1964), 393–408.

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that the phrase per ipsum did, indeed, refer the chapter.47 But, in contrast to them, he went even further. He contended that the ability of the cathedral chapter to correct the excesses of their own members served as model for chapters of canons in other churches – besides the cathedral church – to do the same.48 The model, in essence, was replicable and exportable. Just as the cathedral canons corrected the offenses of their own members, so, he declared, other churches could, likewise, do the same where custom permitted. Then, when Johannes discussed the nature and distribution of jurisdiction among the canons, he cited Hostiensis, Innocent, and Goffredus, quoting them practically verbatim. Following Hostiensis, he opined that the chapter could judge crimes of a plain and simple nature that did not lead to degradation from clerical status.49 Like Innocent he agreed that jurisdiction remained within the chapter as a whole and did not reside in any individual member as judge or co-judge.50 Following Goffredus, Johannes also acknowledged the influence of medieval corporate theory.51

The Contribution of Baldus de Ubaldis

Along with Johannes Andreae, Baldus de Ubaldis was also one of the most famous jurists of the Later Middle Ages. He was from Perusia and taught law there, and in other Italian cities, from the mid-fourteenth century. He wrote an incomplete commentary on the Decretals which, nevertheless, includes his commentary on Irrefragabili.52 His gloss is not long, but he did address salient 47  Johannes Andreae, Commentaria, X 1.31.13, no. 6, f. 254v, s.v. per ipsum: “scilicet, capitulum.” 48  Ibid., s.v. Cathedralis: “[I]dem puto de alia ecclesia, si capitulum cathedralis ecclesiae, vel ipsius eiusdem, haberet hanc consuetudinem, de foro competen. cum contingat.” 49  Ibid., no. 22, s.v. vel per decanum: “[Q]uod intelligit Hostien. quando agitur de correctione excessuum plana et simplici, et non de gravibus criminibus. . . . Si enim ageretur ad degradationem, consuetudo hanc potestatem talibus dare non potest, et sic intelligitur de foro competen. cum contingat.” 50  Ibid., no. 23 1:254a, s.v. Coniudex: [D]icit Ionnocen. quod de nullo canonico dici potest, quod sit iudex, vel coniudex, cum penes capitulum, et non singulos sit iurisdictio. Sed de eis dici possunt verba resonantia actum, sicut is canonicus coniudicat. Sicut electio est penes capitulum, et non singulos, et tamen singuli coeligunt. 51  Ibid., [ibi, quia propter] et hoc dicimus generaliter in his, quae ad collegia vel corpora spectant.” By using this phrase, Johannes appears to have quoted Goffredus. 52  “Medieval and Early Modern Jurists,” s.v. Baldus de Ubaldis, http://faculty.cua.edu/ pennington/1298a-z.htm last accessed July 31, 2014. There is a large literature on Baldus. For a study of corporation theory, see Joseph Canning, “The Corporation in the Political

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points regarding the chapter’s jurisdiction. Baldus recognized that the chapter could acquire both civil and criminal jurisdiction through praescription, or long-standing custom. And, like Hostiensis and Johannes Andreae before him, he further recognized that this criminal jurisdiction gave the chapter the authority to impose punishments of a less serious or severe nature.53 Baldus spent considerable space analyzing whether the individuals of the chapter were judges or co-judges, or whether jurisdiction resided within the chapter as a whole. He quoted Innocent and further explained the pontiff’s perspective. Interestingly, in one instance, Baldus attempted to explain Innocent’s meaning by borrowing concepts from medieval linguistic theory, invoking the terms ‘significatio’ and ‘explicatio’. Ultimately, he concluded, like Innocent, that election (or, by extension, judgment) was within the chapter because election (or judgment) was one in number.54 Baldus, moreover, extended his analysis of the topic. One of the difficulties in accepting capitular jurisdiction was the fact that, as Johannes Teutonicus, Vincentius Hispanus, Bernard of Parma, and others had remarked, an equal does not have authority over an equal and, in fact, in some instances, certain members of the chapter might even be of a lesser rank than the accused. Baldus successfully responded to this critique. He supported Innocent’s view by referring to the behavior of bees. One bee alone, he declared, does not make honey, nor a honeycomb. Instead, this is done by a multitude of bees joined together in a society. This fact, in turn, prompted Baldus to make an insightful observation: A multitude naturally consenting and working together is able to do more than a group in which the members are separated from one another. After posing arguments to the contrary, Baldus ultimately concluded that jurisdiction remained within the chapter and not within the individuals because they are not co-judges.55 What is interesting about his example involving bees Thought of the Italian Jurists of the Thirteenth and Fourteenth Centuries,” History of Political Thought 1 (1980), 9–32. 53  Baldus, Commentaria, X 1.31.13 Irrefragabili, no. 2, f. 115v, s.v. ibi, capitulum: “[N]ota quod capitulum potest prescribere iurisdictionem civilem et criminalem quam consuetudo dat quod intelligitur de levi cohercitione.” 54  Ibid., no. 6. “Modo revertor ad quaestionem utrum singuli canonici habent iurisdictionem. [D]icit Inno. quod. . . .[U]nde modus significandi est universalis sed modus explicandi est ita unius canonici, quod non est alterius, porro omnes canonici sunt electores sed proprie non dicuntur rectores [sic] quia electio est apud capitulum quod est unum numero secundum Innoc.” 55  Ibid., nos. 2–3, 115v. “Ulterius no[ta] hic quod penes capitulum est iurisdictio, nam una apes non facit mel, neque favum, sed apum multitudo sociata naturaliter multitudo consentiens plus potest quam abinvicem segregata. . . . Sed contrarium videtur quod

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is the implied message that whole was greater than the sum of its parts. Hence, just as the bees functioning as a society were more productive and, therefore, greater in essence, so, Baldus implied, the body of chapter canons was greater in stature and, therefore, more able to act as judge than any individual canon who was merely a member. Baldus was the last major canonist of the mid- to late-fourteenth century who commented on Irrefragabili with respect to questions of capitular jurisdiction. The canonist Henricus Bohic did study and teach at Paris until his death in 1357.56 However, he offered only a short commentary on Irrefragabili that did not address the jurisdiction of the canons. Thus, his contribution to the present discussion is negligible. Consequently, with respect to the fourteenth century, the writings of Johannes Andreae and Baldus de Ubaldis provide the background for understanding the significance of Irrefragabili and its impact on the development of capitular jurisdiction. In particular, the stature of these jurists shows that, by fourteenth century, the ideas of Innocent and Hostiensis on capitular jurisdiction were well-accepted. The writings of Johannes and Baldus demonstrate that certain specific ideas regarding capitular jurisdiction, as well as their logical implications, had become commonplace, among them: 1) Jurisdiction remained within the chapter and not within the individuals; hence, the chapter as a corporate entity, rather than the individuals, exercised jurisdiction; 2) In exercising jurisdiction, the chapter as a whole was greater than any individual canon of the chapter being judged; 3) the chapter exercised jurisdiction over less serious crimes that did not lead to degradation from clerical status. Had these ideas not been commonly accepted at the time when Johannes authored his commentary, he would not have been able to declare a fourth principle, namely that: 4) the canons of other churches – besides the cathedral church – could also exercise jurisdiction over the excesses of their own members. Indeed, once these ideas had become accepted as the normative understanding, it was but a small step for the replication and spread of these

iurisdictio est penes singulos sicut nos dicimus singulos rusticos praescribere pascua vel usum nemoris villae et si prohibeatur possunt singuli agere actione iniuriarum. . . . [no. 3]. . . . So[lutio]. Jurisdictio est penes capitulum non penes singulos quia non sunt coniudices.” 56   “Medieval and Early Modern Jurists,” s.v. “Henricus Bohic,” http://faculty.cua.edu/ pennington/1298a-z.htm last accessed July 31, 2014. For a detailed discussion of his life and works, see website of Jean-Luc Deuffic, http://henri-bohic.tumblr.com last accessed August 1, 2014.

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ideas and concepts to take root in other, similar, ecclesiastical bodies, such as the faculty of theology.57 The analysis of Episcopus nullius and Irrefragabili and the commentary on these texts has demonstrated that within the chapter, two basic models of action existed: one, in which the bishop and chapter acted together, with the bishop sitting as head (ut praelatus); and another, in which the chapter, as body, acted independently with the bishop participating merely as another member (ut canonicus). Not surprisingly, throughout the thirteenth century, the discussion regarding jurisdiction in these instances produced a wide range of alternatives. As the glosses to Episcopus nullius and Irrefragabili made clear, some thinkers felt that the canons were judges or perhaps assessors, or even delegated judges. No clear understanding of their jurisdiction was initially apparent. With respect to those instances when the bishop sat ut prelatus, and sought either the counsel or the consent of the canons, the prevailing opinion viewed the bishop as judge. But, unfortunately, the canonists did little to clarify the jurisdictional status of the cathedral canons in this instance. However, with Innocent IV, one aspect of the canons and their jurisdiction became clear: When the canons met independently of the bishop, the chapter as a whole exercised jurisdiction, and not any of the individual canons. Innocent proclaimed this principle, Hostiensis adopted it, and Johannes Andreae and Baldus of Perusia repeated it. In addition, Hostiensis established that when the canons met independently they possessed jurisdiction over less serious crimes. Two interrelated issues, however, remained unresolved. First, Hostiensis did not provide a clear definition of what constituted a less serious crime. He did note that, if the crime required degradation from clerical status, custom did not grant the chapter authority to act. But, at the same time, he did not mean to imply by this example that the chapter acting alone exercised jurisdiction over all crimes whose punishment fell short of degradation from clerical status. Pronouncing judgment on less serious crimes constituted only a portion of the judicial activity of any chapter. By examining the distribution of jurisdiction in both less and more serious crimes, it should be possible to draw the limits of the chapter’s independence in judging less serious crimes. This, then, touches, the second, as yet, unresolved issue. How was jurisdiction distributed when bishop and chapter met to adjudicate other types of criminal activity, and what, in fact constituted more serious offenses?

57  Although Johannes did not provide a specific example of this happening, he did provide the intellectual and theoretical justification for it to occur.

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The Distribution of Jurisdiction within the Chapter

The decretal Pervenit (1 Comp. 5.27.1 = X 5.31.1) addressed issues of capitular judgment in which defendants were accused of more serious offenses. Promulgated by Alexander III, (1159–1181) Pervenit was incorporated into the Compilatio prima and later, into the Liber extra. Among other things, it forbade the bishop from suspending priests or placing an interdict on their churches without first seeking the judgment of the chapter.58 The ordinary gloss also applied the decretal to other forms of punishments, such as excommunication.59 The text specifically mentioned priests, but Innocent, Hostiensis, and Johannes Andreae, for example, extended the provisions of the decree more generally to the correction of the canons of the chapter, as well as to clerics subject to the chapter by custom or privilege – who may not have been priests.60 Although Innocent permitted the bishop or other prelate of the chapter to suspend or excommunicate someone who was contumacious, he still believed that the consent of the chapter was preferable in these instances; nor did he permit the bishop or prelate to suspend or excommunicate someone perpetually, without first seeking the consent of the chapter. He did, however, allow the prelate, acting alone, to suspend someone for a brief time.61 Thus, apart from

58  (1 Comp. 5.27.1 = X 5.31.1). The relevant section of the text reads: “nec . . . aut sine iudicio capituli sui suspendere, vel eorum ecclesias interdicto subiicere attentetis.” 59  X 5.31.1, CIC 2:1781, s.v. capituli. The text reads: “Et ita episcopus sententiam excommunicationis sive suspensionis sine capituli consensus ferre non debet arg. 15. q.7 episcopus nullius [C.15, q.7, c.6] . . . cum hec pena maior sit in ecclesia.” 60  See for instance the gloss of Innocent IV in his Commentaria, where he spoke more generally, not of priests, but clerics. X 5.31.1, no. 1, 523v, s.v. Suspendere: “loquitur episcopo, et hoc est verum, quod episcopus non potest suspendere clericos, vel ecclesias interdicere in perpetuum, vel ad longum tempus multum sine consensu capituli . . . Also see Hostiensis, Commentaria, X 5.31.1, no. 4, f. 71r, s.v. Capituli: “Vel potest intelligi quando agitur de correctione canonicorum . . . vel presbiterorum, vel aliorum clericorum iurisdictioni capituli subiacentium de consuetudine vel privilegio speciali.” 61  Innocent IV, Commentaria, X 5.31.1, no. 1, 523v, s.v. Suspendere: [E]t hoc maxime obtinet, ubi procedit ex officio, forte contra praesentem vel absentem, nam tunc est cum maiori maturitate procendum, sed si in iudicio quis sit contumax, solus episcopus vel quilibet alius iudex praedicta facere potest . . . et etiam excommunicare . . . sed si deberet perpetuo episcopus suspendere aliquem ab officio et beneficio etiam in iudicio, credimus quod non deberet facere sine consensu capituli; quia magna quaestio est, haec sine consensu capituli facere non debet. . . . Item quia solus homo . . . ac tempus autem saltem modicum, credimus aliquem praelatum posse suspendere subditum sine monitione, imo sine causa cognitione si culpa, vel delictum coram iudice fiat.”

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this minor exception, Innocent upheld the principle that the bishop could not discipline his subjects without the participation of the chapter canons. Indeed, the meaning of Pervenit was discussed by the canonists, given that Alexander did not use the term ‘consent,’ but rather, ‘judgment.’ Alexander addressed the decree to the bishop as head, and not merely as a member of the chapter. As head the bishop was required to seek the judgment of the chapter in suspending clerics or interdicting their churches.62 Hostiensis implied that the judgment of the chapter was, in fact, the same as its consent. He noted that the counsel of the chapter was required in arduous matters; thus, it was no wonder that the judgment (i.e. consent) of the chapter was needed when imposing sentences of interdiction or excommunication.63 Bernard of Parma, on the other hand, stated directly that the judgment of the chapter equaled its consent when the suspension or excommunication of a cleric was at issue.64 Thus, Pervenit explicitly secured the participation of the canons in the legal process, even when serious offenses were brought to the bishop’s court for resolution. That Pervenit mandated cooperation between chapter and bishop in the judgment of these cases in no way interfered with the less serious jurisdiction exercised by the chapter itself, but rather, complemented it. At the same time, however, the decretal stopped short of granting any outright jurisdiction to the chapter in these cases. Unlike misdemeanors, the judgment of serious crimes fell within the purview not simply of the chapter but, rather, of both prelate and chapter. Hence, from the discussion, it would appear that the independence of the chapter was limited to the judgment of crimes that did not involve lengthy suspension or excommunication.65 By contrast, with 62  X 5.31.1. “Cum autem presbyteros quasi filios et fratres benigna ac fraterna debeatis caritate fovere, mandamus, quatenus in eos huiusmodi tallias et exactiones indebitas exercere nullatenus praesumatis, nec . . . sine iudicio capituli suspensos vel eorum ecclesias interdicto subiicere.” 63  Hostiensis, Commentaria, X 5.31.1, no. 4, f. 71r, s.v. capituli: “Nam et in gravibus est consilium capituli requirendum . . . excommunicatio autem est maior pena in ecclesia . . . non est mirum si iudicium capituli requiratur.” 64  See above, page 152, footnote 59. 65  The records of the Paris chapter hint that the letter of the law may not always have been followed, or that the law itself was more complicated in its handling of these matters. At a meeting of the chapter on August 2, 1329, a sentence involving excommunication and interdict was lifted, without the attendance of the bishop. Among those present were the dean of the chapter, along with the cantor, the archdeacon, the succentor, and four other canons. (Unpublished Register of the Chapter of Paris, Reg. N.D., 111; private communication from William Courtenay). Whether the physical absence of the bishop in this case indicated that the chapter could exercise a form of major jurisdiction without the bishop

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regard to more serious crimes, canon law guaranteed that jurisdiction was distributed and shared between bishop and chapter but, in the final analysis, jurisdiction over serious offenses, per se, resided with the bishop. Although Pervenit addressed crimes of clerics and priests involving major punishments of suspension (for a long time), interdiction, or excommunication, the text said nothing regarding cases involving deposition from office or orders, or degradation from clerical status. Several decrees included in the fifteenth Causa of the Decretum raised these issues, and the glosses to them had clarified their application.66 According to the canon Sexta actione, a priest or deacon could not be deposed without the presence of a council.67 The dictum of Gratian, placed at the head of this canon, made clear that the council was indeed a synod of bishops.68 The gloss emphasized that when a cleric was tried criminally the presence of bishops was necessary, especially when criminal conviction led to deposition from holy orders – as opposed to deposition from office or benefice.69 The subsequent canons Si quis tumidus and Felix further specified the number of bishops required: a council of at least twelve bishop was required to condemn a bishop, six to condemn a priest, and three to degrade a deacon.70 As the later glosses of Johannes Andreae indicated, for purposes by lifting the ban of excommunication and interdict requires further exploration. First, various grades of excommunication from minor to major existed. In the instant case, the degree of excommunication and its relationship to the exercise of jurisdiction needs to be explored in further detail. Second, within a chapter, the (major) archdeacon could at times, act in place of the bishop; hence, the participation of the archdeacon needs to be further clarified. 66  See above the discussion beginning on page 105. 67  C.15, q.7, c.1., Sexta actione. The rubric reads: “Sine concilii examinatione presbyter vel diaconus non deiiciatur.” 68  C.15, q.7, d.a.c.1. “Absque synodali vero audientia sacerdotem damnari in Hispalensi concilio, cui Isidorus interfuit, c.6 sic prohibetur.” 69  CIC 1:1444, C.15, q.7, c.1, s.v. Absque. The gloss to Gratian’s dictum reads: “Si agatur contra clericum de crimine criminaliter, necessaria est presentia episcoporum secundum quod traditur infra eadem C. c. Si quis [= C.15, q.7, c.3] etc. Felix [= C.15, q.7, c.4] distinguitur tamen quia si agatur de crimine ad depositionem ordinis tunc habet locum c. Felix etc. Si quis si autem agatur ad depositionem beneficii tunc solus episcopus potest cognoscere cum clericis suis.” The two texts, Si quis and Felix, both specified the same number of bishops for each type of case. 70  C.15, q.7, c.3. The text reads: “Si quis tumidus vel contumeliosus extiterit in maiorem natu, vel aliquem causam habuerit, a tribus vicinis episcopis, si diaconus est, qui arguitur, si presbiter est, a sex, si episcopus, a duodecim consacerdotibus audiatur. . . . Cause vero pro personis ab his statuto numero audiantur.” The glossator Benencasa wrote the casus for

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of judgment a subdeacon was treated in the same way as a deacon.71 These decrees, while they surely did not preclude the involvement of the chapter, nevertheless emphasized that the deposition and degradation of clerics in major orders belonged by right to a synod of bishops, with one exception.72 Johannes Teutonicus acknowledged that a bishop and chapter could hear criminal cases of clerics constituted below the rank of holy [major] orders – that is, without the presence of other bishops.73 Thus, while a bishop and chapter, in general, could not degrade from holy orders anyone above the level of subdeacon without outside input, apparently they could decide cases involving those clerics below the rank of (sub)deacon, in which the punishment involved degradation from clerical status.74

the Decretum which Bartholomew later revised. Cf. Pennington, “The Decretists,” 172. The casus merely repeats the number of bishops required in each case. Cf. CIC, 1:1445. 71  CIC 3:611–612, VI 5.2.1, s.v. canonibus, Johannes Andreae cited the Decretum of Gratian and noted as follows: “15.q.7. si quis tumidus, et duobus cap[itulis] seq[uentibus], et debent esse sex [episcopi] in degradatione presbyteri, tres in degradatione dyaconi, et ita de subdiacono videtur.” Similarly, Johannes glossed the decretal Degradatio qualiter, CIC 3:691, VI 5.9.2, s.v. canonibus: “in causa dyaconi tres . . . et dicamus quod eodem iure censebitur subdyaconus.” 72  C.15, q.7, d.a.c.1, s.v. Absque: The gloss reads: “Si autem agatur ad depositionem beneficiis tunc solus episcopus potest cognoscere cum clericis suis. . . . Item si agatur de crimine in modum exceptionis solus potest cognoscere.” 73  Johannes Teutonicus commented on this canon at D.86, c.23, rather than at C.15, q.7, c.2. Cf. CIC 1:551, D.86, c.23, s.v. Ecclesie, Johannes noted: “Item, est arguitur hic quod episcopus non vocatis aliis episcopis possit sacerdotem condemnare. Sed dic quod seniores hic vocat episcopos cum iste corinthiorum esset archiepiscopus. Vel loquitur tantum de pecuniaria, quam potest tractare episcopus tantum cum suis clericis. Vel est derogatum huic per alios canones. Vel canonica districtio dicatur pena suspensionis, quam episcopus cum suis clericis potest inferre. Vel loquitur de clericis infra sacros ordines constitutis: quorum causas etiam criminales potest episcopus cum suis clericis tractare et decidere arguitur 15.q.7. si autem. Quid de hoc iuris fit, invenies 15.q.7, in summa. Ioan.” 74  For the exceptions authorized by Boniface VIII, see below, page 161, footnote 89. For a brief discussion of the degradatio, see Thijssen, “Master Amalric,” 59–61. The act of degrading a cleric involved two parts: a verbal pronouncement of the sentence of degradation (degradatio verbalis) followed by the actual public ceremony of degradation, by which the tonsure and other insignia of clerical status were physically and visibly removed from the person of the offender (degradatio actualis vel realis).  The ability of the bishop and the cathedral canons acting without the presence of other bishops to degrade a cleric in minor orders is implied by the canons governing degradation. The canons governing degradation require the presence of neighboring bishops only in the cases of priests, deacons, and subdeacons. Had the canons required the

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The analysis of the canons from Causa 15 of the Decretum, along with Pervenit and Irrefragabili, concerning the types of cases and the jurisdiction exercised by the chapter has yielded interesting results. First, in a general sense, these legal texts demonstrate the role played by various factors such as the nature of the crime, the nature of the punishment, and the status of the accused in shaping the jurisdiction operative in any given legal context. Second, whereas Tierney had demonstrated that the bishop and cathedral canons had shared jurisdiction among themselves, but did not apply these principles to criminal cases, the foregoing analysis demonstrates the existence of a pattern governing how jurisdiction was distributed in these cases that, ultimately, complements the pattern of shared jurisdiction outlined by Tierney. As would be expected, in cases involving degradation from clerical status above the level of subdeacon, jurisdiction belonged to the bishop (or synod of bishops). Since the conferral of holy orders belonged by right to the bishop alone, the degradation from holy orders likewise touched the right of the prelate alone. In these cases, then, the bishop could disregard the advice given by the canons in his role as prelate. These cases apparently touched the rights of the bishop alone. As Hostiensis noted in his gloss on Postulastis, when the bishop sat ut praelatus and obtained the counsel, but not the consent of the chapter, he could freely disregard the advice offered by the members of the chapter. In these circumstances, then, the canons had no basis for claiming any legal right of jurisdiction. Their role was merely consultative.75 By contrast, in the judgment of serious crimes whose punishment did not lead to degradation from clerical status, the bishop was judge, exercising jurisdiction. Nevertheless, he still had to act with the consent of the canons. Serious crimes not leading to degradation from clerical status touched the rights of both parties and thus had to be adjudicated together, with the bishop, exercising jurisdiction in his capacity as prelate and the canons giving their consent. If the bishop lacked the consent of his canons, the proceedings were declared null and void. Cases involving less serious crimes remained under the independent jurisdiction of the chapter, because these cases principally touched the rights of the canons alone. In these cases, when the bishop sat merely ut canonicus, in cases of discord, the voice of the maior et sanior pars of the chapter prevailed,

presence of additional bishops when degrading minor clerics, this requirement would have been noted in the law. 75  See above page 70, footnote 88.

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not that of the bishop.76 In matters where the canons judged their own members, the bishop could not overturn their decision and, thus, they retained their own, independent jurisdiction.77

The Crime of Heresy and the Jurisdiction of the Chapter

These general principles show the distribution of jurisdiction within the chapter when various types of criminal activity were being adjudicated. The principles of shared jurisdiction provide only the framework for understanding these jurisdictional issues connected with heresy. They do not directly speak to crimes involving heresy. For example, did the adjudication of the crime of heresy belong by right to the prelate alone? What role did the chapter canons play in this legal process? For a full resolution of these questions it is necessary to turn to the legislation of three decretals in particular: Perniciosam, Ad abolendam, and Excommunicamus where various pontiffs addressed judicial matters relating to heresy and its prosecution.78 76  Johannes Andreae, Commentaria, X 5.31.1, no. 2, f. 91, s.v. Capituli: “Hosti[ensis] no[tat] quod episcopus et canonici faciunt unum corpus, cuius corporis episcopus caput est, canonici membra, unde in iis, in quibus episcopus vocem habet ut praelatus, requiritur consensu tam episcopi, quam capituli ita, quod unus sine reliquo nihil potest: et si discordent, episcopi est diffinitio, cui stabitur, nisi aliud rationabile obsistat . . . ubi vero vocem habet ut canonicus, non episcopi, sed capituli est diffinito, et stabitur maiori et saniori parti, nisi aliquid rationabile obiiciatur.” 77  Nevertheless, the canons always gave the maior et sanior pars the right to object regardless of whether the bishop sat ut canonicus or ut praelatus. While this meant that, in some sense, authority or jurisdiction ultimately rested with the greater and sounder part of the chapter, such instances clearly represented rare and unusual circumstances and thus do not speak to the principles governing the ordinary running of the chapter. 78  These decretals touch on questions both of jurisdiction and procedure. with regard to inquisitorial practice; the literature on this subject is vast. In addition to the works already cited, these will also prove useful. The foundational work on the history of the inquisition is, of course, History of the Inquisition in the Middle Ages, 3 vols. (New York, 1887, rpt. 1922). Edward M. Peters has provided an updated account of both the inquisition and the myth of the inquisition in Inquisition (New York, 1988), esp. 36–37, 44–45, and 64. His Heresy and Authority in Medieval Europe (Philadelphia and London, 1980) provides a selection of primary documents and discusses the impact of papal legislation. Henri Maisonneuve, Etudes sur les origines de l’inquisition (Paris, 1960) covers the historical development of the inquisition and its procedure. In addition, for some of the older literature, consult E. Jacobi, “Der Prozess im Decretum Gratiani und bei den ältesten Dekretisten,” Zeitschrzift der Savigny-Stiftungfiir Rechtsgeschichte, Kanonistische

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The decretal Perniciosam, dating from the ninth century and included in the Decretals, represented one of the ancient canons of the church. Among other things, it accorded to the bishop the authority to investigate and judge spiritual crimes within his diocese. Bernard of Parma’s gloss on Perniciosam (c.1250) cited the decree Excommunicamus, of the Fourth Lateran Council, as proof that the bishop’s authority included the right to decide cases of heresy.79 Excommunicamus, in turn, required the bishop to inquire at least once a year in his diocese regarding reports of heresy. Of particular note, however, the decree allowed the bishop to fulfill this function through his archdeacon or

Abteilung 3 (1913), 223–343; Walter Ullmann, “Some Medieval Principles of Criminal Procedure,” Juridical Review 59 (1947), 1–28. The most recent and best account of inquisitorial procedure is Lotte Kéry, Gottesfurcht und irdische Strafe: Der Beitrag des mittelalterlichen Kirchenrechtszur Entstehung des öffentlichen Strafrechts, Konflikt, Verbrechen und Sanktion in der Gesellschaft Alteuropas 10 (Köln-Weimar-Wien, 2006). Kéry has also demonstrated that prelates were obligated to make an inquisitio veritatis from the time of the pontificate of Alexander III. See, “Inquisitio – denunciatio – exceptio: Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 87 (2001), 226–268. On the issue of procedure and rights, see the recent work of Melodie Eichbauer, “Medieval Inquisitorial Procedure: Procedural Rights and the Question of Due Process in the Thirteenth Century,” History Compass 12 (2014), 72–83. Henry Ansgar Kelly has contributed numerous articles on the topic of inquisitorial procedure, including “Inquisition and the Prosecution of Heresy: Misconceptions and Abuses,” Church History 58 (1989), 438–451; “Inquisitorial Due Process and the Status of Secret Crimes,” Proceedings of the Eighth International Congress of Medieval Canon Law (UCSD 1988), ed. Stanley Chodorow, Monumenta iuris canonici, series C: Subsidia, vol. 4 (Vatican City, 1992), 407–428; Idem, “The Right to Remain Silent: Before and After Joan of Arc,” Speculum 68 (1993), 995–97; and Idem, “Inquisition, Public Fame, and Confession: General Rules and English Practice,” in The Culture of Inquisition in Medieval England, ed. Mary Flannery and Katie Walter, Westfield Medieval Studies (Cambridge, 2013). Several of these articles have been collected, along with other important studies, in Inquisitions and Other Trial Procedures in the Medieval West, Variorum Collected Studies Series 708 ( Aldershot, 2001). Other important studies include, Richard Kieckhefer, “The Office of Inquisition and Medieval Heresy: The Transition from Personal to Institutional Jurisdiction,” in Journal of Ecclesiastical History 46 (1995), 36–61. The works of Gordon Leff, as well, may be consulted. See, in particular, his Heresy in the Later Middle Ages: The Relation of Heterodoxy to Dissent, c.1250–c.1450 (Manchester, 1967). 79  X 1.31.1. The relevant text of Perniciosam reads: “habeant igitur episcopi singularium urbium in suis diocesibus liberam potestatem adulteria et scelera inquirere, ulcisci et iudicare, secundum quod canones censent, absque impedimento alicuius.” CIC 2:396, X 1.31.1, s.v. secundum quod canones censent, the gloss clarifies: “Item de heresi. infra de here. Excommunicamus §Adiicimus.”

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through another honest individual.80 Neither the text of Perniciosam nor that of Excommunicamus spoke to the role of the chapter canons in these processes. An earlier decretal of Lucius III, Ad abolendam, in 1184, had ordered, under pain of anathema, that individual bishops judge heretics – with the counsel of their clerics.81 That the counsel of clerics mandated in this decretal represented the counsel of his chapter canons becomes clear from the gloss to Si quid vero of Gratian’s Decretum, as noted above.82 Furthermore, when the episcopal seat was vacant, the jurisdiction of the bishop devolved to the chapter and the canons could proceed with the investigation and determination of a case of heresy, seeking the counsel of the neighboring bishops when necessary.83 Although it must be admitted that Ad abolendam assured the canons of a participatory role in judging crimes of heresy and furthermore gave them jurisdiction when the episcopacy was vacant, these concessions did not provide the canons with significant jurisdiction. The vacancy of the episcopal seat represented a temporary and exceptional circumstance. Moreover, even under more normal circumstances, Perniciosam, Ad abolendam and Excommunicamus portrayed the investigation of heresy as a right belonging to the bishop alone or to the person through whom he acted. Even where the decree Ad abolendam required the bishop to proceed cum consilio clericorum, this mandate did not give the canons any jurisdictional authority because it emphasized the giving of counsel only, which the prelate could ignore. Indeed, the canonistic commentary on Ad abolendam and Excommunicamus in particular show that the weight of canonistic opinion placed jurisdiction in cases of heresy solely with the prelate. Lucius III’s use of the phrase “cum consilio clericorum” suggests that Lucius viewed the investigation of heresy as a right belonging solely to the prelate since he was not required to adhere to their advice. Hostiensis and Johannes Andreae, however, offered some insight into the understanding of these texts. Discussing Ad abolendam Hostiensis asked whether the bishop was required to follow the counsel of the chapter.84 The 80  X 5.7.13. The section that begins at §Adiicimus states: “§. 7. Adiicimus insuper ut quilibet archiepiscopus vel episcopus per se aut per archidiaconum suum, aut alias honestas idoneasque personas, bis aut saltem semel in anno propriam parrochiam, in qua fama fuerit hereticos habitare, circumeat.” 81  X 5.7.9. “[S]inguli episcopi per dioc.eses suas cum consilio clericorum . . . haereticos iudicaverint, pari vinculo perpetui anathematis innodamus.” 82  See the discussion that begins on page 105. 83  X 5.7.9. “[V]el singuli episcopi per dioc. suas cum consilio clericorum vel clerici ipsi sede vacante cum consilio si oportuerit vicinorum episcoporum hereticos iudicaverint.” 84  Hostiensis, Commentaria, X 5.7.9, no. 2, f. 36r, s.v. Cum consilio: “Sed nunquid tenetur sequi consilium? Dic, ut ibi no. supra de arbi. cum olim. Vel forsan hic ponitur consilium

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solution that he gave ran as follows. Citing Pervenit Hostiensis acknowledged that word ‘counsel’ inadvertently could have been used instead of ‘consent.’ For himself, however, Hostiensis felt that such counsel did not constitute consent or a judgment.85 Hostiensis repeated his opinion that the chapter could not give consent in cases of heresy, when he glossed Excommunicamus. Hostiensis explicitly stated that the diocesan alone with the counsel – not the consent – of his clerics possessed the authority to pass sentence in cases of heresy.86 The strong stand that Hostiensis took in favor of the authority of the bishop was mirrored in the work of Johannes Andreae. According to his understanding of Ad abolendam, Johannes Andreae stated that the bishop proceeded with the counsel of his clerics in arduous cases, but this counsel did not comprise consent.87 pro consensu. ar. infra de excess. praela. ca. i. [i.e. Pervenit] respondeo. i. ver. aut sine iudicio. Dicas, quod si in hoc casu maior et sanior pars capituli consentit cum ipso, illud exequatur. . . . Alioquin ad metropolitanum, seu concilium referat quaestionem. . . . Et si omnes, vel maior pars concordes fuerint cum metropolitano, ei stetur. . . . Alioquin ad romanam ecclesiam recursus habeatur.” For more on the role of consent in Hostiensis’s thought, particularly in relation to the college of cardinals, see Roberto Grison, “Il problema del cardinalato nell’Ostiense.” Archivum Historiae Pontificiae 30 (1992), 125–157. Also consult the articles by Brian Tierney and John Watt: Brian Tierney, “Hostiensis and Collegiality,” Proceedings of the Fourth International Congress of Medieval Canon Law, ed. Stephan Kuttner, Monumenta Iuris Canonici, Sect. C, 5 (Vatican City, 1976), 401–409; John A. Watt, “The Constitutional Law of the College of Cardinals: Hostiensis to Johannes Andreae,” Medieval Studies 23 (1971), 127–157 and idem, “Hostiensis on ‘Per venerabilem’: The Role of the College of Cardinals,” in Authority and Power: Studies on Medieval Law and Government Presented to Walter Ullmann, ed. P. Linehan and B. Tierney (Cambridge, 1980), 99–113. 85  Hostiensis, Commentaria, X 5.7.9, no. 2, f. 36r, s.v. Cum consilio: “[R]espondeo [id est] ver[um] aut[em] sine iudicio.” The phrase can be translated in two ways. 1) “I respond that is true or [and] without judgment.” More probably ‘aut’ is an abbreviation for ‘autem’. In this case, the sentence wold read: “I respond that it is true, but without judgment.” In either case, even if the original meaning of ‘aut’ is retained the phrase ‘sine iudicio’ indicates that Hostiensis did not believe the consent of the canons alone constituted a valid judgment. As will be shown in the next paragraph, this interpretation is borne out by the canonist’s gloss on Excommunicamus. 86  Hostiensis raised the issue of whether secular authorities could issue a sentence against a heretic. Nevertheless, Hostiensis, stated that the bishop (diocesanus) acted alone with the counsel (not consent) of his clerics. Hostiensis, Commentaria, X 5.7.13, no. 12, f. 39r, s.v. et monitus: “Sed contra: quia solus diocesanus cum concilio clericorum hanc sententiam ferre potest.” 87  Johannes, Commentaria, X 5.7.9, no. 4, fol. 48, s.v. [consilio]. The text reads: “in sententiis enim arduis requirit episcopus consilium capituli, licet consensum non expectet.”

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Thus, with regard to the chapter’s ability to exercise jurisdiction, the decrees Perniciosam, Ad abolendam, and Excommunicamus, did little to enhance or validate its authority in the eyes of the major canonists. Hostiensis did acknowledge that some canonists opined that the “counsel” mandated in Ad abolendam was in fact consent. Nevertheless, had this been the case, it would have offered the canons only a greater participation in shared jurisdiction, but still no jurisdiction of their own. Because the crime of heresy often involved deposition from office, benefice, or orders – or even degradation from clerical status – it is important to look at the innovations in canon law as these applied to cases of deposition and degradation. In his Liber sextus, Boniface VIII (1285–1303) incorporated two innovations under the rubric, De poenis. The first specifically permitted the ordinary in cases of heresy to pronounce the degradatio verbalis against one of his clerics in minor orders, without the presence of other bishops, but with however, the presence of the chapter.88 The requirement merely of the presence of the chapter suggests that its counsel and not its consent was sought by the bishop in these cases. Second, because of the spread of heresy, and due to the difficulties inherent in gathering the required number of bishops, Boniface VIII incorporated into the Liber sextus a decree of Gregory IX that permitted similar exceptions in those cases involving priests or others clerics constituted in holy orders. Henceforth, any bishop, without the presence of other bishops, could degrade a priest, deacon, or subdeacon provided the bishop called together persons of stature, including abbots and other prelates, as well as litterati from within his own diocese.89 The gloss, however, indicated that these exceptional 88  VI.5.9.2. The text of the decretal, authored by Boniface VIII, reads: “Degradatio qualiter fieri debeat a nobis tua fraternitas requisivit, super quo tibi taliter respondemus quod, verbalis degradatio seu depositio ab ordinibus vel gradibus ecclesiasticis est a proprio episcopo sibi assistente in degradatione clericorum in sacris constitutorum ordinibus certo episcoporum numero diffinito canonibus, facienda, quamquam proprii episcopi sententia sine aliorum episcoporum presentia sufficiat in degradatione eorum qui minores duntaxat ordines receperunt.”  CIC 3:691, VI 5.9.2, s.v. presentia: “requiritur tamen praesentia capituli sui. . . . 15, quaestio 7, [E]piscopus nullius, nisi de consuetudine sine ipsis hoc facere posset, supra eodem libro, de consue[tudine], c.3 [= VI 1.4.3].” 89  VI 5.2.1. The text reads: “Quoniam episcoporum numerus, ad degradationem clericorum a canonibus constitutus, non potest de facili convenire: concedimus, ut sacerdotem vel alium clericum in sacris ordinibus constitutum, cum pro haeresi fuerit curiae saeculari reliquendus, aut perpetuo immurandus, convocatis abbatibus, aliisque prelatis et religiosis personis ac literatis suae diocesis, de quibus expedire videbitur, suus solus possit episcopus degradare.”

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practices did not apply to cases of degradation that resulted from crimes other than heresy. Though the decretal permitted the bishop to act without other bishops, he still had to act with the presence of the chapter – though, again, not necessarily with its consent.90 However, even in these instances when abbots and other prelates substituted for bishops, it must be remembered that the chapter retained its consultative role. In this regard, the comments of the Parisian canonist Guido Terreni, OCarm. are helpful. Commentaries on the Decretum of Gratian became rarer after the appearance of the Liber extra and subsequent collections of decretal legislation. Guido Terreni, an important witness to the Parisian milieu, nevertheless, authored a lengthy commentary in the mid-fourteenth century. With respect to the workings of a bishop and his chapter, Guido frequently cited Master Huguccio, demonstrating continuity with the master’s thought. When commenting on Causa 15 at Sexta actione (C.15, q.7, c.1), Guido, following Huguccio, observed that a bishop alone could not depose or degrade a cleric. However, with respect to excommunication, suspension, and civil cases, Guido held that the bishop alone could act. At first glance, this statement appeared to exclude the bishop’s clerics, but Guido continued, noting that the bishop should hear cases with his clerics.91 And if there were any doubt regarding his opinion on the matter, when glossing Episcopus nullius, he cited Huguccio as his source and stated clearly that the world “solus” excluded other bishops, but it did not exclude the bishop’s clerics.92 Hence, to be clear, Guido opined that a bishop could not degrade or depose a cleric without the presence of other bishops, but he still intended that the bishop’s clerics – his canons – 90  CIC 3:612, VI 5.2.1, s.v. pro heresi: “In aliis igitur criminibus si immineret degradatio facienda, serventur antiqua iura, quia in hoc crimine hoc introductum est speciale. . . . s.v. Solus possit episcopus. The gloss reads: “excludit episcopos non capitulum suum.” I thank Thomas Turley for sending me a copy of his article: “Guido Terreni, Heresy, and the Reconstruction of Tradition: 1317–1342,” in Tradition and Ecstasy: The Agony of the Fourteenth Century, ed. Nancy van Deusen (Ottawa, 1997), 51–68. 91  Guido Terreni, C.15, q.7, c.1, Commentaria super Decretum Gratiani, Ms. Vat. lat. 1453, f. 114ra, s.v. Sexta: “Ex hoc capitulo videtur quod episcous clericos punire de cons[ilio] clericorum aut maioris partis teneatur quia episcopus solus honorem dare pero hoc solus auferre not potest. hug. de deponendo seu degradando nam suspendere et excommunicare et in casu civili condemnare solus episcopus potest suos clericos, ut n[otat] . . . Episcopus cum senioribus debet causas clericorum audire [etc].” 92  Ibid. C.15, q.7, c.6, f. 114rb, s.v. Solus: “[I]d est, sine aliis episcopis sed non sine aliis clericis hug.” The gloss in this instance is written before the text to which it refers. It is written above, that is, prior to, the placement of the canon. The gloss, ‘solus’, however, clearly references the text of Episcopus nullius.

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participate. Furthermore, when the bishop acted ‘alone’ to excommunicate or suspend a cleric, Guido understood this to mean that the bishop acted independently without the presence of other bishops, but still with the consultative role of his clerics. Finally, when commenting on Si quid vero, Guido added an important piece of information. Guido acknowledged that it was fitting to know about the circumstances (conditionem) of both the sinner and the sin before an individual was punished in the presence of the elders. Guido cited Exodus Chapter 24 as his source. Just as God gave Moses seventy elders to act as assistants, or helpers, in the governing of the Israelites, in like manner, the bishop also needed to consult his elders, or senior clerics, when judging cases. Guido would have been familiar with the innovations included in the Liber sextus. Thus, it is understandable that for Guido, these elders included not only priests, but also “wise men.”93 By using the term, “sapientibus,” Guido may have alluded to the importance of university training and, thus, seems to have given a nod to his colleagues in this regard by favoring the participation of learned clerics in cases of degradation from clerical status. Nevertheless, as shown above, jurisdictional authority in these cases resided officially with the bishop or bishops. Just as the right to ordain a cleric belonged to the bishop alone, jurisdiction involved in degrading a cleric constituted, by extension, a right belonging principally to the bishop – or a group of bishops – alone. Conclusion The issuance of the decretal Irrefragabili as part of the Fourth Lateran Council in 1215 was of particular importance in establishing the independent criminal jurisdiction of the cathedral chapter over its members. The decretal recognized that custom could give the canons the authority to judge the excesses of their members independently of the bishop, and the decretal further established a suitable procedure. Hence, it came as no surprise that the commentators also debated whether the canons acted as judges of any one of their fellow members. The record showed that a similar debate took place involving discussions of Episcopus nullius, which contemplated the bishop and the canons acting together to censure a fellow canon. Many writers, including Goffredus of Trano and Vincentius Hispanus, contributed to this discussion. Nevertheless, of all 93  Ibid. D.86, c.23, f. 51ra, s.v. incognita: “Oportet prescire peccatorem et conditionem peccati antequam peccans puniatur coram senioribus, id est, presbiteris et sapientibus ut maturius in negot[ione] procedatur. Sic enim in veteri lege in punitionem seniorum consilium petebatur. Unde dati sunt Moysi in adiutorium regimine lxx seniores.”

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the canonists who commented on Irrefragabili, the contributions of Innocent IV and Hostiensis, in particular, stand out. Innocent IV, in providing a response, appeared to borrow from the gloss on Episcopus nullius. The glossator to Episcopus nullius, (either Johannes Teutonicus or Bartholomew of Brescia), had opined that the chapter as a whole might exercise jurisdiction when the bishop and the chapter met together. Innocent, for his part, took this concept and applied it, instead, to the chapter as whole acting independently of the bishop. Hence, when the canons met to censure one of their own, Innocent held that the chapter as a body, and not the individual canons, exercised jurisdiction. Innocent thus opened the way for the corporate exercise of jurisdiction by cathedral chapters. Hostiensis, in turn, went to considerable lengths to show that custom could grant jurisdiction to the chapter. Furthermore, he more clearly specified the nature of the chapter’s jurisdiction, noting that the chapter’s independent authority to censure its own members extended only to misdemeanor crimes or offenses that did not lead to degradation from clerical status. Subsequent writers, such as Johannes Andreae and Baldus of Perusia, showed that these ideas became widely accepted. The acquisition of misdemeanor criminal jurisdiction by the chapter prompted a further enquiry: Did the chapter acquire any authority to judge cases involving heresy? In order to answer this question, it was necessary to engage in a lengthy discussion of the legislation related to heresy. This discussion, in turn, has revealed an intricate set of elements which shaped the way in which jurisdiction was expressed when bishop and chapter met to pass judgment. This analysis has indicated that the chapter, in general, possessed both civil and criminal jurisdiction over less serious crimes. But with respect to the crime of heresy in particular, the chapter apparently possessed no jurisdictional authority per se, although the legal tradition strongly upheld its right to give counsel and, at times, to consent in the adjudication of these cases. The role of the theological faculty in judging cases of heresy must be understood in relation to these standard norms governing cases of heresy. Now, it is time to return to the faculty of theology and to assess how cases of academic heresy were handled in that body.

CHAPTER 6

Jurisdiction, Procedure, and the Censure of Academic Heresy in the Faculty of Theology The discussion of the chapter’s jurisdiction – whether shared with or independent of the bishop – has provided an appropriate background against which to assess the authority exercised by the theological faculty at Paris over its own members. As a result of these investigations, it is possible to offer a partial hypothesis to the question raised at the outset of this study: Given that the prosecution of heresy was considered a right of the bishop alone, how did the faculty of theology acquire the capacity to judge cases of academic heresy? The canonistic texts have provided an important element of the answer: As noted earlier, the bishop possessed the right to act through another, such as his official, an archdeacon, or a vicar.1 Thus, it was legally permissible for the bishop to act through his vicar, the chancellor, and the faculty of theology. Inasmuch as the chancellor and the theological faculty came under the legal and spiritual authority of the bishop, it is possible to claim that the bishop acted through them. Indeed, without explicitly acknowledging this legal principle, scholars have generally accepted that the chancellor and the faculty of theology acquired their authority by acting under the aegis of the bishop. In the Stephen of Venizy case, Courtenay opined that the bishop delegated the judicial deliberation to the faculty of theology.2 This understanding of the faculty’s authority in relation to the bishop assumes that the faculty of theology acted not as an independent judicial body per se, but merely as an extension or arm of local episcopal authority. Hence, it would appear that the faculty did not exercise any independent jurisdiction when censuring its own members. Indeed, other obstacles also seemed to challenge the faculty’s 1  See the discussion of vicars above beginning on page 45. 2  See William Courtenay, “Dominicans and Suspect Opinion,” 189. Courtenay expressed it in this way: “it would appear that the bishop of Paris, William of Auvergne, had delegated the judicial deliberation to the regent masters of theology, under the supervision and authority of the chancellor of Notre Dame. When the determination was reached, the bishop gave his approval and declared anathematized anyone who dared to dogmatize or sustain the erroneous opinions.” However much this description may accurately reflect the judicial positions of the faculty, of the chancellor, and of the bishop in these circumstances, the general view of the chancellor and the faculty as merely delegates of the bishop does not do justice to their legal position.

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exercise of jurisdiction in cases of heresy. First, and foremost, heresy was a serious offense, a crimen exceptum; Innocent III had likened it to treason.3 Second, as noted, d’Ailly himself had recognized the bishop as the judge ordinary in the matter involving Monteson.4 The bishop possessed the authority to excommunicate offenders and to declare them heretics – not the faculty of theology. Nevertheless, just as these factors seemed to argue against the faculty’s jurisdiction, so, at the same time, other factors seemed to favor the faculty’s jurisdiction. After all, it seems unreasonable to hold that the chancellor, in particular, did not possess the powers of an ecclesiastical judge. He was, after all, a vicar of the bishop and ordinary of the faculty. Moreover, Foulechat and Monteson both appealed from the decisions of the faculty, thereby treating the sentence as a legal fact.5 The resolution of these discrepancies is not immediately obvious. However, the matter can be approached from two directions. First, it is possible to investigate more closely the question of the faculty’s jurisdiction – something that will take place in the next chapter. Or, for now, it is equally suitable to focus on a fuller analysis of the offense of academic heresy within the university context, and to determine, how it may be distinguished from the general concept of heresy as routinely discussed in the sources.

Jean Gerson and the Censure of Heresy

Fortunately, a contemporary of Pierre d’Ailly, and subsequent chancellor of the university, Jean Gerson, wrote a treatise on the censure of academics at Paris entitled De protestatione circa materiam fidei. In describing the process of academic censure (particularly among bachelors), Jean Gerson highlighted two essential procedures. First every bachelor before reading the Sentences swore a revocatio conditionalis, a promise not to teach anything contrary to the faith and that, if the opposite happened, he would revoke the error 3  Edward M. Peters, “Crimen exceptum: The History of an Idea,” in Proceedings of the Tenth International Congress on Medieval Canon Law, Syracuse, New York 13–18 August 1996, ed. Kenneth Pennington, Stanley Chodorow, and Keith H. Kendall (Vatican City, 2001) 137–94. Also see the decretal Vergentius in senium, X 5.7.10. 4  See page 5, footnote 13. 5  H. A. Kelly, review of J. M. M. H. Thijssen, Censure and Heresy at the University of Paris, 1200– 1400 (Philadelphia, 1996) in Speculum 75 (2000), 729–31. These issues will be addressed in more detail when discussing fraternal correction.

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immediately.6 In fact, the revocatio conditionalis was simply the technical name for the oath which the bachelors swore in the hand of the chancellor, as described by Grimerius Bonifaci, Gerson observed, this “protestatio generalis aut conditionalis revocatio” did not prevent one from coming under suspicion of heresy.7 If subsequent to this oath the bachelor engaged in unsound teaching, he fulfilled this promise by performing a public revocation of his unsound teaching, called by Gerson a revocatio actualis.8 This sequence of events – a promise not to teach unsound doctrine, followed by a revocation of unsound doctrine if suspect teaching were detected – is exactly the procedure found in the cases of Denis Foulechat and John of Monteson elaborated in more detail.9 What is most interesting and instructive, however, are Gerson’s comments on the gravity – or lack thereof – with respect to this offense. For a variety of reasons and in a variety of circumstances, Gerson argued that many academics who erred in matters of the faith often did so without incurring the label of heretic. For instance, someone who erred merely through 6  Jean Gerson, “De Protestatione circa Materiam Fidei,” in Oeuvres Complètes, 10 vols., ed. P. Glorieux (Paris, 1960), 6:155–165, at 155–156. Gerson’s treatise deserves more detailed attention than can be given here. The text reads: “Protestatio generalis vel specialis de ipsa fide non infert quod protestans erraverit: similiter nec revocatio conditionalis. Hoc est itaque perspicuum, quoniam homo quantumcumque fidelis dicere potest: protestor quod nihil intendo dicere nec puto dixisse contra fidem, et si oppositum contingeret vel contigisset, illud ex nunc revoco vel retracto.’ ” At no. 11, 164, Gerson noted: “sicut apud scholasticos theologos in praeclara Universitate Parisiensi frequenter observatur quos protestatio generalis et conditionalis revocatio juvat ad hoc ne de pertinacia notarentur, juncta humilitate qua protinus revocant errorem nedum conditionaliter sed absolute.” 7  Ibid. At no. 12, 164, the text reads: “Protestatio generalis aut conditionalis revocatio non obstant quin sic protestans aut revocans dici possit suspectus de haeresi quandoque leviter, quandoque vehemeter, aliquando violenter.” 8  C UP 3, no. 1299, 120. The chancellor, Grimerius Bonifaci, remarked on this oath during the proceedings against Denis Foulechat, though he did not use the technical term, “protestatio generalis aut conditionalis” later applied by Gerson. See above, page 51, footnote 32. 9  For the Foulechat case, see CUP 3, no. 1298, 114–120 and no. 1299, 120–121. For the Monteson case, see CUP 3, no. 1559, 491. “Anno Domini millesimo trecentesimo octuagesimo septimo, die sexta mensis Julii post primam Sancti Jacobi, venerabiles viri et discreti decanus et facultas theologie Parisiens. solemniter congregati apud Sanctum Maturinum super declaratione quarumdam propositionum dictarum a magistro Johanne de Montesono, magistro in theologia, Ord. fratrum Predicat., diffinierunt et declaraverunt, quantum in eis est, propositiones ipsius inferius annotatas fore publice denunciandas in scolis et in sermonibus sub forma inferius contenta, in casu quo dictus magister nollet parere mandatis ejusdem facultatis.”

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ignorance or error concerning a matter of faith incurred neither infamy nor the punishments applied to heretics after absolutely revoking the error; for to say that he had erred knowingly, would furthermore be a lie.10 Because someone, though seduced into error, did not defend it pertinaciously, but sought and accepted correction, he was not at all considered to be a heretic.11 In some cases, even, a revocatio actualis was not necessary.12 In fact, precisely because of his revocatio conditionalis made prior to lecturing on the Sentences, joined with an immediate revocatio actualis vel particularis, the scholar was not considered pertinacious and was cleared of any wrongdoing or suspicion whatsoever. Moreover, Gerson noted that this kind of offense occurred routinely and frequently in the university setting. Consequently, Gerson’s text emphasized both the frequency and the misdemeanor quality of these offenses.13 10  Gerson, “De protestatione,” no. 11, 162. “[D]um quis errat nescienter in fide. Constat itaque quod nullus mentiri tenetur. Hic autem nescienter errans, si se diceret errare, mentiretur, stante tali conscientia.  Talis praeterea poenas hereticorum vel infamiam, etiam posteaquam deprehenditur errasse et absolute revocat, non incurrit. Patuit hoc in Augustino qui multa prius nescienter errata postmodum absolute correxerit sub nomine retractationis vel aliquo tali modo loquendi qui revocationem denotabat, utendo talibus verbis: temere dictum est; minus considerate dictum est; hoc improbo; hoc non approbo; hoc mihi non placet. Notetur ad hoc idem Agustinus ad Vicentium, XXXIV q. ult. cap. Si; et Gelasius, ibidem q. 2. cap. legatur.” 11  The issue of pertinacity and the test of pertinacity have been dealt with briefly by Hans Thijssen in his article entitled, “Academic Heresy,” 218–221. 12  Gerson, “De Protestatione,” no. 11, 163. “Qui sententiam suam quamvis falsam aut perversam nulla pertinaci animositate defendunt, praesertim quam non audacia suae presumptionis pepererunt sed a seductis atque in errorem lapsis parentibus acceperunt, quaerunt autem cauta sollicitudine veritatem, corrigi parati cum invenerint, nequaquam sunt inter hereticos reputandi.” And again, at Ibid., no. 11, 162. “Protestatiio specialis de fide vel absoluta revocatio particularis de errore, non debet fieri necessario dum quis errat nescienter in fide. 13  Ibid., no. 11, 163–164. “Unde colligitur quod quadruplex est modus errandi circa fidem. Uno modo [1] credendo quod fides catholica sit falsa aut Sacra Scriptura. . . . Potest alio modo [2] quis errare credendo generaliter quod fides catholica sit vera, sed aestimat aliquam esse fidem catholicam que in veritate non est catholica. . . . Sunt alii circa fidem errantes in his quae non tenetur pro tunc explicite credere. . . . Uno modo [3] pertinaciter, quia non parati sunt corrigi. . . . Altero modo [4] dum parati sunt corrigi protinus agnita veritate; quia non pertinaci animositate defendunt errorem sed ex sola simplicitate vel ignorantia sunt in errore. . . . At vero quarti quia non jungunt errori suo pertinaciam nunc vel antea, quamvis sint corripiendi per revocationem erroris, ipsi tamen nequaquam sunt poenis haereticorum plectendi nec infamia notandi, sicut apud scholasticos theologos in praeclara Universitate Parisiensi frequenter observatur quos protestatio generalis et

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However, in doing so, Gerson also recognized that, although a bachelor performed a protestatio conditionalis prior to reading the Sentences, the scholar could still, nonetheless, become suspect of heresy: sometimes lightly, sometimes vehemently, or even, sometimes violently.14 Nevertheless, a bachelor (or master) suspected of heresy who immediately revoked his suspect teachings did not become guilty of heresy or subject to the punishments for heresy. Hence, Gerson made specific use of the distinctions between being guilty of the offense of heresy and being merely suspect of heresy in varying degrees.15 Gerson’s use of these distinctions was, in fact, backed by the canonical understanding of degrees of heresy. Hostiensis had observed that there were several stages of the condemnation of heresy. The first stage of heresy was suspicion; the second, purgation; the third, excommunication; the fourth remaining in excommunication for a year; followed, finally, by conviction as a heretic.16 Because Hostiensis considered purgation to be the second stage of heresy, he implied that not all instances of suspicion required purgation. In addition, it should be clear from what he wrote that these stages of heresy were not merely theoretical but represented, in fact, a series of offenses that increased both in gravity, and in the punishment associated thereto. 1) Notable suspicion; 2) purgation, if required; 3) failing purgation led to excommunication; and 4) remaining in excommunication for a year made one pertinacious; and 5) led to conviction as a heretic. Purgation, excommunication, and conviction as a heretic were not merely options for the accused, but rather, were p ­ unishments conditionalis revocatio juvit ad hoc ne de pertinacia notarentur, juncta humilitate qua protinus revocant errorem nedum conditionaliter sed absolute; quae revocatio sufficit magistris ad purgationem nec ab actibus studii legitimis exercendis vel consequendis revocantes obinde repelluntur.” 14  See above, page 167, footnote 7. 15  Gerson, “De protestatione,” no. 12, 164. “Patebit haec consideratio per praecedentes si docuerimus quis est dicendus de haeresi vel leviter, vel vehementer vel violenter suspectus.” 16  Hostiensis, Commentaria, X 5.7.13, no. 5, f. 38v, s.v. Condemnentur: “Et nota gradus, per quos in hoc casu ad condemnationem criminis haeresis pervenitur. Primus est suspicio notabilis. Secundus, quod propter hanc suspicionem indicatur purgatio. Tertius, quod si negligat se purgare propter hoc feratur in ipsum excommunicatio. Quartus, quod si de hac causa ligatus in sententia per annum pertinaciter permanserit, sequitur hoc condemnatio. Primus ergo est suspicio. Secundus purgatio. Tertius excommunicato. Quartus annualis limitatio.” Because Hostiensis considered purgation to be the second step in the process of becoming a heretic, he implied that not all instances of suspicion required purgation. Hence, this statement again supports Gerson’s observation that all forms of error did not lead to purgation.

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associated with specific offenses leading, ultimately, to conviction as a heretic. Indeed, as the legislation surrounding heresy developed over the course of the thirteenth century, canon lawyers distinguished degrees of heresy as well as degrees of punishment. The decrees of the Council of Tarragona in 1242 demonstrate that this process had already begun prior to the middle of the thirteenth century. With respect to suspicion of heresy, the Council of Tarragona declared that individuals could be “simply suspected,” “vehemently suspected,” or “most vehemently suspected.”17 These terms mirror those used by Gerson, namely, “leviter,” “vehemeter,” and “violenter,” respectively. In any event, since Gerson also included an additional category of suspicion which did not require a protestatio actualis, his system corresponded exactly to the one proposed by Hostiensis. In reality, the system described by Hostiensis and Gerson was spelled out in Excommunicamus and its gloss.18 In addition, Johannes Andreae discussed the terms suspitio vehemens and suspitio violenter in his commentary on Cum contumacia (VI 5.2.7) of the Liber sextus. Suspicion alone might or might not require purgation, according to the circumstances. One became vehemently suspect upon failing purgation; one became violently suspect after remaining excommunicated for one year, leading, ultimately, to conviction as a heretic.19 17  See the statutes of the Council of Tarragona in 1242 in E. Peters, Heresy and Authority in Medieval Europe, 198–199. For the Latin text, see Giovanni Domenico Mansi, Mansi, Giovanni Domenico. Sacrorum conciliorum nova et amplissima collectio, v. 23 (Venice, 1779), cols. 553–558, at 554. The online version, hosted by Documenta Catholica Omnia, may be found at http://www.documentacatholicaomnia.eu/04z/z_1692-1769__Mansi_JD__ Sacrorum_Conciliorum_Nova_Amplissima_Collectio_Vol_023__LT.pdf.html last accessed August 31, 2014. “Suspectus de haeresi potest dici . . . suspectus simpliciter . . . [P]otest dici vehemeter suspectus . . . [P]otest vehementissime dici suspectus.” 18  X 5.7.13 The text reads: “§. 2. Qui autem inventi fuerint sola suspitione notabiles, nisi iuxta considerationem suspitionis qualitatemque personae propriam innocentiam congrua purgatione monstraverint, anathematis gladio feriantur, et usque ad satisfactionem condignam ab omnibus evitentur, ita, quod si per annum in excommunicatione persisterint, et tunc velut haeretici condemnentur.” The text uses the term, “sola suspitio,” which appears to be a synonym for “suspitio simple,” or “suspitio levis.”  For the gloss, cf. CIC 2:1671, X 5.7.13, s.v. suspitione: “Suspitione, id est, presumptione. Et nota quod sola suspicio sive praesumptio purgationem inducit . . . et intellige quod sit probabilis praesumptio sive suspitio; alias non indiceretur purgatio. Note that some suspicion might not require purgation. 19  CIC 3:619, VI 5.2.7, s.v. Vehementem. In the gloss, Johannes Andreae observed that “vehement suspicion” and “violent presumption” were not the same thing. In the same text, he also spoke of “vehement suspicion” and “vehement presumption” as if they were identical in judicial meaning. Moreover, his interchange of the two terms, suspitio and presump-

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In addition to the theoretical and legal discussions concerning degrees of heresy, the actual body of data for the censures at Paris evidences the practical application of the distinction between the concepts of “suspect of heresy,” and “heresy” itself. In the Parisian documentation, some propositions are specifically labeled as “suspect,” meaning “suspect of heresy,” while others are labeled “offensive to pious ears,” “rash,” “false,” or “erroneous.” Thus, while the content of all suspect teaching did not rise to the level of suspicion of heresy, there was nonetheless a rough equivalence between the offense of suspect teaching and being suspect of heresy.20 One might also suppose that a series of rash, ill-sounding, or offensive propositions, while not technically heretical in terms of content, might also cause authorities to consider a bachelor or master as suspect of heresy, thereby inducing purgation. In the course of presenting the faculty’s case before the papal court, d’Ailly illustrated how these categories applied specifically to Monteson. In a brief sermon, d’Ailly summarized the beginning of the controversy. For the sake of brevity, d’Ailly informed the pope that, he would forsake and pass over in silence how Monteson, [led] by a spirit of damnable impiety, and himself suspect of heresy, in turn, labeled his benevolent correctors as heretics.21 Although from a factual point of view, d’Ailly described Monteson as being only suspect of heresy at the beginning stage of the quarrel, the controversy had dragged on for close to, or perhaps, longer than a year. Consequently, Monteson’s status had changed. In his Apologia, or Tractatus, which Denifle dated only tio, further indicates that he viewed the two terms as meaning the same thing. The gloss states: “Nota ex hac decretali suspicionem vehementem, praesumptionem violentam. [P]ropter suspicionem citatur ut veniat responsurus. [S]i contumax est, iam dicitur vehementer suspectus et excommunicatus. [S]i per annum in illa persistit, iam ista quae erat vehemens praesumptio transit in violentam.” 20  See, for example, the following cases: The errors of Frater Symon in 1351, at CUP 3, no. 1201, 11–13, at 11. “Illam conclusionem revoco sicut hereticam. . . . revoco sicut falsam, erroneam, hereticam. Corollaria etiam . . . reputo sicut falsa, heretica et erronea.” Similarly, in the case of Frater Aegidio in 1354, at CUP no. 1218, 21–23, at 22: “Hanc revoco tanquam falsam, erroneam, hereticam, scandalosam. . . . reputo tanquam falsam, scandalosam et in fide suspectam.” Notably, the inscription to one of the manuscripts of the revocation of Louis of Padua, OFM in 1349 stated: “Iste propositiones fuerunt revocate per mag. Ludovicam de Padua, Ord. Frat. Minorum, quarum alique sunt erronee, alique suspecte, alique male sonantes in fide et contra doctrinam sanam pariter approbatam.” See CUP, II, no. 1270, 95–97, at 97 n. 21  D’Ailly, “Sermo coram Clemente VII, in Collectio judiciorum, 1.2.66–69, at 67b. “Dixi brevius. . . . Non loquor. . . . Sileo. . . . Linquo ad extremum dicere . . . qualiter maledictis maledicta impudenter adjecerit, qualiter postremo ipse [Monteson] de haeresi suspectus benivolos correctores suos damnabili impietatate haereticos vocaverit.”

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to some time in 1388, d’Ailly stated that the university reasonably requested and sought the imprisonment of Monteson as a heretic, or at least, vehemently suspected of heresy.22 At various points in the conflict, d’Ailly thus labeled Monteson as being either “suspect,” or “vehemently suspect” of heresy. D’Ailly’s characterization rested on firm ground. Monteson had failed to purge himself. This made him vehemently suspect of heresy. Although d’Ailly may have been somewhat overzealous in seeking to have Monteson labeled as heretic at that precise moment, neither was he far off the mark. Hence, over the course of time, the friar went from being suspect of heresy to being vehemently suspected of heresy for refusing to undergo canonical purgation; and he would have been fast-approaching, if not already past, the one year time frame allotted for the completion of his purgation, thereby making him violently suspect of heresy and eligible for formal conviction as a heretic. Through his commentary, d’Ailly documented the increasing severity of Monteson’s offenses along with the corresponding rise in the level of punishment. With respect to the faculty’s censure, Monteson’s tale of woe demonstrates that the crime of heresy was categorized and punished according to the level of the offense. Of these levels, being suspect of heresy ranked as a less serious crime that did not lead to degradation from clerical status. Within the university, the offense of academic heresy fit neatly within this legal framework. Recall, Gerson observed that a bachelor or master who became suspect of heresy, might or might not be required to undergo purgation, according to the circumstances. This fact, in turn, dovetailed with Hostiensis’s apparent division between suspicion of heresy and suspicion of heresy which induced purgation. Furthermore, according to Gerson’s system, suspicion which required purgation effectively characterized an individual as suspectus leviter, as noted above, whereas, failing in purgation made one suspectus vehemeter; and, finally, remaining in excommunication for a year made the accused suspectus violenter. In the cases of those who were suspectus vehemeter and violenter, the punishments of excommunication and potential conviction as a heretic were serious. Even if these punishments did not result in immediate degradation from clerical status, they certainly opened the pathway to it. Overall, an examination of the nature of suspect teaching has demonstrated that this offense was frequent but was considered only a misdemeanor when followed by an immediate public revocation. The punishments imposed 22  D’Ailly, Apologia, 1.2.88. “Sextus articulus est, quod dicta Parisiensis Universitatis rationabiliter petit et supplicat, ut dictus frater tanquam haereticus, vel de haeresi vehementer suspectus, carceri mancipatus sub custodia teneatur.”

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upon those accused of suspect teaching further support the contention that such error constituted a minor offense. In the cases of suspect teaching adjudicated at Paris, the initial punishment expressly stated in the documents included submission to a public retraction of unsound statements coupled with a suspension from lecturing until this had been done.23 The revocatio and the suspension were imposed, in part, to avoid scandal, lest the pious ears of the simplices be offended or led astray.24 But, in the end, the suspension was usually of short duration and the revocatio acted as proof of the innocence of the accused.25 Gerson received training as a theologian, of course, not as a canon lawyer. What relation, then, did his distinction between suspect teaching and heresy have to the contemporaneous legal concept of heresy, and how did the punishment of the revocatio actualis compare to punishments imposed for crimes relating to heresy and/or suspect teaching? 23  CUP 3, no. 1299, 121–122. Grimerius Bonifaci made reference to this punishment in his letter to Urban V. Recalling the faculty’s actions against Foulechat, he recorded: “Hoc facto, petitum fuit ab eodem fratre Dyonisio, si hoc approbabat, et si ex corde dicta sua, ut in dicta cedula per eum lecta continebatur, revocabat; respondit quod sic. – Iterum, utrum secundum quod facultas predicta ordinaverat, ipse vellet die jovis sequente, scilicet vicesima prima dicti mensis Novembris, in ple[na] disputatione cedulam illam sic legere, et illa dicta publice revocare, ac etiam non legere lectionem, donec istud penitus implevisset. Respondit humiliter et benigne quod libenter ista faceret, etiam et majora, si ob hoc facultas or[dinaret].” Grimerius Bonifaci recalled that Foulechat violated the prohibition against teaching: “Et adhuc in majorem contemptum contra prohibitionem nostram et promissum suum veniens, in crastinum legit, et in presentia scolarium assistentium dictam appellacionem roboravit.” 24  On the effect of suspect teaching on hearers, see the comments by Courtenay, “Inquiry and Inquisition,” 180 and n. 33. Also, see the comments by Hans Thijssen, in “Academic Heresy,” 221, 228. 25  Courtenay has remarked that the careers of those censured (who recanted) were rarely hindered in any substantial way. See “Inquiry and Inquisition,” 180. Similarly, Thijssen has observed that the revocatio acted as proof of innocence. See his “Academic Heresy,” 228. On the short degree of suspension, see CUP 3, no. 1299, 121. In the Foulechat case, the chancellor and the faculty drew up the schedule on November 16, 1364, and Denis promised not to lecture until he had retracted his teachings. The revocation was scheduled for November 21, 1364. After the schedule was drawn up in the Monteson case, the faculty waited three days for the friar to appear to retract his theses, but Monteson did not obey the mandate of the faculty. CUP 3, no. 1557, 489. “Posthac cedulam modo qui premissus est confectam facultas theologie per bedellum suum cum notario ad illum misit, secundum cujus tenorem pollicitus est ea que dixerat infra triduum retractare. Sed Judei Messiam, Arthurum Britones, illud nos triduum exspectamus.”

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The Canon Law of Heresy and the Jurisdiction of the Faculty of Theology

The revocatio actualis imposed by the university community compared similarly to the punishment employed by the local bishop with respect to his clerics and parishioners. Normally, in cases where a parishioner or cleric was suspected of heresy, the bishop could require him to undergo canonical purgation – that is, a public retraction under oath, abjuring any heretical views imputed to him, including a statement that he did not hold these views or, if he had held them, now having been properly informed he revoked them and promised not to hold or to teach them in the future.26 Thus, the cleric who immediately (continuo) and freely (sponte) abjured his error showed that he was not pertinacious. The act of canonical purgation proved his innocence, as Hostiensis declared.27 Moreover, a cleric could be suspended from office until 26  The decretal, Nos inter alios, (X 5.34.6), asked whether a bishop could force a parishioner to undergo canonical purgation if, lacking accusers and witnesses, the parishoner were of ill-fame and, hence, suspected of committing an ecclesiastical crime. Cf. CIC 2:1838, s.v. Casus: “Aliquis parochianus episcopi imfamatus est de aliquo crimine ecclesiastico: quaeritur utrum episcopus deficientibus accusatoribus et testibus, possit illum compellere ad purgationem praestandam?” In the gloss, Bernard of Parma posed the question more generally and asked whether the bishop could inquire about any crime? Ibid., s.v. Deficientibus: “Sed numquid episcopus potest de quolibet crimine contra parrochianum suum taliter procedere?” In response, the glossator answered that the bishop’s authority applied only to ecclesiastical crimes, such as heresy or adultery, unless the bishop also exercised temporal jurisdiction; otherwise the bishop’s authority was limited to ecclesiastical crimes. Ibid. “Non credo et hoc intelligo in criminibus que specialiter pertinent ad ecclesiam puta de heresi. supra, de here. Excommunicamus §adiicimus . . . vel de adulterio . . . vel nisi habeat iurisdictionem temporalem; alias non videtur quod de quolibet crimine hoc possit” The decretal Ad abolendam required that a cleric suspected of heresy immediately had to undergo canonical purgation. See X 5.7.9. “Praesenti nihilominus ordinatione sancimus, ut, quicumque manifeste fuerint in haeresi deprehensi, si clericus est vel cuiuslibet religionis obumbratione fucatus, totius ecclesiastici ordinis praerogative nudetur, et sic omni pariter officio et beneficio spoliatus ecclesiastico, saecularis relinquatur arbitrio potestatis, animadversione debita puniendus, nisi continuo post deprehensionem erroris ad fidei catholicae unitatem sponte recurere, et errorem suum ad arbitrium episcopi regionis publice consenserit abiurare, et satisfactionem congruam exhibere.” 27  That canonical purgation was, indeed, a proof of innocence is evident in the Summa of Hostiensis, De purgatione canonica (X 5.38). “Et quidem purgatio est obiecto crimine innocentie ostensio.” Among other sources, Hostiensis cited Goffredus de Trano, whom he quoted verbatim. Cf. Goffredus de Trano, Summa, 233v.

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this punishment was fulfilled. According to the canon Presbyter, the accused was suspended from office in order to avoid scandal. Once purgation was completed, the defendant was restored to his former position.28 Hence, put in this context, the revocatio actualis of the scholar was, in essence, a form of canonical purgation adapted to an academic environment, administered before the

28  The gloss on Ex tuarum, (X 5.34.8) indicated that on account of the enormity of the crime, a cleric could be suspended from both office and benefice. CIC, 2:1839, s.v. suspendisses: “Propter enormitatem delicti suspenditur statim quis ab officio et beneficio.” The imposition of suspension until the performance of purgation was mandated in order to avoid scandal. C.2, q.5, c.13, Presbyter. Friedberg, 459. “Presbiter . . . suspendatur usque ad dignam satisfactionem, ne populus fidelium in eo scandalum patiatur.” Innocent IV spoke in more general terms (not simply of priests). Glossing Inter sollicitudines (X 5.34.10), he distinguished between serious and less serious crimes. He cited Gratian as his source and argued that on account of a serious crime, someone was suspended from office and benefice. But for a minor crime, one was suspended from office only. Cf. Innocent, Commentaria, 539r, s.v. a beneficio: “Nota propter immanitatem criminis, aliquem a beneficio suspendendum. de fi. 2.q.5, super causa. ab officio autem suspenditur propter minora crimina 2.q.5 presbyter [= C.2, q.5, c.13].”  That the masters held a teaching office seems clear, especially from the documents surrounding the 1219–1229 controversy between the chancellor and the masters and scholars. When the chancellor excommunicated the masters, he likewise suspended them from office, a fact recognized by the papacy in its response. See CUP 1, no. 31, 89 where the text states: “[C]ancellarius et complices ejus . . . prima dominica Quadragesime tam magistros quam scolares qui fecerant collectam vel solverant ad prosequendam appellationem predictam excommunicatos fecerunt publice nuntiari. . . . Ceterum cancellarius ipse super dolorem eorum [masters and scholars] addere non desistens, contemptis statutis, . . . magistros ab officio suo suspendere ac scolares mancipare carceri non veretur.”  The article by Chenu noted on page 74 in footnote 98 should be consulted. Also, of related interest are the contributions of Yves Congar, “Pour une histoire sémantique du term ‘magisterium’ ” and “Bref historique des formes du ‘magistère’ et des ses relations avec les docteurs,” Revue des sciences philosophiques et théologiques 60 (Paris, 1976), 85–98 and 99–112, respectively. These articles have been reprinted with original pagination intact in Droit ancien et structures ecclésiales, Collected Studies Series 159 (London, 1982), VII.  Canonical purgation was a proof of innocence, and upon performing it, the suspension was relaxed. The canon Presbyter (C.2, q.5, c.13) had stated: “Et hac sastifactione purgatus secure deinceps suum exequatur offitium.” Likewise, the decretal Ex tuarum (X 5.34.8), stated: “quam [purgationem canonicam] cum praestiterit suspensionem sine mora et difficultate relaxes, et eum testìmoniì boni virum annuncians, ab infamia homicidii nullius contradictìone vel appellatione obstante auctoritate nostra fretus absolvas.”

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chancellor and faculty of theology, rather than in the presence of the bishop and cathedral canons.29 The identification of the revocatio actualis with act of canonical purgation thus provides a means by which to assess the gravity of this offense and its punishment. As Hostiensis declared, the distinction between a less serious crime and a serious one depended not so much on the apparent nature of the crime but, rather, on the severity of punishment. Serious crimes led to degradation from clerical status, less serious crimes did not.30 Based on the punishment imposed, suspect teaching did not constitute a serious crime, provided that one performed the revocatio actualis. Rather than leading to excommunication, deposition, or degradation from clerical status, canonical purgation (and the revocatio actualis) acted as proof of innocence and prevented degradation from clerical status! Hence, the crimes addressed by these penalties by definition, could not have represented serious offenses. While the need for purgation was surely considered a serious matter, it is safe to say that, of all the punishments relating to crimes of heresy, canonical purgation was one of the least severe. In sum, the correspondence between the cathedral chapter and the theological faculty, the distinction between the crimes of suspect heresy and heresy, and the equivalence between the revocatio actualis and canonical purgation represent important elements that explain how and why the faculty of theology and not the local bishop could adjudicate crimes of suspect teaching. Academic heresy was not heresy, per se, but suspicion of heresy – a less serious crime over which the faculty of theology could exercise jurisdiction, both doctrinal and judicial. The Monteson case provides an excellent example for illustrating how these factors regarding suspicion, purgation, and the seriousness of the crime came together in the university environment. The confluence of these elements thus supports d’Ailly’s claim for the independent judicial authority of the faculty of theology. Just as the cathedral chapter acquired the right to judge crimes of a less serious nature independently of the bishop, so the faculty of theology followed a similar pattern. Because the offense of being suspect of heresy constituted a minor crime, the faculty adjudicated these cases on its own initiative independently of the bishop. Indeed, the confluence of these factors indicates that the authority of the faculty of theology did not develop merely as a matter of chance or happenstance, but instead was supported by a legal rationale and fit into a well-defined, consistent system 29  The equivalence between the revocatio actualis mentioned by Gerson and canonical purgations has not received the scholarly attention that it deserves. 30  See above page 146, footnote 45.

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of jurisdiction that, overall, supported the bishop’s jurisdiction and did not detract from it.

The Roles of the Dean and the Chancellor in the Censure of Academic Heresy

At the same time, this legally descriptive parallel between the jurisdiction of the chapter and that of the faculty opens up new questions on the role of the chancellor and dean of the faculty of theology in these proceedings. For in addition to a similarity in the types of crimes handled by each body, there should also be a close connection between roles played by the bishop, the dean of the chapter, and the cathedral canons and their counterparts the chancellor, the dean of the theological faculty, and the masters of theology. Normally, when the chapter as a whole exercised authority over its own affairs, the bishop (if present) sat ut canonicus (unless custom dictated otherwise); the corporate body acted independently of the bishop; and within the entity, the dean functioned as leader.31 In addition, as indicated above, the dean generally played a pivotal role in the correction of erring canons. In the theological faculty, a similar pattern should be visible.32 The bishop, of course, should be noticeably absent. But beyond this, in keeping with the parallel to the chapter, the faculty should work independently of the chancellor; the chancellor, if present, should sit only as a member of the group; and the dean (in conjunction with the masters) should assume a leading part in carrying out the process of correction. In conformity with these principles, the Monteson case presents the dean as taking the lead in imposing censure.33 As recorded in May or early June 1387, some students approached Radulphus Glachardi upon hearing Monteson’s teachings.34 The dean, then, in the presence of the faculty, 31  See the discussion beginning on page 56 regarding the office of the cathedral dean. 32  See the discussion on pages 56–61, and esp. p. 58, n. 54, for a brief summary of the dean’s role in issuing correction. 33  CUP 3, no. 1557, 487 [prologue]. In remarking on the manuscript, Denifle noted: “Relatio historiae e Bibl. nat. Paris. ms. lat 15107, f. 196–201. ‘Ibi quidam amicus Petri de Ailliaco narrat. . . .’ Scriptor, qui narrat historiam, affert deinde propositiones male sonantes ibidem a Johanne de Montesono prolatas. . . . ‘Res, eo ordine quo gesta erat, ad decanum theol. facultatis, extreme senectutis virum, allata est.’ ” 34  CUP 3, no. 1557, 487–489, at 488. The dean as speaker reported: “Hesterno vespere optimi quidam juvenes ad me accesserunt, tristes profecto nuncii, et non aliter moti animo,

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admonished the erring Dominican.35 When Monteson did not heed this warning, the dean established several commissions to investigate the friar’s teachings.36 On July 6, 1387, the dean and the faculty together drew up the schedule of unsound propositions and publicly denounced them.37 They ordered Monteson to appear within three days to retract them. When Monteson did not perform his revocation as required, Radulphus Glachardi delivered a sermon against the accused in which he summarized the actions of the faculty and recorded the Dominican’s failure to appear.38 As mentioned previously, Radulphus Glachardi’s participation in these events was based on standard the norms of a cathedral chapter. In line with contemporary capitular practice, and like his counterpart in the chapter, Glachardi fulfilled three important functions as dean: he was the eldest member of the group; he performed his duty to congregate the chapter on several occasions, establishing commissions to deal with Monteson’s teachings; and he acted as spokesperson for the faculty in a sermon delivered publicly.39 The Monteson case shows the dean playing a pivotal role in the condemnation, and thus follows closely the legislation on cathedral chapter. The bishop did not take part in these initial proceedings. In addition, no special mention is made of the chancellor, Johannes de Guignicurte with respect to his role in drawing up the list of suspect propositions. He apparently sat merely as another member of the group and not as chancellor. quam si graves injurias perpessi essent, qui vix tandem verbis, indignatione plenis, quod in mente erat quodque audierant explicant, et abscedunt.” 35  D’Ailly recorded this fact. See, his Apologia, 1.2.79. “Primo ergo Articulus est quod, cum dictas frater infra scriptos errores Parisii in scholis publice dogmatizaverit et coram Facultate Theologiae evocatus per Decanum ejusdem Facultatis, caritative monitus, ipsos corrigere recusaverit.” 36  See above page 59, footnote 58. 37  See above, page 167, footnote 9. 38  CUP 3, no. 1557, 487. “Postero die accersitis et una congregatis magistris facultatis theologie, ipse decanus orationem hujuscemodi habuit.” The speech is too long to quote in full here. 39  See Panormitanus, Commentaria, X 3.10.2, no. 3, 67vb, s.v. Quesivit: “[L]icite antiquior canonicus habeat congregare capitulum, respectu vocis dandae.” See CUP 3, no. 1538, 446. “Et primo Radulpho Glachardi . . . a xxxvj annis citra sacre scripture doctori, decano facultatis theologie Parisius, etatis octoginta quatuor annorum vel circa.” and CUP 1, no. 399, 440–441. “de antiqua et approbata et hactenus pacifice observata consuetudine Parisius sit obtentum ut antiquior ex eisdem magistris in actu regendi nomen decani habeat inter eos.” Moreover, in 1359, in the conflict with the rector, the masters of theology reiterated the principle that masters in each faculty were listed in the rotulus in order of antiquity. See above, page 57, footnote 52.

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Viewed in isolation, the Monteson case fits the capitular model very closely. Yet, what is both tantalizing and disappointing about this description is that it is not repeated anywhere else. In part, this is due to the fact that only two cases of appeal from the faculty have survived: those of Foulechat and Monteson. On the surface, the Foulechat case, along with the remaining cases of heresy, presents a faculty of theology which seems anything but independent of the chancellor and rarely involves the dean, if at all. In particular, even in the relatively well-documented Foulechat case, practically no mention is made of the dean’s contribution to the proceedings. When he is mentioned at all, it is merely to record his presence.40 Moreover, in contrast to the Monteson case, in all of the other censures of Parisian academics that survive, the role of the chancellor seems to overshadow that of the dean. The presence of the chancellor in the other condemnations was not unusual. In the process of censuring a bachelor or master, the chancellor as ordinary carried out several public functions and, thus, occupied a place of prominence. The chancellor routinely received the bachelor’s oath, the revocatio conditionalis, as well as the oath to report any suspect teaching. This oath to report suspect teaching, in turn, required any bachelor to inform the chancellor or the bishop – but not the dean – of any suspect teachings, and placed upon the chancellor the obligation to initiate the investigation.41 This directive, then, suggests a conflict with the role of the dean (as seen in the Monteson case, where the students approached the dean instead of the chancellor) that will need to be resolved. The role of the chancellor in presiding over the public revocations of bachelors and masters is well-known. For example, although it had long been known that Robertus de Bardis played a key part in the censure of John of Mirecourt, the recent contribution of Courtenay has served to highlight the chancellor’s previously unrecognized role in presiding over the public revocation of bachelors.42 The chancellor, speaking in the first person, acknowledged his public role. Furthermore, in the case of Denis Foulechat, 40  CUP 3, no. 1299, 122. This summary of the faculty’s condemnation of Foulechat represents the only mention of Johannes de Hesdino, the dean of the theological faculty in 1364. 41  The relevant text may be found on page 51, footnote 32. Note, in particular, the final clause of the passage. 42  William Courtenay, “John of Mirecourt’s Condemnation,” 190–191. “Nos, Robertus de Bardis, cancellarius Parisiensis, doctor sacrae theologiae, ceterique magistri actu regentes Parisienses in facultate theologiae inhibemus omnibus bachalariis in theologia, tam legentibus sententias [in] isto anno quam illis qui iam legerunt seu legent etiam in futuro quatenus, nec legendo nec respondendo asserant, dogmatizent teneant, vel defendant publice vel occulte articulos infrascriptos, nec aliquem eorundem, cum ex eisdem sub forma qua positi sunt aliquos iudicaverimus erroneos, aliquos suspectos ac male sonantes

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Grimerius Bonifaci received the appeal of the accused and, in addition, informed the inquisitor and the local bishop of the details of the case.43 The day following the appeal the Grimerius also wrote to Urban V detailing the course of events. In the case of Monteson, the Dominican refused to appear; thus, the revocation never took place. What is clear is that, the chancellor, Johannes de Guignicurte, took a leading role in the beginning of the controversy when he presided over a meeting in which Monteson made several requests of the faculty regarding the arrangements for a disputation with respect to his teachings.44 Monteson’s requests for a disputation appear to point to a difference in procedure than what was followed in the Foulechat case. This discrepancy, or shift in procedure, certainly needs to be explored further.45 However, in fide ac etiam in bonis moribus. Quicumque vere oppositum fecerit ab omni honore in facultate theologiae noverit se privatam.” 43  See for example, CUP 3, nos. 1298–1300, 114–124. 44  See CUP 3, no. 1558, 490–91. “[I]n . . . Johannis de Guignicurte, bachalarii in theologia, cancellarii ecclesie Parisiensis . . . presentia personaliter constitutus venerabilis et religiosus vir frater Johannes de Montesono Ordinis predicti fratrum Predic. magister actu regens Parisius in facultate theologie, dixit et exposuit.” 45  The issue of the disputation in the Monteson case seems to underscore a difference of procedure than what was followed in the Foulechat case. This discrepancy raises questions regarding the relationship between the disputation of suspect propositions and the public revocation of those suspect teachings.  In the case of Denis Foulechat, the process of condemnation and disputation seem almost to have coalesced, although the text of the condemned theses was decided upon before the disputation or condemnation took place. On the day that Foulechat was to read aloud his condemned theses, he first requested permission to speak. The chancellor gave him the option of 1) disputing; or 2) reading aloud the revocation. Hence, the text of the revocation had already been redacted. CUP 3, no. 1298, 115. “supplicans ibidem cum humilitate et magna instantia predicto domino cancellario, quatenus sibi placeret hoc dicere, sicut idem dominus cancellarius sibi promiserat, ut dicebat. . . . Tunc dictus dominus cancellarius dicto fratri Dionisio dixit et respondit: ‘Legatis cedulam, per magistros predicte facultatis vobis ordinatam, si vultis, et si non vultis, disputemus.’ ”  By contrast, Monteson approached the chancellor on June 13, 1387, at the very beginning of the controversy before any determination on his suspect teachings had been made. The finalizing of the list of Monteson’s condemned propositions did not occur for almost a full month later on July 6, 1387. CUP 3, no. 1559, 491. On June 13th, Monteson approached the faculty of theology regarding the manner in which the disputation would be conducted. In particular, he requested that witnesses from his order be present to testify as to what was said and done. CUP 3, 1558, 490 reads: “[V]ir frater Johannes de Montesono . . . requisivit, quod cum ipsi essent deputati ex parte dicte facultatis theologie, ut asserebat, ad disputandum cum dicto magistro de Montesono, de et super quibusdam conclusionibus et propositionibus dictis et propositis in sua resumpta, que, ut dicebatur,

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for current purposes, the role of Johannes Guignicurte in addressing the question of the disputation showcases his importance in the initial phase of investigative process, just as, in the Foulechat case, the chancellor, initially, played an important role. Hence, a glance into some of the better-documented cases of academic censure at Paris reveals, at times, both similar and differing impressions regarding the respective roles of dean and chancellor in the proceedings, particularly in the initial stages. How can the principles of ecclesiastical corporation theory shed light on the apparently contradictory roles played by each of these corporate office holders? Several factors should be kept in mind. For the majority of cases of censure at Paris the only surviving documentation is a list of condemned propositions. Thus, the incomplete nature of the documentation for the majority of these cases has unduly distorted the respective roles of dean, the chapter, and the chancellor in the process of censure. The Monteson and Foulechat cases are beyond doubt the most thoroughly documented of all cases of academic censure; their dossiers are imperfect as well. Unfortunately, apart from the list of condemned propositions, these two cases did not produce a run of identical types of documents that could then be compared. As a result of this variance, it is not possible to draw conclusions based purely on the presence of a document in one case and its absence in the other. For example, the letter from the chancellor to the pontiff survives in the Foulechat case but is absent in the Monteson case. In the absence of a fully documented record, the question remains: how can the principles of medieval corporate theory help resolve the gaps and apparent inconsistencies in the historical record? Among the key issues at variance in the description of the Foulechat and Monteson cases are the roles of the chancellor and the dean in initiating the legal process, in presiding over the public revocation, and in contacting the outside authorities. The decretal Irrefragabili outlined the general procedures to be followed. Although Irrefragabili permitted the chapter alone to correct certain excesses, it still required that the bishop issue the mandate for such correction and to set a time for its completion. The ability of the bishop to issue the mandate for correction, of course, presupposes that he had been informed, or at least was male sonabant; quod dictos magistros superius nominatos de Ordine Predicatorum dicti domini deputati permitterent esse presentes in dicta disputatione, ut testificari possent de rationibus et responsionibus faciendis; qui magistri promittebant se juraturos nihil dicere in dicta disputatione, nisi solummodo audire.” The issue is an important one because it touches on one of Foulechat’s principal complaints: namely, that he was not given a proper opportunity to be heard or, in essence, to defend himself.

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aware, of the need for correction. A similar process is visible in the proceedings of the faculty of theology, with regard to the role played by the bishop’s vicar, the chancellor. The oath that required any bachelor to inform the chancellor of unsound teaching thus served to inform the chancellor of the need for correction and allowed him to initiate the process as the dictates of Irrefragabili required. In the Foulechat case, those who denounced Foulechat contacted the chancellor, Grimerius Boniface, who initiated the process. Hence, the parallel with Irrefragabili seems clear. Once informed, the chancellor set the parameters of the enquiry. In the Monteson case, it is true that the dean took the initial steps, administering fraternal correction. However, in terms of a formal enquiry, once fraternal correction proved ineffective, the documents portray the chancellor as taking the leading role in setting the parameters of the investigation into Monteson’s teachings. By the same token, the legislation regarding capitular decisions also explains the role of the chancellor in presiding over the revocation of a bachelor or master. As Innocent IV succinctly stated, when the bishop sat in chapter ut canonicus, he still possessed two legal personalities, both as a member of the chapter and in his official capacity as bishop.46 This duality of position was necessary, for the bishop and chapter as head and members formed one body, and neither one – metaphorically or in reality – could act without the other.47 The issuance of judgments made by the chapter represented one of the principal ways in which this duality of the prelate’s role expressed itself. The ordinary gloss to Edoceri noted that even in those instances where judgment had been made by the chapter alone, the decision, nevertheless, was implemented with the authority of the prelate as head.48 The need for the prelate to implement the decision of the chapter explains why, if the correction of an academic’s teachings represented a right belonging chiefly to the faculty as a whole, the chancellor nevertheless routinely presided over any public revocation of a

46  See above, page 53, footnote 36. 47  Hostiensis noted this fact, for Ad abolendam granted the chapter the right to proceed with the jurisdiction of the bishop, when the bishop’s seat was vacant – even in cases of heresy. See, Hostiensis, Commentaria, X 5.7.9, no. 4, f. 36r. The question of whether jurisdiction passed to the faculty during the vacancy of the chancellorship needs to be explored, particularly with respect to the censure of academic heresy. 48  “Si elle [l’affaire] interesse surtout le chapitre, elle sera conclue ab ipso capitulo, de auctoritate praelati.” Quoted in Jean Gaudemet, “Evêques et chapitres,” XII, 315. Cf. X 1.3.21, CIC 2:55, s.v. Debeant: “[S]i negotium principaliter tangit capitulum, ab ipso capitulo, constituatur, de auctoritate praelati.”

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bachelor or master so ordered by the theological faculty.49 This aspect of the censure of bachelors and masters is reinforced repeatedly in the documents. Given that the judgment of a suspect’s teachings remained with the faculty of theology, why did the chancellor – and not, say, the dean of theology – contact the local inquisitor and, further, write the letter to the pontiff, informing the Holy See that Denis Foulechat had appealed to the papacy and of the actions taken against him?50 Put simply, although the matter of judgment against Foulechat (or other member of the faculty) resided with the faculty, the execution of the sentence touched both the rights of chancellor as well as those of the faculty of theology, since the faculty had imposed the judgment and the chancellor was responsible for implementing it. When Foulechat appealed, his case then became a matter of common interest to both the chancellor and the theological faculty. That the chancellor informed the Pontiff of the appeal need not seem extraordinary, nor should it be wondered why the dean did not perform this duty. Rather, the chancellor’s action must be viewed in context of a bishop defending the rights of the chapter or prosecuting a lawsuit on behalf of the chapter as plaintiff. Hostiensis spelled out the extent of the prelate’s authority, namely that “in common matters the prelate might prosecute and defend in his name and in the name of the chapter – even without the consent of the chapter – unless some suspicion arose against him, because the prelate was a procurator generalis ad negotia and had free administrative authority to act.”51 A procurator generalis ad negotia was appointed to act not only in a specific case, but rather, in any case which might arise during his proctorship. In writing to the pontiff, Grimerius Bonifaci acted on behalf of the faculty

49  It is true that in the revocations of the supporters of Monteson, many of whom were masters in theology, the chancellor is not present. What this means is not clear. However, these cases do not represent the norm, since they were connected to the appeal of Monteson, and were adjudicated outside of a university context. 50  CUP 3, no. 1299, 122. In the letter that the chancellor wrote to the pontiff, Urban V, Grimerius noted: “Que omnia significavimus domino episcopo Parisiensi et inquisitori heretice pravitatis, ut super hiis providerunt de remedio opportuno. Ne igitur aliquis forsitan nos putaret in hujusmodi negocio fidei fuisse vel esse remissos, premissa volumus omnibus esse nota, et ea decrevimus redigi in hiis scriptis, et nostrorum sigillorum, scilicet predicti cancellarii et ipsius theologie facultatis, appensione muniri.” 51  “Quod si omnia habent communia . . . ibi praelatus nomine suo et capituli, etiam sine consensus ipsius, et agit and defendit . . . nisi contra ipsum orta sit suspicio . . . cum praelatus sit procuratur generalis ad negotia . . . et liberam administrationem videtur habere.” Quoted in, Tierney, Foundations, 113.

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and justified its actions, lest anyone charge the faculty with negligence.52 The chancellor, as analogue to the bishop, functioned as a procurator generalis ad negotia when he informed the pontiff of the friar’s condemnation and appeal.53 By informing the bishop and the inquisitor of the events, he acted in conformity with the principles protecting the faculty from accusations of corporate negligence.54 The activity of the chancellor, as illustrated in the Foulechat case and elsewhere, show that his duties conformed to a pattern similar to that prescribed for the bishop in the cathedral chapter. But how is the active portrayal of the chancellor in these cases to be reconciled with the apparent lack of initiative on the part of the chancellor in the opening of the Monteson case and the contrasting active role played by the dean? First, it must be acknowledged that the document regarding Monteson’s disputation shows that Johannes de Guignicurte, like his predecessor, Grimerius Bonifaci, was in fact, informed, and, hence, did initiate the formal investigation into the friar’s teachings. Second, the absence of a revocation in the Monteson case, says nothing about the role of the chancellor, or the extent of his jurisdiction, because the Dominican fled and therefore no public revocation could have taken place. Third, although it is possible that for much of the initial proceedings, Johannes was away from Paris, this is probably unlikely. Moreover, given that Johannes officiated at the meeting regarding Monteson’s request for a disputation, it is equally unlikely that his status as a bachelor would have impeded his ability to initiate the fraternal correction offered to Monteson by dean. After all, fraternal correction could be given by anyone! By the same token, precisely because fraternal correction could be given by anyone, there was also no impediment to the dean’s ability to provide it. Either the dean or 52  CUP 3, no. 1299, 120–122, at 122. For example, near the close of his letter, the chancellor stated: “Que omnia significavimus domino episcopo Parisiensi et inquisitori heretice pravitatis, ut super hiis providerent de remedio opportuno. Ne igitur aliquis forsitan nos putaret in hujusmodi negocio fidei fuisse vel esse remissos, premissa volumus omnibus esse nota, et ea decrevimus redigi in hiis scriptis, et nostrorum sigillorum, scilicet predicti cancellarii et ipsius theologie facultatis, appensione muniri.” 53  Underlying this freedom which was given to the prelate to act was the Roman legal principle that a proctor’s mandate no matter how broad could not injure the rights of the principal. Furthermore, the bishop was held accountable to the chapter for his actions. If suspicion arose against him, his mandate could be revoked and his acts subsequently annulled. See Tierney, Foundations, 108–117, at 114. 54  For a discussion of this topic, see W. Ullmann, “The Delictal Responsibility of Medieval Corporations,” in The Law Quarterly Review, 64 (1948), 77–96; reprinted in Scholarship and Politics in the Middle Ages, Collected Studies Series 72 (London, 1978) XII, 77–96.

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the chancellor could provide fraternal rebuke. Nor, in the same vein, did the involvement of the dean in any way undermine the status or the authority of the chancellor.55 As Pierre d’Ailly recalled, the law did not require that this charitable warning be given.56 Thus, the action did not transgress the limits of the chancellor’s authority. Moreover, d’Ailly did not simply make this claim merely as a convenient reason for supporting his argument. A long tradition supported the notion that fraternal charity or evangelical correction remained apart from the legal system. Both Hostiensis and Johannes Andreae had recognized that, while judicial correction belonged to the prelate alone, fraternal correction (sometimes called evangelical correction) pertained to everyone.57 In like manner, Henri Bohic, a canonist at Paris around 1350, and thus no doubt familiar with procedures there, specifically distinguished between fraternal and judicial correction in his discussion of the decretal “Qui alios.” Judicial correction required a prelate, but fraternal correction could be administered by anyone.58 Because evangelical correction did not require a prelate in order to be performed, there is no reason to believe either that it was subject to the legal requirements of Irrefragabili or that it interfered with those requirements. Given that fraternal correction did not require a legal process, there is also no reason to expect that its administration necessarily would have been recorded in the Foulechat documents. Hence, the duty of the chancellor to initiate the legal process did not conflict with the ability of the dean (or anyone else) to administer fraternal correction beforehand. Johannes de Guignicurte’s duties generally conformed both to the dictates of the bachelor’s oath and to the ­prescriptions set down in the decretal Irrefragabili. Moreover, his actions 55  For the text of this incident, see above, page 177, footnote 34. 56  D’Ailly, Apologia, 1.2.81. The text reads: “Ex quibus patet triplex ratio denunciationis praedictae [de Montesono ad Episcopem Parisiensem], quam secreta et caritativa monitio praecessit, licet tamen hoc non esset necesse, sicut patet ex doctrina S. Thomae 2. 2. q. 33. a.7, ubi docet, quod peccata publica sunt publice arguenda.” 57  Johannes Andreae, Commentaria, X 5.7.2, fol. 46v, s.v. infi: “Hostiensis dicit, quod iudiciaria correctio ad solum praelatum pertinet. . . . Evangelica ad omnes.” 58  Henricus Bohic[h], In Quinque Libros Decretalium Commentaria, 2 vols. (Venice, 1576), 2:128, X 5.7.2, no. 1. http://reader.digitale-sammlungen.de/resolve/display/bsb10144593 .html last accessed December 13, 2015. “Si queris ad quem spectat corripere alium de peccato, distingue: Aut queris de correctione iudiciaria, et illa ad solum praelatum pertinet. . . . Aut evangelica, et de illa spectat ad omnes. . . . Sed et omnes tenentur impedire peccatum commitendum.” Although the question is phrased concerning the correction of sin in a general sense, its inclusion under the rubric De harereticis no doubt illustrates the application of this distinction especially to instances of correction involving heresy.

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harmonized with the dean’s administration of fraternal correction without difficulty. Hence, to sum up, in the Monteson case, a series of events took place that conformed to the requirements of Irrefragabili. First, Radulphus Glachardi, as dean, admonished Monteson with fraternal correction. As noted, this act of fraternal correction remained separate from the legal proceedings. Once it proved to be ineffective, both the terms of the bachelor’s oath, as well as those of Irrefragabili, required that the bishop (or other prelate) be informed of the matter in order to set the parameters for correction. In any event, someone – either a bachelor, or perhaps the dean, acting on behalf of the bachelors – informed the chancellor, thereby complying with both the terms of the bachelor’s oath as well as the requirements of Irrefragabili. That the chancellor was informed is obvious, for a document survives regarding the beginning of the conflict in which the chancellor, Monteson, and several deputies of the faculty discussed a potential disputation.59 The document evidences the chancellor’s involvement with setting the parameters of the investigation (as required by Irrefragabili), yet, the witness of Radulphus Glachardi also shows that the chancellor, following Irrefragabili, then turned the investigation over to the faculty. In keeping with the right of the chapter to administer correction, the summary of events by Radulphus Glachardi indicated that the faculty, acting independently of the chancellor, issued correction. The faculty conducted the proceedings and drew up the list of suspect propositions; the bedel of the faculty brought Monteson the list of propositions, requiring their revocation within three days.60 Monteson, for his part, never appeared to pronounce his revocation but, had he appeared, the matter would have been presided over by the chancellor, as had been done in every other case involving suspect teaching at Paris. The apparent prominence of the chancellor in the Foulechat case, however, should not obscure the authority of the faculty of theology as a whole. Grimerius Bonifaci confirmed that the faculty followed a similar procedure. Once he had been informed of the matter, he turned the investigation over to the faculty as a whole. When he reported these events to Urban V, he painted no special role for himself. Instead, he credited the faculty with the authority to censure Foulechat.61 Foulechat had to do what the faculty required, not what the chancellor required. In keeping with the terms of Irrefragabili, the faculty issued correction to Foulechat: the faculty investigated the matter, drew 59  CUP 3, no. 1558, 489–491. 60  CUP 3, no. 1557, 489. 61  See above page 173, footnote 23.

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up the list of unsound propositions, and required Foulechat to revoke them. Thus, while the texts do not specifically say that the chancellor sat merely as a member of the faculty, he apparently did so. In reality, in both the Foulechat and Monteson cases, the dean, the faculty, and the chancellor worked together in a harmonious fashion and in conformity with the both the statutes of the university and terms of Irrefragabili in a manner that supported the independence of the faculty and its right to correct its own members.

The Role of Outside Agents in the Censure of Academic Heresy

In a similar fashion, the roles of the bishop and the inquisitor in the investigations of bachelors and masters also conformed to the principles of canon law. Pierre d’Ailly argued in his Tractatus, or Apologia, that the faculty of theology could work independently of, or in unison with, the local bishop and the papal inquisitor.62 D’Ailly’s assertion is supported by the historical record. Apart from the case of Stephen of Venizy, neither the bishop, nor the inquisitor, much less any papal agent, became involved in the proceedings until either the accused interposed an appeal or until the faculty requested the intervention of an outside agent.63 Because the adjudication of suspect teaching represented a misdemeanor offense, the faculty of theology retained its independence when judging this offense, exercising its right according to Irrefragabili. The Monteson and Foulechat cases show that the involvement of outside agents came, generally, at the request of someone within the university community, and thus, their presence, as a matter of course, did not represent a transgression of the faculty’s independent authority.64 62  D’Ailly, Apologia, 1.2.78. The fourth conclusion of d’Ailly’s treatise states: “quod Ad dictum Episcopum et Facultatem Theologia pertinet, non solum conjunctim, sed divisim, modis praedictis assertiones haereticas aut erroneas condemnare, licet tamen quandoque rationabiliter consueverint in hujusmodi condemnatione conjunctim procedere.” 63  In fact, the cases of Foulechat and Monteson comprised the only instances of appeal. See the discussion regarding Petrus Berchorius beginning on page 189. 64  CUP 3, no. 1299, 122. Grimerius Bonifaci, in his letter to Urban V, recalled: “Que omnia significavimus domino episcopo Parisiensi et inquisitori heretice pravitatis, ut super hiis providerent de remedio opportuno.”  Concerning the involvement of the bishop of Paris in the Monteson case, d’Ailly, in several places remarked that it was proper for the university to denounce the accused to the bishop. D’Ailly, Apologia, 1.2.81. “Secundus Articulus est, quod dicta Facultas Theologiae, coassumptis sibi Magistris aliarum trium Facultatum Universitatis Parisiensis, dictos errores prius per eam examinatos et doctrinaliter condemnatos merito debuit Domino

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The involvement of outside agents only after the failure of the accused to revoke his condemned teachings is significant; for the failure of the accused to undergo canonical purgation altered the status of the crime from being merely a misdemeanor offense to being a more serious criminal charge.65 D’Ailly made this point clearly in his Apologia.66 Moreover, the procedure followed in the Monteson case corresponds to procedures outlined for handling serious crimes. The gloss of Hostiensis indicated that when a cleric refused to undergo purgation, he was then subjected to the punishment of excommunication.67 As such, Monteson’s offense now constituted a more serious matter – one that exceeded or transcended the boundaries of the faculty’s authority. Notably then, and in line with correct judicial procedure, once Monteson refused to retract his propositions, the faculty requested the intervention of the bishop.68 Although the documentation in Foulechat controversy is not as detailed on this aspect of the case, the authorities apparently invoked a similar procedure. The chancellor informed the pope, and requested the intervention of the local bishop and the local inquisitor. Moreover, when Foulechat refused to revoke his censured theses, pope Urban V recorded how Foulechat complained that the chancellor caused the bishop and the inquisitor of Paris to proceed “more harshly” against him.69 Apparently, the bishop and the chancellor (representing the faculty of theology) cooperated. Hence, the faculty, like a cathedral chapter, understood the limits of its independent Episcopo Parisiensi, tanquam judici ordinario judicaliter denuntiare. . . . Conclusio. Quamobrem praenominatae Facultatis Theologiae Magistri, tribus aliis, Facultatibus sibi coassumptis et coadjunctis, nunciaverunt Ecclesiae, Reverendo scilicet in Christo Patri Episcopo Parisiensi, ordinario judici in hac parte.”  In another place, CUP 3, no. 1564, 504, d’Ailly noted that: “11a est quod in dicto processu coram dom. episcopo in omnibus semper admonitus fuit inquisitor heretice pravitatis, aut ejus vicegerens, ut se in hac causa juxta formam juris adjungeret.” 65  With respect to heresy, the accused, failing purgation, was generally excommunicated and given one year’s time in which to make amends, before being released to the secular arm as an obstinate heretic. Cf. VI 5.2.7, Cum contumacia. 66  D’Ailly, Apologia, 1.2.79. “Et sequitur quod si obedire noluerint ut prius per suam Facultatem doctrinaliter corrigantur, et per eam, si opus sit, ad suorum errorum emendationem judicialiter compellantur.  Quod si obediere noluerint, ulterius ad Episcoporum judicium recurratur, et si nec per eos valuerint emendari, post hanc bina correptionem tanquam haeretici devitentur, juxta illud Apostoli ad Titum 3. c. ‘Hareticum hominem post primam et secundam correptionem devita.’ ” 67  See page 169, footnote 16. 68  CUP 3, no. 1559, 495–496. 69  See above page 14, footnote 38.

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authority, and the outside authorities, correspondingly, respected its autonomy and cooperated with the faculty accordingly. All in all, the Foulechat and Monteson cases demonstrate that the outside authorities recognized the right of the faculty to police its own membership with respect to misdemeanor offenses and, hence, only became involved at the request of the university community. Indeed, the case of Petrus Berchorius further illustrated the right of the theological faculty to correct its own membership without interference from local outside authorities. A scholar in the faculty of theology, Petrus Berchorius was incarcerated in 1351 by Master Guillelmus Charlot, the bishop’s official, on the presumption that he had “dabbled in (utebatur) prohibited and evil knowledge that tasted of heresy.”70 Moreover, as a result of that presumption, Charlot claimed that the scholar’s privileges were of no avail. But Petrus did not languish in the episcopal prison; he had many allies. The entire university community protested that the official had violated its privileges by detaining the student and, further, suspended lectures until the matter was resolved.71 Even the king of France interposed himself in the matter and settled the affair.72 The outcome of the quarrel restored Petrus to his freedom.73 The bishop promised to preserve the university in head and members and all who were placed under its authority. Further, he agreed not to molest or disturb the university community in any way; and finally, to observe and maintain the

70  See CUP 3, no. 1196, 5. “Noverint universi hoc presens publicum instrumentum inspecturi, eisque pateat evidenter, quod . . . cum fuisset orta dissentio inter Universitatem Parisiensem ex una parte, et dominum episcopum Parisiensem et officialem suum et promotores suos ex altera, super captione et detentione cujusdam scolaris religiosi, videlicet fratris Petri Berchorius, camerarii de Columbis, Carnotensis diocesis, ex eo quod officialis Parisiensis dicebat, ipsum fratrem Petrum fore captum propter presumptiones contra ipsum quia utebatur scientiis prohibitis et malis et sapientibus heresim, et ob hoc non debere reddi Universitati predicte virtute privilegii Universitatis.” 71  Ibid. “[D]icta Universitate oppositum asserente, et sic propter hoc a lectionibus ordinariis cessabatur et cessare intendebat ipsa Universitas, quousque dictus scolaris esset restitutus, et esset ipsi Universitati sufficienter emendatum.” Interestingly, just as the entire university community headed by the rector and in conjunction with the representatives of the four faculties denounced Monteson to the bishop of Paris, so it was the rector of the university and the representatives of the four faculties that challenged the actions of the bishop’s official. 72  Ibid. “[T]andem illustrissimo principe domino Johanne, rege Francie, volente hujusmodi dissencionem pacificare, voluit quod de isto supra se hinc inde poneretur.” 73  Ibid. “Dimittatur scolaris secundum tenorem privilegii.”

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privileges granted to the corporation.74 The university deprived Charlot of membership in the corporation for his part in allegedly torturing Petrus Berchorius. But Charlot cleared himself of the charge by an oath and obtained readmission. Instead, his assistant, the Commissarius, took the blame for this offense and was forced to pay a fine of two hundred pounds. In the end, however, Charlot was still found guilty of violating the privilege of the university by detaining Petrus Berchorius.75 Again, this conflict, like the Foulechat and Monteson cases, underscores the faculty’s judicial independence and its right to administer correction without any outside interference. When the dispute erupted, the university community deliberated on the question of whether Petrus Berchorius was, indeed, a bona fide student in the faculty of theology. This deliberation suggests that Berchorius’ status as a scholar, and the privileges attached to this status, lay at 74  Ibid., 6. “[D]ictum et sententiatum: quod dominus episcopus Parisiensis juraret et promitteret servare et custodire Universitatem in capite et in membris seu suppositis suis; et quod decetero neminem de Universitate, ratione et causa hujus facti molestaret aut eciam inquietaret, nec eciam officialis suus et promotores sui.” Interestingly, the phrase “in capite et in membris seu suppositis suis,” in this instance, refers to the rector and masters. one may recall a parallel to Hostiensis’s description of the chapter and its authority over its own members as well as non-members who were still subject to it. In this instance, the head referred to the rector, the members were the masters, and those subject to it were the students. Indeed, the university held a deliberation to determine whether Petrus was a true scholar, and thus, whether he came under the authority and privilege of the university. See CUP 3, no. 1195, 3–4, at 4: “[S]uper facto fratris Petri Bercorii, camerarii ecclesie beate Marie de Columbis . . . et in eadem congregatione petivit dominus rector predictus a magistro Roberto de Villeta, regenti in theologia, utrum predictus camerarius fuerat suus scolaris pro isto anno presenti. . . . [T]unc super hoc habito maturo consilio, fuit deliberatum concorditer, nullo reclamante, quod predictus camerarius verus scolaris erat.” 75  Ibid., 6–7. Insuper, quia ipsa Universitas conquerebatur ex eo quod dictus scolaris fuerat positus in tormentis, et ob hoc Universitas tenebat officialem Parisiensem, videlicet magistrum Guillelmum Charlot, pro privato, et privaverat ipsum, necnon propter hoc, quia noluerat statim reddere clericum incarceratum, sed contra tenorem dictorum privilegiorum detinebat, ut dicebat ipsa Universitas fuit sententiatum et dictum, quod dictus officialis juraret quod dictum clericum non possuerat neque poni fecerat in tormentis, neque scivit aliquid, ymo cum scivit, sibi displicuit et adhuc displicet; et sic propter hoc dicta privatio adnullaretur. Qui statim, tam dictus dominus episcopus Parisiensis quam suus officialis, ut dictum est, promiserunt et juraverunt. Insuper, fuit dictum et sententiatum, quia ibidem erat presens magister Johannes Le Royer, qui dictum clericum in tormentis poni fecerat, et ob hoc injuriam domino regi fecerat, cum factum supra se cepisset, quod domino regi emendaret, eciam Universitati, qui statim flexis genibus, hoc fecit . . . que emenda incontinenti pro Universitate fuit taxata in ducentis libris parisens.”

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the center of the conflict. Petrus Berchorius was found to be a member of the faculty of theology in good standing. First, the university asserted that the privileges of its members removed them from episcopal control. When the university demanded the return of Petrus, it nonetheless promised to issue suitable correction to the erring scholar. The university did not deny the need for correction; it merely asserted its right to administer it.76 Interestingly, Charlot did not deny the existence or validity of the university’s privileges. Rather, he claimed that presumption as a heretic invalidated those privileges. The documents indicate that Charlot imprisoned Petrus Berchorius on presumption of heresy based upon the belief that this presumption negated his privileges. Charlot had some legal basis for believing that Petrus had forfeited his scholarly rights. Hostiensis remarked in his commentary that a privilege could be lost by reason of a crime, such as heresy; neither did a privilege give protection to someone committing a crime.77 At the crux of the conflict, however, was the question whether presumption of heresy was a serious crime that came under the jurisdiction of the Bishop’s court or was a minor offense that the theological faculty could adjudicate? According to canonists, the concept of presumption was identified with that of suspicion. Bernard of Parma’s gloss on Excommunicamus established this equivalence between the two concepts.78 In addition, in the gloss to Cum contumacia in the Liber sextus, Johannes Andreae equated various degrees of presumption and suspicion of heresy as being identical.79 Because presumption of heresy was, in effect, identical to the charge of suspicion of heresy, presumption of heresy constituted a less serious offense. As such, jurisdiction resided with the theological faculty, not with the bishop’s court. The outcome of the controversy involving Petrus Berchorius confirmed this principle. The analysis of the legal understanding of suspicion of heresy and the roles of the dean and chancellor in the legal process, has confirmed the judicial independence of the faculty, while the analysis of the roles of the dean and the chancellor has shown that, despite any apparent inconsistencies in the historical record, their behavior is explained by the legislation governing cathedral 76  See above, page 189, footnotes 70 and 71. 77  Interestingly, Hostiensis’ remark arose in his discussion on De hereticis in the decretals. See Hostiensis, Commentaria, X 5.7.8, nos. 2–3, f. 35v, s.v. Decesserit: “[E]t secundum hoc ratione delicti hic perditur privilegium. . . . Sed licet tum ita generaliter concedatur, tamen quantum ad hoc privilegium restrigendum, quia non extenditur ad illicita, nec tuetur aliquem in delicto.” 78  See above, page 170, footnote 18. 79  See above, page 170, footnote 19.

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chapters. The legislation governing cathedral chapters provided a pattern that explains the behavior of the participants with only minor variations from the norms set down in canon law, that seem to find explanation in the uniqueness of the individual circumstances and fact patterns of each of the cases.

The Investigative Process in Faculty and Chapter

In addition to clarifying the roles played by the chancellor, dean, masters, and outside agents in the legal process, the canonical legislation contained in the Decretum and the Decretals provides a basis for understanding why the faculty invoked specific procedures in conducting its investigations. In the Decretum of Gratian, Si quis vero permitted the bishop together with the chapter to root out crimes among his clerics, but did not detail how the investigation should be conducted. Johannes Teutonicus, the glossator to the Decretum, elaborated on this mandate and declared that the bishop and the chapter proceeded according to the rules laid down in decretal Licet heli.80 Licet heli permitted the prelate to proceed according to the three methods of accusation, denunciation, and inquisition.81 Significantly, Licet heli did not speak merely in terms of bishops and their chapters, but more generally in terms prelates and their clerics. In effect, Licet heli permitted other corporate bodies, such as the faculty of theology, to conduct criminal investigations using these tools.82 In addition to explaining the roles of the chancellor, dean, masters, bishop and inquisitors, in the legal process of censure, the canonical legislation also provides a basis for explaining the origin and rationale behind many of the specific procedures invoked in the case of censure at Paris. For example, although 80  CIC, 1:551, D.86, c.23, s.v. Si quid. The gloss reads: “Qualiter hoc canonem debeas intellegere, habes [E]xtra, [D]e simo[ni], [L]icet Heyli. [= X 5.3.31].” Though the original intent of the decretal concerned the uprooting of simony, its application to cases of suspect heresy is fruitful, not merely because heresy, like simony, was a crimen exceptum – but more so – because the glossators applied the decretal more widely to crimes in general. 81  X 5.3.3. Licet heyli. The text reads: “Ad corrigendos igitur subditorum excessus . . . etsi tribus modis procedi possit, per accusationem videlicet denunciationem et inquisitionem ipsorum.” Per the gloss, CIC 2:1628, s.v. Inscriptio: “Sed cum agitur in modum inquisitionis non est necessaria admonitio: sed sufficit sola fama, vel clamor ut hic patet. Johannes.” 82  It will be recalled that the canon Si quid vero. required that the bishop consult his clerics, i.e. his chapter, when judging a case. The decretal Licet heyli (X 5.3.31) specified the methods of accusation, denunciation, and inquisition, which could be used in the investigation. Furthermore, the text of Si quid vero. was incorporated wholly into the text of Licet heyli, leaving no doubt as to the close relationship between these two texts.

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in the cases of Denis Foulechat and John of Monteson, specific individuals reported the accused to the authorities, as required by the revocatio conditionalis taken by every bachelor, nonetheless, the actual enquiry took place according to the inquisitorial procedure. Grimerius Bonifaci recounted that the proceedings against Denis Foulechat began, with fama leading the way, fama which stood in place of an accuser.83 In the case of John of Monteson, the dean, along with other members of the faculty, had initially admonished him with fraternal charity, even though this charitable warning was not required.84 At first glance, it may seem odd that the admonition of fraternal charity was not required. However, the gloss to Licet heli clarifies the reason for the omission: In cases of inquisition, only fama and not charitable admonition had to precede the inquisitorial investigation.85 Hence in the cases of Foulechat and Monteson (and, presumably in the other cases at Paris) the chancellor and faculty employed the inquisitorial method, originally given to bishops alone, subsequently extended to corporate bodies, and finally adopted by the faculty of theology. In addition to the overall use of the inquisitorial method, the internal procedures by which the faculty carried out its investigation also betrayed the imprint of capitular practice. Among the potential difficulties encountered 83  CUP 3, no. 1299, 121. “Nichilominus idem frater Dyonisius, fama publica referente, in suo principio Sententiarum, in scolis Minorum Parisius, dixit plura erronea atqua falsa, super quibus per nonnullos, etiam graves personas, conscientia atque juramento premisso cogentibus, apud nos delatus extitit, et querulosis clamoribus accusatus.”  Compare the wording of Inter sollicitudines (X 5.34.10) “Nec illud etiam improbamus, quod licet contra eum nullus accusator legitimus appareret, ex officio tuo tamen, fama publica deferente, voluisti plenius inquirere veritatem.”  On the use of fama in inquisitorial procedures, see the decretal Qualiter et Quando (X 5.1.24). Although some individuals accused or denounced Foulechat to the authorities, officially, fama or clamor led the way in informing the authorities of the suspected crime and in legally taking the place of an accuser.  Cf. CIC, 2:1627, X 5.3.31, s.v. Notoriis. “[I]n notoriis non est necessarius accusator vel testis, vel inquisitio, vel denuntiatio.” The text of the decretal elaborated: X 5.3.31 “Tunc enim clamor pervenit ad praelatum, cum per publicam famam aut insinuationem frequentem subditorum sibi referuntur excessus, et tunc debet . . . inquirere, utrum clamorem, qui venit, veritas comitetur;. . . . non tanquam sit idem accusator et iudex, sed quasi fama deferente vel denunciante clamore, sui officii debitum exequatur.” 84  D’Ailly, Apologia, 1.2.81. “Ex quibus patet triplex ratio denuntiationis praedictae [de Montesono ad Episcopem Parisiensem] quam secreta et caritativa monitio praecessit, licet tamen hoc non esset necesse, sicut patet ex doctrina S. Thomae 2. 2. q.33. art. 7 ubi docet, quod peccata publica sunt publice arguenda.” 85  See above page 192, footnote 81.

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when the entire corporate body exercised jurisdiction, Hostiensis observed that a canon might complain that his correction by the chapter had been invalid because, for instance, some of the members had been absent when the judgment was issued. In chapters where membership was large, this must have been a frequent problem. For this reason, Hostiensis felt that, at the meeting of the chapter general, the canons could commit to some of their membership the power of acting in place of the full chapter, thus essentially investing specific members with the jurisdiction of the chapter as a whole. Hostiensis claimed that this commission of authority actually represented nothing new.86 This solution to a common problem became accepted practice, as evidenced by its inclusion in the work of Johannes Andreae, who also adopted this general principle and cited Hostiensis as his source.87 In addition, Johannes expanded the list of acceptable reasons why the chapter might wish to exercise such a commission, including general difficulty and fear of discord.88 Furthermore, Johannes did not limit this new procedure to meetings of the chapter general. He left open the potential for its application to similar circumstances involving large meetings of the chapter. This practice of investing several members with the authority of the group clearly carried over into the faculty of theology. Radulphus Glachardi explicitly described how the faculty empowered two separate commissions of six members each to determine which of Monteson’s theses deserved condemnation. In the course of describing these commissions, the dean made explicit 86  Hostiensis, Commentaria, X 1.31.13, nos. 5–6, 164va–b, s.v. Per capitulum: “Sed et is, de cuius correctione agitur, frequenter poterit dicere Domini, non potestis procedere: quia talis est absens. . . . Consulimus ergo quod in tali casu quando celebratur generale capitulum, constituant aliquos ex seipsis, qui vice totius capituli hanc habeant potestatem. . . . Nec est novum hoc consilium.” I do not wish to make any claims for Hostiensis’s originality on this point, though he is the first individual in whom I have encountered this practice. 87  Johannes Andreae, Commentaria, X 1.31.13, no. 24, f. 254va, s.v. quia propter: “[E]t propter difficultatem, et timorem discordiae, et aliquorum absentiam, quam forte allegabit corrigendus, consulit Hostien. quod totum capitulum committat hanc potestatem uni, vel pluribus ex se, et bonum est clausulam ponere, quod si, etc.” The authority of Hostiensis and Johannes Andreae as canonists surely carried great weight. In terms of illustrating the opinio communis among the canonists, the partnership between Hostiensis and Johannes has the added advantage of demonstrating the continuity and development of legal theory and practice through the late thirteenth and early fourteenth centuries. 88  Ibid., X 1.31.13, no. 23, f. 253v. The rubric to Irrefragabili reads: “23) Collegium, universitas, vel capitulum quando sicut iudices vel electores, non intelligitur singuli iudices esse, vel electores, sed ipsum collegium, et nomine collegii expedire negocia debent, ibidem, et numero 28, propter autem conveniendi difficultatem, possunt ea vel, pluribus de se committere, numero 24.”

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reference to the large number of masters within the faculty, as if to emphasize the potential for discord and the need for the establishment of these commissions.89 A similar, if not identical, procedure seems to have been in effect in the Foulechat case. Grimerius Bonifaci’s description is not as detailed as Glachardi’s. Nevertheless, in his statement that the faculty investigated Foulechat’s teachings “sometimes together as a group” and “sometimes separately as individuals,” one can perhaps hear an echo of this procedure as well as a hint of Johannes Andreae’s recommendation that a clause be included in the mandate of commission indicating whether those empowered had to act together in unison or could proceed separately as circumstances dictated.90 The analysis of procedures used by the theological faculty to investigate cases of suspect heresy within its own ranks demonstrates that the faculty, in fact, copied many of the norms established for the correction of canons in the cathedral chapter. In terms of judicial venue, the faculty’s investigation functioned like a court of first instance from which both Foulechat and Monteson appealed. Just as the faculty’s investigation betrayed the imprint of capitular practice, so the appeals of Foulechat and Monteson also show that these cases followed canonical norms that applied both generally and specifically to cathedral chapters. Of Foulechat’s and Monteson’s right to appeal, there can be little doubt. Gratian had included canons that forbade the right of appeal only to the contumacious and those manifestly guilty of grave crimes, for whom appeal would be merely a delaying tactic.91 In the case of Monteson, the faculty proceeded against him as contumacious when he did not appear to retract his condemned theses, even to the point of having the bishop pronounce the sentence of excommunication against him. Nevertheless, Gregory IX included the decretal Cum inter in the Liber extra which permitted a defendant who had been excommunicated to appeal, if the sentence was considered unjust.92 In addition, Boniface VIII incorporated legislation that permitted appeals to be 89  See above page 59, footnote 58. 90  CUP 3, no. 1299, 121. Grimerius Bonifaci observed: “Postmodum dictum quaternum seu principium diligenter et pluries examinavimus, et insimul et ad partem; et post diuturnam discussionem et multas congregationes, propter multa alia suspecta que in dicto principio continentur, quedam decrevimus fore per eum revocanda.” 91  For a discussion of appeals, see A. Amanieu, “Appel,” in Dictionnaire de droit canonique, 7 vols., ed. R. Naz et al. (Paris, 1935), vol. 1, cols. 764–807 and Wieslaw Litewski, “Appeal in Corpus Iuris Canonici,” Annali di storia del diritto, XIV–XVII (1970–1973), 115–221. Thomas A. Connolly, Appeals, An Historical Synopsis and Commentary, Canon Law Studies no. 79 (Washington, D.C., 1932), 42. 92  X 2.25.5; see also Connolly, Appeals, 43.

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made by proxy.93 Since Monteson enlisted the aid of his order, its representatives made the appeal on his behalf. Finally, Boniface VIII clarified the regulations regarding the ten-day notice within which to appeal. The ten day period ran from the time notice was received.94 The overall effect of these regulations was to provide Monteson with considerable leeway in the filing of his appeal, which as subsequent events showed, the authorities accepted as valid. Similarly, Foulechat complied with all other necessary requirements. He appealed within the ten day limit from the time of sentencing.95 His appeal made viva voce was permitted by Gratian.96 In compliance with the mandate of Boniface VIII, Foulechat’s appeal, however, was also set down in writing and stated the reasons for his appeal.97 As required, Foulechat appealed from an unjust sentence; the appeal defended his innocence.98 More particularly, the manner in which Foulechat appealed shows an implicit awareness of capitular practice. When the cathedral chapter acted negligently in correcting – or failing to correct – one of its members, the right of correction devolved gradatim, that is, to the bishop. Similarly, when an indi93  VI 2.15.1; VI 2.15.4; see also Connolly, Appeals, 46. 94  VI 2.15.3; VI 2.15.7; see also Connolly, Appeals, 46. 95  C.2, q.6, c.41; see also Connolly, Appeals, 41. Foulechat appealed on the day scheduled for his public revocation. 96  Ibid. 97  VI 2.15.3 and VI 2.15.7; see also Connolly, Appeals, 46. Cf. CUP 3, no. 1298, 115–117. Foulechat read aloud the reasons for his appeal and requested a notarial copy. “[115] [D]ominum meum cancellarium adivi . . . supplicando, quatinus michi audiencia preberetur, ut possem declarare intellectum dictorum; item in die sancti Martini, presentibus pluribus, idem repplicans, requisivi, quatinus michi conclusiones dubias traderet, et (leg. ut) ego manu mea propria intellectum meum, quem legendo protuleram plenius quam in scripto meo erat, planius declararem, – super quibus fui minime exauditus.” In the preamble to the statement of revocation, Foulechat claimed that he had been forced into it. “[117] Reverendi magistri mei et domini, quia aliqua dixi in principio meo Sententiarum, que in auribus nonnullorum male sonaverunt, et ex causa; ego, veritate coactus et ex ordinatione reverendi patris domini cancellarii, ac facultatis theologie magistrorum, tanquam ecclesie et dicte facultatis theologie humilis filius, ipsa dicta in prefato principio meo male posita corrigo sub hac forma.” [116] “Tunc idem dominus cancellarius. . . . dirigendo verba sua michi notario publico infrascripto dixit sic: ‘Magister Petre, qui estis hic presens, peto a vobis michi fieri copiam de premissis et infra scriptis.’ De et super quibus omnibus et singulis suprascriptis prefatus frater Dionisius voluit peciitque et requisivit a me, notario publico infrascripto, sibi fieri, confici atque tradi publicum instrumentum, seu publica instrumenta, unum, duo, vel plura, hic assistentes in testes et testimonium premissorum invocando.” 98  X 2.28.38, Connolly, Appeals, 43.

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vidual appealed, the law required that the defendant appeal gradatim, that is, in order, to the next highest level. These principles taken together raise an interesting set of questions. In cases of appeal from the judgment by the chapter, did the right of correction devolve gradatim to the bishop? And in cases of appeal from the judgment of the theological faculty, did the right of correction – and by analogy – in the faculty, did the right of appeal devolve to the chancellor? In both the Foulechat and Monteson cases, neither friar appealed to any intermediary, but instead, Foulechat and Monteson each appealed directly to the pope.99 Apart from any reason that either of these friars chose to pursue this legal avenue, the reasons given by Foulechat underscore legal norms governing the transference of jurisdiction from chapter to bishop. The whole question of how and when authority devolved from bishop to chapter and, conversely, from the chapter to the bishop, was an important issue that occupied the attention of medieval canonists.100 Bernard of Parma had set the general parameters of the discussion in the Glossa ordinaria.101 On the one hand, when the chapter failed, through negligence, to issue correction, the right passed to the bishop. While negligence removed jurisdiction from the canons, they still retained their right to be present and give counsel in the judgment. On the other hand, when the bishop failed through negligence to administer correction, the right passed not to the chapter but to the bishop’s superior, the archbishop. When Bernard of Parma described the procedure in cases involving the chapter’s negligence, he failed to address the steps taken when the decision of the chapter was appealed. It was left to Innocent IV and his successors, Hostiensis and Johannes Andreae to map out this juristic terrain.

99  On the right of appeal directly to the papacy, see Thijssen’s discussion, Censure and Heresy, 36, where he cites William Durant, Speculum iudiciale, (Basel, 1574; rpt. Aalen, 1975), 839–875, and A. Amanien, “Appèl,” in Dictionnaire du droit canonique, 7 vols., ed. R. Naz (Paris, 1935–1965), 1:764–807. 100  For a succinct discussion of this question, see Tierney, Foundations, 100–108. 101  C IC, I:411, X 1.31.13, s.v. per capitulum. The gloss reads: “[S]ed cum episcopus est negligens in correctione subditorum, non devolvitur ius corrigendi vel puniendum ad capitulum, sed potius ad archiepiscopem . . . quia jurisdictio talis principaliter spectat ad episcopum, licet de consilio eorum et in eorum presentia debeat hoc facere. . . . Sed cum ius corrigendi pertinet ad capitulum in ecclesia cathedrali de consuetudine, ut hic dicit, cum ipsi de capitulo sunt negligentes, ius transfertur ad episcopum, ut hic habes expresse, et episcopus postea nihilominus de consilio eorundem debet corrigere, quia licet perdiderint ius corrigendi, non perdiderunt ius commune quo debent cum episcopo in talibus interesse.”

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In the course of discussing the devolution of jurisdiction Innocent did not specifically mention cases of appeal, but clearly this was one of the circumstances he had in mind. In instances where the chapter exercised jurisdiction over its own members, Innocent argued that, if the canons had deliberated, a right could not devolve to the bishop because the bishop had put forth his opinion while sitting ut canonicus. Therefore, his judgment would be suspect.102 Because the text refers to the deliberation of the canons (including the bishop), it indicates that the chapter had met to pass judgment, and thus suggests that jurisdiction did not pass to the bishop in cases of appeal. Hostiensis and Johannes Andreae specifically clarified this point and addressed the issue of appeal and its effect on passage of jurisdiction from one party to another. Hostiensis explicitly raised the issue of appeal when he asked, “Is not the bishop required to delegate the case to others when he has a voice in the chapter as canon and the case is appealed to him from the chapter?” Hostiensis agreed with Innocent that the bishop’s opinion would be suspect since the chapter had considered the matter.103 Johannes Andreae, in his turn, quoted Hostiensis in full, citing Innocent as his ultimate source.104 Once the bishop had put forth his opinion, he could not then be an impartial judge in the event of an appeal. Moreover, the canonists 102  Innocent, Commentaria, X 1.31.13 Irrefragabili, 152r, no. 2, s.v. Per ipsum: “Eadem questio est quo scilicet devolvitur electio a capitulo in episcopum? Quidam dicunt . . . sed contradicit[ur] nos dicimus quod si episcopus interest capitulo non tanquam episcopus, sed . . . tamquam canonicus . . . tunc si omnes fuerint negligentes, et esset episcopus, nihilominus potestas eligendi, vel iudicandi devolvitur ad episcopem . . . sed dices, nonne, tenetur committere vices suas . . . respondeo non illud the previous citation, here omitted] nota ideo est: quia consulens suam voluntatem propalavit unde suspectus haberetur, si iudicaret, sed secus in negligente qui suam voluntatem non manifestavit.” 103  Hostiensis, Commentaria, X 1.31.13 Irrefragabili, no. 7, f. 164vb, s.v. Per capitulum: “Tu dic . . . sed nonne tenetur episcopus causam alii delegare, quando habebat vocem in capitulo, tanquam canonicus, et est ad ipsum a capitulo appellatum? ita videtur . . . quia consulens suam voluntatem propalavit, unde suspectus haberetur, si iudicaret, secus de negligente, qui voluntatem non suam non manifestavit.” 104  Johannes Andreae, Commentaria, X 1.31.13 Irrefragabili, no. 25, 254v. The rubric stated: “Episcopus tenetur causam delegare, quando vocem ut canonicus habet in capitulo et quare,” The text stated s.v. ad ipsum episcopum: “Sed nonne episcopus tenetur causam delegare, quando vocem habet in capitulo ut canonicus, et ad ipsum est a capitulo appellatum? ita videtur . . . dicit Innocen. quod illud accidit, quia consulens suam voluntatem propalavit, unde suspectus habetur [sic], si iudicaret, sed secus in negligente, qui voluntatem suam non manifestavit.”

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presumed that the bishop always expressed his opinion, for they did not allow him to be excused on the grounds of negligence.105 The canonical notion that the bishop’s opinion was suspect in an appeal from the judgment of the chapter bears an interesting relation to the Foulechat case. In the case of Denis Foulechat, it is clear that the faculty (including the chancellor) met to deliberate on bachelor’s teachings. The chancellor recorded the names of those had been present, including himself. Apart from any other reasons motivating Foulechat’s appeal against Grimerius Bonifaci, the friar’s accusation that the chancellor was a suspect judge at least had a basis in law and did not conflict with the principles regulating appeals in ecclesiastical corporations. In addition, given the close connections among the consistories of the chancellor, the bishop, and the archbishop, the appeals of Foulechat and Monteson directly to the pope represent an attempt on the part of the defendants to assure greater objectivity in the handling of their cases. Conclusion In sum, the model of the cathedral chapter shaped and guided the process by which the faculty of theology censured those within its ranks who engaged in suspect teaching, or academic heresy. Initially, the canonical legislation that designated the prosecution of heresy as a right belonging principally to the bishop or his designee created some potential difficulties for understanding how the theological faculty carried out this task. Nevertheless, a closer analysis of the offense of suspect teaching, or academic heresy, revealed that, as a crime, it represented only a misdemeanor offense. Technically, it was not heresy, but rather, suspicion of heresy. Consequently, just as Irrefragabili accorded to the cathedral chapter a sphere of jurisdiction over misdemeanor offenses, so the faculty of theology, in like manner, exercised jurisdiction over cases of academic heresy within its ranks. In addition, an analysis of the procedures used in the theological faculty has demonstrated that they corresponded closely to the practice set forth for cathedral chapters, particularly as revealed in the decretals Irrefragabili and Edoceri. Moreover, the chancellor and the dean of the theological faculty functioned as analogues to the bishop and the dean in the cathedral chapter. 105  Consider the full text from Hostiensis, Commentaria (minus citations to sources), X 1.31.13 f. 164vb, no. 7, s.v. Per capitulum: “Nec potest episcopus se excusare de negligentia.” This text is also repeated by Johannes Andreae, Commentaria, at X 1.31.13, f. 254va, no. 25, s.v. Ad ipsum episcopum.

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Apart from its internal structure, the relationship of the faculty with external authorities – among them, the bishop and the inquisitor – also evidenced a respect for the independent jurisdiction of the faculty. The local bishop and inquisitor did not routinely intervene in the affairs of the theological faculty, but rather, respected its independence and, further, normally only became involved at the request of the faculty itself. Moreover, the request for episcopal or inquisitorial assistance followed standard procedures – such as the failure of the accused to perform the revocation, or purgation, which, in turn, transformed the offense into crime of greater seriousness and gravity. In addition to the controversies involving Foulechat and Monteson, the case of Petrus Berchorius also illustrated the right of the faculty to investigate members suspected of heresy without the intervention or intrusion of external authorities. Finally, in terms of the investigative process, the members of the faculty followed the standard procedures set down in canon law, including for instance, the use of inquisitorial method, the optional practice of fraternal correction, and the legislation on appeals. Furthermore, in keeping with the model of the cathedral chapter, the faculty also invoked various procedures, such as the establishment of sub-commissions that mimicked the practice established for cathedral chapters, as verified by authorities such as Hostiensis and Johannes Andreae. In all of these various and different ways, the faculty’s censure of its own members was patterned after, and aligned with, the principles and practices as set down for cathedral chapters. From an historical perspective, this fact is not surprising. The university achieved official recognition in 1200 from Philip Augustus of France; and the various faculties developed and reached their full constitutional development by mid-century, or shortly thereafter. Consequently, the majority of episcopal-capitular principles embodied and codified in the canonical legislation pre-dated the emergence of the University of Paris and, thus, served as a repository of policies and procedures from which the theological faculty could draw. It now remains to assess Pierre d’Ailly’s contribution to the practice of censure within the faculty and to place the faculty’s censure of suspect teaching in its appropriate chronological framework.

CHAPTER 7

The Debate over the Jurisdiction of the Faculty of Theology

John of Monteson and the Theological Faculty’s Jurisdiction

The analysis of the policies and procedures operative in the theological faculty by the beginning of the fourteenth century show that, in many ways, the faculty in its day-to-day affairs functioned like a cathedral chapter. Furthermore, as shown, authorities within the faculty considered suspect teaching to be only a misdemeanor offense and routinely censured their own members in this regard. Given that the cathedral canons acquired jurisdiction over less serious crimes when judging the excesses of their own members, as well as the fact that the theological faculty functioned on the pattern of the cathedral chapter, it seems reasonable to ask whether the actions taken by the faculty to curb suspect teaching also represented a form of lesser jurisdiction. Overall, the evidence seems to support this conclusion. However, there are few contemporary documents that discuss the nature or development of the theological faculty’s jurisdiction. Thus, in order to assess whether the faculty acquired this jurisdiction, it will be necessary to return to the claim raised by Pierre d’Ailly at the beginning of this work and to evaluate whether his view that the theological faculty exercised jurisdiction over the sworn bachelors and masters of the faculty was, in reality, consistent with contemporary legal theory, legislation, and practice. The controversy between John of Monteson and the faculty, in which Pierre d’Ailly was intimately involved, produced a wealth of documentation that has left behind a trail of important clues.1 D’Ailly represented the University at the papal court, and one of the major sources for knowledge of this dispute comes from his Tractatus, or Apologia as it is also called, that he authored in response 1  There is a wealth of material published on d’Ailly. Specific studies are mentioned in the notes that follow. To that, some general works may be added, including Francis Oakley, The Political Thought of Pierre d’Ailly: The Voluntarist Tradition (New Haven, 1964); Courtenay, William J., “Covenant and causality in Pierre d’Ailly”, Speculum 46 (1971), 94–119; Louis B. Pascoe, Church and Reform: Bishops, Theologians, and Canon Lawyers in the Thought of Pierre d’Ailly (1351– 1420) (Leiden, 2005); and Lamy, Alice, La pensée de Pierre d’Ailly, un philosophe engagé du Moyen Âge (Paris, 2013).

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to Monteson’s appeal. Unfortunately, Monteson left no writings of his own. Thus, the friar’s position in the dispute is known mainly through the writings of his opponent, Pierre d’Ailly. In his Apologia, d’Ailly claimed that Monteson rejected the faculty’s authority to exert jurisdiction both doctrinaliter, with the key of knowledge and judicialiter, with the key of power. According to d’Ailly, Monteson refused to accept the authority of the faculty to censure his teachings and to require the revocation of his suspect teachings. Subsequently, the friar appealed to the pope as the only rightful judge of orthodoxy.2 In d’Ailly’s view at least, the legitimacy of the faculty’s jurisdiction over its own members represented a central focus of the controversy, apart from the actual content of the condemned theses themselves. Consequently, d’Ailly replied to Monteson’s challenge by presenting a detailed justification of both the faculty’s jurisdiction and its position on the doctrine of the Immaculate Conception.3 2  D’Ailly, Apologia, 1.2.82. D’Ailly observed that Monteson believed that only the pontiff possessed the right to censure unsound teachings. “Sed huic articulo [that the faculty of theology could censure its members both doctrinaliter and judicialiter] opponitur tria, que ponit dictus Frater in supplicatione sua, seu querela Domino Papae exposita. . . .  Tertium est, quod solius Sedis Apostolicae est declare, damnare, et reprobare. Unde postea concludit, quod dictus Dominus Episcopus apponens falcem in mensem summi Pontificis, dictas conclusiones pronuntiavit et decrevit falsas, haereticas et erroneas; et causam subdit ibidem, qui ista, que tangunt fidem, sunt de majoribus Ecclesiae causis, et quae ad solum summum Pontificem pro examinatione et decisione deferri debent. Ex quibus sequi videtur, quod nec Episcopus, nec Facultas praedicta conclusiones praemissas potuerunt judicialiter condemnare, nec earum dogmatizationem aut publicationem vel defensionem sententialiter cohibere.” 3  J. M. M. H. Thijssen has provided a brief discussion of this text in his Censure and Heresy, 107–112. For d’Ailly’s views, see also D. Taber, Jr., “Pierre d’Ailly,” 168–72, and J. F. Kelly, “The Place of Pierre d’Ailly in the Development of Medieval Theological Sources and Censures,” Studies in Medieval Culture 6–7 (1976), 141–150. Kelly’s work focuses more on the development of the list of censured propositions rather than on the authority of the faculty. In his discussion of the Monteson case, Louis E. Du Pin appears to have summarized d’Ailly’s views based, in part, on the Apologia, but he did not cite the work directly. See his Nouvelle bibliothèque, 12:142–144. The contributions of Du Pin and Kelly are mentioned for the sake of completeness. Unfortunately, here as well, it will not be possible to provide a full discussion of the text; this discussion will focus on sections of the text that address the faculty’s legal authority, principally, the first chapter. Other members of the faculty also aided the cause against Monteson. Johannes Vitalis, a Franciscan, authored several works which addressed the crisis. He also briefly discussed the faculty’s authority with respect to the Monteson case. I hope in the future to be able to analyze and to discuss his contribution. See 1) Johannes Vitalis, O.F.M., “Sermo . . . ‘Tota pulchra es,’” in Monumenta Antiqua Seraphica, ed. Pedro de

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The Tractatus, or Apologia, of Pierre d’Ailly The Apologia consists of a brief introduction and three lengthy chapters, with each chapter, in its own right, possessing a complex structure that requires careful analysis. In his introduction, d’Ailly, broadly speaking, laid out the general structure of the work. D’Ailly stated that, in the first chapter, he would provide a justification for the actions of both the bishop and the faculty with respect to the condemnation of Monteson’s views and, further, that he would explain in what way it pertained to both the bishop and the faculty to condemn heretical or suspect propositions at Paris. In essence, d’Ailly declared that he would provide not merely a jurisdiction for the actions of the bishop and faculty both with regard to the Monteson case in particular; rather, he undertook to provide a more generalized discussion that established the authority of the bishop and the faculty to censure cases of suspect teaching in general.4 In the second chapter, d’Ailly indicated that he would provide an analysis of the propositions, based on both reason and authorities, to show that they were reasonably condemned.5 Finally, in his third chapter, the future chancellor stated that he would demonstrate (in a somewhat circular fashion) that the doctrine of Thomas as put forth by Monteson was not approved because, if it were, it would be possible to impede or hinder the actions of the bishop or the condemnation.6 Obviously, an analysis of the first chapter of the work is especially relevant here. Within this first chapter, d’Ailly put forth conclusions that set out his view regarding the jurisdiction of the faculty. These conclusions will be analyzed, but before any discussion of the text can be undertaken, the work and its nature must be placed in context. In terms of his genre, the Apologia is a polemical treatise defending the right of the faculty to censure one of its own Alva y Astorga, (Louvain, 1665), 80–87; 2) “Fragmentum,” in idem, 87–88; and 3) Defensorium Beatae Virginis Mariae, in idem, 89–190. 4  D’Ailly, Apologia, 1.2.75. “In primo ad fundandum processum factum contra dictum F. per dictam Facultatem Theologiae, ac etiam processum inde secutum coram Domino Episcopo Parisiensi, ad instantiam Universitatis praedictae, declarabitur qualiter ad dictos Episcopum et Facultatem Theologiae pertinent assertions haereticas vel in fide erroneas, contra asserentes eas Parisiis, condemnare.” 5  Ibid. “In secundo declarabitur, et tam rationibus, quam auctoritatibus Sanctorum et Doctorum probabitur, quod assertiones dicti Fratris, per cedulam dictae Facultatis dicto Domino Episcopo traditam, fuerunt rationabiliter condemnatae.” 6  Ibid. In tertio. . . . Ideo declarabitur hujusmodi doctrinam S. Thomae non sic approbatam esse, quod propter eam oporteat ante dictum condemnationem, aut dicti Episcopi processum, aliqualiter impedire.”

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members. Thus, due to its polemical nature, the Apologia’s overall argument that the faculty possessed the requisite jurisdiction to censure Monteson’s teaching and to force him to perform a public revocation cannot merely be taken at face value. In the university’s own history, authors of polemical tracts, at times, advanced claims not supported by contemporary evidence; or, they simply chose to ignore evidence that did not fit their preconceived positions. Consider, for example, the claims made by the arts faculty against the chancellor, Philippus de Thoriaco, in 1283. Among other challenges to the chancellor’s authority, Johannes de Malignes, proctor for the faculty of arts, boldly asserted that the chancellor was not a judge ordinary.7 Although the full extent of Malignes’s thought on this topic remains unknown, such a bold statement clearly requires modification when evaluated against contemporary legal norms.8 In the same way, the position of the Apologia supporting the independent jurisdiction of the faculty over its own members must be examined in relation to more external, objective evidence. In this regard, the ruling of the papal court provides a significant piece of contemporaneous evidence that substantiates the overall position d’Ailly put forth in his work. The appeals court in Avignon excommunicated Monteson.9 Monteson and his followers were condemned, and the Dominican order was punished by being placed last in any subsequent university processions.10 All these actions effectively supported d’Ailly’s and the university’s claims for jurisdiction. As noted above, d’Ailly’s Apologia has been discussed in varying degrees and for various purposes by other scholars.11 Nevertheless, a more detailed review of their contributions is in order. Du Pin, one of the earliest commentators, merely restated and summarized the main points of the Apologia without providing significant additional analysis. Taber analyzed d’Ailly’s treatise in order to prove two points, namely, that: 1) the teaching office of the theologian conferred what amounted to an ordination, effectively mak7  CUP 1, no. 515, 622. “Primo ratio est, quia cancellarius Parisiensis non est judex ordinarius scolarium, nec delegatus.” 8  For a discussion of these norms and the evidence supporting the ordinary jurisdiction of the chancellor, see the discussion above beginning on page 43. 9  The text of Monteson’s excommunication is too long to include here. See CUP 3, no. 1567, 506–512. 10  For the revocations made by Monteson’s supporters, see CUP 3, nos. 1571–1578, 515–530, also d’Argentré, Collectio judiciorum, 1.2.132–147. The university letter assigning the Dominicans to the last place in scholastic acts, supplications, and sermons may be found in CUP 3, no. 1568, 512–513. 11  See above page 202, footnote 3. Unfortunately, these scholars referred to the text but often did not quote it directly.

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ing the theologian a member of the ecclesiastical hierarchy; and that, 2) the theologian’s doctrinal authority was an indispensable correlate to the prelate’s judicial authority.12 Taber, however, did not address the question of the faculty’s judicial authority over its own members. His analysis of the Apologia ended with a discussion of d’Ailly’s third conclusion and proceeded no further. In this regard, his analysis of the Apologia – although adequate for his own purposes – was, nevertheless, incomplete. Thijssen, likewise provided only a summary analysis of the work; however, he did discuss, to a limited extent, d’Ailly’s application of these conclusions to the Monteson case. Nevertheless, in the final analysis, despite d’Ailly’s claim that the faculty in some way exercised jurisdiction over bachelors and masters, Thijssen still concluded that the censure by the faculty represented only a disciplinary form of fraternal correction rather than a judicial action against one of its members.13 Thijssen’s overall conclusion is still more puzzling given that he recognized that the doctrinal authority of the bishop or of the faculty had binding force over the bishop’s subjects within the diocese, or over the members of the university community, respectively.14 Finally, given the brevity of his analysis, Thijssen did not delve deeply into the sources cited by d’Ailly, nor did he discuss at any length the relevance of those sources to the issue of the faculty’s jurisdiction. For these reasons, then, a more detailed analysis of the first chapter of d’Ailly’s Apologia is in needed.

Analysis of the Tractatus, or, Apologia

In the first chapter of his Tractatus, or Apologia, d’Ailly set out six major conclusions with respect to the authority of the bishop and the faculty of theology. At the outset, d’Ailly established two foundational principles. As Taber and Thijssen have noted, d’Ailly began his analysis by introducing a fundamental distinction: Determination of dogma was made in two ways: first, scholastically, or doctrinally, and second, authoritatively, or judicially. The ultimate source of this distinction was, of course, found in Gratian’s dictum at Distinction 20, 12  Taber, “Pierre d’Ailly,” 164. 13  Thijssen, Censure and Heresy, 111. “Not only the records of the Monzón case but also d’Ailly’s treatise imply that the correction of false teaching of a faculty member was viewed as a secret admonition within a privileged corporation, distinguished from the rest of the church and society, a fraternal correction of masters and bachelors by one of their own.” 14  Ibid., 110.

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d.a.c.1.15 Apart from these two forms of jurisdiction, d’Ailly also established that authority was, in effect, hierarchical: The power to make judicial determinations was shared between an authority that was “ ‘simply supreme,’ ” and an authority that was “ ‘inferior and subordinate.’ ”16 Taken together, these basic principles guided his discussion. In his first of six major conclusions, d’Ailly stated that supreme authority to define judicially in matters of the faith belonged to the papacy, or the Holy See.17 This norm had long been accepted by the masters of theology and, thus, requires no additional commentary at this juncture.18 In his second conclusion, d’Ailly placed the authority of bishops under the authority of the Holy See. He stated that bishops possessed an inferior and subordinate authority to define judicially with respect to matters of the faith.19 Indeed, the bishop had a sacred duty to protect the faith. In support of the bishop’s authority, d’Ailly, of course, used logic, but he also cited scripture and canon law. D’Ailly cited Acts 20:28–30, in which Saint Paul indicated that bishops were placed to rule over the church; Then, following Paul, d’Ailly linked this authority to issues dealing with heresy; for Paul recognized that, after his departure, ravenous wolves would enter in, and men speaking perverse things would rise up attempting to lead the disciples astray.20 D’Ailly elicited further 15  The role of the theologians to act doctrinaliter is best expressed in Gratian’s dictum, D. 20, d.a.c.1, Part 2. For an English translation of this text see, Gratian, The Treatise on Laws (Decretum, DD. 1–20) with the Ordinary Gloss, trans. Augustine Thompson, and James Gordley, with an introduction by Katherine Christensen (Washington, DC, 1993), 84–85. 16  Taber, Jr., “Pierre d’Ailly,” 168 and n. 15. Taber references d’Ailly’s Apologia at 1.2.75–76. Although Taber did not cite d’Ailly’s text directly, the passage appears to be as follows: “Circa primum principale, est haec distinctio praenotanda, quod definitio circa ea quae sunt fidei . . . potest esse duplex, uno modo, scholastice et doctrinaliter; alio ‘modo auctoritative et judicialiter. Et hic secundus modus est duplex, secundum quod auctoritas judiciaria est bipartica; una est simpliciter suprema, alia est inferior et subordinata.” 17  Taber, Jr., “Pierre d’Ailly,” 168–169, and n. 13. Thijssen also makes this point in his analysis. See his Censure and Heresy, 108. For the text, see d’Ailly, Apologia, 1.2.76. “Prima ergo conclusio est, quod, ad Sanctam Sedem Apostolicam pertinet auctoritate judiciali suprema circa ea quae sunt fidei, judicialiter definire.” 18  See the discussion above at page 6, and footnotes 18 and 19. 19  Ibid., “Secunda conclusio est, quod ad Episcopos Catholicos pertinet auctoritate inferiori et subordinata, circa ea quae sunt fidei, judicialiter definire.” See also Thijssen, Censure and Heresy, 108. 20  D’Ailly, Apologia, 1.2.76. D’Ailly appears to quote from memory. The full text is found in Biblia Vulgata, Actus Apostolorum 20:28–31. “(28) Attendite vobis, et universo gregi, in quo vos Spiritus Sanctus posuit episcopos regere ecclesiam Dei, quam acquisivit sanguine suo. (29) Ego scio quoniam intrabunt post discessionem meam lupi rapaces in vos, non

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support from canon law, specifically, the decretal Excommunicamus (X 5.7.13), which required the deposition and replacement of a bishop who was negligent in uprooting heresy from his diocese.21 As d’Ailly rightfully observed, a bishop could not uproot heresy, or judge heretics, unless he possessed the authority to call them into his presence and to punish them. D’Ailly then cited Ad abolendam as proof that Bishops had the right to judge heresy and that this right applied even to exempt clergy.22 These two decretals formed the basis of the bishop’s authority. Hence, grounding his argument on logic and Scripture, along with both divine and human law, d’Ailly declared that it was obvious to all that the bishop had a duty to judge heretics and to oppose heretical evil. Moreover, as a consequence of this duty, d’Ailly continued, the bishop possessed the authority to condemn heretical assertions judicially and further, to define Catholic truths with judicial authority.23 By establishing the right of the bishop to define truths judicially – even in a subordinate and inferior way, d’Ailly, as Taber skillfully noted, responded to one of Monteson’s principal objections, namely, that: “ ‘Neither the bishop, nor the faculty [of theology], nor any other inferior to the pope may judicially condemn heresies which are only implicit.’ ”24 D’Ailly effectively set the stage for explaining how and in what way the bishop – and then by extension, the faculty could act judicially to condemn suspect teachings. In this regard, Monteson had cut to the core of the matter by raising this objection. The lack of any official pronouncement regarding a given theological issue made it difficult to determine whether a bachelor’s or master’s parcentes gregi. (30) Et ex vobis ipsis exsurgent viri loquentes perversa, ut abducant discipulos post se. (31) Propter quod vigilate.” 21  D’Ailly, Apologia, 1.2.76. “Unde Extra, De haereticis, capitulo Excommunicamus, in fine sic concluditur. ‘Si quis enim Episcopus, super expurgando de sua Diocesi haereticae pravitatis fermento, negligens fuerit vel remissus, ab Episcopali, officio deponatur et in locum ipsius alter substituatur idoneus, qui velit et possit haereticam confudere pravitatem.’ ” 22  Ibid. “Et in cap. Ad abolendam, eodem titulo, dicitur, quod pertinet ad Episcopos per Dioceses suas haereticos judicare, et quod ipsi errorem suum, ad arbitrium Episcopi regionum, debent publice abjurare, quodque etiam illi, qui fuerint a Diocesani jurisdictione exempti, nihilominus in his, quae sunt contra haereticos instituta, Episcoporum subeant judicium, et eis in hac parte, tanquam a Sede Apostolica delegatis, non obstantibus lbertatis suae privilegiis, obsequantur.” 23  Ibid. “Ex quibus omnibus satis patet, quod, tam jure Divino, quam humano, ad Episcopos pertinet, haereticos et pravitatem haereticam judicare, et per consequens assertiones haereticas condemnare judicialiter, et auctoritate judiciaria veritates Catholicas diffinire.” 24  D’Ailly raised this point as an objection. It thus likely reflects Monteson’s position. Taber, Jr., “Pierre d’Ailly,” 169, and n. 17, citing d’Ailly, Apologia, 1.2.85. The text that Taber translated appears to be: “[Tamen videtur, quod] nec Episcopus, nec Facultas, aut alias Papae inferior, possit condemnare judicialiter et solemniter haereses implicitas.”

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proposition was in fact, orthodox or heretical. As Thijssen has pointed out, scholastics within the university were engaged in a running debate with their accusers over what actually constituted orthodox vs. heterodox opinion, given that, by their very profession, the bachelors and masters ventured into theologically uncharted territory.25 Indeed – and even more to the point – the doctrine of the Immaculate Conception in the fourteenth century represented precisely one of these uncharted domains, concerning which no official pronouncement had, as yet, been made. In fact, the doctrine of the Immaculate Conception remained undefined in Monteson’s time, and even up until the nineteenth century. Thus, viewed from this more contemporary perspective, Monteson’s objection was not without some merit, both legally and morally. Consequently, in order to counter his opponent, d’Ailly needed to approach the issue from a more oblique angle. D’Ailly could not simply argue that the bishop, acting alone, possessed the authority to condemn implicit heresies. Nor could he argue that the bishop possessed universal authority to define points of doctrine. After all, in a certain sense, Monteson was correct. Deference to the Holy See regarding dubious points of theology had long been the norm. Hence, d’Ailly could not directly challenge Monteson on this point and win. However, what d’Ailly could do – and, in fact, did – was to change the terms of the debate by beginning with a simple premise. In place of grandiose claims for episcopal jurisdiction, the future chancellor of the university focused on the local authority of the bishop within his diocese. In contrast to the pope, who possessed universal authority, d’Ailly conceded that, the bishop, instead, possessed only limited authority (“secundum quid”) over the geographic extent of his diocese. But within this more limited territory, d’Ailly bolstered the authority of the bishop to handle cases of heresy and suspect teaching. According to d’Ailly, although a bishop could not define new doctrine, he did possess the requisite authority both to prohibit the teaching or dissemination of suspect propositions within his diocese, and to compel obedience from his subjects.26 The bishop, of course, submitted his decision to the authority of the 25  Thijssen, Censure and Heresy, 27–33. 26  Taber, Jr., “Pierre d’Ailly,” 169, n. 18, citing d’Ailly’s Apologia, 1.2.85–86. “Sed subordinata definito Episcoporum Catholicorum inferiorum non sic universaliter obligat; et ideo non dicitur definitio vel sententia; nisi secundum quid . . . scilicet, quousque per Sedem Apostolicam vel Summum Pontificem aliter fuerit sententiatum et definitum; et supposito quod talis inferior sententia vel definitio non obligaret in casu ad credendum, quia staret in casu quod illud sic diffinitum, esset haereticum; tamen regulariter obligat ad oppositum non dogmatizandum vel publice docendum in Diocesi Episcopi sic diffinientis.”

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Holy See. But until such time as the papacy ruled otherwise, the determination of the bishop remained in force and the bishop retained his judicial authority to determine sound doctrine. Thus, apart from promulgating new doctrines of the faith, the bishop could limit the scope of teaching within his diocese to conform to contemporary norms regarding orthodox theological belief, until overruled by a higher authority. Through his discussion of the role of the papacy and the bishops, d’Ailly laid the framework for his discussion regarding the nature and extent of the faculty’s jurisdiction over its members. In his third conclusion, he confirmed that the theological faculty possessed the requisite authority to define propositions doctrinally, that is, to act with the key of knowledge.27 That the theological masters of Paris possessed this key of jurisdiction was, in fact, a well-accepted norm. Initially, d’Ailly did not spend much time discussing this point. However, when he applied his reasoning to specifics of the Monteson case, he elaborated on the importance of the masters’ doctrinal authority. Appealing to Scripture, d’Ailly asserted that the masters of theology were experts, or skilled craftsmen in the interpretation of Sacred Scripture and doctrine and, therefore, it was their duty to condemn errors doctrinally.28 Furthermore, d’Ailly stressed, the doctrinal determination of the masters preceded the judicial determination by the church. Obviously, as a matter of course, the doctrinal determination by the masters had to be realized before any judicial determination could be enacted. Supporting this claim, d’Ailly referenced the decretal Damnamus of Innocent III, which condemned the teachings of Joachim on the trinity, at the Fourth Lateran Council in 1215 according to the doctrinal determination of the theologians.29 Appealing to Augustine, d’Ailly cited the De doctrina Christiana in which the church father indicated that one of the principal functions of the doctor of Sacred Scripture was to condemn unsound doctrine.30 In support of his position, he referenced many 27  D’Ailly, Apologia, 1.2.77. “Tertia conclusio est, quod ad Doctores Theologos pertinet determinatione doctrinale et scholastica, circa ea quae sunt fidei, doctrinaliter definire.” 28  Ibid., 1.2.79–80. “[S]ed Doctores Facultatis Theologiae sunt artifices, seu Sapientes in arte sacrae Scripturae: ergo ad eos pertinet circa errores hujusmodi artem tangentes cognoscere et eos artificiose, seu doctrinaliter condemnare. . . . [E]t etiam satis clare apparet Ecclesiastici 38:[21], ‘ubi inter alia ad propositum dicitur, quod ‘Unusquisque sapiens est in arte sua.’ ” 29  Ibid., 1.2.80. “Et sic determinatio Magistralis, Ecclesiae determinationem praecessit, sicut patet in cap. Dampnamus: de summa Trinitate et fide Catholica [X 1.1.2].” 30  Ibid. “Item inter actus qui pertinent ad Doctores Theologiae, unus est principalis, errores doctrinaliter condemnare, secundum Augustinum 4 de doctrina Christiana: cap. 4, ubi dicit, quod debet divinarum Scripturarum Doctor et tractator, defensor rectae fidei ac debellator erroris, et bona docere et mala dedocere, id est, doctrinaliter reprobare.”

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other sources too numerous to quote here at length, including Gregory the Great, Saint Athanasius, Thomas Aquinas, Nicholas of Lyra and William of Ockham.31 D’Ailly understood the implications of what he was saying, and he drew an important conclusion based on all of these factors: The doctrinal authority of the masters was universal.32 After all, the masters of Paris had even rebuked John XXII on the question of the beatific vision.33 D’Ailly stated that, unless they were also theologians, neither the pope, nor the doctors of canon law, could discuss or authentically decide matters of the faith without the prior determination of the theologians leading the way.34 This pattern represented the normal course of action. In further support of this claim, d’Ailly referenced Cum Christus (X 5.7.7) of Alexander III issued in 1177, which affirmed that Christ was true God and true man and condemned any teaching to the contrary. In the text of that decretal, Alexander explicitly recounted that the determination had been made with the counsel of the masters from Paris, Rheims, and elsewhere.35 Indeed, as d’Ailly further remarked, even the great jurist Johannes Andreae had acknowledged in many places – but especially at Ad nostrum in 31  Ibid. 32  See the discussion of this point by Taber, “Pierre d’Ailly,” 170–173. 33  Ibid. “Assumptum patuit tempore Johannis XXII, quia, sicut refert Magister Nicolaus De Lyra in tractatu suo de Visione beatifica, fere 40, dictae Facultatis Magistri concorditer determinaverunt contrarium illius, quod Papa publice asserebat, et simile fecit dictus Magister.” Cf. Michael Scott Woodward, Nicholas of Lyra on the Beatific Vision (Ph.D. Diss., University of Notre Dame, 1992). For the documentation regarding the beatific vision, see CUP 3, nos. 970–987, 414–442. For John XXII’s call to discuss the beatific vision, consult CUP 2, no. 985, 439. For John XXII’s revocation, see CUP 2, no. 987, 440–442. On October 4, 1335, Benedict XII convened a group of masters to examine the question of the beatific vision. Cf. CUP 2, no. 995, 453–454. Benedict XII defined the matter on January 29, 1336 in the constitution, Benedictus Deus. Cf. Compendium of creeds, definitions, and declarations on matters of faith and morals. Enchiridion symbolorum definitionum et declarationum de rebus fidei et morum. English and Latin. 43 ed. Edited by H. Denzinger, P. Hünermann, H. Hoping, R. L. Fastiggi, and A. E. Nash. (San Francisco, 2012), no. 1000–1002, 302–303. The literature on the beatific vision is large. For a recent study on this issue, consult Christian Trottmann, La vision béatifique: Des disputes scolastiques à sa définition par Benoît XII, Bibliotheque des Ecoles francaises d’Athenes et de Rome 289 (Rome, 1995). Also see Decima Douie, “John XXII and the Beatific Vision,” in Dominican Studies 3 (1950): 154–174. 34  D’Ailly, Apologia, 1.2.80. “Item, nec Papa, nec Doctores Juris Canonici, si non sint Theologi, circa ea quae sunt fidei aliquid Catholice discutiunt, vel authentice determinant sine Theologorum doctrinali determinatione praevia, cum Papa in haeresum condemnatione consueverit reddere Theologicam rationem.” 35  X 5.7.7. “Mandamus, quatenus convocatis magistris Parisiensium et Remensium et aliarum circumpositarum civitatum, auctoritate nostra sub anathemate interdicas, ne

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the Clementines (Clem. 5.3.3) – that he spoke only as a mere canonist; he admitted his lack of knowledge in theology, honored his teacher, Johannes de Parma, OP, and thus recognized the primacy of the theologians in matters of theology. Indeed, d’Ailly held that the canonists erred when they failed to consult the theologians before opining on theological matters.36 Thus, without stating so explicitly, d’Ailly implied that the judicial determination of a bishop or pope was dependent upon and, essentially, impossible without first seeking the doctrinal determination of the doctors of theology. D’Ailly went so far as to claim that even one master opining alone could pronounce on doctrine in the presence of canonists, bishops, and popes who were themselves untrained in theology.37 Hence, the doctrinal determination of the entire faculty of theology was, by extension, even more secure and reputable.38 In his fourth conclusion, d’Ailly expanded on the nature of the masters and their doctrinal authority, observing that they could condemn propositions independently or jointly with the bishop. He based this conclusion, in part, on Per hoc, (VI 5.2.17) which permitted the bishop and the inquisitor to proceed either independently or jointly in cases of heresy; and he argued by analogy that both the faculty of theology and the bishop could act both individually and together to condemn heretical errors.39 D’Ailly provided several examples quis de cetero audeat dicere, Christum non esse aliquid secundum quod homo, quia sicut Christus verus est Deus, ita verus est homo.” 36  D’Ailly, Apologia, 1.2.80. D’Ailly stated: “In talibus autem rationibus Theologicis alii non Theologi quamvis in Jure Canonico peritissimi in Glossis et tractatibus suis, a Doctoribus Theologis mendicant, sicut patet de Johanne Andreae, in multis locis, et specialiter in cap. Ad nostrum: de haereticus in Clementina. Et quando aliter faciunt, eos errare contingit.”: For the commentary by Johannes Andreae, consult CIC 3:273, Clem. 5.3.3, s.v. Primo videlicet: “Item puto dicere quod in declarandis infrascriptis erroribus loquar apertius mere canonista: quia in sacra pagina licet modicum studui sub ipso excellentissimo doctore magistro Ioan. de Parma ordinis Praedicatorum, per cuius doctrinam Deo duce ista clarescent: hoc dixi, ut prolixitati parcatur.” 37  D’Ailly, Apologia, 1.2.80. “Et ideo patet, quia ad Doctores Facultatis Theologiae, imo ad unum Doctorem solum, ut praetactum est, potest pertinere errores in fide doctrinaliter condemnare.” 38  Ibid. “Quare doctrinalis condemnatio praedicta per totam Facultatem concorditer facta multum debet reputari.” 39  Ibid., 1.2.78. “Quarta ergo conclusion est, quod Ad dictum Episcopum et Facultatem Theologiae pertinent, non solum conjunctim, sed divisim, modis praedictis assertiones haereticas aut erroneas condemnare, licet tamen quandoque rationabiliter consueverint in hujusmodi condemnatione conjunctim procedere.  Prima pars satis patet ex praedictis, et etiam apparet argumento a simili, ex cap. Per hoc: Extra: De haereticis, lib. 6, ubi dicitur, quod per ipsos Episcopos et inquisitores de eodem facto fidei procedi potest conjunctim, vel divisim.”

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illustrating the cooperation between the bishop and the masters in dealing with heresy.40 D’Ailly made sure to point out that the protestatio, or prohibition not to teach any doctrines that had been condemned at Paris, was in fact formulated with the participation of both the bishop and the masters of theology. Being experts in theology, the theological masters frequently worked together jointly with the bishop when he consulted them in questions of heresy, that is, doctrinaliter. D’Ailly further highlighted their role in this regard based on the generally accepted interpretation of Ad abolendam. Ad abolendam required the bishop to seek the counsel of his clerics, which, according to d’Ailly, included the masters of theology.41 D’Ailly stood on firm ground in making this assertion. The masters as a body had been consulted in difficult cases since the first instance of heresy tried at Paris, the case of the Amalricians.42 D’Ailly also referenced the condemnation of 1277 as a further example. Hence, when the bishop took the counsel of his clerics in matters of heresy, the future chancellor understood these clerics to include the doctors of theology as well.43 In his fourth conclusion, d’Ailly did not provide any examples illustrating the independent action of the faculty in cases of heresy. However, in his fifth conclusion, as previously noted, d’Ailly held that the faculty of theology could act independently of the bishop both doctrinally, and in some respect, judicially, to condemn any heretical assertions put forth by one of its members.44 In championing the independence of the faculty and its right to act judicially with respect to its own members, the future chancellor based his claim on three sources: 1) first, by the power granted to the faculty and its members; 2) second, as a result of observed custom; and 3) third, by reason of public utility.45 D’Ailly began by placing his argument on the sound foundation of papal privileges that had been conceded to the university over time. In his first proof, he argued that these privileges created a political order within the university. As a consequence of this political order, the university – and the faculty of 40  Cf. Thijssen, Censure and Heresy, 108. 41  Ibid. “[E]t condemnatio conjunctim facta, est rationabilis et juri consona juxta cap. Ad abolendam: Extra: De haereticis: ubi dicitur, quod Episcopi per Dioceses suas cum consilio Clericorum debent haereticos judicare: quod maxime de Clericis Theologicis est intelligendum, cum ad eos maxime pertineat cognitio fidei et Catholicarum veritatum.” 42  For a recent study of the Amalricians, see J. M. M. H. Thijssen, “Master Amalric and the Amalricians: Inquisitorial Procedure and the Suppression of Heresy at the University of Paris,” Speculum 71 (1996), 43–65. 43  For d’Ailly’s discussion of this subject, see his Apologia, 1.2.77–78. 44  For the text of the fifth conclusion, see above page 4, and footnote 11. 45  D’Ailly, Apologia, 1.2.78. “[E]t haec conclusio probatur ex triplici radice. Primo ex concessa eis potestate, 2o. ex observata consuetudine, 3o. ex publica utilitate.”

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theology no less – exercised a judicial authority over the sworn bachelors and masters – who were, in effect, subjects of the university and of their respective faculties. This judicial authority derived from the oaths taken by the bachelors and masters and allowed the faculty of theology to impose obedience to its statutes under the pain of certain punishments.46 D’Ailly, however, was no mere theorist, advancing grandiose claims without proof or limitation. He cited the papal privileges Quotiens pro communi utilitate, of Innocent IV and Quasi lignum vitae of Alexander IV. Both of these privileges, he argued, granted the university and its faculties the necessary judiciary power in respect to those matters which concern scholastics, that is, members of the university community.47

The Arguments from Papal Privilege and Human Law

Given that d’Ailly cited specific privileges of the university, it is worth asking whether these laws, in fact, supported the claims that he was making. D’Ailly’s use and citation of the papal privilege Quotiens is of special importance. Innocent IV issued the privilege on March 2, 1247. The privilege, addressed to the doctors and corporation of scholars, specifically recognized the right of the university to appoint certain of its members to draft statutes and enforce punishments.48 In fact, d’Ailly’s text and that of Quotiens are so close in wording that d’Ailly probably quoted the decretal from memory, or merely altered it slightly so that it fit grammatically into the text of his Apologia.

46  Ibid. “Prima ergo probatio in concessa potestate, quia ex privilegiis a Sede Apostolica, seu a summis pontificibus concessis, Universitatis Parisiensis et quaelibet quatuor Facultatem ejusdem, et non minus Facultas Theologiae, habet quemdam politicum Ordinem ad sua singularia Supposita, et per consequens per quamdam judiciariam potestatem Magistros et Baccalaureos sic juratos, tanquam eis subjectos judicialiter astringunt, ut statuis suis et ordinationibus, quae utilitati et honori suo congruere noscuntur, obediant, et sub certa poena et juramentis interpositis inviolabiter observent.” 47  Ibid. “[P]rout haec omnia clare patent ex privilegio Innocenti, quod incipit: Quotie[n]s pro communi ultilitate: et ex privilegio Alexandri, quae incipit: Quasi lignum vitae. Et horum privilegiorum judiciaria potestate maxime uti debent in iis, quae Scholasticos concernunt. 48  CUP 1, no. 169, 199. “Cum igitur sicut accepimus quidam ex vobis ad tractanda negotia Universitatis vestre communiter deputati statuta quedam, ordinationes et alia, que utilitati et honori vestro congrue noscuntur, certa pena et juramentis interpositis decreverint observanda.”

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Two points regarding d’Ailly’s analysis of this decretal deserve comment. First, Innocent did not address the decretal specifically to any particular faculty but, instead “to the beloved sons, the doctors and the corporation of scholars at Paris.” Consequently, d’Ailly used the papal bull to show that the theological faculty of theology acquired jurisdiction. Given the general nature of the bull’s wording, d’Ailly’s application of the bull to the theological faculty in particular is consistent with evidence. By 1247, the structure of the university had developed to a state of near maturity, with the individual faculties functioning as distinct structures within the overall corporation. Moreover, Innocent would have been aware that various faculties existed at Paris and he could have addressed his letter individually to any of these had he wished to limit this grant of jurisdiction to any one group of masters or doctors. Alternatively, he could also have done so in the body of the letter, which he did not.49 The timing of the privilege is also significant. Innocent issued the decree in 1247 and reissued it in 1254. This reissuance occurred after the masters had written their open letter to all of Christendom, airing their grievances against the mendicants and recounting their injuries at the hands of the friars. Whether Innocent repromulgated this decree in direct response to their grievances is not wholly clear. What is clear is that the decree conferred the right to make statutes and impose punishments. Interestingly, in making their case, the masters relied in part upon the 1252 statute legislated by the theological faculty alone. Hence, Innocent’s republication of Quotiens seemed, at least implicitly, to confirm the right of the theological faculty to enact legislation on its own initiative apart from the other faculties. Second, d’Ailly used the decretal to justify the judiciary power of the faculty. Again, his interpretation seems on target given the author of the decretal. In his student days, Innocent IV had remarked that jurisdiction included the right to impose punishments, and he specifically included that power in his privilege.50 Hence, Quotiens guaranteed the right of the faculty to impose sentences judicialiter. 49  Many of the earlier papal privileges that also applied to all the faculties, such as Parens scientiarum, Noverint, and Sicut expedire were addressed only generally to the doctors and corporation of scholars at Paris, or with words to that effect. Furthermore, even in these texts which were written often before the individual faculties had been fully formed, the authors included specific regulations with respect to each discipline when they deemed it appropriate, such as in the complicated legislation regarding the granting of the license to teach. Hence, it seems only reasonable that Innocent’s privilege, precisely because it is worded in a general way, imparted jurisdictional authority to all the faculties at Paris – including the theological faculty. 50  See the discussion at page 139, footnote 27.

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Apart from Quotiens, d’Ailly also cited Quasi lignum vitae issued by Alexander IV in 1255.51 At first blush, d’Ailly’s reliance on this decretal seems questionable. After all, in contrast to Innocent IV, who appeared to support the secular masters over the mendicants, Alexander seemed to turn against the seculars in favor of the mendicants. In Quasi lignum vitae, Alexander effectively modified or annulled the statute enacted by the faculty against the mendicants. Hence, it would appear that the decretal did not support the authority of the masters to legislate for themselves. However, Quasi lignum vitae upheld the right of the faculty to enact statutes in accordance with Parens scientiarum. Indeed, there is a certain amount of irony in the fact that d’Ailly, a secular, referred to this decree which, historically, favored the mendicants over the seculars. Nevertheless, it is important to keep in mind that d’Ailly had already recognized and accepted the inferior and subordinate position of the faculty with respect to the papacy. Thus, on a theoretical level, at least, he did not have any problem with the papacy’s ability either to overrule the faculty or to modify or annul its statutes. Moreover, while it is true that Alexander annulled the statutes recently enacted by the faculty, at the same time, the pope still recognized and validated the overall right of the faculty to enact statutes and impose punishments.52 D’Ailly also made reference to the decretal Per hoc which permitted the bishop and the inquisitor to proceed either separately or together.53 Yet, his argument, from analogy, that the faculty could proceed independently of the bishop, just as the bishop and the inquisitor could proceed independently of each other – while probable – is not clearly substantiated. That d’Ailly extended the application of this decretal to the university setting is not unusual. Canonists often glossed decretals to give them wider application than for the initial circumstances in which they originated. However, neither the ordinary gloss nor the commentary on the Liber sextus of Johannes Andreae provides much guidance in determining the relevance of d’Ailly’s interpretation and application of this text. Hence, on balance, although d’Ailly’s application of Per hoc is not contradicted by the sources, Quotiens and Quasi lignum vitae offered greater support for his position. 51  CUP 1, no. 247, 279–285. On the application of this decretal to the theological faculty, see above page 64, footnote 70. 52  CUP 1, no. 247, 281. “Et hec ordinastis et statuistis sub pena, quam infligere potestis inviolabiter observanda.” Alexander’s use of the word ‘potestis’ indicates his recognition of their capacity to enact statutes. In this instance, Alexander was referring to the statute requiring the bachelors and masters of Paris to uphold the statutes of the university. Cf. CUP 1, no. 219, 242–244, at 242. 53  The text of Per hoc may be found at VI 5.2.17.

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The Argument from Divine Law

Apart from papal privilege and human law, d’Ailly also claimed that the authority of the faculty derived from divine law. D’Ailly’s arguments from divine law may have reflected the sense of inflated self-importance which the faculty of theology as a whole must have begun to feel, as the prestige of the university increased vis a vis the papacy during the Schism. Unfortunately, claims based on divine law are generally beyond the analysis of the historian and provide little useful evidence to evaluate the merits of the Apologia. Nevertheless, although d’Ailly also invoked divine law, practically speaking, it was human law and papal privilege that gave the faculty the right to censure wayward scholars who were subject to the faculty by virtue of their respective oaths.54

The Argument from Custom

Human law and papal privilege were buttressed by another powerful element, namely, custom. In contrast to modern legal systems in which custom plays little to no role in the development of the law, custom, in the medieval period, remained an important component of the legal system. Consequently, like his argument from law and papal privilege, d’Ailly’s argument based on custom, placed him on solid ground. At Paris the many precedents of correction enacted by the corporation against its members illustrated the long-standing authority of the faculty and confirmed its jurisdiction. D’Ailly cited a specific example of the customary practice of censure at Paris. The future chancellor referred to the case of Denis Foulechat and relied upon a letter of Urban V dated December 23, 1368, that was addressed to Jean de Dormans, the cardinal delegated to handle the matter.55 54  Ibid., 1.2.78 “Ergo dicta Facultas partim ex privilegio, partim ex jure Divino et humano, habet potestatem, ut assertiones pro eam sic doctrinaliter condemnatas cogat judicialiter sub certa poena et vigore praestiti juramenti publice in actibus scholasticis revocari, quando scilicet per Magistros vel Baccalaureos eidem juratos assertiones hujusmodi dogmatizare contigerit.” 55  The full text of the papal bull may be found in d’Argentré, Collectio judiciorum, 1.1:382– 384. The heading in d’Argentré’s work gives the mistaken impression that the date of the letter is 1363. An edited version of the bull with proper dating is supplied in Urban V, Lettres Communes, analyses d’apres les registres dits d’Avignon et du Vatican, 12 vols., ed. Ecole Francaise de Rome and M. H. Laurent (Paris, 1954–), no. 24280, 7:258–259. An additional copy may be found in: Cesare Baronio, Annales ecclesiastici, ed. Odorico Rinaldi et al., vol. 26, 1356–1396 (Barri-Ducis, 1880), 158–159, beginning with the words: “Dilecto

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D’Ailly provided a detailed analysis the text.56 He began by citing the pontiff’s letter as proof that Foulechat had been denounced to the chancellor and masters; that in response, they had investigated the charges; and that, consequently, they had prohibited him from lecturing until he performed the required revocation.57 D’Ailly further paid careful attention to the wording of the Urban’s letter. In particular, he noted that Urban V had described the chancellor and masters as acting “ ‘suum in hac parte debitum exequentes.’ ” Based on this wording, he concluded that the chancellor and masters acted ex officio, that is, with ordinary jurisdiction.58 Let us recall that ordinary jurisdiction, unlike delegated jurisdiction, attached to the office not the person, and allowed the holder to exercise jurisdiction ex officio. It also included the right to enforce punishment. filio Johanni S.R.E. presbytero cardinali, olim episcopo Belvacensi.” D’Ailly’s major references to the bull may be found in his Apologia, 1.2.87–88. 56  Ibid. Note his reference to the prior practice in the case of Denis Foulechat. The preamble states: “CONFIRMATIO PRAEDICTORUM. Unde, ad confirmationem omnium praemissorum [conclusions] et ad ostendendum specialiter, qualiter alias in simili, imo longe minori casu similiter factum est, subjiciendae sunt hic aliquae clausulae ex quadam bulla Domini Urbani V, transsumptae, quae sic incipit, ‘Urbanus Episcopus servus servorum Dei, Dilecto Filio Johanni sanctae Romana Ecclesiae Presbytero Cardinali, olim Episcopo Belluacensi, salutem etc.’ ” 57  Ibid. “Prima ergo, clausula ad propositum favens est narrationis principium, quia, facta narratione qualiter olim Dionysius Foulechat, Ordinis Fratrum Minorum, Professor tunc in Studio Parisiensi, et in suo principio sententiarum multas conclusiones tenuit minus sanas etc. Ibidem sequitur: ‘Super quibus, ipso Dionysio, dilectis filiis Cancellario et Magistris in Theologia Studii Praedicti delato, ipsi Cancellarius et Magistri, suum in hac parte debitum exequentes, super hoc congregati quam pluries (quia eis constitit, tum ex inspectione dicti principii per ipsum Dionysium propria manu scripti, tum etiam per informationes et probationes multimodas super hoc ab eis rite praehabitas, quod Dionysius praedictus conclusiones tenuerat antedictas) prefati Cancellarius et Magistri, conclusionibus ipsis cum exacta diligentia maturoque consilio recensitis, earum aliquas haereticae nequitiae fermento infectas, nonnullas vero Ecclesiastica determinationi contrarias, et multas earum scandali causativas concorditer decreverunt.’ Et consequenter narratur, qualiter eidem inhibuerunt et interdixerunt, ne legendi officium exerceret. Et postea dicitur qualiter condemnaverunt eumdem ad earumdem conclusionum revocationem.” 58  Ibid. “Ex quibus patet quin immo ex illo verbo, ‘suum in hac parte debitum exequentes’ quod Magistris in Theologia, ‘ex debito officii’ incumbit doctrinaliter cognoscere de conclusionibus contra fidem. 2o. Quod non solum doctrinaliter, sed etiam judicialiter, scilicet subjectos suos tales conclusiones asserentes per inhibitionem lecturae puniendo, et ipsos ad revocationem sententialiter condemnando.”

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In a similar way, the initial letter of the chancellor, Grimerius Bonifaci, to Urban V that had occasioned the pope’s involvement in this matter also validated d’Ailly’s view of the faculty’s ex officio jurisdiction. Writing on behalf of himself and of the faculty of theology, Grimerius Bonifaci declared that it was ordered to the doctors of sacred scripture to act as good cultivators of the vineyard of the Lord; it was incumbent upon them ex officio to cut off the deadly twigs of false doctrine that tasted of heresy so that in the studium of Paris, chiefly, might grow grapes sweet with heavenly doctrine.59 Moreover, in his letter to the pope, Grimerius emphasized both that the content of the propositions had been condemned and also that certain punishments had been imposed upon Foulechat as a result. The faculty made Foulechat promise to revoke publicly his unsound teachings and, further, forbade him to exercise the office of teaching until he had fulfilled this promise.60 In his letter to the pope, Grimerius made clear that he and the faculty acted with ordinary jurisdiction that included the right to exercise both the key of knowledge as well as the key of power. However, in speaking of the ex officio jurisdiction exercised by the doctors of the sacred page (in this case the theological masters at Paris), Grimerius began by stating the scope of their jurisdiction as being within the confines of the studium of Paris.61 The full text of his letter further reveals that he intended to limit the extent of their jurisdictional authority more precisely to the theological faculty alone. Thus, the letter of Grimerius Bonifaci written some twenty years earlier provides confirmation of d’Ailly’s assertion that the ability of the faculty to act judicialiter was limited to its own membership. What is perhaps even more revealing and important is that Urban’s letter confirmed the faculty’s perception of itself as acting ex officio. 59  CUP 3, no. 1299, 120–124, at 120. “Universis presentes litteras inspecturis, Grimerius Bonifaci, cancellarius eccl. Paris., et facultas theologie Universitatis studii Parisiensis, salutem in Domino sempiternam. Quoniam sacre scripture doctores sunt in ecclesia Dei ad hoc specialiter ordinati ut, tanquam boni cultores vinee Domini, sint cura pervigili solliciti ne in ea fructices prave doctrine pululare permittant; unde et eisdem incombit ex officio falsi dogmatis moribunda sarmenta prescindere, errorum evellere spinas, ac heresim, adulterinas plantationes, seu spuria vitulamina funditus exstirpare, quatenus . . . ex toto vinea Domini potissime in Parisiensi studio uvas proferre valeat dulcedine doctrine celestis uberes et refertas.” 60  See above page 173, footnote 23. 61  Ibid., 120. Although Grimerius initially spoke of the duty of the theologians to act ex officio chiefly in the studium of Paris, he clearly had the theological faculty in mind, for his letter to the pontiff continues, noting that: “on account of [the duty to act ex officio] our predecessors in theology at Paris wisely decreed, among other things” The text reads: “ea propter predecessores nostri theologi Parisienses olim salubriter inter cetera statuerunt.”

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Based on the custom of the university, d’Ailly also sought the return of Monteson to Paris.62 D’Ailly appealed again to the case of Denis Foulechat as precedent and especially to the decision of Urban V to remit the case to Paris.63 Urban forced Foulechat to perform the public revocation in the presence of the theological faculty at Paris – something that the friar had attempted to avoid. In doing so, Urban thereby respected the right of the faculty to censure one of its own members and to enforce punishment. In essence, the pontiff acknowledged the right of the faculty to act judicialiter in a limited fashion. As a matter of historical fact, Foulechat did, indeed, return to Paris and, at last, performed the public revocation imposed by the faculty.64 Foulechat’s return to Paris at the command of Urban V and d’Ailly’s request for the return of Monteson thereto as well both illustrate the playing out of contemporary legislation and practice. In his commentary on the decretal Cum in ecclesia, Johannes Andreae noted that the casus stated that, when an appellant in reality did not appeal from an injury or from an unjust sentence, the judge of the appeal should remit the case to the former judge.65 In effect, Johannes, following the casus, reiterated that, when the grounds of an appeal were judged invalid, the case was remanded to the lower court. The discussion by Hostiensis on this topic further clarified that, in cases of appeal to the pope, the procedure remained the same. The pope was the ordinary of all. As such, he received complaints or appeals from all. Nevertheless, if the appeal to the papacy was deemed unjust or invalid, the case was sent back to the lower court. Hostiensis even remarked that this action represented the common practice

62  D’Ailly, Apologia, I.2.86. “Quintus articulus est, quod etiam dicta Universitas petit rationabiliter et supplicat, ut causa ejusmodi Parisius terminanda, et dictus frater ibidem puniendus remittantur. . . . [E]t quod sine prolixis litium ambagibus et absque processibus diuturnis, qui nobis studioque nostro nocentissimi sunt, praesens terminet negotium, ad nos predictum Johannem de Montesono remittendo.” 63  Ibid., 86–88. “Primo ratio, quia sic alias in simili casu factum est, scilicet per Dominum Urbanum Papam V, ut infra dicetur.” Further on, d’Ailly quoted the letter of Urban V as follows: ‘Quarta clausula est, quia ibi sequitur: ‘Attendentes igitur, quod hujusmodi negotium, seu causa, attentis circumstantiis universis commodius poterit tractari Parisius, quam in Romana Curia.’ . . . Ex quibus patet qualiter sit in hoc negotio consimiliter procedendum: nam exemplum hujus sanctissimi Pontificis Summi est non immerito a suis posteris imitandum.” 64  CUP 3, no. 1352, 185–186. 65  Johannes Andreae, Commentaria, X 2.28.38, no. 1, f. 261, s.v. Casus: “Iudex appellationis remittit causam ad priorem iudicem, si non constat sibi a gravamine, vel iniusta sententia appellatum.”

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with respect to all judges, not just the pope.66 In the case of Foulechat, Urban V clearly felt by 1369 that the friar’s appeal lacked merit and returned the case to the theological faculty at Paris. In reality, Urban did nothing new or unusual in sending the Foulechat case back to Paris for conclusion. When Foulechat first appealed his case to the Holy See, the court at Avignon also supported the judgment of the Parisian masters. The members present advised Foulechat that his appeal lacked merit and urged him to return to Paris, to make up with the chancellor, and to perform at Paris in the presence of the chancellor and masters the public revocation that they had imposed upon him. The commission also required the friar while in Avignon to revoke his unsound teachings in a prepared statement that was identical in wording to the text drawn up by the chancellor and masters at Paris. Hence, through all of its actions, the Avignon commission respected the corporate autonomy of the masters and their collective ability to determine the content of unsound teaching and to exercise coercive power over their own members. The Avignon commission thus recognized and upheld the right of the faculty to punish one of its own members in a manner that exemplified lesser jurisdiction. The evidence presented in the form of Urban’s bull to the University provided strong support for d’Ailly’s belief that the customary practice at Paris justified both the doctrinal and limited penal authority of the faculty. In addition, although d’Ailly did not use or did not have access to other evidence relating to the Foulechat case, such as the letter of Grimerius Bonifaci to the pope and the report of the Avignon commission, these independent sources further corroborate the position articulated in the Apologia. D’Ailly’s use of the Foulechat case in support of the faculty’s treatment of Monteson also highlights another aspect of the two cases. Along side custom at Paris, d’Ailly invoked both public and private utility as reasons justifying both the faculty’s doctrinal and judicial authority over its members.67 Custom and 66  Hostiensis, Commentaria, X. 2.28.38, no. 4, f. 180rb, s.v. sine causa rationabili: “Papa, qui ordinarius est cunctorum, nam per querelam adiri potest . . . sed si iniuste ad Papam fuerit appellatum causam remittit, quia hoc omnibus iudicibus est commune.” 67  D’Ailly, Apologia, 1.2.79. “Constat autem, quod non solum esset contra privatam utilitatem singulorum Magistrorum et Baccalaureorum Theologiae Facultatis, sed etiam contra totius Christianitatis utilitatem publicam, si Magistri et Baccalaurei hujusmodi, qui inquisitioni Catholicae veritatis in actibus Scholasticis insistunt, quandocumque eos in hujusmodi inquisitione errare contingeret, essent ad judicium ordinarium Episcoporum convocandi, et ibi solum de suis erroribus et exercitatione scholastica, quae est pro fidei defensione et totius Ecclesiae utilitate publica instituta retraherentur, cum tamen ad hoc debeant provocari. Et sequitur quod sit not solum privatae, sed publicae utilitati consonum, ut prius per suam Facultatem doctrinaliter corrigantur, et per eam si opus sit, ad suorum errorum emendationem judicialiter compellantur.”

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public utility were, no doubt, closely linked, with the demands of public utility serving to foster the development of custom. In short, given the nature of speculative theology at the university, it would have been be both counterproductive and injurious to both the private and public good if every case of suspect teaching had to be brought before the bishop’s court. Such an approach would, surely, have unnecessarily clogged the system. As a remedy, d’Ailly noted that cases were first tried within the faculty; only subsequently, if this approach failed, did the faculty involve the episcopal court.

The Role of Custom in the Legal System

Because d’Ailly’s appealed extensively to customary practice, the role of custom in the legal system should also be described. Hostiensis provided a wealth of information regarding custom in various parts of his commentary on the decretals. Hostiensis addressed the role of custom in the legal system at several different points in his Commentary. In his discussion of Cum contingit interdum (X 2.2.13) Hostiensis established two basic principles regarding custom: Custom gives ordinary jurisdiction, even to a private person; and custom and privilege were, in a legal sense, equal or comparable.68 Likewise, in his discussion of Novit ille (X 2.1.13), he made a similar observation.69 Commenting on Ex parte (X 1.4.10), Hostiensis remarked that custom and privilege were, essentially, equivalent; commenting on Cum tanto (X 1.4.11), Hostiensis expressed the likeness between custom and privilege by stating that custom and privilege concur, further citing Cum dilectus (X 1.4.8) as his source.70 Privilege, as defined by the canonists, was merely a form of private law; thus custom acted as a form of private law as well. Moreover, because Hostiensis observed that custom could give jurisdiction, even to a private person, it seems only logical that custom could grant jurisdiction to a private ecclesiastical corporation, such as the faculty of theology.

68  Hostiensis, Commentaria, X 2.2.13, nos. 3–4, f. 13v–14rb, s.v. Hi quib: “Nota quod consuetudo dat iurisdictionem ordinariam etiam privatae personae. . . .” [no. 4], s.v. Ex indulgentia: “[S]ic patet consuetudo et privilegium aequiparantur . . . [Vel consuetudine] quae etiam iurisdictionem dat.” 69  Ibid., X 2.1.13, f. 6, no. 15, s.v. vel contrarium consuetudinem: “Nota quod consuetudo parificatur privilegio et per utrumque iurisdictio datur.” 70  Ibid., X 1.4.10, f. 32A, no. 15, s.v. consuetudines: “[C]onsuetudo et privilegium aequiparentur.” Also, X 1.4.11, f. 33r, no. 14, s.v. Praescripta: “Sed consuetudo et privilegium bene concurrunt, ut supra eodem Cum dilectus (X 1.4.8).”

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Hostiensis and the canonists intended that custom, though a form of private law, should be obeyed as much as any other law. Hostiensis stated clearly in a least two places in his commentary that anyone who transgressed a custom should be punished just as someone who transgressed a law.71 Certainly, not all customs or privileges granted the holder the right to exercise jurisdiction. However, where a custom or privilege imparted jurisdiction, Hostiensis clearly envisaged that this authority included the right to exercise both knowledge and coercive power in redressing any infringements thereto.

The Territorial Scope of the Faculty’s Jurisdiction

D’Ailly demonstrated that custom, functioning as a form of law, had helped establish the authority of the faculty to act, in a limited fashion, in place of the bishop. A necessary and constitutive element of the faculty’s jurisdiction concerned the extent or scope of that jurisdiction, which both d’Ailly and Grimerius Bonifaci had limited to the theological faculty alone. However, the question arises whether, in fact, it was possible for the chancellor and the masters to exercise jurisdiction over the territory of the faculty, given that the bishop was the ordinary of the entire diocese, including the faculty. The question, in part, has already been answered affirmatively, given that Innocent IV demonstrated in his commentary on Cum non (X 3.5.15) that there could be multiple prelates in a single church within the same diocese.72 Furthermore, and fortunately, for the historian, a similar question had once also occupied the attention of the bishop of Beauvais who, in turn, had written to Innocent III for guidance. The pontiff responded to this query in 1210 via the decretal Cum contingit interdum.73 As noted above, Hostiensis glossed the decretal to show that custom could give jurisdiction. Yet, apart from under71  Hostiensis, Commentaria, X 1.4.2, no. 6, f. 29r. Hostiensis wrote: “Transgressor ipsius [consuetudinis] puniendus est sicut transgressor legis.” Hostiensis repeated this dictum at X 2.28.21, no. 1, f. 176v. 72  See above page 140, and footnote 28. 73  X 2.2.13. “Insuper postulasti, an, quum aliqui clerici deputati servitio capituli Belvacensis aut aliorum clericorum tuae diocesis super excessibus impetuntur, sint cogendi coram te, vel potius coram illis, quibus serviunt, querelantibus respondere, quum illi sibi iurisdictionem huiusmodi vendicare contendant, licet illos excommunicare non, valeant, vel alias etiam coercere. Super quo fraternitati tuae taliter respondemus, quod ad te, utpote ordinarium iudicem, de talibus debent conquerentes habere recursum . . . nisi forte hi, quibus delinquentes ipsi deserviunt, ex indulgentia vel consuetudine speciali iurisdictionem huiusmodi valeant sibi vindicare.”

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scoring the ability of custom to impart jurisdiction, the decretal, further specified who could exercise that jurisdiction. According to the decretal’s casus, some clerics who served in the chapter of Beauvais or in other capacities within the diocese had committed some offenses (excessibus).74 The bishop of Beauvais then inquired whether the accused clerics had to answer before him as the ordinary of the diocese or whether the defendants could appear before those under whom they served – even though their superiors did not possess the authority or power to excommunicate, or to issue other forms of punishment. The bishop’s query was a valid one, given that, as ordinary of the diocese, clerics were required to appear before him to answer charges. The decretal Si quis clericus (X 2.2.1) had required as much.75 Hence, the circumstances that occasioned the issuance of Cum contingit, mirrored in specific ways, the circumstances in the faculty of theology. Like the superiors of the accused, the faculty of theology did not possess the full powers of the bishop as ordinary; neither the chancellor, nor the faculty could excommunicate one of its members. And like the superiors, who were still subordinate to the bishop of Beauvais, so, too, the faculty remained subordinate to the bishop of Paris who exercised authority as ordinary of the diocese – a fact that d’Ailly himself had acknowledged. Yet, despite, these caveats, Innocent resolved the issue at hand in a manner that must have disappointed the bishop of Beauvais. The pontiff indicated that while clerics were normally brought before their bishop to answer charges, if custom permitted otherwise, they could be brought before the superiors under whom they served. Again, it is worth noting that Innocent permitted this departure from standard 74  X 2.2.13, CIC 2:552, s.v. Casus: “Aliqui clerici deputati sunt servitio capituli Belvacensis, aut servitio aliorum clericorum Belvacen. diocesis: clerici isti ad servitium deputati committunt excessus aliquos; quaesivit episcopus Belvacensis, utrum clerici isti cum impetuntur super excessibus suis, conveniendi sint coram ipso, vel potius coram illis quibus serviunt: cum illi quibus serviunt hujusmodi iurisdictionem vendicare contendant, quamvis eos non possint excomunicare, vel alias coercere. Ad hoc respondet Papa, quod coram episcopo Belvacen. tanquam ordinario conveniendi sunt, maxime super iis que in sua dioece. commisisse dicuntur, nisi forte illi quibus ipsi delinquentes deserviunt, ex indulgentia speciali vel consuetudine, vendicent sibi huiusmodi iurisdictionem. No[ta] quod privilegium et consuetudo derogant iuri communi, et in criminibus. Item solus episcopus cognoscit de criminibus in dioecesi sua commissis de iure communi, nisi consuetudo vel privilegium sit in contrarium. Item episcopus solus est ordinarius in dioecesi sua.” 75  X 2.2.1. Si quis clericus adversus clericum negotium habeat, non deserat episcopum proprium, et ad saecularia percurrat iudicia, sed prius apud ipsum actìo ventiletur, vel certe consilio eiusdem episcopi apud alios, quos utraque pars voluerit iudicìum obtinebunt. Si quìs autem praeter haec fecerit, canonicis correptionibus subìacebit.

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procedure – even though the superiors handling the case did not have the full jurisdictional powers of a bishop. In effect, these subordinate prelates could, within their domain, and under certain limited conditions, act in loco episcopo. The territorial issue also captured the attention of Hostiensis when he glossed Cum contingit and prompted him to ask whether archdeacons and other inferior prelates to the bishop could have a territory over which they exercised jurisdiction.76 In responding to this issue, Hostiensis began by stating his own opinion. “To me, it seems that, according to the common law, an archdeacon or other prelate, except the bishop, cannot be said to have a territory, nor could such a custom work, for in the same city or diocese there would be at the same time, two heads; and two heads create a monster.”77 Nevertheless, setting aside the horrid image of the two-headed monster, Hostiensis continued and recognized that some abbots had jurisdiction over a limited territory lacking a bishop.78 Then concerning archdeacons and other inferior prelates to the bishop, the bishop of Ostia admitted that these inferior prelates possessed jurisdiction based on custom; but they could exercise it only in those places in which they had customarily exercised it.79 At first, Hostiensis stated that this seemed to be no jurisdiction.80 Then, he countered that view, nuanced his solution, and drew upon the decretal Irrefragabili. The jurisdiction possessed by these prelates over their limited territory was a form of lesser jurisdiction (“iurisdictionem modicum”).81 Incorporating Irrefragabili into his discussion, Hostiensis recognized that, if the offense were serious in nature and treated criminally, then the provisions of Cum contingit interdum did not apply. In effect, Hostiensis’ remark may be interpreted in a more colloquial sense as 76  Hostiensis, Commentaria, X 2.2.13, f. 13v–14, no. 1. The rubric reads: “Archidyaconi, vel alii praelati inferiores episcopo an habeat territoriam.” 77  Ibid., f. 14, no. 1, s.v. Non valeant: “Mihi videtur, quod de iure communi archidiaconus vel alius prelatus excepto episcopo non potest dici habere territorium, nec istud consuetudo potest operari, ut in eadem civitate, vel diocesi essent insolidum duo capita, quasi monstrum.” 78  Ibid. Sunt tamen aliqui abbates habentes certam terram limitatam iurisdictioni suae subditam, alio episcopo carentem.” 79  Ibid. “de his autem, de quibus hic loquitur [i.e. inferior prelates to the bishop], dicendum est, quod sicut iurisdictionem habent de consuetudine, sic et ipsam exercere possunt in illis locis tantum, in quibus ipsam exercere consueverunt.” 80  Ibid., s.v. Cohercere: “[T]alis ergo iurisdictio nulla videtur.” 81  Ibid. “[E]x hiis evidenter patet, quod hoc quod hic dicitur et supra de offici. ordinarii, irrefragabili, (X 1.31.13) . . . et similia non possunt intellegi, si quaereretur de gravibus excessibus, et criminaliter ageretur, sed hoc est iurisdictionem modicam referendum, unde non possunt tales iubere cavere, nec in possessionem mittere.”

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meaning that archdeacons and other inferior prelates to the bishop possessed jurisdiction with a “small j” rather than a “capital J.” Hostiensis seems to have accepted only grudgingly the limited territorial jurisdiction of these lesser prelates. Yet, despite any reservations to the contrary, Hostiensis’ official position on the subordinate jurisdiction of lesser prelates agreed with, and conformed to, the principles laid out by Innocent IV in Cum nos and Irrefragabili, as noted above.82 Consequently, subordinate prelates could exercise limited jurisdictional powers within their limited territorial domains. D’Ailly explicitly claimed this limited territorial scope for the faculty of theology. Just as the bishop possessed authority over the territorial extent of his diocese, so other persons or colleges – and in this case, the faculty – possessed authority over their subjects.83 Finally, apart from the limited extent of territory belonging under the control of these inferior prelates, Hostiensis invoked the legal principle that a subject received punishment from the prelate of the place where he committed the crime.84 In his discussion of customary practice, d’Ailly effectively invoked the principle “ut ibi puniatur, ubi delictum perpetravit” when he requested the return of Monteson to Paris for judgment.85 As this discussion makes clear, d’Ailly had the backing of both legal theory and legislation in this regard. Even though, for example, both Foulechat and Monteson were exempt clerics, because they took the oath in the hand of the chancellor, and because they swore an oath to each of the theological masters upon entering the faculty, their status as exempt clergy did not prohibit the chancellor and the faculty from proceeding against them. As noted above, Innocent IV in the decretal Volentes had settled this question and, in doing so, had brought the status of exempt clergy more closely in line with this general maxim regarding jurisdiction.86 The discussion of custom presented in the sources, and in particular in the work of Hostiensis, shows that medieval customary practice existed on a par with private law. Custom imparted jurisdiction and had to be obeyed as any 82  See the discussion at page 140 and footnote 28. 83  D’Ailly, Apologia, 1.2.86. “Et sicut dictum est de Episcopis, idem dicendum est de aliis personis vel Collegiis ad hoc potestatem vel auctoritatem habentibus respectu suorum subditorum.” 84  Hostiensis, Commentaria, X 2.2.13, f. 13v–14r, no. 1, s.v. maxime: “[I]bi enim semper causa agi debet et ab illo tantum iudice puniendus est qui, ubi est et sub quo delictum commissum est.” 85  D’Ailly, Apologia, 1.2.88. “Patet qualiter dictus frater [Monteson] est Parisius remittendus et ibidem puniendus.” 86  For a discussion of the status of exempt clergy in relation to the theological faculty, see the discussion beginning above on page 50.

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other law, or the transgressor risked punishment. Furthermore, custom could give jurisdiction to private persons, and thus, by extension, seemingly to corporations as well. These jurisdictional aspects of medieval custom provide significant theoretical and legal validation of the Parisian practice of censure as described by d’Ailly in his Apologia. Overall, d’Ailly’s use and application of custom in support of his Apologia (and, thus, his views on the faculty’s jurisdiction) remained consistent with the medieval understanding of custom as expressed in the canonists. Consequently, he argued from a position of strength when he adduced examples from custom and used them to solidify his position, particularly where customary practice also had the support of canonical legislation, as in the legislation requiring the return of Foulechat’s case to Paris. Through his analysis of law and custom, d’Ailly effectively treated the theological faculty like a miniature diocese. At one point in his treatise, d’Ailly compared the faculty in its schools to the bishop in his diocese and argued that each possessed the necessary judicial authority to prohibit unsound teachings within their respective domains.87 Just as the bishop and the chapter could investigate cases of heresy and judicially prohibit unsound teachings within his diocese, so d’Ailly likewise held that the chancellor and the faculty could investigate cases of suspect teaching and judicially forbid suspect teaching within the faculty. Hence, the main difference between the authority of the bishop and that of the faculty concerned the territorial scope of the authority more so than the nature of the authority itself. D’Ailly based this practice on his fifth conclusion and on the oaths which the members of the faculty voluntarily swore, placing themselves under the jurisdiction of the faculty, citing both Roman and ecclesiastical law.88 The Roman law Est receptum (D.2.1.14) provided that someone who voluntarily placed himself under the authority of another was then subject to that individual’s authority or jurisdiction. The application of this principle to the bachelors and 87  D’Ailly, Apologia, 1.2.81. “Tertius articulus est, quod dicta Facultas in scholis suis Theologicis, et dictus Episcopus in locis suae Diocesis praemissorum errorum dogmatizationem, publicationem, aut defensionem formaliter inhibere potuerunt, ac debuerunt judicialiter prohibere.” 88  Dig. 2.1.14. Digest of Justinian, ed. T. Mommsen, Krueger, and A. Watson, 4 vols. (Philadelphia, 1985) 41. “Idem libro trigensimo nono ad edictum: Est receptum eoque iure utimur, ut si quis maior vel aequalis subiciat se iurisdictioni alterius, possit ei et adversus eum ius dici.” Ulpian, Edict book 39: It is received opinion, and we adopt the rule that if someone of higher or equal rank submits himself to the jurisdiction of another, a decision may be given for or against him. An electronic version of the text may be found at Justinian, Opera, http://www.thelatinlibrary.com/justinian.html last accessed June 23, 2015.

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masters of the faculty is clear. By virtue of their oaths, they were subject to the faculty’s jurisdiction. D’Ailly’s specific reason for referencing Cum dilectus (X 1.43.6) is less clear. Nevertheless, Cum dilectus was incorporated into the Liber extra under the rubric, De arbitris, which provides a clue. Arbiters were chosen by parties who wished to compromise rather than proceed to a formal sentence. Consequently, this choice on the part of the litigants then limited their right of appeal. As Tancred stated succinctly, although litigants could prolong a case by appealing from the sentence of a judge, appeal from the decision of an arbiter was not permitted at all.89 No doubt, d’Ailly was drawing another analogy, this time between arbiters and the masters of theology. Just as litigants freely agreed to submit to the authority of arbiters, so bachelors and masters freely submitted to the faculty of theology by virtue of their oaths. Similarly, just as the litigants agreed to accept the decision of the arbiters, so bachelors and masters accepted the jurisdiction of the faculty over them. Thus, d’Ailly’s reference to both Est receptum and Cum dilectus reinforced the judicial authority of the faculty over its members. In his sixth and final conclusion regarding the faculty’s jurisdiction, the future chancellor observed that superior judges (or popes) should not accept appeals or impede the actions of the bishop and the faculty without good cause.90 This was a way of saying that frivolous appeals should not be accepted. In this regard, long-standing practice supported d’Ailly’s conclusion.91 89  Tancred of Bologna, Libri de iudiciorum ordine, 381. “De arbitris. Sed quoniam partes volunt potius quandoque in abitros compromittere, quam iudicis subire sententiam, eo quod a sententia potest quilibet appellare, et sic negotium prorogare, ut C.2, q.6, c. non ita. 18, [C.2, q.6, c.18] sed de arbitris minime, ut. Cod. e. t.2, 56, l. 1 [Cod. 2.56(55).1].” The Latin text of the Codex reads: “Ex sententia arbitri ex compromisso iure perfecto aditi appellari non posse saepe rescriptum est, quia nec iudicati actio inde praestari potest et ob hoc invicem poena promittitur, ut metu eius a placitis non recedatur. sed si ultra diem compromisso comprehensum iudicatum est, sententia nulla est, nec ullam poenam committit qui ei non paruerit. * ant. a. nepotianae.” For the online Latin text, consult http:// www.thelatinlibrary.com/justinian/codex2.shtml last accessed June 24, 2015.  Note that the Roman law included only one exception: If the date for issuing the compromise had passed, then the decision of the arbiter was invalid. Whether Tancred accepted this provision is unclear, but it does not alter the general principle that appeal from the decision of an arbiter was impermissible. This principle may also serve to explain why appeals from the decision of the faculty were rare. 90  D’Ailly, Apologia, 1.2.79. “Sexta Conclusio est quod Ad Superiorem Judicem pertinet processum per dictos Episcopum et Facultatem Theologiae factum nec sine magna et notabili causa favorabiliter impedere, nec appellationi contra eos in causa interjecta sine matura deliberatione et praevia informatione deferre.” 91  For more on this issue, see the discussion above at page 47, footnote 18.

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D’Ailly’s Response to Monteson

Once d’Ailly had set forth the theoretical framework for the faculty’s jurisdiction, he then proceeded to respond to Monteson’s charges, particularly the friar’s claim that only the Holy See had the right to judge or condemn his teachings. Given the overall legal and customary support for d’Ailly’s position that the faculty acted both doctrinally, and in some way, judicially, to condemn heresy, his ultimate resolution of the case against Monteson deserves some comment and explanation. As Thijssen has observed, one might have expected d’Ailly to defend the rights of the bishop and faculty to condemn Monteson’s theses.92 However, According to Thijssen’s interpretation, d’Ailly’s resolution proceeded in a different direction. As Thijssen observed, d’Ailly’s solution hinged on the distinction between a judicial condemnation and. a prohibition of heresy. It was one thing to condemn a proposition judicially, but quite another to prohibit its dissemination. In the Monteson case, the faculty had merely prohibited the dissemination his suspect statements. According to d’Ailly, the theological masters had only defined the matter scholastically, or doctrinally, and had not imposed any punishment, such as removal or suspension (privationis vel suspensionis) from scholastic acts. In the case that the master (Monteson) did not wish to obey, the faculty had only prohibited his teachings. The bishop, as well, had acted in a similar fashion. He did not officially determine that the propositions were false, erroneous, or heretical, but only prohibited the publication, teaching, and preaching of the propositions that Monteson had put forth in his vesperiae and resumpta lectures.93 92  Thijssen, Censure and Heresy, 109–110. Thijssen alluded to the various arguments put forth by d’Ailly; he referenced d’Ailly’s Apologia, but did not quote directly from it. 93  D’Ailly, Apologia, 1.2.83. “Ad tertium objectum respondetur primo, quod nec Facultas Theologiae nec Episcopus praedicti, conclusiones praemissas sententialiter, seu judicialiter, damnaverunt, sed solum earum publicationem et dogmatizationem inhibuerunt. Primum probatur de Facultate Theologiae, quia in principio schedulae Magistrorum dicitur quod ipsi diffinierunt et declaraverunt, quantum in eis est, propositiones praedictas inferius annotattas, fore publice denuntiandas in scholis et sermonibus, sub forma inferius contenta, in casu quod dictus Magister nollet parere mandatis ejusdem Facultatis. Ex quibus patet, quod circa dictas propositiones solum diffinierunt et declaverunt scholastice et doctrinaliter: quod notatur per hoc, quod dicitur, quantum in eis est: quia talis scholastica et doctrinalis definitio maxime ad eos pertinet. Et hoc etiam probatur, quia in dicta definitione non apponitur judicialis poena, scilicet privationis, vel suspensionis ab actibus scholasticis, quod facere poterant, sed solum dicitur quod in casu, quo dictus Magister nollet parere eorum mandatis, propositiones essent publice inhibendae.

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On the surface, then, d’Ailly appears to have contradicted himself. By stating that the faculty acted only doctrinally, and by stating that the faculty did not include a punishment, such as privation or suspension, against the friar, d’Ailly seemed to weaken his own position. This is the sense in which Thijssen interpreted d’Ailly’s statement; and, therefore, concluded that the censure of members was a form of private, fraternal correction.94 A more careful reading of the passage, however, suggests otherwise. Above all, one must recognize that d’Ailly acted like a good prosecutor. He underscored the evidence that supported his position and downplayed, or minimized, any facts or evidence that could weaken it. In this way, d’Ailly made use of all arguments available to him. Given that Monteson had based his appeal on the premise that only the papacy could judge him and, thus, that neither the faculty nor the bishop had the authority to do so, d’Ailly responded accordingly. Writing on behalf of the university, d’Ailly undercut the very basis of the friar’s appeal by indicating that neither the bishop, nor the faculty had pronounced a judicial sentence against him, as the friar had claimed. Hence, the basis of Monteson’s appeal was, essentially, invalid. Thijssen acknowledged that d’Ailly employed this tactic as part of his strategy to discredit the friar’s appeal. But, instead of recognizing this argument as prosecutorial tactic, Thijssen accepted it at face value and further, interpreted the statement as an indication that the faculty acted, as a general rule, only with fraternal correction, and not in any judicial fashion.95 Yet, in reality, even if it is true that the faculty did not impose a punishment of suspension or privation in the Monteson case, d’Ailly still claimed that the faculty possessed the authority to do so. (“quod facere poterant”). The fact that the faculty chose not to exercise its authority does not mean that it did not possess jurisdiction over Monteson or that d’Ailly doubted its ability to do so. Similarly, even though d’Ailly acknowledged that the faculty only forbade the dissemination of the friar’s teachings (upon his disobedience), this prohibition was founded upon the requirement that the friar obey the faculty’s directives, which included the revocation of his suspect teachings. Hence, this fact also implies that the faculty still exercised some coercive jurisdiction over him – despite his disobedience. Secundum probatur, scilicet de Episcopo, quia in ejus sententia non pronunciat, vel determinat dictas conclusiones esse falsas, haereticas, et erroneas, sicut dictus Frater mendose conqueritur, sed dicit, ordinamus, praecipimus et mandamus, quatenus nulli de caetero praesumant dictas propositiones xiiii. publicare, praedicare,dogmatizare, etc.” 94  Thijssen, Censure and Heresy, 110. Thijssen cited d’Ailly, Apologia, 1.2.78, and 80–82. These passages will be dealt with below in the chapters on fraternal correction. 95  Thijssen, in Censure and Heresy, 110.

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D’Ailly stated that the faculty condemned the propositions doctrinally but did not condemn them judicially. Nor, in fact, he noted, did the bishop. Here, d’Ailly was being both consistent and cautious. In his treatise, the future chancellor claimed that the faculty exercised jurisdiction “in aliquo modo” – in some way over sworn bachelors and masters. Thus, d’Ailly was not claiming that the faculty possessed the full authority of the pope to determine sententialiter and judicialiter regarding dubious points of doctrine, nor was he claiming that the faculty possessed the same level of authority and jurisdiction as the local the bishop to condemn matters of heresy secundum quid. But he did claim that the faculty participated in this jurisdiction both doctrinally, and to a limited extent, judicially, by exercising coercive authority over the sworn bachelors and masters, that is, by imposing punishments and by limiting what was taught under pain of punishment. Similarly, with respect to the bishop, no one would doubt his authority to condemn, both doctrinally and judicially, instances of heresy within his diocese – even if in a particular case, he exercised judicial restraint. This restraint highlights an important point regarding the Monteson case. From a doctrinal point of view, the Monteson case concerned the dogma of the Immaculate Conception. In contrast to other topics, such as the Absolute Poverty of Christ and the Apostles, where a doctrinal determination had been made, no such determination existed with respect to the Immaculate Conception. This fact, along with the role of the papacy as the final arbiter of orthodoxy, may explain why the bishop of Paris chose merely to prohibit Monteson’s teachings rather than to condemn them outright.

Evaluation of d’Ailly’s Argument

The analysis of d’Ailly’s Tractatus, or Apologia, has served to confirm his thesis that the faculty of theology acted both doctrinaliter and, to a limited extent, judicialiter, in the censure of sworn members of the faculty. A review of d’Ailly’s sources indicates that he grounded his arguments in a firm foundation consisting of papal privilege, decretal legislation, custom, and Roman law. The review of d’Ailly’s sources has underscored the importance of papal privileges to the university, including Quotiens and Quasi lignum vitae, which, taken together, gave the faculty the right to make statutes and to impose punishments. Other papal legislation, such as Per hoc, suggested that the faculty could address cases of suspect teaching independently of the bishop, just as the bishop and inquisitor could act in unison or independently of each other. Furthermore, the legislation on custom, especially Cum contingit interdum, validated the jurisdiction of lesser prelates who exercised jurisdiction.

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Cum contingit permitted these lesser prelates of the diocese, such as the chancellor, to exercise jurisdiction over a territory without prejudicing the authority of the local bishop. Similarly, Cum non complemented Cum contingit, for it permitted the presence of multiple prelates in a church, likewise without usurping the authority of the local bishop. Additionally, Hostiensis interpreted Cum contingit in a manner consistent with Irrefragabili which permitted the faculty as a whole to exercise limited jurisdiction with respect to misdemeanor crimes. The decretals Ad abolendam and Volentes, taken together, secured the authority of the chancellor and the faculty with respect to exempt clergy within the faculty. Many decretals that recognized custom’s ability to grant jurisdiction and to establish procedures supported the faculty’s long-standing practice of policing its membership, censuring wrongdoers, and meting out appropriate punishment. Indeed, d’Ailly appealed to the customary practice of the faculty when he referenced the case of Denis Foulechat as a model for the faculty to follow in his censure of John of Monteson. Finally, Roman laws regarding oaths and arbiters influenced legal practice in canon law. These laws validated the faculty’s use of oaths as a means of securing the obedience of its members, thereby creating a jurisdictional bond between the student or master and the faculty. The number and the variety of sources which d’Ailly referenced leaves little doubt regarding the validity of his argument. Overall, in the final analysis, his claim that the faculty of theology acted both doctrinaliter and, in some way, judicialiter, is clearly borne out by the various sources which he cited in his treatise; moreover, his claim is consistent with the principles and practices evident in contemporary canon law. This consistency, furthermore, makes it clear that the faculty’s jurisdiction did not usurp the authority of the bishop to pronounce sentence against a heretic; but it did permit the faculty to act with both keys of jurisdiction, that is, both doctrinaliter and judicialiter, to a limited degree. This jurisdiction included both the right to determine the heretical content of propositions and the power to coerce erring members with specific punishments.

The Chronological Development of the Faculty’s Jurisdiction

In addition to demonstrating that the faculty acquired jurisdiction over its members, it is also necessary to show when the faculty acquired that jurisdiction. An understanding of the origins and chronological development of this process will serve to situate the faculty’s jurisdiction in its proper historical context. The first step is to identify the major stages in the process. For example, the acquisition of lesser jurisdiction by the theological faculty in matters of

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suspect teaching required the coming together of several strands or elements of the legal tradition, which occurred only slowly over time. The most important of these concerned the right of the chapter to judge simple crimes and the extension of that right to other corporate bodies. In addition, the constitutional development of the university had to reach a state of development in which the structure of the theological faculty mirrored that of an ecclesiastical corporation. In conjunction with these prerequisites, the legislation on heresy had to be brought into conformity with the principles of corporate jurisdiction. Statutes had to be enacted that established degrees of heretical crimes, that specified the treatment of exempt clergy relative to prosecutions for heresy, and that clarified the issue of jurisdiction among the bishop, the inquisitor, and (in this case) the faculty of theology, among other issues. The available sources for penetrating this historical process are few. In his Apologia, for example, Pierre d’Ailly emphasized that the theological faculty possessed jurisdiction, but, unfortunately, he said little about when the faculty acquired this authority. Moreover, although he presented much evidence drawn from customary practice, on the whole, long-standing custom, by its nature, provides little specific chronological information. Moreover, even when d’Ailly appealed to a specific example of customary practice – the Foulechat case – his use of this case provided only scant information. On the one hand, the Foulechat case aptly served d’Ailly’s purpose by illustrating the jurisdiction of the faculty. On the other hand, however, the Foulechat case, like that of Monteson, occurred in the latter half of the fourteenth century, and thus provided a snapshot of roughly the same general time period. Regrettably, the chronological span between the two cases is too narrow to make many meaningful observations about the origin and chronological development of the faculty’s jurisdiction. How, then, is it possible to piece together the historical details behind this process? Not surprisingly, both the explicit legislation that d’Ailly referenced, as well as the implicit legislation that supported his argument, provide temporal benchmarks for situating the faculty’s acquisition of jurisdiction. First, the legislation that granted cathedral chapters jurisdiction had to be in place in order to serve as a foundation or model for the faculty of theology. Of special importance, the decretal Cum contingit interdum, issued in 1210, recognized that custom gave lesser prelates both jurisdiction and a territory alongside the bishop. It allowed inferior prelates to exercise limited jurisdiction over a limited territory; hence, it provided for the faculty’s independent jurisdiction over its own members in a general way. Then, in 1215, Irrefragabili recognized the independent, misdemeanor criminal jurisdiction of the chapter. Irrefragabili both guaranteed the chapter’s independence from the bishop, when judging certain excesses of its members; and yet, even within this sphere of the chap-

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ter’s autonomy, it had mandated a specific role of the bishop in initiating correction and in pronouncing judgment. Because this decretal was only officially incorporated into the body of canons at the Fourth Lateran Council, 1215 serves as the earliest date at which these features of the model may have entered the mainstream of canonistic practice. Nevertheless, it was still necessary for these principles of capitular practice to be appropriated by other types of corporate bodies, apart from cathedral chapters. In this regard, the commentary tradition on Irrefragabili can illuminate the timing of application of these principles to the faculty of theology. As noted above, Hostiensis was certainly one of the earliest canonists to recognize that the chapter’s right of correction included not simply civil matters, but extended to simple crimes not leading to degradation. Moreover, Hostiensis elaborated acceptable procedures that could be followed by the chapter when judging cases. Consequently, the date of his commentary on this text provides an important means for indicating the earliest time after which the faculty of theology could also have acquired similar jurisdiction and developed similar procedures, derivative of the capitular model. While it is impossible to know precisely when Henry of Segusia composed his commentary on this crucial passage, and while it is true that he continued to revise his Lectura on the decretals until his death in 1271, it is known that he had already begun his commentary on the Decretals (as well as his Summa) when he taught briefly at Paris around 1239, and that an even earlier version of the Lectura may exist.96 These facts suggest that the bulk of the commentary was probably written sometime during the third quarter of the thirteenth century, after Hostiensis studied and taught, but before he assumed his administrative duties. Furthermore, if the Lectura grew out of the canonist’s teaching at Paris, then Hostiensis’s views on the criminal jurisdiction of the chapter may well have either influenced the expression of capitular jurisdiction at Paris, where he himself was Archdeacon during the time that he lectured there; or conversely, his views may have been influenced by the practice already in place there. In any case, it seems probable that the bishop’s ideas reflected in Irrefragabili had been formed and set down 96  See Elisabeth Vodola in her article s.v. “Hostiensis” in the Dictionary of the Middle Ages, ed. Joseph Strayer (New York, 1982–1989) For earlier views on the composition of this work, see C. Lefebvre, s.v. “Hostiensis” in DDC, 5:1211–1227. In particular, Lefebvre noted that the Lectura probably grew out of the demands of the students at Paris, who demanded a commentary on the whole of the Decretals, Ibid., 1220. Hostiensis remarked at X 1.3.20 that he was archdeacon at Paris while lecturing on the Decretals. Also, see above, 143, footnotes 37 and 38. See Kenneth Pennington, “An Earlier Recension of Hostiensis’s Lectura on the Decretals,” Bulletin of Medieval Canon Law 17 (1987): 77–90, reprinted in Popes, Canonists, and Texts, 1150–1550 (Aldershot, 1993).

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into writing around the period between 1235–1250 but, certainly, no later than the date of his death in 1271. After this date, it was clear that a capitular body could legally exercise jurisdiction over less serious crimes, and that this legal principle had entered the body of canonistic thought.   By mid-century, or shortly after, other necessary elements had also coalesced. Innocent IV had contributed several elements to this developing picture. He had settled the question of exempt clergy; he had indicated that several prelates could exist in the same church. With respect to the faculty of theology, d’Ailly’s citation of Innocent’s privilege, Quotiens, of 1247 and its renewal seven years later, suggest that the period around 1250 represents the earliest time after which the faculty could have acquired the jurisdiction necessary to correct the suspect teachings of members of its corporate body.97 By this time, also, the influence of Roman law had also helped to shape the understanding of oaths and their role in establishing jurisdiction, particularly with respect to both the bachelors and the exempt clergy within the faculty. Yet, before, the faculty could acquire the right to judge cases of suspect teaching, other advancements in legal theory and practice still needed to take place. First, the legislation on heresy also had to develop so that the legal community distinguished between varying degrees of heretical crimes. In particular, being suspect of heresy had to be distinguished as a crime that constituted only a less serious offense. As noted, the Council of Tarragona in 1242 represented one of the earliest attempts to specify degrees of heretical crimes and punishments. By contrast, when Hostiensis composed the last book of his commentary on the Decretals, he provided a clear paradigm of degrees of heretical crimes, in which suspicion of heresy ranked as only a minor offense. These developments show that, during the second and third quarters of the thirteenth century, canonists distinguished between less serious and more serious forms of heretical involvement and developed punishments appropriate to an individual’s degree of participation in unorthodox activity.  Hence, these pieces of evidence further indicate that, like the developments in the area of capitular jurisdiction, this transformation occurred some time prior to or, at the latest, by the death of Hostiensis. The faculty, however, still needed the authority to deal with cases of suspect teaching, or academic heresy, given that Ad abolendam, among other decretals, had placed issues dealing with heresy squarely in the hands of the bishop. This 97  Given the purpose of d’Ailly’s treatise and his own breadth of knowledge regarding university affairs, one can be reasonably certain that if earlier legislation had existed supporting the independent jurisdiction of the faculty, he, in all likelihood would have known of it and made reference to it.

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development occurred in a two-pronged fashion. The establishment of customs and procedures within the faculty, including the revocation conditionalis, as well as the oath to report suspect teaching provided a suitable framework. The earliest references to these procedures indicate that they date from some time between the end of the second quarter of the thirteenth century and the fourth quarter of the same century. Finally, the faculty needed the ability to act independently of the bishop of Paris. Per hoc specifically concerned crimes of heresy and represented an important advance forward. It permitted bishops and inquisitors to proceed together or separately when conducting their investigations into suspected cases of heterodoxy. Yet, the importance of Per hoc to the university context was not, of course, that it permitted the theological faculty to act in conjunction with the bishop when condemning heretical assertions; other, earlier decretals, such as Ad abolendam, had assured the faculty’s cooperative participation with the bishop. Rather, the significance of Per hoc lay in the fact that it opened the way for the faculty to act independently of the bishop, specifically in cases of unsound or heretical teaching. Hence, like the issuance of Quotiens in 1247, the promulgation of Per hoc in 1303 provides another significant chronological benchmark. By the beginning of the fourth quarter of the thirteenth century, the majority of legal elements needed for the theological faculty to exercise jurisdiction over its members in cases of suspect teaching had taken shape. However, d’Ailly’s use of Per hoc indicates that the faculty’s assertion of jurisdiction over less serious crimes over those subject to it could not have occurred until the legal community established acceptable jurisdictional boundaries among bishops, inquisitors, and other individuals or bodies that investigated cases of heresy.  Viewed in this light, the earliest date at which jurisdiction over less serious crimes could accrue to the faculty was some time after the promulgation of this decretal, during the first quarter of the fourteenth century. Moreover, as the current discussion has shown, legislative and canonistic sources indicate that the other legal prerequisites necessary for the faculty to exercise both keys of jurisdiction were securely in place well before the promulgation of Per hoc. Thus, once the canonists settled the issues surrounding the application of the decretal to a wider context, no legal impediment stood in the way of the faculty’s acquisition of jurisdiction over less serious crimes. Indeed, this conclusion regarding the chronology of these events fits well with the surviving evidence of condemnations at Paris. The first censure involving Stephen of Venizy occurred in 1241/44, with the presence of the bishop. The participation of the theological masters suggests a growing recognition of their authority in doctrinal matters, but the presence of the bishop also indicates

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that the chancellor and the masters did not exercise any independent form of jurisdiction. Similarly, the censure of John of Paris in 1305 followed a similar pattern, with the bishop participating in the censure. At the same time, however, the document reveals that the bachelors and masters on several occasions listened to and grappled with John’s teachings. This censure illustrates an increased role in the process for the members of the faculty, including even the bachelors of theology. Nevertheless, although the condemnation of Paris was issued in 1305 after the promulgation of Per hoc, the proceedings obviously began at some earlier date and, in all likelihood, prior to the point in time when canonists and legal experts had worked out the full implications of Per hoc.98 Nevertheless, by 1316, with the censure of the Cistercian Frater Bartholomew, the members of the faculty inaugurated a new era in the censure of academic heresy by acting independently on their own initiative. Conclusion Pierre d’Ailly’s Apologia contained six conclusions that described and justified the jurisdictional authority of the faculty of theology over its bachelors and masters. These six conclusions have been summarized and analyzed with respect to their sources. The results of this analysis have demonstrated that he stood on firm ground. The sources that he adduced to support his claims were both legitimate and relevant, being based on canon law, Roman law, and customary law. Hence, far from being merely a polemical treatise, d’Ailly’s Apologia was, in fact, a well-reasoned and tightly constructed argument that supported his claims. A further analysis of his sources yielded valuable chronological information, indicating that the by the first quarter of the fourteenth century, all the elements necessary to support the jurisdiction of the faculty over its members had coalesced. Moreover, this chronology, derived from the sources, fit well with the faculty’s actual practice of independent censure, which first took place in 1316 with the censure of Frater Bartholomew. D’Ailly’s thesis has been validated, and the jurisdiction of the faculty in cases of suspect teaching has been adequately described and analyzed. It is now time to turn to the topic of fraternal correction and to ask: What role, if any, did fraternal correction play the censures of suspect teaching at Paris?

98  CUP 2, no. 656, 120. The participation of the bachelors touches on an aspect of censure at Paris that had no parallel within the chapter. This issue calls for more examination.

Chapter 8

Judas, Monteson, and Fraternal Correction at Paris The foregoing discussion has highlighted an important parallel between the functioning of the Parisian theological faculty and a typical cathedral chapter. Each body possessed jurisdiction over less serious crimes. This similarity in jurisdiction has served as the basis for explaining many aspects of the faculty’s censure of academic heresy within its own ranks. Yet, one scholar has recently suggested that the censures of bachelors and masters represented instances of fraternal, rather than judicial correction.1 In support of this view, he pointed to the Monteson case because, as previously noted, the documents clearly state that the faculty admonished him secretly and charitably.2 Thus, the Monteson case provides both a logical and a dramatic starting point for discussing the practice of fraternal correction in the theological faculty at Paris. Thankfully, the beginning of the controversy is well-documented because both Radulphus Glachardi, as dean, and Pierre d’Ailly, a master of theology, provided written records of the events that agree closely in detail. Both men

1  Thijssen, Censure and Heresy, 111. Thijssen cited the Monteson case, and in particular, d’Ailly’s Apologia, 1.2. 78 and 80–82, and Bernstein, Pierre D’Ailly, 180–181; but he did not make use Glachardi’s account. 2  For d’Ailly’s accounts, see CUP 3, no. 1564, 502–505, at 502. “2a est, quod celebrata postmodum congregacione solempni omnium magistrorum in theologia Parisius, inter quos frater iste presens affuit, cum theologice facultatis decanus cepisset quasdam ejus proposiciones, sibi fideliter per scolasticos (qui ex eisdem scandalizati fuerant) scripto tenus exhibitas recitare, vix paucas expresserat, cum dictus frater, qui nundum fuerat nominatus, sui impaciens nec bene sibi imperans, se ad responsionem obtulit, dicens quod non oportebat eum silere; et quod iste conclusiones ab eo processerant, ipsasque usque ad mortem sustineret, iterum repetens, eas non sine magno consilio posuisse.” In another passage in his Apologia, d’Ailly also recorded this event. See d’Argentré, Collectio judiciorum, 1.2.79. The text reads: “Primus ergo Articulus est quod, cum dictus frater infrascriptos errors Parisiis in scholis publice dogmatizaverit et coram Facultate Theologiae evocatus per Decanum ejusdem Facultatis, caritative monitus, ipsos corrigere recusaverit, protestans eos usque ad mortem velle defendere.” D’Ailly again made this observation: Ibid., 1.2.81 “Ex quibus patet . . . quam secreta et caritativa monitio praecessit.” D’Ailly specifically labeled this action of the faculty as fraternal correction. Radulphus Glachardi recorded essentially the same event, but did not use the term fraternal correction. He did, however, indicate that the propositions were merely read; Monteson was not named as their author.

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were present and eyewitnesses to Monteson’s charitable admonition.3 In a long and florid speech, the dean recorded his memories surrounding that day, while the future chancellor summarized his recollections as part of the dossier that the faculty presented to the papal court. The controversy erupted after a group of concerned and dismayed bachelors approached the dean about some troubling teachings that they had heard in the friar’s Vesperiae and Resumpta lectures. Although no specific date was given in the documents, this appeared to have taken place some time around May or June of 1387. Glachardi, wishing to handle the matter in a quiet and understated fashion, decided to call all the masters of the faculty together and to admonish their newest member anonymously. Both d’Ailly and Glachardi described this event as an example of fraternal correction and as an attempt to persuade Monteson to abandon his unsound teachings. Yet, Monteson, like his Franciscan counterpart a generation earlier, felt passionately about his beliefs. At first, the Dominican joined his colleagues in the faculty congregation. But, then, as the dean read out a list of suspect propositions, Monteson recognized his own teachings. Although Glachardi had not mentioned anyone by name, Monteson, unable to contain the cauldron of emotions welling up inside of him, could not keep silent. He struck his forehead, jumped upright, and without hesitation identified himself as author of the propositions. Resolutely, he declared that he would defend these views unto death! Then, in a moment of rashness, he insisted that the house of his order was closer to destruction than was he to altering his views. The assembled masters were stunned! After these dramatic events, the faculty of theology conducted an extensive investigation, drew up a list of propositions, and requested that Monteson formally retract them. Although the friar at first agreed, he broke that promise and never appeared to perform the revocatio actualis as required.4 When, after three opportunities, Monteson did not answer the call of the masters, they, together with the rector, and the other faculties, informed the bishop of Paris who, in turn, ordered Monteson to appear before him. Finally, after being cited several times to appear, Monteson 3  Because the admonition took place in the presence of all the masters of the faculty, both the dean and d’Ailly, along with Monteson, were present. In addition, because the bachelors first approached Glachardi, his sermon represents a first-hand account of the events surrounding the opening of the investigation and the events leading up to the friar’s rebuke. D’Ailly, no doubt, learned of these events from the dean. 4  C UP 3, no. 1564, 503. “5a est, quod predicta cedula per tot deputatorum consultaciones ac dicte facultatis congregaciones varias sic diligenter examinata . . . ipsa exhibita fuit predicto fratri, ut juxta formam ipsius dictas suas asserciones, que scandalum generaverant, retracteret. Qui ita se facturum intra terciam diem promisit; sed ipse promissum suum in hoc, sicut et in omnibus aliis, violavit.”

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refused to comply, and the bishop subsequently proceeded to excommunicate him.5 Monteson then appealed, and the matter was transferred to the papal court. The Monteson case, like that of Foulechat, generated a wealth of documentation that sheds light on the internal workings of the faculty when investigating suspect teaching. It is clear from the foregoing description of events that the fraternal admonition of Monteson occurred at the very beginning of the investigation into his teachings and, from all accounts, shortly after the Dominican had expounded his teachings, given that the bachelors were required to report unsound teaching by another bachelor or anyone within eight days to either the bishop or the chancellor.6 Both Glachardi and d’Ailly tied the administration of fraternal correction to a particular event: the reading of the propositions in the presence of the faculty. Of particular importance, each account makes clear that when the propositions were being read, the friar 5  Ibid., “8a est quod ad hanc instanciam et requestam dictus Paris. Episcopus precepit et precipiendo mandavit, ne predictus frater, qui adhuc Parisius presens erat, ab inde recederet, sed ad certam diem tunc assignatam personaliter compareret, responsurus in aula episcopali et coram dicto episcopo super his que obicerentur eidem. Qui sic judicialiter evocatus per se aut per alium nullatenus sufficienter comparuit: et ideo pro prima vice contumacie pena incurrit. 9a est, quod iterum bina vice interposito dubito temporis spacio, dictus frater citatus fuit, nec comparuit, et sic tercio contumax reputatus est et excommunicatus.” 6  More work needs to be done on the history of the oaths taken by bachelors and scholars at the University of Paris. The protestatio, or, revocatio conditionalis, was a promise to teach only sound doctrine and to revoke or retract any suspect teaching, if the student misspoke. This oath appears to date from the middle of the thirteenth century and was normally taken by a bachelor immediately prior to reading the Sentences. Explicit references to the oath appear first at Oxford in the middle of the thirteenth century. But since Oxford practice was generally based on Parisian practice, it is likely that this oath was also used at Paris at the same time. The earliest notice to report suspect teaching to the authorities occurs at Paris in the case of Frater Bartholomew in 1316. According to the information provided by Brother Bartholomew, this oath applied more generally to all scholars, or “scholaribus.” This more general application explains why the aggrieved bachelors felt compeled to report the matter to the Radulphus Glachardi as dean of the theological faculty, even though Monteson was, technically, no longer a Sententiarius, but rather, a master of theology delivering his first public lecture. The two oaths, from a practical point of view, functioned in tandem. Already by the middle of the fourteenth century, Grimerius Boniface, while referring to the Foulechat case, mentioned not only the promise to teach sound doctrine (the protestatio, or, revocatio conditionalis), but also the promise to report suspect teaching, as if both elements were components of a single oath. See the text of Grimerius’ statement on page 51, footnote 32. The history of, and relationship between, these two oaths will be discussed below beginning on page 293.

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had not yet been named. Hence, the procedure preserved the secret character of the fraternal rebuke and prevented injury to Monteson’s reputation. The documentation of the Monteson case is unique in that it is the only surviving case to mention the use of fraternal correction and to describe the procedure. Yet, there is no reason to doubt d’Ailly’s claim that offering fraternal correction was part of the customary practice of the faculty.7 On the surface, because the sources state that the faculty admonished Monteson “charitably” and “secretly among themselves,” the documents appear to provide strong support for Thijssen’s thesis. In further support of this position, Thijssen also noted that when Monteson failed to retract his suspect teachings, the university as a whole turned the matter over to the bishop of Paris, who was the “judge ordinary” in this matter. Based, in part, on this statement, Thijssen concluded that the faculty did not act with any jurisdiction, but only in a disciplinary fashion, when monitoring the teachings of its ­members.8 In Thijssen’s opinion, the entire proceedings, from the initial warning to the public retraction were all simply steps in the process of fraternal correction as laid out in the Gospel of Matthew, with the legal process beginning only at the bishop’s court. According to Thijssen, judicial action did not occur until Monteson was called to the bishop’s court; the actions of the faculty – ­including the public revocation – represented only stages in the process of fraternal correction. On the one hand, Thijssen is correct in stating that the faculty used fraternal correction as a means to address suspect teaching. Unfortunately, on the other hand, neither Monteson’s nor Foulechat’s censure was so simple or clear-cut. In his review of Thijssen’s work, H. A. Kelly identified other aspects of the censures at Paris that did not seem to fit Thijssen’s interpretation.9 Kelly noted that Thijssen’s attempt to label some court actions as disciplinary rather criminal was not convincing from the standpoint of procedural law. Furthermore, 7  C UP 3, 1560, 497–499, at 497. “Hii errorum frutices ne alcius profundiusque radices agerent, et darent simplicium pedibus offendiculum, decanus singulique theologice facultatis magistri, ut de more habent, obviare curaverunt, et predictum Johannem ad se accersitum primitus secundum evangelicam doctrinam, secrete inter eos et caritative, ut ab erratis resipisceret, monuerunt.” There seems to be no reason to doubt this statement. Just as all the cases appear to have included the requirement of a retraction, one may also rest assured that the members of the faculty followed the gospel mandate to admonish their brother with fraternal charity before taking him to court. Moreover, the secret character of fraternal correction, in all likelihood, would have precluded the production of any documentary evidence regarding its use, except in unusual or extraordinary circumstances. 8  Thijssen, Censure and Heresy, 5–11. 9  See above, page 166, footnote 5.

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Thijssen’s view that the chancellor did not have the full powers of an ecclesiastical judge did not seem true. Kelly noted that the oath taken by the bachelors prior to reading the Sentences required that they report dubious teachings either to the bishop or to the chancellor. Similarly, in the Foulechat case, Denis had treated the judgment of the faculty against him as if it were a judicial sentence and not merely a form of charitable correction; in fact, the Franciscan appealed against the sentence and requested the apostoli, a formal response to an appeal. And Pierre d’Ailly had even claimed quasi-judicial powers for the chancellor. Kelly’s review raised important questions but did not attempt to answer them. In any case, the prior chapters of this work have addressed many of these issues by describing both the lesser jurisdiction of the faculty as well as the historical processes by which that legal authority was acquired. The evidence presented has shown – in contrast to Thijssen’s view – that the censures by the theological faculty were judicial in nature, and not merely examples of internal disciplinary procedures or fraternal correction. Fraternal correction, of course, could and did, at times, play a role in the process of censure within the faculty; for a full picture of the faculty’s jurisdiction over its members the interplay between fraternal correction and judicial correction must be explored and placed in context. An analysis of the theology of fraternal correction in relation to the faculty of theology will be productive for several reasons. First, it will demonstrate that the public revocations of the bachelors were acts of judicial correction. Second, an understanding of fraternal correction will demonstrate specifically at what point this shift from fraternal to judicial procedures occurred. Third, a deeper understanding of the contemporary theology of fraternal correction will account for various procedural aspects of each case. Although the two cases shared much in common, they were handled somewhat differently. For example, in 1364, Foulechat was denounced to the chancellor, who initiated the investigation; by contrast, in 1387, the dean of the theological faculty, instead of the chancellor, initiated the proceedings with respect to Monteson. This study of fraternal correction will provide the rationale for these differences in procedure.

Fraternal Correction and the Parisian Faculty of Theology

How then does one begin to unpack the theology of fraternal correction and to place the academic censures at Paris in their appropriate context? Before beginning, it will be useful to return to the source of fraternal correction and to define terms. Modern readers may be more accustomed to considering the

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short three verses of Matthew 18:15–18 as referring to the practice of fraternal correction; yet, to medieval eyes and ears, these verses were most frequently encountered as part of a longer scriptural passage. The biblical text, incorporated into the liturgical cycle, occurred almost invariably on feria tertia post tertiam dominicam quadragesimae, that is, on Tuesday in the third week of Lent.10 The passage begins with verses 15–17 and continues through verse 22.11 The text reads: (15) But if thy brother shall offend against thee, go, and rebuke him between thee and him alone. If he shall hear thee, thou shalt gain thy brother. (16) And if he will not hear thee, take with thee one or two more: that in the mouth of two or three witnesses every word may stand. (17) And if he will not hear them: tell the church. And if he will not hear the church, let him be to thee as the heathen and the publican. (18) Amen I say to you, whatsoever you bind upon earth shall be bound also in heaven; and whatsoever you shall loose upon earth, shall be loosed also in heaven. (19) Again I say to you, that if two of you shall consent upon earth, concerning any thing whatsoever they shall ask, it shall be done to them by my Father who is in heaven. (20) For where there are two or three gathered in my name, there am I in the midst of them. (21) Then came Peter unto him and said: Lord, how often shall my brother offend against me, and I forgive him? till seven times? (22) Jesus saith unto him: I say not to thee, till seven times; but till seventy times seven times.12

10  Johannes Baptist Schneyer, Repertorium der lateinischen Sermones des Mittelalters für die Zeit von 1150–1350, 11 vols., Beiträge zur Geschichte der Philosophie und Theologie des Mittelalters, 43/1–11 (Münster Westfalen: Aschendorffsche Verlagsbuchhandlung, 1969– 1990), 11:291. Of the approximately forty sermons that Schneyer collected on this passage, all except one occur on this date. 11  In addition, parallel to the passage in Matthew, Luke 17:1–3 and Titus 3:10, also echo fraternal correction, though in less detail. These passages will be cited where appropriate. 12  Biblia Vulgata, Matthaeus 18:15–22. (15) “Si autem peccaverit in te frater tuus, vade et corripe eum inter te et ipsum solum. Si te audierit, lucratus eris fratrem tuum. (16) Si autem te non audierit, adhibe tecum adhuc unum vel duos, ut in ore duorum vel trium testium stet omne verbum. (17) Quod si non audierit eos, dic Ecclesiae; si autem et Ecclesiam non audierit, sit tibi sicut ethnicus et publicanus. (18) Amen dico vobis, quaecumque alligaveritis super terram, erunt ligata et in caelo; et quaecumque solveritis super terram, erunt soluta et in caelo. (19) Iterum dico vobis, quia si duo ex vobis consenserint super terram, de omni re quacumque petierint, fiet illis a Patre meo, qui in caelis est. (20) Ubi enim sunt duo vel tres congregati in nomine meo, ibi sum in medio eorum.

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Several points stand out. First, the wording “fraternal rebuke” (“correptio fraterna”) or “fraternal correction” (“correctio fraterna”) does not occur in the text itself. As a result, medieval thinkers invented these expressions along with a variety of others to describe this procedure instituted by Christ. Of the various possibilities, fraternal correction and fraternal rebuke are the two most common alternatives found in the sources.13 Other options, including fraternal admonition (“admonitio fraterna”), secret admonition, (“admonitio secreta”), and charitable admonition (“admonitio caritativa”), to name a few, all refer to the same practice or procedure. To avoid tedious repetition, these terms (and similarly worded ones) will be used synonymously, unless noted otherwise.14 In addition, the phrases evangelical denunciation (“denunciatio evangelica”) and charitable denunciation (“denunciatio caritativa”) require special mention. These terms were also synonymous with fraternal correction as outlined in the Gospel. However, they must be carefully distinguished from other forms of denunciation – both public and private – that existed in medieval legal practice.15 In commenting on the decretal Romana of Innocent IV, Hostiensis enumerated four types of denunciation, including: evangelical (or charitable) denunciation, public judicial denunciation, private judicial denunciation, and canonical denunciation. Although these four types of denunciation shared common elements with fraternal correction, they differed considerably from  (21) Tunc accedens Petrus ad eum, dixit: Domine, quotiens peccabit in me frater meus, et dimittam ei? usque septies? (22) Dicit illi iesus: non dico tibi usque septies: sed usque septuagies septies.” The Douay-Rheims version, a direct translation of the Latin Vulgate into English is used. The Holy Bible . . . .First Published by the English College at Rheims, A.D. 1582, ed. Richard Challoner (Rockford, Ill.: Tan Books and Publishers, 2000). 13  For a brief discussion of the difference between “correptio” and “correctio” among the Church Fathers, see Philippe Delhaye, “La correptio fraterna,” Studia Montis Regis, 10 (1967), 117–140, at 117, n. 1. 14  The use of the term, “correctio,” will be analyzed in further detail. However, when used with the adjective “fraterna,” it will refer only to fraternal correction. 15  In addition to his commentary on the Liber extra, Hostiensis commented on the Novellae of Innocent IV. See also the article by Kenneth Pennington, “Hostiensis,” 7. Cf. above page 143, footnote 37. Hostiensis’s commentary on this body of decretals was erroneously entitled as a commentary on the Liber sextus. The Novellae were often appended to Hostiensis’s commentary on the Decretals as a sixth book, giving the appearance that Hostiensis commented on the Liber sextus, which, of course, he did not. See Henricus de Segusia, In [primum – sextum] . . . decretalium librum commentaria (Venice, 1581; rpt. Torino, 1965) at VI, 3.20.1, f. 26v, no. 29, s.v. Denuntiet: “[Q]uod denuntiationum alia evangelica, alia judicialis, alia canonica.” On Innocent’s legislation, see Peter-Josef Kessler, “Untersuchung über die Novellengesetzgebung Papst Innocenz IV,” Zeitschrift der Savigny-stiftung für Rechtsgeschichte: Kanonistische Abteilung 33 (1944) 65–83.

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it in terms of purpose, scope, and practice. Only charitable, or evangelical denunciation was identical to the fraternal correction instituted by Christ in the Gospel.16 Thus, in certain cases, it will be necessary to distinguish evangelical denunciation from its counterpart, “judicial,” or, “public denunciation,” in the analysis of the sources. The Matthaen text describes a procedure for redressing faults or sins within the Christian community. Taken at face value, fraternal admonition, as described in the text, concerned a sin that was known at first only to one individual – either because he alone witnessed the sin, or, because he, himself, was the injured party. As a first step, Christ commanded him to correct or rebuke his brother in private. In this sense, both the offender and the corrector were known to each other – even if in secret. If the offender accepted the correction, then all was well and harmony was restored. If, however, the sinner rejected the admonition, the one rebuking him was to bring one or two others to act as witnesses. Together they would counsel the erring brother. If the offender refused this second rebuke, the text instructs those rebuking him to report the matter to church. Finally, if the recalcitrant brother refused even the counsel of the church, Jesus ordered that erring brother be treated as a publican and a sinner. Thus, the text, as written, describes a four step process that begins with private admonition and – in the case of the incorrigible brother – ends with the expulsion of the unrepentant sinner from the Christian community. Put briefly, the process of offering fraternal correction was divided into four distinct stages that included: private correction (“Si peccaverit in te frater tuus” vade, et corripe eum inter te et ipsum solum”; rebuke before one or two witnesses (“si autem te non audierit, adhibe tecum adhuc unum, vel duos”); rebuke before the congregation of the faithful (“Quod si non audierit eos, dic ecclesie); and, finally, expulsion.17 By the time of the high and late middle ages, expulsion from the Christian community (“Si autem ecclesiam non audierit, sit tibi ethnicus et publicanus”) had become linked with the medieval practice of excommunication, just as the text had also become inextricably linked with other practices, including, the binding and loosing of sins in confession, as well as the use of the two keys of temporal and spiritual jurisdiction. (“Quaecumque alligaveritis super 16  For a brief discussion of these forms of denunciation and Hostiensis’s contribution to distinguishing them, see the recent work by Wim Decock, Theologians and Contract Law: The Moral Transformation of the Ius Commune (Ca. 1500–1650) (Leiden, 2013), 88–101, esp. 95–97. 17  The traditional interpretation of this passage is given by Augsutine in the text Si peccaverit, which was included in Gratian’s Decretum at C.2, q.1, c.19.

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terram”).18 Thus, the text described a range of corrective procedures that placed fraternal correction and excommunication at opposite ends of the spectrum.

The Sources of Fraternal Correction

Matthew’s discussion of the issue, by its very nature, presented an idealized situation, one that did not always occur in practice. Thus, medieval theologians had to clarify the application of these texts to particular circumstances. Nor did they shy away from this task. Medieval thinkers often debated the precise meaning and application of this passage. Their discussions occur in documents of various genres, including biblical and Sentences commentaries, rules of religious orders and the commentaries upon them, treatises on the virtues and vices, expositions of the mass and of the Ten Commandments, as well as confessors’ manuals, quodlibetal questions, and, polemical works, such as the Dialogus of Ockham, and sermon literature.19 Consequently, the sheer volume of the surviving material on this topic means that it is not possible to use all of it.20 For the purposes of this study, some general parameters will be followed when selecting and evaluating evidence. First, from a chronological standpoint, this analysis will focus primarily on the scholastic sources produced during the thirteenth and fourteenth centuries, rather than on the monastic sources produced during an earlier time period. These later sources are most relevant because their authors were contemporaries or near-contemporaries to those censured and, thus, were more familiar with the context of academic censure than their early medieval counterparts. Nevertheless, the contributions of the Church Fathers – particularly Augustine and Jerome, whose writings formed the foundation of the later theology of fraternal correction – will, of course, be used when relevant. Second, in terms of audience, this study will focus on sources produced in a scholastic 18  See Elizabeth Vodola, Excommunication in the Middle Ages (Berkely, 1986), 5–6. 19  Takashi Shogimen, “From Disobedience to Toleration: William of Ockham and the Medieval Discourse on Fraternal Correction,” JEH 52 (2001), 599–623, at 602. Also consult his book, Ockham and Political Discourse in the Late Middle Ages (Cambridge, 2007), 108–113. 20  Regretfully, although the fifteenth century witnessed an explosion of sermon literature, in part due to the invention of the printing press, this study will include these sources only to the extent that they reproduce thirteenth and fourteenth century sources. Due to their availability, this study has been completed with printed sources, I hope to write an additional study using several important biblical commentaries on this passage that exist only in manuscript form.

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environment, rather than on those produced for a monastic or popular audience. Third, it will be necessary to limit their geographic scope as well. Given that the censures occurred at Paris, the sources produced there provide the best evidence available. Again, although sources outside of Paris will be used, evidence will come, primarily, from scholastics who attended the University of Paris and produced their discussions of fraternal correction in that milieu. Fourth, this study will explore only specific questions as they relate to the way in which the faculty of theology conducted investigations into suspect teaching. For example, Steven McGrade and Takashi Shogimen have discussed the role of fraternal correction in the Ockham’s thought.21 Athough Ockham and his contemporaries spilled much ink over the question of whether an inferior could rebuke a superior, such a question has no place in the current discussion, given that all the bachelors and masters were inferiors, being subject to the corporate body of theological faculty, while the bachelors, furthermore, would also have a been subject to the masters who taught them. Fifth, the present study will not present a detailed account of each thinker’s views on the subject. Rather, it will highlight only those aspects of an individual’s work that clarify what role, if any, fraternal correction played in the process of censure in the Parisian theological faculty. Sixth, and finally, despite great temptations to the contrary, the author will not present a comprehensive history of the theology of fraternal correction; rather, this work will focus on the theological understanding of fraternal correction at a specific point in time, namely, the late thirteenth and early fourteenth centuries at the University of Paris. In contrast to the abundance of primary source material on fraternal correction, the secondary literature on fraternal correction remains sparse. Few scholars have devoted detailed studies to the topic. Among the studies of note, Piero Bellini has surveyed the theology of evangelical denunciation in the middle ages and has shown how this theology formed the basis for the creation of private judicial denunciation. In addition, Howard Hansen produced a thesis on the evangelical denunciation from covering the period from the New Testament era until the glossators. A few studies have concentrated on the moral aspects of fraternal correction or the views of an individual thinker, like Augustine, on the topic. Some studies, too, have focused on the presence of fraternal correction in sermon literature. Most recently, Wim Decock has 21  A. S. McGrade, The Political Thought of William of Ockham. Personal and Institutional Principles (Cambridge, 1974), 47–71; Shogimen, “From Disobedience to Toleration,” 606– 622, and Idem, Ockham and Political Discourse, 113–155. Takashi Shogimen has explored the topic as a means of understanding, in part, the problem of papal heresy, that is, how medieval thinkers could correct an ­erring pope.

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briefly surveyed the contribution of fraternal correction to the development of contract law. No study, however, has presented an in-depth analysis of the principles of fraternal correction with respect to the medieval university setting.22 Peter Lombard did not include a specific question on fraternal correction in his Sentences, which became the classic medieval textbook of theology. Shogimen has noted that Alexander of Hales OFM, was the first scholastic to discuss this topic in a commentary on the Sentences.23 Some of the early scholastic authors, such as Alexander and Albert the Great, OP, did not provide a full-fledged definition of fraternal correction, but stressed the coercive nature of judicial correction (“correctio iudicis”) as opposed to the voluntary nature 22  In addition to works already cited, see Piero Bellini, ‘Denunciatio evangelica’ e ‘denunciatio iudicialis privata’, Un capitulo di storia disciplinare della Chiesa (Milan, 1986); Howard Hansen, The Denuntiatio Evangelica from the Gospel of St. Matthew to the Glossators (JCL Thesis, CUA, 1960). Other important studies include: Joseph A. Costello, Moral Obligation of Fraternal Correction (Washington, D.C., 1949); Charles Lefebvre, “Contribution á l’étude des origines et du développement de la ‘denunciatio evangelica’ en droit canonique,” in Ephemerides Iuris Canonici, 6 (1950), 60–93; Idem, “Gratian et les origines de la dénonciation évangélique: De l’accusatio á la denunciatio,” Studia Gratiana 4 (1956), 231–250; H. Coing, “English Equity and the ‘Denunciatio Evangelica’ of the Canon Law,” Law Quarterly Review, 71 (1955), 223–241; Wim Decock, Theologians and Contract Law: The Moral Transformation of the Ius Commune, (ca. 1500–1650) (Leiden, 2012) 88–101;the contribution of Edwin Craun on the English pastoral literature related to fraternal correction should also be noted. See his, Ethics and Power in Medieval English Reformist Writing (Cambridge, 2010). He also notes the lack of study in this area. Craun has also recently authored, “The Imperatives of Denuntiatio: Disclosing Others’ Sins to Disciplinary Authorities,” in The Culture of Inquisition in Medieval England, eds. Mary C. Flannery and Katie L. Walter (Cambridge, 2013), 30–44. Agostino Clerici, La correzione fraterna in S. Agostino (Palermo, 1989), is included for the sake of completeness and must be read in tandem with E. Ann Matter, Review of “La Correzione Fraterna in S. Agostino,” in Speculum 67 (1992), 126–127. 23  Shogimen has argued that Alexander was the first scholastic to incorporate the distinction in both his Glossa and in his Quaestiones Disputatae. It may perhaps be more correct to say that Alexander’s discussion of fraternal correction in his Glossa in Librum IV Sententiarum (Quarrachi, 1957) 342–347 began as a tangent in the sed contra that grew into a question. Albert the Great, on the other hand, included a separate series of questions on fraternal correction and justified their inclusion under the heading: “Qualis debet esse iudex ecclesiasticus.” As Shogimen correctly states, Alexander, in his Quaestiones Disputatae Antequam Esset Frater,” (Quarrachi, 1960) 3, 497–515, included a separate distinction on fraternal correction consisting of several questions. After Alexander of Hales, many commentators – but not all – included individual questions on fraternal correction, at or around Book IV, Distinction 19, usually following the discussion of the two keys, penanace, and jurisdiction. See Shogimen, “From Disobedience to Toleration, 601–602 and idem, Ockham and Political Discourse, 107–108.

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of fraternal correction.24 In this way, Albert began to distinguish fraternal correction from what would later be termed judicial correction. For the purposes of convenience and clarity, it will be useful to begin with the definition supplied by Thomas Aquinas in his commentary on the Sentences of Peter Lombard. There, Aquinas defined fraternal correction according to its nature, purpose, and motivation. Fraternal correction was the rebuke of a brother for the emendation or correction of his sins, motivated by fraternal charity.25 As Hostiensis elaborated on this, the purpose of fraternal correction was not the punishment of the offender, but rather, his confession and penance, ultimately leading to a change in behavior, or, a return to o­ rthodoxy.26 As defined, fraternal admonition focused on the individual sinner and stressed the moral reformation of his life, without reference to anyone else, save the correcting (or injured) brother. Because it was advisory in nature, fraternal correction did not include punishment as a component. Thomas, like his teacher Albert, contrasted fraternal rebuke with the coercive correction (“correctio coactiva”) exercised by prelates which included punishment, the former an act of charity, the latter an act of justice.27 In contrast to fraternal ­correction 24  Ibid., 602–603, and associated footnotes. Many aspects of fraternal correction were debated from the twelfth to the early fourteenth century by scholastic authors. For Albert the Great, see Albertus Magnus, Commentarii in IV sententiarum (Dist. I–XXII), in Opera Omnia, ed. A. Borgnet et al., 38 vols. (Paris, 1890–1899), 29:828. See IV, d. 19, a. 22, where Albert stressed the coercive nature of judicial correction as opposed to the non-compulsory nature of fraternal correction. The text reads: “Frater in fratrem coactivam non habet correctionem . . . sicut neque pater in filium. Ergo haec [judicial correction] non est illa [fraternal correction].” [S]ed tamen contumacem, si per legem etiam secundam Philosophum denuntiat judici, tunc ille cogit eum.” 25  Thomas Aquinas, In quatuor libros sententiarum, in Opera Omnia, 7 vols. ed. R. Busa (Stuttgart-Bad, 1980), I:549–550, IV, d. 19, q.2, ar., pr. “Deinde quaeritur de correptione fraterna; et circa hoc quaeruntur tria: 1 quid sit; 2 cujus sit; 3 de modo et ordine ipsius.” At the sed contra, Aquinas continued: “et ideo correptio, quando praeter ordinem praelationis fit vocatur fraterna, quae in predicta assignatione notificatur per tria, que ibi ponuntur: scilicet, actus ipse, cum dicit: admonitio fratris: finis cum dicit: de emendatione delictorum; principium cum dicit: fraterna caritate procedens.” 26  Hostiensis, In Sextum, VI, 3.20.1, f. 26v, no. 29, s.v. Denuntiet: “Evangelica est illa quae fit ad hoc tantum, ut peccator confiteatur peccatum et poenitentiam agat, et habet locum in peccato non omnino occulta.” 27  Thomas Aquinas, Quaestiones de virtutibus, in Opera Omnia. 7 vols. ed., R. Busa (StuttgartBad, 1980), 4:428. Q.3 a.1, ra.2, 428. “Ad secundum dicendum, quod duplex est ­correctio delinquentis: una quidem per simplicem admonitionem; et haec est fraterna quibus ­praesumitur quod propria voluntate admonitioni consentiant; alia vero est correctio

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which focused on the individual good, this coercive correction had as its goal the common, or collective, good.28 Although Aquinas did not specifically employ the phrase “judicial correction,” that is precisely what he meant when he contrasted these two forms of correction.29 As noted previously, it was left to the canonists to differentiate fraternal correction from judicial correction in a formal, legal sense. Yet, no less a figure than Nicholas of Lyra incorporated this distinction between the two forms of correction in his influential biblical commentary when he discussed Matthew’s text.30 habens vim coactivam per inflictionem poenarum, ut philosophus dicit in x Ethic. et talis correctio pertinet ad praelatos.” 28  Aquinas, Summa theologiae, in Opera Omnia. 7 vols. ed., R. Busa (Stuttgart-Bad, 1980), 2:573. See 2a, 2ae, q.33 a.6, co. “Respondeo dicendum quod, sicut dictum est, duplex est correctio delinquentis. Una quidem pertinens ad praelatos, quae ordinatur ad bonum commune, et habet vim coactivam. . . . Alio vero est correctio fraterna, cuius finis est emendatio delinquentis, non habens coactionem sed simplicem admonitionem. 29  Because many aspects of fraternal correction were the subjects of contemporary debate, the terminology employed was not yet standardized. For example, in the early thirteenth century, Alexander of Hales, discussed “fraternal correction as practiced by prelates” – what, in effect, later became identified with judicial correction. Alexander’s discussion was somewhat muddled. He essentially described the procedure of inquisition and purgation; if a sin were secret, he suggested that a brother who did not accept correction could be called to the church, not via accuastion, but via denunciation. Cf. Alexander of Hales, Glossa in quatuor libros Sententiarum Petri Lombardi, 4 vols. (Quaracchi, 1951–1957), 345 at IV d.19, ro. Consult Shogimen, Ockham and Political Discourse, 107–112, esp. 107, n. 9; see on page 185 the statements by Johannes Andreae (quoting Hostiensis) in footnote 57 and by Henricus Bohic in footnote 58. 30  Lyra observed that rebuke (correptio), or correction, was twofold. One form pertained to the judge as an act of justice in which the punishment of sin was directed toward this preservation of justice among men and the terror of others. By contrast, the second form pertained to everyone and was an act of charity. See Bibliorum Sacrorum Tomus Quintus cum Glossa Ordinaria, et Nicolalai Lyrani expositionibus literali et morali: Additionibus insuper et Replicis. In Libros Matthaei, Marci, Lucae, et Iohannis. (Lugduni, 1545); In Libro Matthaei, f. 56v. “Si autem peccauerit . . . [A]dvertendum quod duplex est correptio. Una que est ad peccantis punitionem propter conseruationem iustitiae; et ista non ordinatur semper ad correctionem delinquentis, qua aliquando sibi infligitur poena mortis, et ideo principaliter ad conservatione iusticiae et terrorem aliorum; et talis correptio non pertinet ad singulares personas, sed ad iudicem ad quem pertinet conservare iustitiam inter homines. [E]t propter hoc talis correptio est actus iustitiae. Alia est correptio quae ordinatur ad fratris peccantis emendationem et ideo est actus caritatis, et pertinet ad omnes. . . . Et de tali correctione loquitur hic salvator, non de prima, que est actus iustitiae. Tangit autem debitum modum huius correctionis, dicens: Si peccaverit in te frater tuus.” Although Lyra

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In essence, medieval theologians and canonists developed a two-tiered system of correction. But this differentiation belies an important fact. In reality, fraternal and judicial correction were not entirely separate entities, but rather, existed on a continuum. As the Gospel text itself makes clear, the correction of a fault in secret could, ultimately, result in a full-blown public condemnation if warnings remained unheeded.31 Saint Paul, in his Epistle to Titus, highlighted this continuity of procedure, with special reference to heresy: “The heretical man, after the first and second admonition, avoid.”32 Gerson, perhaps more than any other of the medieval scholastics, stressed this continuum when he interpreted this Gospel passage as forming the basis or foundation not only for the practice of fraternal correction, but also for the exercise of judicial, legislative and administrative powers by the church.33

Fraternal Correction in the Process of Censure at Paris

How, then, do the events described by Glachardi and d’Ailly compare to the practice of fraternal correction as described in scripture? On the one hand, the documents specifically characterize the admonition of Monteson by the faculty as an act of fraternal correction. On the other hand, upon comparison of the faculty’s procedure with the scriptural text, several discrepancies or anomalies become obvious. First, although the faculty labeled Monteson’s used the term ‘correptio,’ he essentially distinguished between judicial and fraternal correction. This work may be viewed and dowloaded at http://reader.digitale-sammlungen .de/de/fs1/object/display/bsb10141270_00116.html last accessed December 27, 2015. 31  As Shogimen observed the procedure was not designed so much to aid the sinner in discovering the truth as to aid the corrector in deciding whether the sinner had been obedient or disobedient. “From Disobedience to Toleration,” 603–604. 32  Titus 3:10. Biblia Vulgata. “Haereticum hominem post unam et secundam admonitionem devita.” 33  Jean Gerson, “De potestate ecclesiastica,” in Oeuvres Complètes, consideratio 4, 231. “Hanc potestatem contulit Christus Matth. xviii, 15, dum dixit Petro vice omnium: ‘Si peccaverit in te frater tuus, vade et corripe eum, etc.’ Sequitur,’ quod si te non audierit, dic Ecclesiae, quod si Ecclesiam non audierit, sit tibi sicut ethnicus et publicanus.’ Quo in loco, fundatur juridica potestas excommunicandi, vel interdicendi ab Ecclesiasticis Sacramentis, et communione fidelium rebelles et inobedientes Ecclesiae.” Further on, Gerson continued: “Fundatur etiam in hoc textu nedum potestas excommunicandi, sed potestas definiendi, determinandi, statuendi, decernendi, constituendi Praecepta, Leges et Canones,” quoted in Jussi Varkemaa, Conrad Summenhart’s Theory of Individual Rights (Leiden, 2012) 144, nn. 96 and 97, respectively.

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rebuke as an act of fraternal correction, the procedure followed by faculty did not resemble the steps outlined by Christ in the Gospel of Matthew. First, the gospel text describes a private, face-to-face, encounter between the sinner and the admonisher followed by a second semi-private rebuke that included the sinner, the admonishing Christian and one or two witness – all in all, a total of no more than four people were involved in these two initial steps of the procedure. Yet, neither of these two steps is preserved in either description of the event by Pierre d’Ailly or Radulphus Glachardi. In contrast to the scriptural command, there is no record of any private rebuke either by a single individual or by the dean or chancellor. Nor is there any mention of a rebuke in the presence of one or two witnesses. Instead, the documents state that several bachelors approached the dean regarding Monteson’s unsound teachings. Then, in the presence of all the masters of theology, the assembled body collectively admonished the Dominican in secret without ever mentioning his name.34 Thus, both the circumstances of the offense, as well as the faculty’s practice of fraternal admonition, differed significantly from the procedure as described by Christ himself. According to the Gospel text, the initial attempt at charitable correction occurs between two people only – the sinner and the witness, or the one sinned against. The first steps of charitable admonition were, in essence, a very private affair. In addition, the text of Matthew presents a situation in which the admonished and the admonisher interact personally. By contrast, in the Monteson case, the rebuke occurred, not between two people, but instead in the presence of the all masters of ­theology. Monteson’s admonition included a considerable number of people, not a single person. Furthermore, the faculty’s rebuke, although secret, was not personal. Monteson did not know who had initiated the admonition by reporting him. Apart from the role of the dean, the process preserved the anonymity of the bachelors who had complained to the dean. The dean conducted the rebuke and took the place of the admonisher, while the identity of the individual or individuals who witnessed and reported the offense remained secret. Likewise, just as Monteson did not know for certain who had reported him, members of the faculty did not necessarily know who was being admonished. Instead, in these accounts Monteson’s admonition takes place in the midst of the assembled faculty – rather than privately – and the number of individuals involved clearly exceeded the four prescribed in the Gospel. Third, the second step of fraternal correction – the presence of one or two witnesses – is thus conspicuously absent from the documentation of the Monteson case. Hence, in several 34  Consult the references on page 238, footnote 2 above.

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ways, the charitable admonition enacted by the faculty represented a departure or variation from the steps outlined in scripture.35 In addition to these discrepancies with the gospel text, the fraternal correction offered to Monteson by faculty also departed from the requirements of its own statutes. The oath taken by the bachelors before reading the Sentences at Paris, required each bachelor to inform either the chancellor or the bishop if he heard any unsound teaching. However, in the Monteson affair, the dean specifically recorded that several bachelors, who had been aggrieved by Monteson’s teachings, approached him – and not the chancellor or the bishop as required by the oath – to deal with the situation. Only afterward, was the matter turned over to the chancellor and the bishop. Thus, while the request by the aggrieved bachelors explains on a surface level why Radulphus Glachardi was reading the suspect propositions, their request does not explain the deeper significance of his role, given that the faculty required suspect teaching to be reported to the chancellor or to the bishop. Finally, as has been noted, according to the gospel text, fraternal and judicial correction existed on a continuum. The theology of fraternal correction – as it developed throughout the course of the Middle Ages – will explain these various discrepancies with the biblical text and provide the rationale for their presence, namely the use of general, anonymous admonition within a group or, in other words, the absence both of private face-to-face admonition and of only one or two witnesses. In addition, the theology of fraternal correction will also explain why the dean – and not the chancellor or bishop – conducted the anonymous, general rebuke. And finally, an analysis of the contemporary understanding of fraternal correction will show that the dividing line between fraternal and judicial correction occurred immediately after this general admonition – thereby making the acts of censure and public revocation matters of judicial, rather than fraternal correction. Perhaps one of the most exciting aspects of this investigative trail will be to uncover the role of the most treacherous disciple – Judas – in the formulation of the medieval theologies of fraternal and judicial correction. To that 35  According to Augustine (C.2,q.1,c.19), the initial stage of fraternal correction concerned a sin that was secret, i.e., known only to the person offended. Thus, the initial rebuke was both secret and personal. The church, however, did not judge secret crimes which were left to God’s judgment alone. Yet, Augustine’s interpretation created a dilemma. If only one person knew of the crime, how could witnesses be brought in at the second phase of fraternal correction? Would not one become a betrayer of someone’s secret sin by bringing in others as witnesses? This dilemma will be discussed below. However, it is clear that this modifcation preserved the principle of anonymity and protected the sinner’s identity and reputation.

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end, the first question that must be asked is: Did the anonymous and general admonition of someone in a group constitute an acceptable modification of the procedure described in the Matthew’s gospel?

Judas, Fraternal Correction, and the Parisian Faculty of Theology

Fortunately, among the writings of the medieval scholastics, Gabriel Biel, in his Canonis misse expositio, mentioned this alteration in the practice of fraternal correction. He enumerated those instances in which it was permissible to modify the procedure of fraternal correction.36 Among them, brotherly admonition could be given in a general way so that the crime was named and not the person.37 In support of this change, Biel alluded to Christ’s rebuke of Judas at the Last Supper and cited Bernard of Clairvaux’s sermon entitled: “In dedicatione ecclesie.” As Biel noted, even Christ did not first rebuke Judas in secret in a one-on-one, face-to-face encounter. Instead, he rebuked Judas in the presence of the apostles without mentioning his name. Thus, in a sense, this general admonition took the place of the first step of fraternal correction. In the Monteson case, the parallel is obvious. Just as Christ admonished one of his own without naming him, so the dean appeared to admonish a member of the faculty anonymously. Moreover, Biel’s comment raises the possibility that understanding Christ’s rebuke of Judas could aid significantly in understanding how the faculty corrected its own membership. Of course, Biel did not teach at Paris and, furthermore, lived and wrote some years after the censures of Foulechat and Monteson. Thus, it would be anachronistic simply to read his interpretation back into the circumstances at Paris. Nor is immediately clear whether the Parisian theologians followed a similar interpretation an application of this passage of Scripture. Nevertheless, if it is possible that

36  Although Biel’s treatise dates from the fifteenth century, and was produced outside of Paris, it makes reference to a long-standing procedure that was based on medieval sources. 37  Gabriel Biel, Canonis Misse Expositio, ed. Heiko A. Oberman and William J. Courtenay, 5 vols. (Weisbaden, 1963–1976), 3.LXXIIII, par. U, 236–237. “Septimus casus, dum ammonitio fit in generali, ita quod crimen quidem specificatur non persona. Sic dominus discipulis de iuda [sic] in ultima cena dixit: Unus vestrum me traditurus est. Nec tamen legitur prius iudam [sic] in secreto corripuisse, non tamen personam iude [sic] manifestavit. Hoc modo frequenter usus est beatus Bernardus ad fratres suos quos de certo crimine persona non specificata admonuit ac corripuit, ut patet in sermonibus DE DEDICATIONE ECCLESIE, et alibi.”

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Christ’s treatment of Judas could illuminate the contemporary understanding of fraternal correction, it is a topic worth pursuing. Unfortunately, direct examination of Biel’s sources is not helpful. His citation of Bernard of Clairvaux’s sermon, “De dedicatione ecclesie,” appears to be inaccurate.38 This sermon does not address the fraternal correction of Judas. Logically, a sermon on the Last Supper would seem a more appropriate location for such a discussion. Again, however, Bernard’s sermon on the Last Supper does not touch on this subject.39 Biel appears to have misattributed his source, and it is necessary to look elsewhere. It is doubtful that Biel merely fabricated a source for his idea. Rather, it is more probable that Biel knew both the Bernardine as well as the Pseudo-Bernardine corpus of the Middle Ages and merely confused his sources. This line of investigation produces an intriguing and productive result. Ogier of Locedio, a Cistercian abbot and contemporary of Bernard, whose works frequently traveled as part of the Pseudo Bernardine corpus, authored a series of sermons on the Last Supper attributed to Bernard in the manuscript tradition.40 Notably, Migne also included these sermons as part of the corpus of Bernard’s works. Without claiming Ogier as Biel’s source, Ogier’s sermons nonetheless provide a link to the Bernardine tradition that, in principle, supports Biel’s assertion. In his third sermon, at Jn. 13:21, Ogier observed that, in an effort to bring Judas to penance, Jesus did not mention him by name, but only designated his crime.41 38  This series of sermons is listed among Bernard’s works as, “In Dedicatione Ecclesie.” Although, in certain passages, the text suggests that the monks could be ‘proditores,’ of their vocation, an examination of the scriptural references cited by Bernard indicates that nowhere does he reference the episode involving Jesus, Judas and the Last Supper. See Bernard of Clairvaux, “In Dedicatione Ecclesie,” in Sermones II, in Opera, ed. Jean Leclercq et al., vol. 5 (Rome, 1968) 370–398. 39  Idem, “De Coena Domini,” Sermones II, in Opera, ed. Jean Leclercq, vol. 5 (Rome, 1968), 67–72. 40  A copy of this sermon, attributed to Bernard of Clairvaux, is contained in the manuscript S[er]mo[n]es gl[ori]osi B[er]nardi de cena Do[mini] Yh[es]u, owned jointly by the Newberry Library and Western Michigan University (Newberry Library/Western Michigan Univ. MS 5). I have not had the opportunity to view this manuscript. See the Library of Congress cataloging data at http://www.worldcat.org/title/sermones-gloriosibernardi-de-cena-domini-yhesu-1300-1399/oclc/71011459&referer=brief_results. Last accessed, 15 October 2012. 41  Ogerius Lucedii Abbas, “Sermones XV De Sermone Domini in ultima coena ad discipulos habito.” PL 184, cols. 879–950A, sermo 3, sec. 4, at cols. 891C to 891D s.v. Amen, amen dico vobis, quia unus ex vobis me tradet: “[Jesus] specialiter non designat traditorem suum, ne

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In reality, neither Ogier nor Biel claimed anything new. Rather, they alluded to a well-established interpretation of scripture that dated back to patristic and early medieval sources. Jerome had stated that Jesus admonished Judas at the Last Supper (that is, in the presence of the community), and yet did not mention his name. At first, Jesus said only: “one of you will betray me.”42 Then, Jesus gave only a sign: the one who dips his bread in the dish, but he did not name his betrayer. Here, Jerome noted again Christ did not specifically name Judas; rather, as the other disciples withdrew their hands from the table, Judas rashly placed his hand in the dish.”43 Christ then stated: “Woe to the man by whom the Son of Man will be betrayed.” Commenting upon this verse, Jerome observed that Christ predicted the punishment of Judas who, though rebuked a first and second time, failed to turn from his evil path.44 Jerome thus referenced Christ’s teaching on fraternal correction, echoing the text of Paul’s Letter to Titus. (Titus 3:10). According to Jerome, Jesus rebuked his betrayer twice in the presence of the disciples and alluded to his punishment, all the while preserving his anonymity. Jerome, of course, was a popular commentator. Bede, for example followed him on this point. In his commentary on Mark 14:18–21, Bede copied Jerome almost verbatim.45 Likewise in his commentary on Luke 22:21–23, Bede fieret impudentior vel inverecundior manifeste ­deprehensus. Manifestat ergo crimen, et dat locum poenitentiae, ut proditor videns se latere non posse, agat poenitentiam.” 42  Saint Jerome, Commentariorum in Matthaeum Libri IV, Corpus Christianorum. Series Latina 77; (Turnhout, 1969). 249, ll. 1096–1102. Hereafter cited as: Jerome, Mattheum. At Matthew 26:21, s.v. Et edentibus illis dixit: “Amen, dico vobis quia unus vestrum me traditurus est.” “Qui de passione praedixerat et de proditore praedicit, dans locum paenitentiae. . . .  et tamen non designat specialiter ne manifeste coargutus inpudentior fieret. Mittit crimen in numero ut agat conscius paenitentiam.” 43  Ibid., 249–250, ll. 1109–1117. At Mt. 26:23, s.v. At ipse respondens ait: ‘Qui intingit mecum manum in parapside hic me tradet.’ . . . “Primum dixerat: ‘Unus vestrum me traditurus est.’ Perseuerat proditor in malo. Manifestius arguit et tamen non proprie designat. Iudas, ceteris contristatis et retrahentibus manum et interdicentibus cibos ori suo, temeritate et inpudentia qua proditurus erat, etiam manum cum magistro mittit in parapside ut audacia bonam conscientiam mentiretur.” 44  Ibid., 250, ll. 1119–1124. At Mt. 26:24, s.v. Vae autem homini illli per quem filius hominis tradetur. “Nec primo nec secundo correptus a proditionem retrahit pedem. . . . Poena praedicitur ut quem pudor no vicerat corrigant denuntiata supplicia.” The phrasing echoes Titus 3:10. 45  Beda Venerabilis. In Lucae Evangelium Expositio; In Marci Evangelium Expositio, Corpus Christianorum Series Latina 120; (Turnhout, 1960). In Marci Evangelium, 610, ll. 580–605. Hereafter these works will be cited as Bede, In Marci [Lucae] Evangvelium, followed by page and line numbers.

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r­ eiterated the same message, obviously following Jerome closely.46 Bede, then, also portrayed the general admonition of Judas as an example of fraternal correction. Space does not permit a detailed analysis of the patristic and early medieval commentary on this point. Some of it will become evident in the work of later authors. But it is relevant to ask whether this line of interpretation concerning Christ’s treatment of Judas at the Last Supper provides a key for understanding the practice of fraternal correction at Paris. On the one hand, the patristic and early medieval sources, like Bede, were known, read, and generally accepted by the scholastic theologians in the theological faculty; however, did the Parisian masters follow this line of interpretation and did they, in fact, link the general admonition of Judas by Christ to the discourse on fraternal correction? To answer to this question, it will be necessary to look at the commentaries on both the Bible and Peter Lombard during the scholastic period.47

The Treatment of Judas by Christ at the Last Supper

Medieval theologians, whether commenting on the Bible or the Sentences, did not lack for opportunities to discuss Christ’s treatment of Judas at the Last Supper. Because this episode in the life of Christ surfaces to some degree in each of the four Gospels, biblical commentators had ample opportunity to divulge their opinions on this issue. But, given that the most complete retelling of the event occurs in the Gospels of Matthew and John, much of the relevant commentary was centered on those texts. In a similar fashion, when Alexander of Hales introduced the topic of fraternal correction into the Sentences, he provided a suitable and logical locus for bachelors to discuss the topic as well. Nor were the two genres of commentaries mutually exclusive. Some authors produced both forms of commentary. A chronological exploration of the major Parisian scholastics on this topic provides relevant perspective. The genre of biblical commentary, of course, predates that of the Sentences commentary and, so, represents a logical starting point. In particular, Kevin Madigan has identified the commentary attributed to Anselm of Laon as the

46  Bede, In Lucae Evangelium, 379–380, ll. 651–680; Cf. Lk. 22:21–23. 47  In the course of my research, I have looked extensively at the commentaries of Rupert of Deutz and Gerhohus of Reichsberg. Although interesting in their own right, I have not included a discussion of them here because these texts are not specifically cited by the scholastic authors. I hope in the future to publish an article on the contributions of these German theologians to the topic of fraternal correction.

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first scholastic commentary on the Gospel of Matthew and, further, has suggested that it formed the pattern for subsequent commentaries on this Gospel, including that of Pierre Jean Olivi.48 This earliest scholastic Gospel treated both the topic of fraternal correction at Matthew chapter 18 and, additionally, referenced the practice of fraternal correction when discussing Christ’s treatment of Judas at the Last Supper at chapter 26.49 In glossing the eighteenth chapter of Matthew, Anselm did not describe any modifications of procedure. Yet, in his discussion of Christ’s treatment of Judas, Anselm offered a different perspective. He stated that out of an abundance of mercy, Christ called Judas to penance several times, in a variety of ways: secretly, by the sacrament of unity, by the example of humility, and by threats. Yet, even when Judas persevered in his evil, Jesus admonished him more openly, but still did not identify his betrayer.50 Thus, Christ first admonished Judas generally among the group. Then he admonished the betrayer more openly but, still did not mention his name. Anselm portrayed Christ as admonishing Judas twice. Then, like Jerome, Anselm directly alluded to fraternal correction by quoting the book of Titus. According to Anselm, although Judas had been rebuked twice, he did not withdraw from his betrayal of the Lord.51 Anselm’s commentary is important because he placed the treatment of Judas squarely within the domain of fraternal correction and, further, accepted the general admonition of Judas as an alternative first step in the procedure. 48  Kevin Madigan, Olivi and the interpretation of Matthew in the High Middle Ages (Notre Dame, IN, 2003), 20–21. For a recent discussion of scholastic approaches to Scripture, see Christopher Ocker, “Scholastic Interpretation of the Bible,” in A History of Biblical Interpretation: The Medieval through the Reformation Periods, vol. 2, (Grand Rapids, MI and Cambridge, UK, 2009) 254–279. 49   Anselm of Laon (attributed), Enarrationes in Evangelium Sancti Matthaei, PL 162, cols. 1228–1500 at cols. 1407 and 1469. 50  Ibid., 1469, s.v. Et edentibus illis dixit: Amen dico vobis, quia etc: “Ex magnitudine misericordiae suae voluit Dominus proditorem discipulum ad poenitentiam multis modis revocare, occultis, videlicet notationibus, minis, sacramento unitatis, exemplo humlitatis. Occultis notationibus hoc modo: Cum Judas putaret conscientiam suam Deum latere, ostendit Christus eam manifestam esse, tamen non nominando discipulum, ne impudentiorem faceret manifeste redargutum; dum tangit crimen, ad poenitentiam invitat. Silet nomen, ne impudentior fiat. Minis revocat, cum ait: Vae illi per quem Filius hominis tradetur, etc. Sacramento unitatis, cum corpus suum ei tradit; exemplo humilitatis, cum ei pedes abluit. . . . s.v. Nunquid ego sum, Domine? etc. Qui intingit mecum, etc.: Dum perservat proditor in malo, manifestius arguit, et tamen nomen proprie non designat.” 51  Ibid., s.v.: Filius quidem hominis vadit, sicut scriptum est de illo. Vae autem homini illi per quem, etc. “Nec primo nec secundo correctus a proditione pedem retrahit, sed patientia Domini impudentiam suam nutrit et iram Dei thesaurizat sibi. Poena igitur praedicitur sibi, ut quem pudor non vinceret, corrigant denuntiata supplicia.” Cf. Titus 3:10.

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However, in the following century, William of Auxerre stood at the opposite end of the spectrum of opinion regarding Judas. Among the earliest writers to address the subject in a scholastic treatise, he raised the objection that Christ did not practice what he preached (fraternal correction) and, therefore, was not a good shepherd, because he did not admonish Judas with fraternal correction, who greatly needed it.52 Apart from the fact that William would not permit Christ to be characterized as anything other than a good shepherd, he resolved the objection, not by showing how Jesus provided fraternal correction, but rather, by showing that Judas did not deserve fraternal correction. William’s contemporary, Alexander of Hales, in his Glossa in quatuor libros Sententiarum, also stated that Judas did not merit the benefit of fraternal c­ orrection.53 By contrast, the author of the Summa Halensis – whether Alexander or a member of his school – believed the opposite: Christ designated Judas as the traitor but did not do so openly, thereby suggesting a general and modified form of secret admonition.54 The dichotomy of views concerning Christ’s treatment of Judas was not all all unusual. Albert the Great, who authored both a Sentences commentary as well as commentaries on all four Gospels, also held conflicting views regarding Judas. In his Sentences commentary, Albert held that Christ did not rebuke Judas but immediately denounced him.55 Yet, in his biblical commentaries, 52  Guillaume d’Auxerre, Summa aurea (5 vols.), ed. J. Riballier (Paris and Rome, 1980–1987), III, tract. 53, c.3, solutio, 1043. “Sed videtur Dominus fecisse contra suum preceptum, et ita non fecisse quod docuit; sciebat enim peccatum Iude, qui volebat eum tradere, et non corripuit; ergo fecit contra preceptum suum. Item, non fuit bonus pastor, qui non pavit Iudam verbo correptionis, quo Iudas maxime indigebat.” 53  Ibid., “Solutio. Ad primo obiectum dicimus quod Dominus not debuit corripere Iudam quatuor de causis. Cf. Alexander of Hales, Glossa in quattuor libros Sententiarum, 346. “Si vero quaeratur de Domino, quaere non observavit hunc ordinem circa Iudam, respondemus quod quatuor sunt causae propter quas con competebat correptio secundum hunc ordinem.” 54  Quoted in, Bonaventure, Commentarius in Evangelium Ioannis, in Opera Omnia, 10 vols. (Quaracchi, 1882–1902), 6:431, n. 10. The text reads: “Alex. Hal., S. p. IV q.11. m.2. a.1. § 4. ad.3. ad eandem obiectionem respondet ‘per Glossam [ordinariam ex August., in Ioan. Evang. tr. 62. n. 3.]: Per buccellam intinctam exprimitur traditor, non tamen aperte.’ ” I hope in the future to examine Alexander’s biblical commentaries. 55  Albertus Magnus, In IV Sententiarum, in Opera Omnia, 38 vols., ed. S. Borgnet (Paris, 1890–1899), v. 29:827–828. IV. d.19, a.21, c.2: “Item, videtur, quod Dominus in Iuda hunc ordinem non servavit: quia non primo corripuit ipsum inter se et ipsum solum, nec postea adhibuit secum unum vel duos, sed statim Ecclesiae discipulorum nuntiavit.” Responding to the objection, Albert further stated: “Ad aliud quod objicitur de Domino et Juda, dicendum, quod in factis Domini multa sunt quae servare non debemus, sed admirari: ipse

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Albert presented a more nuanced view of the issue. Interestingly, in the Gospel of Matthew, Albert did not directly address either the fraternal correction or denunciation of Judas. He did note, however, that Christ made a fourfold attempt to dissuade Judas from his sin, calling him to repentance.56 Albert provided greater detail in his commentary on Mark. In his division of the text, at Mark 14:18, Albert stated that Jesus first admonished Judas in a general way, then in a special way, and finally, under a vague threat of eternal punishment. Even when Christ answered Judas’ query, “Is it I, Lord?,” Christ did not name him, in order to provide an opportunity for penance.57 Albert observed that Jesus admonished Judas in the evening, so that the betrayer would not be shamed by the crowds. Furthermore, Albert explicitly referenced Matthew’s text on fraternal correction, wherein he likened the general rebuke of Judas in the presence of the disciples to the first stage of fraternal correction.58 In his commentary on the Gospel of Luke, Albert did not deal at any length with the fraternal correction of Judas. Albert did observe, however, that Christ’s k­ nowledge of enim omnium scibilium etiam contingentium habuit scientiam . . . quod nos imitari non possumus. . . . Et cum jam patuit, hoc non est a nobis observandum: quia de quolibet praesumere debemus corrigibilitatem, nisi ipse contrarium exhibeat in seipso saepius admonitus.” Many of the works in the Borgnet edition are available electronically. See http://albertusmagnus.uwaterloo.ca/newFiles/Downloading.html last accessed July 28, 2013. 56  Albertus Magnus, Super Matthaeum, ed. B. Schmidt, in Opera Omnia, 38 vols. (Münster, 1987), 21.2: 611. At Mt. 26:20, “Vespere autem facto: Hic tangitur quadruplex revocatio proditoris.se praescire traditionem et traditorem ostendendo . . . secundo beneficium commensalitatis praetendendo . . . tertio comminationes aeternarum poenarum terrendo ingeminat . . . quarto et ultimo manifestando sub obscure, ut sic notatus confundatur et a proposito desistat.” 57  Albertus Magnus, Enarrationes in Evangelium Marcum, in Opera Omnia, 38 vols., ed. S. Borgnet (Paris, 1890–1899), 21:339–809 at 699–700. Albert fills in the gaps of Mark’s gospel with information from the others. At Mark 14:19–20, s.v.: At illi: “Et sicut dicunt alii Evangelistae, Matth. 26:25, Luc.22:21, and Joan. 18: 26–27 [sic] [13:26–27], cum Judas diceret ei: ‘Numquid edgo sum, Rabbi?’ dixit ei Dominus: ‘Tu dixisti.’ Et ibi in singulari nominavit, sed per nomen non expressit ut locum daret poenitentiae, qui forte per nomen nominatus confusus induratus fuisset.” 58  Ibid., 699, [Mk. 14:16–21]. “Dividitur autem haec pars in tres partes secundum triplicem modum of revocationis. Primo, enim revocat admonitione generali: secundo, revocat admonitione speciali: tertio, revocat sub indeterminatione comminationis.” When speaking of the general admonition of Judas, Albert directly cited the the Gospel text of Matthew in reference to the general admonition: “De primo, Matth. 18:15: ‘Si peccaverit in te frater tuus, vade, et corripe eum inter te ipsum solum.’ In a concrete way, he linked the general admonition with the first step of fraternal correction as given by Jesus to Peter.

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Judas’ betrayal was secret.59 Albert further followed Chrysostom and noted that Christ hid the identity of Judas from Peter, who would have killed Judas.60 In his commentary on the Gospel of John, Albert went to great pains to state that Christ admonished Judas secretly and did not openly reveal his identity, in keeping with the procedure of fraternal correction; Christ admonished the crime and did not name the traitor. Albert also noted that Christ’s treatment of Judas was an instruction in charity and, thus, an example for the disciples – and presumably all Christians – to follow.61 Jesus revealed his betrayer only to Peter and John.62 Even after the dipping of the bread, Albert held that Christ had not revealed Judas’ identity; the dipping of the bread was common to all and, thus, did not single out the betrayer.63 In addition, Albert recognized that the disciples – except for Peter and John – did not understand what Jesus had said. Thus, Albert concluded that the Lord cautiously admonished Judas but, nonetheless, patiently remained silent and did not reveal him.64 Although Albert did not state so explicitly, he portrayed Jesus as following the procedure of fraternal correction for, after admonishing Judas in a general way, Jesus 59  Albertus Magnus, Enarrationes in Secundam Partem Evang. Lucae, in Opera Omnia, 38 vols., ed. S. Borgnet (Paris, 1890–1899), 23:679. At Luc.22:21–23: “Hic caute tangit proditoris revocatonem. . . . [et] per deitatem qua secreta cordis dijudicat, proditorem ad poenitentiam revocat. . . . in tertio, per comminationem iterum revocat proditorem.” 60  Ibid., 680. At Lk. 22:23, s.v. Et ipsi: “Dicit autem Chrysostomus, quod maxime Petrus hoc quaerebat. Habebat enim intentionem illum occidendi, sed Christus impedire voluit; et ideo Petro non indicavit.” 61  Albertus Magnus, Enarrationes in Iohannem, in Opera Omnia, 38 vols., ed. S. Borgnet (Paris, 1890–1899), vol. 24:511–512. At John 13: 22: “Hic instruit discipulos ad charitatem. . . . Dividitur autem haec pars in tres partes: in quarum prima describitur scelus proditoris contra charitatem agentis. . . . s.v. Et protestatus est, et dixit, etc.: Admonitorie, volens miserum a scelere revocare: ‘Amen, amen dico vobis. . . . Per hoc tamen non prodidit, quia omnes secum in eadem mensa comederunt: sed voluit ut Judam sceleris sui conscientia indudceret.” Thus, Jesus admonished Judas in a general way in a group setting. 62  Ibid., 513–514. At John 13:24–26: “Tangitur hic admonitio, et communis, quamvis non notabilis, nisi apud semetipsum efficiebatur revelatio proditoris. . . . [25] ‘Innuit ergo huic,’ hoc est, Joanni, ‘Simon Petrus.’ Probabile est hos duos inter alios fuisse plus familiares: et ideo inuisse saepe invicem, et contulisse de secretis.” 63  Ibid., 514–515, at John 13, 27, s.v. Et cum intixisset panem: Videtur autem quod Judam Dominus per hoc prodidit. . . . Dicendum ad hoc quod non prodidit: quia illud signum commune fuit. Omnes enim secum de catino intinxerunde.” 64  Ibid., 516. Glossing John 13:29–30, Albert stated: “Hic ostendit qualiter hoc signum fuit ignotum, et similiter verbum quod consecutum est signum: et ideo in communi quidem prius ostendit esse ignotus. . . . Unde Dominus in hoc scelere quamvis caute monuerit Iudam, tamen patienter tacuit et non manifestavit.”

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brought in Peter and John as two witnesses. Thus, Jesus followed both the first and the second steps of fraternal correction. Overall, Albert’s portrayal of Judas in his gospel commentaries differed sharply from that of his Sentences commentary.65 The reasons for this difference of opinion are not central to this study and must be set aside. Various aspects of his commentary, however, are important. In his biblical commentaries, Albert referenced the biblical text on fraternal correction and echoed the teachings of Jerome, Chrysostom, Bede, and the gloss, namely, that Christ designated the crime and not the sinner. Albert was not always consistent in every detail. In some accounts, Jesus admonished Judas only three times, in others, he offered a fourfold rebuke. Similarly, in his commentary on Mark, Albert only used John as one witness, but in his commentary on John’s Gospel, Albert spoke of both Peter and John as witnesses. These small discrepancies in detail, however, should not obscure the fact that at no time in his biblical commentaries did Albert portray Jesus as denouncing Judas. Furthermore, Albert made two important contributions, as illustrated in his commentaries on the Gospels of Mark and John. He clearly acknowledged that the anonymous admonition of an individual – even in the presence of a group of individuals – represented an acceptable modification of the secret admonition enjoined in Matthew’s gospel. And he further showed that Jesus followed his own teaching by bringing in – either or both – John and Peter as witnesses. Like his teacher, even Aquinas demonstrated a certain ambivalence in his approach to Judas. In his Sentences commentary, the Angelic Doctor opined that Jesus denounced Judas to the apostles without the benefit of secret admonition because the Lord knew that Judas would not reform and, in all likelihood, would have become even worse.66 In his later works, however, Aquinas also altered his stance. In the Summa theologiae, he stated that even though Christ knew Judas’ sin, he did not publicize the name of his betrayer, but instead, admonished him with obscure words.”67 In the Quaestio disputata de ­virtutibus, .

65  It should be noted that Albert does not deal with the treatment of Judas in his commentaries on Matthew and Luke. 66  Thomas Aquinas, In quatuor libros sententiarum, 1:551. IV d.19, q.2, a.3a, ra.1. “[E]t quia dominus sciebat judam [sic] non emendandam fore, si ipsum admoneret, sed magis exasperandam; quia non es probabile quod verba moverent quem tot miracula visa non moverunt; ideo ipsum non praemonuit; et quia etiam sciebat ex hoc forte magis exasperandum, et deteriorem fieri.” 67  Idem, Summa theologiae, 2:573. See 2, 2ae, q.33, a.7, ra.2. “Ad secundum dicendum quod dominus peccatum iudae, tanquam deus sicut publicam habebat, unde statim poterat ad publicandum procedere. Tamen ipse non publicavit, sed obscuris verbis eum de peccato suo admonuit.”

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Aquinas repeated his stance from the Summa.68 Similarly, in the Lectura super Matthaeum, Aquinas recalled that Jesus acted gently toward Judas and did not want to reveal him.69 The general admonition of Judas in the presence of the apostles appears in his Catena aurea. In the Catena on Matthew, the Angelic Doctor followed Jerome: Even when admonishing Judas a second time, Jesus did not designate the name of his betrayer.70 In Mark and Luke, Aquinas followed Bede – who had followed Jerome – in observing that Christ named the crime but did not reveal Judas.71 In the Lectura super Ioannem, Aquinas noted that Christ’s words were obscure; he only revealed the betrayer to John; the other disciples, however, did not understand what he had said.72 Thus, after admonishing Judas in a general way, Jesus brought in John, the beloved disciple as a witness. Although Aquinas did not say so explicitly, he, like Albert, portrayed Jesus as following his own mandate of fraternal correction. Jesus first admonished Judas in a general way and then brought in John the disciple as a witness. Bonaventure, for his part, did not address the issue of fraternal correction in his Sentences commentary. Nevertheless, in the Gospel of Luke, he noted that in rebuking Judas, Christ designated only his sin and did not publicize his name. In support of this assertion, the seraphic doctor cited the gloss which, in

68  Idem, Quaestiones Disputatae de Virtutibus, 3:429. Q. 3, a.2, ra.5, “Ad quintum dicendum, quod etiam dominus peccatum iudae scivit virtute divina, in quantum erat cognitor absconditorum; et ideo, in quantum deus, procedere poterat statim ad publicandum peccatum, et tamen ipse non publicavit, sed obscuris verbis eum de peccato admonuit.” 69  Idem, Super Evangelium S. Matthaei Lectura, ed. P. Raphaelis Cai, O.P., 5th ed. (Romae, 1951), par. 2166, 334. At Matth. 26:25, l. 2, s.v Ait illi: Tu dixisti: “Notate mansuetudinem Domini. . . . Nolebat enim eum revelare; quasi dicat: Non assero, sed tu dicis.” 70  Thomas Aquinas, Catena Aurea [Super Quattuor Evangelia], At Mt. 26, l. 6, 234: “Hieronymus. ‘O mira domini patientia. Prius dixerat: unus vestrum me tradet; perseverat proditor in malo; manifestius arguit, et tamen nomen proprium non designat’ ”. 71  Ibid., At Mk. 14, l. 5, 274: “Beda. Iudas, scilicet cui . . . . cum magistro manum mittit in catinum: et quia prius [Christus] dixerat: unus ex vobis me tradet, et perseverat proditor in malo, manifestius arguit; et tamen nomen proprium non designat. Hieronymus.” At Lk. 22, l. 6, 357, Aquinas again quoted Bede: “Beda. Et tamen non designat specialiter, [ne] manifestius correptus impudentior fieret. Mittit autem crimen in numero ut agat conscius poenitentiam.” 72  Idem, Super Evangelium S. Ioannis Lectura, ed. P. Raphaelis Cai, O.P., 5th ed. (Romae, 1952), par. 1817, 339. At John 13, 28, l. 5: “Ad quod dicendum est, quod Dominus verba illa occulte dixerat Ioanni tantum, ut non fieret proditor manifestus.”

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turn, referenced both Jerome and Bede.73 Consistent with the principles of fraternal correction Bonaventure reminded his readers that “a secret vice should not easily be publicized.” Subsequently, the Lord revealed his betrayer only to Peter and John. Bonaventure thus portrayed Jesus as admonishing Judas generally and then informing Peter and John as witnesses.74 At the very least, Bonaventure’s concern for the betrayer’s reputation and anonymity arise from his understanding of fraternal correction and echoes this practice, even if he did not directly reference it. John Peckham studied under Bonaventure. Peckham, composed a commentary on the Gospel of John; and the thirteenth chapter, which encompasses the revelation of Judas as betrayer, has been edited. Although a student of Bonaventure, Peckham, on balance, disagreed with him on this issue. Peckham demonstrated an almost schizophrenic attitude toward the figure of Judas. He began by acknowledging that Jesus had announced his betrayer first in a general, hidden manner, stating only that “one of you will betray me.”75 Then, Christ indicated the identity of his betrayer both to John and Peter, still in a hidden manner.76 Thus, on the one hand, Peckham appeared to show Christ as following the practice of fraternal correction and as demonstrating 73  Bonaventure, Saint, Commentarius in Evangelium S. Lucae, in Opera Omnia, 10 vols. (Quarrachi, 1895), 7:548, Lk. 22:21, s.v. Verumtamen ecce, manus: “[U]nde, sicut dicit Augustinus, corpus et sanguinem suum Iudae communicavit; nec eum aliis detexit; unde Glossa: ‘Non designat ex nomine, ne manifeste correptus impudentior fiat.’ ” Further n. 11, ibid. states: ‘Scilicet [glossa] ordinaria (ex Beda, qui sequitur Hieron., IV Comment. In Matth 26, 21) in Luc.22, 21.’ ” 74  Ibid., 7:549. Lk. 22:23, s.v. et ipsi coeperunt quaerere inter se, quis esset ex eis, qui hoc facturus esset.: Unde Apostoli erant innocentes. . . . Inter omnes tamen Simon Petrus, quia ferventior erat, diligentius requirebat; unde Ioannis decimo tertio [Jn. 13:24]: “ ‘Innuit Simon Petrus illi discipulo, quem diligebat Iesus, et dixit ei: Quis est, de quo dicit?’ Maluit autem Dominus, quod omnes turbarentur, quam quod ille omnibus detegeretur, ut formam daret, quod non est occultum vitium faciliter publicandum. . . . Tamen Simoni Petro per Ioannem indicavit, . . . quia non reputatur publicum, quod ex caritate ad cautelam praelato detegitur propter periculum vitandum.” 75  Robert A. Antczak, John Peckham and the Postilla super Johannem (JCL Thesis, Catholic University of America, 1975), 146–154. An English translation is provided on 206–212. At 146, s.v. Jn. 13:21, “Et protestatus est: Ecce generalis notificatio proditoris. Unde dicit, ‘et protestatus est’ quasi dicit porro testatus ‘et dixit Amen, Amen, dico vobis: Quia unus ex vobis me tradet.’ ” 76  Ibid., 147. In the division of this section of the text, Peckham observed, s.v.: “Erat ergo: Ecce notificationis modus introducitur. Ergo, primo familiaritatis Johannis super pectus Domini recumbentis; secundo, sollicitudo Petri ipsum ad inquirendum de hac sollicitudine vel ab ipso inquirentis, ‘Innuit ergo huic Simon;’ tertio, interrogatio super hoc

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c­ ompassion for Judas, as Bonaventure had done. Peckham, however, did not stop there. Instead, the future archbishop specifically asked whether Jesus had violated his own commandment to practice fraternal correction by revealing the identity of the one who would betray him.77 Rather than pointing to Christ’s anonymous rebuke of Judas as proof of fraternal correction, Peckham, in response, observed that Judas did not merit fraternal correction because he was pertinacious.78 In addition, he justified the identification of Judas as the betrayer by stating the admonition would have made Judas worse and that Christ knew through his divinity that this revelation would not weaken the disciples but, instead, perfected them. Hence, while Peckham began by showing Christ as practicing fraternal rebuke, he ended by having Christ denounce Judas to the disciples. Just as the thirteenth century thinkers exhibited a variety of opinions on this issue, so in the fourteenth century, the theologians remain divided. For his part, Durand of St. Pourçain believed that Judas was incorrigible and, therefore, did not merit fraternal correction.79 On the other hand, the theologian and canonist Guido Terreni believed that Christ offered Judas fraternal rebuke. In the early fourteenth century, Guido composed his harmony of the Gospels, the Quatuor unum. The work is interesting because, unlike the harmony of Augustine upon which it is based, Guido’s work also incorporates both general scholastic commentary on the text as well his own viewpoints, providing the reader will a full-fledged biblical commentary on the four Gospels. In the Gospels of Matthew and John, Guido discussed Johannis, ‘Itaque cum recubuisset; quarto, occulta revelatio proditoris’ ‘Respondit Iesus: Ille [cui intinctum panem ego porrexero].’ ” 77  Ibid., 151, s.v.: “Itaque: Amplius videtur Salvator deliquisse quia cum crimen esset occultum, publicavit. Ergo malefecit quia dicitur Matthaeus xviii[:15], ‘Si peccaverit in te frater tuus, corripe eum inter te ipsum solum.’ ”. 78  Ibid., “Respondeo: Dominus sciens eum esse pertinacem, ipsum non corripuit in forma illa quae ad correctionem ordinatur, ne ex correctione peior efficeretur. Amplius quia scivit Dominus per divinitatem suam illam revelationem non discipulis obicere sed perficere . . . dixit et dicere potuit . . . quod quia nos homines puri sumus, scire non possumus, non debemus trahere ad consequentiam.” 79  Durand de Saint Pourçan, In Petri Lombardi Sententias Theologicas Commentariorum libri IIII (Venice, 1571; rpt. Ridgewood, NJ, 1964) 351r. See IV d.19, q.4, par. 2. Durand stated the objection: “Sed Christus denunciavit Apostolis Iudam antem admonitionem factam, ut patet Ioan. 13.” At f. 351v, par. 8, he resolved the objection, stating:. “Ad secundum dicendum quod Christus ut Deus noverat Iudam incorrigibilem, et ideo non oportuit quod admoneret eum secreto.” It is worth noting that although the question as printed references the Summa of Thomas, (2. 2. q.33, a.7), Durand opposes the solution provided by Thomas, as noted above. Hereafter This work will be cited as Durand, Sententias, followed by the appropriate reference.

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the treatment of Judas whereas, in the Gospels of Mark and Luke, he spent little, if any time, on this issue. Guido essentially summarized the work of the early church fathers, including, Augustine, Jerome, Chrysostom, and Pope Leo I.80 In doing so, he maintained the traditional view that Christ treated Judas with patience and did not mention his name. Notably, Guido did not make any specific mention of fraternal correction at this stage of his commentary. Nevertheless, in his gloss on the Gospel of John, Guido justified the Savior’s decision to reveal the betrayer’s identity to the beloved disciple. First, Guido followed Chrysostom in holding that Christ revealed the betrayer only to John and no one else. Likewise, when commenting on Jn. 13:26, Guido stressed that John also exercised care so as to preserve the anonymity of Judas.81 According to Guido, even Peter, who prompted John to question the Savior, was not fully aware of the role that Judas was to play in subsequent events. Although Guido did not specifically cite the passage on fraternal correction from Matthew’s gospel, he alluded to it through Jerome who had quoted Titus 3:10 with respect to Judas: Thus, it seems evident that Guido portrayed Christ as rebuking the betrayer in a general way followed by the induction of two witnesses. Guido Terreni, OCarm. taught John Baconthorpe, OCarm. so, it is not surprising that,Baconthorpe believed that Christ practiced fraternal correction with respect to Judas. Baconthorpe specifically referenced Christ’s command to practice fraternal correction and saw it played out in the Lord’s treatment of Judas. Like Albert, Aquinas, and Durand, the Carmelite friar, in his Sentences ­commentary raised the possibility that Christ had not admonished Judas in secret.82 Yet, unlike his colleagues, Johannes resolved the question to show 80  Guido Terreni, Quatuor unum. Hoc est. Concordia Evangelica in quatuor Evangelistas. (Coloniae, 1631), See esp. Mt. 26:21–24, 872, passim, and Mt. 26:25, 875, s.v. Tu dixisti. A copy of this work may be downloaded from the Bayerische Staatsbibliothek. Page 873 is missing from the online scan. I have alerted the library regarding this issue. See http:// reader.digitale-sammlungen.de/resolve/display/bsb10634822.html and http://reader.digitale-sammlungen.de/de/fs1/object/display/bsb11059059_00001.html last accessed August 10, 2015. 81  Ibid., 889, s.v. Ille est cui ego intinctum panem porrexero: “Quare autem Dominus proditorem revelavit? Dicendum, quod Christus non relevit publice, sed occulte: non nominatim, sed ex facto, non omnibus, sed forsan Ioanni. . . . Sic enim Chrysost. Hom. 71 In Joan. testatur Dominum suis verbis non dedisse occasionem de quoquam suspicandi determinate, et ita verba involuit, ut nullus praeter ioannem intelligeret. Propterea Ioannes ad aurem interrogat, ut non fieret manifestus proditor. Et Christus ita respondit, ut eum non faceret manifestum.” 82  John Baconthorpe, Quaestiones In Tertium et Quartum Libros Sentiarum, et Quodlibetales, 2 vols. (Cremona, 1618; rpt. Ridgewood, NJ, 1969), 2:439–445. At 4. d.19, q.2 arg. 2, at 442, Johannes stated: “Praeterea. Non legitur Dominus monuisse secreto Iudam, antequam

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that Christ had followed the procedure of fraternal correction: Christ first admonished Judas generally and in secret, then with Peter and John as two witnesses. In fact, because Christ knew all things, he rightfully could have publicized Judas’s sin; however, according to Baconthorpe, the Savior demonstrated restraint.83 Most thinkers throughout the fourteenth century authored commentaries on the Sentences. Unfortunately, many of them, such as the future Innocent V, did not bring Judas into the discussion.84 Neither did Pierre de la Palude, OP.85 Moreover, several prominent fourteenth century theologians at Paris whose Sentences commentaries survive did not discuss fraternal correction, among them, Hervaeus Natalis, OFM, Thomas of Strasbourg, OESA, and the secular theologian Pierre d’Ailly.86 A contemporary of Foulechat, Franciscus Bachonis, OCarm., produced a lengthy commentary but appears not to have covered this topic.87 In fact, the discussions of fraternal correction in Sentences commentaries are few in number, due in large measure to the selective nature of the commentaries, especially after 1345. A colleague of Franciscus Bachonis, Michael Aiguani of Bologna, OCarm., briefly mentioned the Matthaen text as the source of all judicial authority in his commentary on the Sentences, thereby emphasizing the continuum that existed between the two forms of c­ orrection.88 He did not, however, develop the discussion of eum denuntiaret. Ioanis. 13. ergo, etc.” Hereafter, this work will be cited as Baconthorpe, Quaestiones, with the appropriate citation. Baconthorpe also authored a commentary on Matthew which remains in manuscript form. I hope to examine this work in the future. Cf. Jn. 13:21–26. 83  Ibid., 4. d.19, q.2. ra.2, at 443. Baconthorpe responded: “Ad secundum dicendum, quod Dominus peccatum Iudae tamquam Deus scivit, et in curia Dei fuit publicum. Unde statim ad publicandum procedere potuit, tamen ipse non publicavit, sed obscuris verbis, et generalibus primo eum monuit de peccato; secundo Ioanni, et Petro, qui ratione valebant prodesse, revelavit Ioan. 13, et hoc habetur 22, quaest. 5, Hoc videtur” [C.22, q.5, c.8]. 84  For the commentary of Peter of Tarentaise, see Innocent V, In IV Librum Sententiarum Commentaria, ed. Ioannis Baptistae de Marinis et al., 4 vols. (Toulouse, 1649–1652). See IV. d.19, q.2, a.3, at 4:220–222. 85  Pierre de la Palude, In Quartum Sententiarum (Venetiis, 1493). See IV. d.19, q.3 and 4, f. 107r–108r. 86  See Shogimen, Ockham and Political Discourse, 113. For Thomas of Strassbourg, see Thomas de Argentina, Commentaria in IIII Libros Sententiarum (Geneva, 1585) IV, d.19, f. 131–133. 87  For Franciscus Bachonis, see the list of questions provided by Xiberta in “El Mestre Francesc Bacó,” Criterion 1 (1925) 174–198, 286–310, at 308–310. Also consult, idem, De scriptoribus scholasticis saeculi xiv ex ordine Carmelitarum,” (Louvain, 1931), 394–413. 88  Michaelis Aiguani, OCarm., Quaestiones Disputatae in Quattuor Libros Sententiarum (Venice, 1623), 408–409, at 408b. IV, d.19, q.1, a.1. “Sic et sunt duplices claves Ecclesiae:

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fraternal c­ orrection in his commentary on the Psalms, and his commentary on Matthew remains to be examined.89 Other Biblical commentators did contribute to the discussion of Judas and fraternal correction. Their attitudes and opinions must also be considered. The first major commentator of the thirteenth century, Hugh of St. Cher, authored commentaries on all four gospels. In his commentary on Matthew’s Gospel, Hugh did not reference fraternal correction in his discussion of Judas. Without being explicit or detailed, he stated only that Judas betrayed himself. At Mt. 26:25, the wayward disciple essentially confessed when he asked Jesus, “Is it I, Lord?”90 In the Gospel of Mark, at Mk. 14:18, Hugh quoted Jerome without attribution stating only that Jesus did not identify his betrayer by name.91 In Luke’s Gospel, Hugh did not comment on Judas. Finally, in John’s account of the Last Supper, the Glossator provided his most extensive commentary on the topic. Commenting on Jn. 13:26, Hugh followed the Church Fathers, especially Chrysostom; Christ identified his betrayer without naming him.92 Hugh made clear that Christ did not publicly accuse or denounce Judas. Further, although Hugh did not state that Peter and John were witnesses, at Jn. 13:27, he observed that Christ informed John by the sign of the dipped bread, yet without naming quaedam pertinentes ad forum poenitentiale et secretum, de quibus ait Iesus Petro Matth. 17 [sic]: ‘Tibi dabo claves regni caelorum et quodcumque ligaveris,’ etc. Aliae sunt claves pertinentes ad forum iudiciale, et publicum, de quibus Matth. 18, ait Iesus Petro: ‘Si peccaverit in te frater tuus,’ etc. et sequitur tandem ‘dic Ecclesiae’: et ‘si Ecclesia [sic] non audierit, sit tibi sicut ethnicus et publicanus’; et sequitur, quantum ad istum forum publicum: ‘Amen dico vobis quodcumque ligaveris super terram erit ligatum, et in celis, et quodcumque solveris, etc.” Cf. Mt. 18:15–18. 89  Consult the unpaginated index to Michaelis Aiguani de Bononia, Commentaria in Psalmos Davidicos, 2 vols. (Lugduni, 1673) s.v. correctio and correctionis conditionis. Michael makes no specific reference to fraternal correction. For his writings, including his Sentences and biblical commentaries, see Xiberta, De scriptoribus, 324–393. 90  Hugh of Saint Cher, In Evangelia Matthaeum, Lucam, Marum et Ioannem, [Biblia cum postilla domini Hugonis Cardinalis,] vol. 6 (Lyons, 1669), f. 81r, s.v. Dixit. Numquid ego sum Rabbi?: “Ipsa responsione sua crimen prodidit. Quippe ipsa confessio nihil aliud est quam criminis proditio.” For the electronic version, see http://books.google.fr/books?id=iWFCA AAAcAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f= false last accessed September 1, 2013. 91  Ibid., f. 116v, s.v. Amen, dico vobis, Hugo quoted Jerome by citing the gloss: “Glos. sicut de passione praedixerat, ita de proditore praedicit, dans locum poenitendi. . . . Non tamen ex nomine eum designat, ne aperte redargutus impudentior fiat. Mittit crimen in numerum, ut conscius poenitentiam agat.” 92  Ibid., f. 367v, s.v. “Ille est cui ego intinctum panem porrexero: Chrys. Nunc primum notabiliter redarguit Dominus Iudam, sed neque nunc nominatim.”

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Judas.93 In an abundance of caution, the Cardinal even asked whether Christ had betrayed Judas by identifying him in this visible way.94 Hugh referenced the Matthaen text on fraternal correction, but concluded that Christ did not betray him because Christ did likewise to the others.95 Overall, then, Hugh followed the early medieval tradition that portrayed Jesus as admonishing Judas secretly in a group, offering him fraternal correction. Nicholas of Gorran and Nicholas of Lyra, two major biblical commentators at Paris during the thirteenth and fourteenth centuries, respectively, also commented on Christ’s treatment of Judas. In commenting on Mt. 26:21–25, Gorran first observed that Christ insinuated indeterminately, that is, generally, noting only that one of the disciples would betray him. Then, Jesus did so secretly, describing his betrayer as the one who dipped his hand in the dish. Third, only after these attempts failed, did Christ reveal Judas in a more manifest way, allowing Judas to identify himself by asking, “Is it I, Lord?”96 Thus, it appears that Jesus rebuked Judas at least twice in secret, as required by his own teaching on fraternal correction. In his commentary Jn. 13:26, 30, Gorran made clear that John (and to a certain extent, Peter) acted as Christ’s witnesses – witnesses both of Christ’s foreknowledge of the event as well as of his admonition to 93  Ibid., s.v. Et cum intinxisset panem dedit iudae Simonis Iscariotae. Augustinus: “Deinde per bucellam intinctam exprimitur traditor, non tamen aperte. . . . Chrys. dicit quod latenter dixit Iohanni illud . . . ideo alii nescierunt.” 94  Ibid., s.v. Ille est cui ego intinctum panem porrexero: “Sed queritur quia videtur secundum hoc quod Dominus prodiderit Iudam. . . . Sed contra est illud: Matth. decimooctavo [Mt. 18:15]: Si peccaverit in te frater tuus.” 95  Ibid., s.v. Et cum intinxisset panem dedit iude Simonis Scariothis Augustinus: “Sed ad hoc solvitur secundam quosdam, quia in hoc, quod panem porrexit ei, non prodidit eum, quia aliis similiter fecit. Vel dicendum est, quod sive dederit aliis intinctum panem, sive non, non prodidit eum, quia cum Deus esset, bene sciebat, quod Apostoli factum illud non attenderent; hoc autem nescimus, et ideo non debemus simile facere.” 96  On Nicholas Gorran, see Christopher Ocker, Biblical Poetics Before Humanism and Reformation (Cambridge, 2002), 43–48. Nicholas Gorran, In Evangelium Matthaei Enarratio, in Commentaria Nicolai Gorrani in Quatuor Evangelia (Coloniae, 1537) fol. 132– 133r, s.v. “[E]t edentibus illis: Superius praefiguravit suam passionem dominus facto, hic praedicit suam traditionem verbo, ubi insinuat personam proditoris, Primo sine determinatione aliqua, quia unus vestrum. Secundo, insinuatione occulta, ibi, At ille respondens, ait: Qui intingit. Tertio, cum expresione manifesta, ibi, Respondens Iudas qui tradit illum” . . . [s.v. Qui intingit mecum manuum in paropside, hic me tradet]: . . . “Sed videtur dominus peccare prodendo crimen fratris occultum. Responsio, omnes comedebant in uno vase.” Then, s.v. Respondens autem Iudas, Gorran states: “Hic insinuat dominus personam proditoris expressione manifesta.” Gorran continues, quoting Rabanus at, “Tu dixisti: Rabanus, quasi diceret, tu prodisti te, non ego.”

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Judas.97 To the objection that Christ had openly identified Judas both by word and by sign, Gorran responded by following Augustine and Chrysostom among others; Jesus revealed his betrayer, not to all, but only to some, and secretly. Overall, the bulk of Gorran’s commentary in the relevant passages in Matthew and John shows that Christ’s treatment of Judas paralleled and surpassed the requirements of fraternal correction. Jesus first admonished Judas secretly, then in the presence of Peter and John. Then, he warned Judas of his impending doom in the presence of the disciples who represented the church. Gorran reiterated the principle that, although a secret sin should not be publicized, it could be revealed secretly to a few, who could help and not hinder the sinner.98 Thus far, Gorran’s interpretation was consistent with the Christ’s offer of fraternal correction to Judas through the practice of general admonition. Yet, by contrast, and in an almost contradictory fashion, Gorran reached a startling conclusion at the end of his comments on the passage in Matthew’s Gospel. As noted above, he had at first described Christ’s patience toward Judas and his several attempts to admonish him. Nevertheless, Gorran directly referenced the text of “Si peccaverit” and, pointedly observed that Christ seemed to violate his own precept by identifying Judas and his sin. Unable to lay blame at the Savior’s feet, Gorran attacked Judas and stated that the duty of fraternal correction applied only where there existed hope for sinner’s correction. In the case of Judas, however, such hope was non-existent. At this juncture, Gorran stated out-rightly that Judas did not deserve fraternal correction and seemed to imply that Christ revealed his secret sin. As if to muddy the waters even more, at Mt. 26:21, Gorran asked why Christ did not name Judas directly. The exegete relied on the gloss: Otherwise, Judas would have been even more

97  Ibid., In Evangelium B.Iohannis., in Commentaria Nicolai Gorrani in Quatuor Evangelia (Coloniae, 1537), c.13, f. 560r, s.v. Respondit ei Iesus: “Hic tangitur tertium, scilicet, domini secreta responsio, qua discipulo familiari satifacit. Propter quod non verbo dixit, sed signo manifestavit, propterea dicit: [Ille est cui intinctum porrexero]. Et in hoc scivit Iohanes quis esset eum traditurus.” Gorran noted both that John and Peter did not wish to ask openly, but secretly. Likewise, Jesus answered secretly. See Ibid., f. 560r–v, s.v. [E]rat autem nox: “Et quia sciebant quia dominus Iesum palam non diceret nec ipsi volebant eum ita palam confudere, occulte quaesierunt, et occulte eis responsum est.” 98  Ibid., f. 560v. Gorran continued: “Ergo videtur quod dominus Iesum eum aperte manifestaverat, et quod non tantum signo, sed verbo. Responsio: Dicendum, quod dominus Iesus proditorem revelavit, sed non omnibus, imo aliquibus et occulte. . . . Quod vero dicitur quod non est peccator prodendus, intelligendum est quod non publicandus, sed tamen dici potest his, qui possunt prodesse et nolunt obesse.”

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shameless.99 Again, like many other theologians, Gorran evidenced ambivalent feelings regarding the figure of Judas and whether or not he merited and received fraternal correction. Like his thirteenth century counterpart, the fourteenth century biblical exegete, Nicholas of Lyra, also addressed the treatment of Judas by Christ at the Last Supper. In broad terms, Lyra presented Christ as following his own mandate of fraternal correction. In commenting on Mt. 26:20, Lyra observed that Christ called Judas back on four occasions. Christ treated Judas as a friend and a brother and first rebuked him through love. Although Jesus knew that Judas would betray him, the Lord, nonetheless, invited his betrayer to share the Passover of the lamb.100 Then, a second time, through sorrow, Christ attempted to win back Judas by prophesying about the passion.101 When this second attempt failed, Jesus identified the betrayer obliquely, as the one who dips in the dish. Following the traditional interpretation, at Mt. 26:23, Lyra held that this action did not identify Judas specifically, since everyone ate from the same dish. Jesus then called Judas back through fear, alluding to the damnation awaiting his betrayer [Mt. 26:24].102 Lastly, Christ employed the mechanism of shame to bring Judas to repentance. In response to Judas’s question [Mt. 26:25], “Numquid ego sum,” the Lord merely answered, “Tu dixisti.” With these words, Christ spoke to his betrayer’s conscience. Yet, even in this instance, 99  Gorran, In Evangelium Matthaei Enarratio, f. 132v, s.v. dixit: Amen dico vobis: “Sed quare edentibus revelat dominus proditorem suum triplici de causa valde bona. . . . Tertio, ut proditor poeniteret, qu[od] se non laetere audiebat. Sed videtur dominus facere contra regulam quam superius dedit, cap. 18. Si peccaverit in te frater tuus, corripe eum inter te et ipsum. Responsio, illud intellegitur ubi est spes correctionis, quae non erat hic. Sed tunc quaeritur, quare non designat eum ex nomine? Responsio secundam Glossam, ne manifestius correctus impudentior fieret.” 100  See the gloss of Nicholas of Lyra at Mt. 26:20 in Bibliorum Sacrorum Tomus Quintus cum Glossa Ordinaria, et Nicolalai Lyrani expositionibus literali et morali: Additionibus insuper et Replicis. In Libros Matthaei, Marci, Lucae, et Iohannis. Lugduni, 1545). The text is available online from the Bayerische StaatsBibliothek at http://reader.digitale-sammlungen. de/resolve/display/bsb10141270.html last accessed August 11, 2015. Gospel texts will be cited in shortened form. See Lyra, Matthaei, f. 79r, s.v. [D]iscumbebat cum duodecim discipulis suis: Ex quo patet, quod quantum erat in se revocabat proditorem amore primo cum esset unus ex duodecim et tamen illum [Jesus] non repulit a convivio agni paschali, licet eius proditio non lateret eum.” 101  Ibid., s.v. [E]t edentibus illis [Mt. 26:21]: “Hic secundo revocat proditorem dolore, predicando coram eo passionem suam que debebat esse discipulis suis materia doloris.” 102  Ibid., Lyra followed the traditional interpretation, s.v. Et ipse resp. ait: Qui inting. me. m.in pa. hic me tra.: “[P]er hoc non poterant perpendere quis esset determinante, quia omnes comedebat in eodem vase in quo erant carnes agni paschalis posite.” Then, s.v V[a]e autem: Hic tertio revocat proditorem timore, predicendo ei penam damnationis suae.”

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Lyra maintained that the other disciples did not know for certain to whom Jesus referred.103 According to Lyra, Christ rebuked Judas anonymously among a group and did not divulge the identity of the betrayer. Although Lyra did not state so explicitly, he portrayed Christ as modifying the first step of fraternal correction, while continuing to follow the second step, the induction of witnesses. At Lk. 22:23, Lyra commented that Jesus did not identify Judas openly but only to John secretly, that is, as a witness.104 When commenting on Jn. 13:26, Lyra confirmed that Christ informed the beloved disciple in silence.105 Thus, Lyra portrayed Christ as practicing his own mandate of fraternal correction with respect to Judas, even if Lyra did not explicitly reference the text. Yet, Lyra, like Gorran, also evidenced a certain ambivalence regarding whether Judas received fraternal correction or judicial denunciation. Lyra’s choice of words – particularly in his commentary on John – is interesting. On the one hand, Lyra described Jesus as practicing fraternal correction while on the other, he used the term “denunciation” to describe the Savior’s actions toward the wayward disciple when commenting on Jn. 13:22.106 Overall, then, in contrast to Hugh of St. Cher, who consistently spoke of Christ as admonishing Judas generally, Gorran and Lyra adopted this view but, nevertheless, also evidenced ambiguities, inconsistencies, and contradictions regarding whether Christ admonished or denounced Judas, or, whether Judas deserved the benefit of secret admonition. However, in those instances in which the commentators did present Christ as admonishing Judas, they portrayed the Savior as acting in a general way, rebuking Judas in a group and, frequently, with John and/or Peter as witnesses. To add to the debate, one must not overlook the sources of medieval canon law that refer to the treatment of Judas. Here, at least, the view of the betrayer seemed to remain more consistent. Among the earliest sources, the Sententiae of the School of Laon held up the treatment of Judas as an example of long suffering. Christ had tolerated Judas and had not specifically designated his 103  Ibid., s.v. [R]espondens autem Iudas: “Hic quarto revocat proditorem pudore.” Lyra then continued, s.v. Ait il. tu d.: “Et in hoc delictum suum aliis non publicavit, sed conscientiae Iudae significavit se eius delictum scire. Poterat enim per hoc verbum mentem iudae sic movere, quod alios latebat.” 104  Lyra, In Libro Lucae, f. 177r, s.v. [Q]uis esset ex eis, Lyra wrote: “Tamen nesciverunt quia hoc Christus non revelavit manifeste, tamen Johanni secrete ut habetur Joh. xiii.” 105  Lyra, in Libro Iohannis, f. 225v, s.v. [R]espondet Iesus: “Respondit Iesus ipsi Johanni in silentio quia si alteri dixisset Petrus erat ita fervidus quod statim insurrexisset in proditorem.” 106  Ibid., f. 225v, s.v. Aspiciebant: “Hic consequenter denunciat proditorem. Et dividitur in duas: quia primo ponitur denunciationis occasio. Secundo ipsa denunciatio.” Similarly, s.v. Respondit Iesus: Posita occasione denuncionis. [H]ic ponitur denunciatio proditoris. Et dividitur in tres, quia primo exprimitur ipsa denunciatio.”

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betrayer, only the crime.107 Given the influence of the Sententiae on Gratian, it is not surprising that the Camaldolese monk also included two canons in his Decretum that portrayed Christ’s lenient treatment of Judas as a model for others to follow.108 Gratian included a text from Sermon 351 of Augustine that stated “many are corrected like Peter, [yet] many are also tolerated like Judas.” Indeed, Gratian’s dicta prior to this text confirm its intent. Gratian stated that one could not be both accuser and judge at the same time. Hence, a judge could not prosecute a secret crime about which only he had knowledge without violating this principle.109 Similarly, Gratian excerpted part of Sermon 82 of Augustine; the text looked to the Savior’s tolerance of Judas to enshrine the principle that the church did not judge secret crimes. According to Augustine, if the judge alone knew of someone’s crime, it could neither be revealed nor condemned.110 In similar fashion, Gregory IX cited the Savior’s treatment of Judas when he placed the decretal Si sacerdos in the Liber extra. The decretal forbade a priest from judging according to his conscience, but instead, required him to judge according to proofs and laws. The justification for this procedure relied upon the fact that Christ did not betray Judas because, although Jesus knew in a divine sense that Judas was guilty, the betrayer’s sin 107  See G. R. Evans, Law and Theology in the Middle Ages (London and New York, 2001), 157, n. 57. The Sententia reads: “Nec Christus usquam legitur Iudam nominatim arguisse sed indeterminate: ‘Unus vestrum me traditurus est.’ Sententia 476 bis.” For the text of the Sententia see O. Lottin, Psychologie et morale aux XIIe and XIIIe siècles, 6 vols. (J. Duculot: Gembloux, Belgium, 1959) V, 312. 108  For the influence of the Sententiae on Gratian, see P. Landau, “Gratian und die Sententiae Magistri A,” in: Aus Archiven und Bibliotheken. Festschrift für Raymund Kottje zum 65. Geburtstag, ed. H. Mordek, Freiburger Beiträge zur mittelalterlichen Geschichte, 3 (Frankfurt am Main, New York, and Paris, 1992), 311–326; and Atria A. Larson, “The Influence of the School of Laon on Gratian: The Usage of the Glossa ordinaria and Anselmian Sententiae in De Penitentia (Decretum C. 33 Q. 3)” Mediaeval Studies 72 (2010) 197–244 109  C.2, q.1, d.p.c.17: “III. Pars. Gratian. . . . Que iudici tantum nota sunt, sine examinatione feriri non possunt, quia, dum accusatoris persona assumitur, iudiciaria potestas amittitur. In una enim eademque causa nullus simul potest esse accusator et iudex. Unde Augustinus in omelia de penitentia.” C.2, q.1, c.18. “Multi corriguntur ut Petrus; multi tolle­ rantur, ut Iudas; multis nesciuntur, ‘donec veniat Dominus, qui illuminabit abscondita tenebrarum.’ ” 110  C.2, q.1, c.19. The rubric to the text, as well as the opening section of the text make this point clearly. “Peccatum, quod iudici tantum notum est, ab eo dampnari non ualet.” “Si peccauerit in te frater tuus, corripe eum inter te et ipsum solum. Quare? quia in te peccauit. Quid est: In te peccauit? Tu scis, quia peccauit. Quia enim secretum fuit, quando peccauit in te, secretum quere, cum corrigis quod peccauit. Nam si solus nosti quia peccauit in te, et eum uis coram omnibus arguere, non eris corrector, sed proditor.”

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was secret and no human evidence of his guilt existed. With respect to a secret sin, the church could judge neither the crime nor the sinner because Christ did not excommunicate Judas but tolerated his presence at the Last Supper. In essence, the condemnation of Judas – or of any sinner – required a due process of law.111 These texts portray Christ as admonishing Judas in a general way without revealing his identity; the references to the text Si peccaverit underscore Christ’s offer of secret admonition. What, then, is one to make of these divergent interpretations? The survey of scholastic opinion on this issue reveals a healthy debate and a divergence of views. On the one hand, some scholastics, such as William of Auxerre and Durand of Saint Pourçain held that Christ had denounced Judas publicly and omitted fraternal correction entirely. In their view, Christ’s treatment of Judas at the Last Supper amounted to a public denunciation in the presence of the apostles. Still other theologians, such as Alexander of Hales, Albert the Great, and Aquinas, as well as the biblical commentators, Nicholas of Gorran and Nicholas of Lyra, held conflicting views on the topic, sometimes favoring the Lord’s admonition of Judas and, at other times, leaning toward Christ’s denunciation of him. Still other scholastics – among them, Bonaventure, Guido Terreni, and John Baconthorpe – held that Jesus both modified the practice of fraternal correction and brought in the fellow disciples John and Peter as witnesses, thereby adhering to the terms of fraternal correction. Moreover, when brought in as witnesses, Peter and John did not do so as prelates acting in any official capacity, but only as private individuals who were able to benefit and not hinder Judas. Thus, in their role as witnesses, they acted unequivocally as instruments of fraternal and not judicial correction. Obviously, Judas Iscariot was a very polarizing figure who functioned somewhat like a Rorschach inkblot test: Theologians saw in him what they wanted to see. Hence, the figure of Judas could be, and was, used variously to support a wide spectrum of views that were sometimes even mutually exclusive 111  With respect to fraternal correction, Takashi Shogimen has argued that, the medieval conception of “due process” differed substantially from the modern understanding of the term. Whereas the modern concept stresses the right of the accused to a full defense, per Shogimen, the medieval understanding of the “due process of fraternal correction” emphasized the procedure by which the erring Christian was made aware of his wrong­ doing and was presented with an opportunity to repent and reform before incurring legal sanctions, including excommunication. See Ockham and Political Discourse, 109. Kenneth Pennington, on the other hand, has argued that medieval due process was, in fact, much more comprehensive than the modern form. See his work, The Prince and the Law, passim, and an updated article based on that book, entitled: “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,” Rivista internazionale di diritto comune 9 (1998), 9–47.

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of one another. With respect to the limited question regarding a general admonition to Judas as a valid modification to the standard procedure of fraternal correction, the evidence shows that many theologians at Paris accepted this practice as valid. Their discussions of this topic in their biblical and Sentences commentaries demonstrate that the faculty’s admonition of Monteson in the presence of the assembled body conformed to an acceptable modification of private admonition. Furthermore, the acceptance of this change in procedure is strengthened by the fact that these commentators studied and taught at Paris. Finally, it is important to keep in mind that this modified procedure represented an option – not a requirement – for administering fraternal correction. Unanimity or consensus regarding its suitability was not required. Various groups, such as monastic communities or theological faculties, could adopt or ignore the practice as circumstances dictated; and individual thinkers could hold divergent views on the topic. Nevertheless, with respect to Paris, the evidence demonstrates that the faculty as a whole decided to adopt it as an alternative.

The Rule of Augustine and Fraternal Correction

In the figure of Judas, the theology of fraternal correction has provided a model for the general admonition of Monteson within the theological faculty of Paris. Yet another aspect of the Monteson’s rebuke demands further explanation. Given that the bachelors had taken an oath to inform the chancellor of unsound teaching, why did they approach the dean of the faculty of theology and not the chancellor? Why did the dean conduct the admonition? And why didn’t the dean simply turn the matter over to the chancellor once the bachelors had approached him? After all, both the bachelors and the dean – in fact, all members of the faculty – would have, at one time or another, taken this oath and, therefore, would have been keenly aware of this requirement.112 That the indignant bachelors approached the dean and not the chancellor cannot be just mere coincidence. To answer these questions, it will be necessary to turn to the writings of Augustine, who like Jerome, contributed so much to the topic of fraternal correction. Augustine wrote extensively on fraternal charity in sermons, treatises, and in Letter 211, which has come to be referred to as his Rule. There, the Church Father observed that, if one monk witnessed a fellow monk fall into sin, he should rebuke him. Afterwards, if the sinner did not emend his ways, witnesses could then be brought forth. In this much, 112  For a discussion of the oaths taken in theological faculty, see below, beginning on page 293.

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Augustine followed the Gospel text. However, the Church Father also added an additional step to the procedure not described by Matthew. Augustine taught that, before bringing the matter before witnesses, a correcting brother could bring the matter to the attention of the praepositus of the monastery – not as judge – but rather, as someone who could benefit and not hinder the spiritual growth of the wayward brother. In this way, if the sinning monk reformed, his reputation was spared.113 This innovation introduced by Augustine occurred between the first and second steps of the procedure as taught by Christ – that is, after private, face-to-face admonition but before the introduction of one or two witnesses. Nevertheless, it is of interest to note that some writers, such as Peter of Tarentaise, OP, considered this additional step to be the equivalent of bringing in a witness.114 The dean in the Monteson case figured prominently, particularly in the open events of the controversy. His involvement in the Monteson case stands in contrast to the other cases at Paris. Thijssen has suggested that the dean conducted the investigation because the position of the chancellor was weak, for the chancellor at the time, Johannes de Guignicurte, was only a bachelor in theology and represented the papacy’s choice and not that of the faculty.115

113  For the critical edition of Augustine’s Rule or Praeceptum, see La Règle de saint Augustin, ed. Luc Verheijen (Paris, 1967). The Rule addressed to men may be found at 417–437. For Augustine’s comments on this issue, see 426. “[par.] 7. Et si hanc de quo loquor oculi petulantiam in aliquo uestrum aduerteritis, statim admonete, ne coepta progrediatur,, sed de proximo corrigatur. 8. Si autem et post admonitionem iterum, vel alio quocumque die, id ipsum eum facere uideritis, iam uelut uulneratum sanandum prodat, quicumque hoc potuit inuenire; prius tamen et alteri uel tertio demonstratum, ut duorum vel trium possit ore conuinci et competenti seueritate coherceri. . . . 9. Sed antequam aliis demonstretur, per quos conuincendus est, si negauerit, prius praeposito debet ostendi, si admonitus neglexerit corrigi, ne forte possit, secretius correptus non innotescere ceteris.” Although Augustine did not say so explicitly, he considered this action to be private, for his stated purpose in recommending this step was to insure that the matter did not become known to the rest of the community (“ne forte possit, correptus secretius, non innotescere ceteris.” 114  Innocent V, Sententias, IV d.19, q.2, a.3 q.5 a.3, 221–222: “Dicit Augustinus in Regula sua, quod antequam aliis demonstretur, per quos convincendus est, si negaverit, praeposito debet ostendi, ergo prius debet denunciari.” In the response to quaestincula 5, Innocent stated: “Ad 5. quaestionem, Resp. . . . antequam vero testibus ostendatur, debet ostendi secrete, secundum Augustinum, Praelato, non ut iudici ad condemnandum, sed ut Patri, qui vult prodesse, non obesse ad corrigendum: hanc tamen ostensionem Dominus nomine testium comprehendit.” 115  Thijssen, Censure and Heresy, 11 and nn. 55 and 56.

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However, the faculty’s adoption of Augustine’s modification more effectively accounts for the dean’s actions in the Monteson case. No document directly states that the faculty adopted this additional step, but referral to the dean seems very clearly based on this step – a fact that should come as no surprise. First of all, the very prestige of Augustine and his Rule assured that knowledge of this modification was widespread. Yet, apart from Augustine’s stature, this step had become standard practice, for Johannes Teutonicus codified this principle in his gloss Augustine’s text, Si peccaverit in the Decretum. Johannes asserted that Christ did not betray Judas by revealing his sin to the apostles because the Lord revealed it to those who could benefit Judas – that is, the Lord revealed it to the disciples in a non-judicial sense.116 More specifically, within the faculty itself, knowledge of the Rule would have been both widespread and well accepted. Three of the four mendicant orders, after all – the Dominican, the Carmelites and, of course the Augustinians – had adopted it as their way of life. Aquinas commented on this procedure in his Sentences commentary and in his lectures of Matthew.117 Other m ­ endicants, 116  Furthermore, no less a source than Ockham quoted Teutonicus in support of this view, thereby further demonstrating the widespread acceptance of this principle. See William of Ockham, Dialogus, ed. and trans. J. Kilcullen, G. Kynysh, et al., Auctores Britannici Medii Aevi, 1 Dialogus, Book 7, chap. 14, ll. 80–97. http://www.britac.ac.uk/pubs/dialogus/ ockdial.html (accessed 31 August 2013).  The text (with critical apparatus omitted) reads: “Discipulus: Per istam rationem probaretur quod liceret non uni soli sed etiam omnibus revelare peccatum alicuius occultum, quia Christus non uni soli sed omnibus aliis apostolis peccatum Iude revelavit.  Magister: Respondent quod peccatum alicuius occultum non solum uni sed etiam multis revelare licet, quia omnibus illis qui possunt prodesse et non obesse. Hinc est quod quia omnes apostoli preter Iudam erant tales quod poterant prodesse et non obesse, ideo omnibus Christus revelavit peccatum Iude. Et hanc rationem videtur innuere glossa 2 q.1 c. Si peccaverit, que, super verbo ‘proditor’ obiiciens, ait: ‘sed nonne Dominus prodidit crimen Iude cum dixit ‘qui intingit manum mecum etc.’ Et post, respondens, ait: ‘respondetur illi quibus dicebatur poterant tantum prodesse.’  Ex quibus verbis colligitur quod illis licet revelare crimen alicuius occultum qui possunt prodesse, et ideo si multi sunt qui prodesse possunt, multis crimen occultum licite revelatur. Sed quia nunquam invenitur quod omnes possent prodesse et non obesse, imo multi obessent, ideo omnibus nunquam debet revelari crimen occultum quod probari non potest.” 117  See, for example, Aquinas, Sententias, IV, d.19, q.,2 a.3b, ra.4, 552. “Ad quartum dicendum, quod praelatus potest dupliciter considerari; aut secundum quod judicio praesidet: et sic dicere praelato est dicere Ecclesiae; et sic prius debent testes adhiberi quam praelato dicatur: aut extra judicium existens; et sic dicere praelato non est dicere Ecclesiae, sed personae quae potest prodesse et non obesse; quia nullus magis potest prodesse quam praelatus; et secundum hoc debet prius dici praelato quam testibus ostendi aliis,

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including Walter of Bruges, Peter of Tarentaise, Guido Terreni, and John Baconthorpe demonstrated an awareness of this practice because they cited this modification in their writings on fraternal correction.118 Jean Gerson, a secular cleric, also referenced the Augustinian step in his treatise, “De correptione proximi.” Following Augustine, Gerson, also held that one could bring the matter to the attention of the prelate privately, not as judge, but as a friend of the sinner.119 Hence, a fresh look at Augustine’s additional step and its application to the Parisian faculty of theology yields interesting results. ut quanto minus potest fieri, publicetur; et tunc praelatus adhibetur quasi unus de testibus. Talis enim debet esse ordo correptionis fraternae, quem Augustinus in regula tradit, ut cum quis oculi petulantiam, vel aliud peccatum quodcumque in fratre suo advertit, statim admonere debet, ne coepta progrediantur, sed de proximo corrigantur.”  Aquinas acknowledged in his Super Evangelium S. Matthaei Lectura, ed. P. Raphaelis Cai, OP, 5th rev. ed (Taurini et Romae, 1951) that Augustine’s additional step on the surface appeared to pervert the order of fraternal correction as stated in the Gospel. See Mt. 18, lectio 2, par. 1520, 232–233, s.v. Si autem te non audierit, adhibe tecum unum vel duos: “Sed hic est quaestio: quare statim non inducit testes? Dicendum quod sic debet mundari conscientia, quod non laedatur fama: unde si primo et per se potest, bene quidem; si non, tunc advocet testes. Et Hieronymus dicit quod unum primo, et post duos. . . . Sed contra hoc videtur esse quod Augustinus dicit quod antequam duobus ostendat, debet ostendere praeposito, et hoc est ostendere Ecclesiae. Ergo videtur pervertere ordinem. Dico quod potest ostendi praelato, vel ordine iudiciario, vel ut personae privatae. Intendit ergo Augustinus quod debet ostendi praeposito primo ut personae privatae, ut tamquam persona privata det operam correctioni.” 118  The Quaestiones Disputatae, of Walter of Bruges have beed edited by E. Longpré, O.F.M., in Quaestiones Disputatae du B. Gauthier de Bruges, in Les Philosophes Belges: Textes et Études, vol. 10 (Louvain, 1928). Walter discusses fraternal correction in Qestions 23 through 34, 179–238. Further references to this work will be cited as: Walter of Bruges, followed by question number and page number. At Q. 31, 216: “ ‘[S]i autem nec sic te audierit, dic Ecclesiae, id est, praelato tantum, qui prodesse potest in occulto, et obesse non debet. . . . Unde Augustinus in Regula sua: ‘Peccans primo debet in secreto corripi, deinde, si contradixerit, praelato ostendi.” Innocent V, Sententias, IV, d.19, q.2, a.3, ad 5 quaestionem, 222: “[A]ntequam vero testibus ostendatur, debet ostendi secrete, secundum Augustinum, Praelato, non ut iudici, ad condemnandum, sed ut Patri, qui vult prodesse, non obesse ad corrigendum.” Terreni, Quatuor unum, 630, s.v. Si avtem te non avdiervnt: “[T]alem [peccatum] possim revelare in secreto probo viro, qui sciat et possit, ac velit prodesse, et non obesse, non ut praelatus, sed ut privata persona et ut probus homo in secreto provideat saluti fratris peccantis.” Guido accepted this modification of procedure even when the sin injured another or the community. Baconthorpe will be dealt with below, beginning on page 312. 119  Gerson, “De correptione proximi,” in Oeuvres Complètes, ed. P. Glorieux, 10 vols. (Paris, 1960), 9:171–173 at 172. “Si quando ergo videatur frater peccans salutarius corrigi per alium qui potest et vult prodesse, secure potest ei indicari. Unde etiam praelato dici potest

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The analysis of Augustine’s modification with respect to the faculty points to several factors that need to be kept in mind. First, Augustine’s additional step did not replace the initial, private, face-to-face encounter between sinner and Christian. It merely supplemented it.120 Second, because the prelate was acting as a private person, Augustine’s modification still preserved the secret nature of the rebuke, thus protecting the sinner’s reputation.121 Third, however much the Guignicurte’s status may have shaped events, that fact alone is not a sufficient explanation for Radulphus Glachardi’s prominence. After all, Guignicurte’s rank as a bachelor did not prevent him from conducting the beginning stages of the formal investigation into Monteson’s teachings. On June 13, 1387, Guignicurte, in his capacity as chancellor, along with several representatives of the faculty met with several masters acting as representatives of the Dominican order to discuss the conduct of the investigation. Under normal circumstances, the chancellor customarily presided over the public revocation before the faculty. But even here, the absence of Guignicurte should not reflect poorly on him. He did not preside over Monteson’s retraction because it never took place! Monteson refused to appear, fled, and then appealed. Thus, the prominence of the dean was not due to the weakness of the chancellor; rather, following Augustine’s procedure led to his prominence because doing so fit both the faculty’s interpretation of Augustine’s directive and best served the needs of the faculty. First, the connection between the terms praepositus and dean was pointed out above.122 Hence, although Augustine lived and wrote in an era that pre­ eccatum fratris, non praemissa monitione vel secreta correctione, non tanquam judici p sed tamquam amico peccantis et qui ei magis potest prodesse quam alius, praecipue propter casus praefactos.” Gerson’s statement is a testament to the influence of Augustine’s Rule on the practice of fraternal correction. Although a secular – and not a member of any religious order following the Rule, Gerson, nonetheless, followed the modification of procedure suggested by Augustine. 120  See page 276, footnote 116. Ockham had even suggested that it was possible to reveal the secret sin of an individual to many because Christ had revealed Judas’s sin not only to Peter and John, but rather, to all the disciples. From this perspective, the large number of colleagues present at Monteson’s admonition does not seem so unusual. Ockham also cautioned that one could not reveal a secret sin to everyone because never did everyone wish to benefit the sinner. 121  It is clear from Augustine, Thomas, Guido, and Peter of Tarentaise that when the matter was brought to the prelate as a private person before witnesses had been introduced, the prelate remained a private person and the action occurred apart from any judicial proceeding. See, for example, Thomas, on page 276, footnote 117. Also, see the comment of Peter of Tarentaise (Innocent V) on page 275, footnote 114. 122  Augustine did not use the term, ‘abbas.’ He may have used the term ‘praepositus’ loosely as a synonym for the head of the community. By the high middle ages, the term had taken

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ceded the development of medieval corporate theory and that was devoid of universities, nevertheless, clerics in the thirteenth and fourteenth centuries still read his work and interpreted it in relation to their own circumstances. Consequently, to the ears of fourteenth century academics, the role of the praepositus as “dean” in the monastery would have resonated with that of the dean in the faculty. Thus, the idea of bringing the matter to the attention of the praepositus, or dean, of the faculty would not have sounded foreign to them. Moreover, the dean, by virtue of his role as the senior member of the body, was able to meet the specific needs of the faculty. One of his major functions was to bring the faculty into congregation to deal with its own matters, apart from the chancellor. In the Monteson case, the bachelors needed a way to bring the faculty together without approaching the chancellor. Yet, by approaching the dean and not the chancellor, the bachelors appeared to risk excommunication by violating the terms of their oath to report suspect teaching. In reality, however, the presence of both a dean and a chancellor in the theological faculty permitted the development of a division of labor, or of responsibilities. While, theoretically, it would have been possible to approach the chancellor as a private person, this course of action was messy at best. It placed the bachelors in an awkward position and, further, ran the risk of blurring the lines between the chancellor’s public and private obligations. Were the bachelors approaching the chancellor in fraternal correction or in response to the terms of the bachelor’s oath? Further, because the chancellor acted as ordinary, notification to him could potentially trigger legal proceedings, as evidenced in the case of Denis Foulechat.123 And the specter of miscommunication over the bachelors’ intent in approaching the chancellor remained a real possibility. Hence, in order to remain within the sphere of fraternal correction, apart from judicial correction, the faculty needed a different procedure. In contrast to the public persona of the chancellor, the dean, was able to operate effectively under the radar. And Augustine’s procedure, or modification, provided a singular advantage: The matter could be brought to his attention and dealt with privately without running the risk of initiating a legal process, as would have been the case if the matter had been brought to the chancellor’s attention. Instead, as the internal head of the faculty, the dean fulfilled the role of the prelate as on new connotations that more closely corresponded to the responsibilities of a dean. See on page 56, footnote 48, and page 80, footnotes 49 and 50. 123  Urban V, in writing to Jean de Dormans, observed that, Foulechat was denounced to the chancellor and the masters, and that they carried out their duty [debitum] in investigating the matter. Thus, they acted officially, “ex debito offici,” and not merely in a charitable way. See on page 217 footnote 58 and page 218 footnote 59. Note especially the phrase: “ipsi cancellarius et magistri suum in hac parte debitum exequentes.”

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a private person; and in this role, he handled the matter privately, according to Gospel mandate of fraternal correction. Despite the fact that no document exists stating that the faculty chose to act in this way, it is noteworthy that Gabriel Biel also included this additional step among his list of nine acceptable modifications to the biblical practice of fraternal correction.124 Hence, in the Monteson case, it is clear that that the faculty adopted this additional step originally proposed by Augustine and that the dean acted as a vir probus in fulfilling this function.125 The faculty’s desire to offer fraternal correction, coupled with the need to avoid a legal process, explains, at least in part, why the Foulechat and Monteson cases were handled differently at the beginning stages of the investigation. Conclusion Overall, then, the treatment of Judas and the developments in the theology of fraternal correction have shed considerable light on the practice of fraternal correction at Paris. At first glance, the faculty’s rebuke of Monteson, as described by d’Ailly and Glachardi, appeared to be at some variance with the text as handed down in the Gospel of Matthew. Although the simplistic approach might have been to assume that these variances merely developed over time through custom, delving into the sources has demonstrated that what appeared, on first glance, to be an arbitrary procedure was, in fact, rooted in the theology of fraternal correction itself. Perhaps most surprising and intriguing is the fact that the figure of Judas provided the model for an important modification in the procedure of fraternal correction: The use of secret, general admonition within a group, as in the example of Christ’s general admonition of Judas at the Last Supper. The modification had its origins in the writings of the Church Fathers and was subsequently accepted by the scholastic theologians and adopted in the faculty of theology as an acceptable procedure. In addition to the use of secret, general admonition within a group, the faculty also adopted an additional step in the process suggested by Augustine: 124  Biel, Canonis Misse, 235. “Sextus casus, quando prelato non ut iudici, sed ut singulari persone, que potest et debet velle magis prodesse quam alii, fratris peccatum ostenditur. Tunc enim ostensio delicti precedere debet adductionem testium. Sic dicit beatus Augustinus in REGULA.” 125  As subsequent discussion will demonstrate, one could go to any vir probus, not only the prelate. Hence, a bachelor could go to the dean instead of the chancellor. See page 316, footnote 90.

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Referral to the prelate as a private person. By following Augustine’s additional step, the aggrieved bachelors were able to bring the matter to the dean’s attention and, thereby, to avoid a legal process. The dean, in turn, based on the ­general ­admonition of Judas, was able to conduct an anonymous rebuke of the Dominican friar that would have both shielded his identity and preserved his reputation had he not chosen to identify himself. In this way, the principles of fraternal correction were preserved. Thus, it appears that through time, the theological faculty adopted both the practice of general admonition within a group as well as the additional step formulated by Augustine and, furthermore, fused them together into a single procedure in order to meet the specific needs of its membership. Nevertheless, however much the figure of Judas provided a justification for tolerance and the practice of fraternal correction, that image of Judas tells only half the story. Some commentators believed not only that Judas was unworthy of fraternal correction, but also that Christ denounced, rather than admonished him at the Last Supper. Those who held such a view were left with a conundrum that demanded explanation. On what basis did the Jesus seem to violate his own commandment to practice fraternal correction? Rising to the task, medieval theologians developed a sophisticated theology of fraternal correction that permitted its omission under specific circumstances. Thus, just as Christ’s long-suffering of Judas provided an example of the practice of fraternal correction, so his apparent denunciation of the betrayer provided an opportunity to highlight important reasons for omitting charitable admonition. Because fraternal and judicial correction existed on a continuum, the omission of fraternal correction implied that judicial correction followed, or took its place. Elucidating the principles that governed the practice or omission of fraternal correction will provide a better understanding of the procedures used within the faculty. This unveiling, in turn, will unravel both the mystery surrounding the role of the dean and will, ultimately, explain why the public revocations of the bachelors and masters at Paris were, in fact, acts of judicial, and not fraternal, correction.

Chapter 9

Fraternal Correction and Its Role in Academic Censure at the University of Paris

The Duty to Render Fraternal Correction and Its Possible Omission

Apart from the text of Matthew’s Gospel, the duty to render fraternal correction was based, in part, upon a reading of Ambrose’s gloss on Romans 1:32. The biblical text condemned those “[w]ho, having known the justice of God, did not understand that they who do such things, are worthy of death; and not only they that do them, but they also that consent to them that do them.” In this gloss, Ambrose had contended that someone who kept silent regarding the sin of another appeared to consent to it – and thus, shared in the sin in some way.1 As a result, the need to speak up regarding another’s sin in order to avoid any culpability placed a heavy burden upon medieval Christians to correct one another’s faults. In fact, a strict reading of this gloss required every Christian to admonish every sinner in all circumstances, a moral standard that was – and still is – impossible to achieve. Consequently, the inability to fulfill this mandate in every instance forced medieval theologians to articulate a workable solution that permitted the omission of fraternal correction under certain circumstances.2

1  The text is referenced in: Peter D. Clarke. The Interdict in the Thirteenth Century: A Question of Collective Guilt (Oxford, 2007), 29–58, at 29. Clarke also provides a brief discussion of the theological and canonist sources of the doctrine collective sin and guilt through mid-­ thirteenth century. While western thinkers made reference to Ambrose’s gloss in this regard, it should be noted that Origen made precisely the same point in his In Leviticum Homilia III: “ ‘Consensum autem dico, non solum pariter agendo, sed etiam quae illicite gest sunt, reticendo.’ ” See Migne, Patrologiae cursus completus, series graeca (161 vols.: Paris, 1857–1866), 12, 424, par. 194. Quoted in Howard Hansen O.F.M., Denuntiatio Evangelica, 6. See also the discussion of Qui alios (X 5.7.1), by J. P. Lomax, “Hints and Allegations: The Charge of Infidelity,” in Papal and Imperial Propaganda, 1239–1245, in Religion, Power, and Resistance from the Eleventh to the Sixteenth Centuries: Playing the Heresy Card (New York, 2014) 171–194, at 180. 2  The omission of fraternal correction, in turn, implied one of two alternatives: either 1) nothing more was done and the matter ended; or 2) with the omission of fraternal correction, the matter was transferred to the sphere of judicial correction.

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The Contribution of Augustine

Interestingly, it was Ambrose’s star pupil, Augustine, who addressed the need to omit fraternal correction in certain circumstances. At its foundation, the ability to omit fraternal correction rested on the distinction between a p ­ ositive, or affirmative precept, and a negative, or prohibitive one – a distinction that dated back at least to Augustine (if not earlier) and that was codified by the scholastic theologians.3 Whereas, a negative precept forbade sinful actions and bound the Christian in all circumstances, an affirmative precept inculcated acts of virtue and, as such, was to be practiced only when opportune conditions existed. In the absence of suitable conditions, fraternal rebuke, as an affirmative precept, could be omitted without fear of committing any sin. In the De ­civitate Dei, Augustine provided an influential understanding of this principle. He stated that someone could omit fraternal correction ­meritoriously when: 1) he sought a better opportunity for offering correction; or 2) he feared that the erring brother would become worse as a result of rebuke; or 3) he believed that the rebuke would turn others from the faith.4 Yet, although Augustine did not methodically offer reasons for omission, the Church Father provided other justifications as well. Above all else, Augustine considered direct knowledge of a sin to be an absolute precondition for any correction to take place. Augustine interpreted the Gospel phrase “Si peccaverit in te” to mean that either the sinner sinned against you personally or 3  Aquinas distinguished between an affirmative and a negative precept when discussing fraternal correction in his Summa at 2a, 2ae, q.33, a.2, co., 2:572. “Respondeo dicendum quod correctio fraterna cadit sub praecepto. Sed considerandum est quod sicut praecepta negativa legis prohibent actus peccatorum, ita praecepta affirmativa inducunt ad actus virtutum. . . . Et ideo praecepta negativa obligant semper et ad semper. Sed actus virtutum non quolibet modo fieri debent, sed observatis debitis cicumstantiis quae requiruntur ad hoc quod sit actus virtutuosus, ut scilicet fiat ubi debet, et quando debet, et secundum quod debet.” 4  Augustine, De Civitate Dei, PL 41, col. 22, at 1.9.2. “Nam si propterea objurgandis et corripiendis male agentibus parcit, quia opportunius tempus inquirit, vel eisdem ipsis metuit, ne deteriores ex hoc efficiantur, vel ad bonam vitam et piam erudiendos impediant alios infirmos, et premant atque avertant a fide; non videtur esse cupiditatis occasio, sed consilium charitatis.” Jerome also was frequently cited, especially with regard to the duty to omit fraternal correction when it would make the sinner worse. One was not to correct in vain. See for instance, Nicholas Gorran, Matthaeum, f. 94v. “Primus est cum non sit aliqua spes correctionis. Hieronymus: ‘Frustra niti et nihil aliud quam odium querere, extreme dementie est.’ Ideo dicitur Proverb. 9: ‘Noli arguere derisorem, ne oderit te.’ ”

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you, ­personally, witnessed the event.5 This interpretation, in turn, led to an important corollary: A monk did not need to leave the cloister to investigate the lives of others; he was responsible only for rebuking the wrongdoing that he saw.6 In other words, Augustine offered a fourth reason for the omission of fraternal correction: No one was required to investigate the life of another; the duty to act concerned only sins about which one had direct knowledge. Additionally, Augustine, following Scripture, provided a fifth reason for the omission of fraternal correction. The Church Father distinguished between public and private sins.7 Following Paul’s injunction to Timothy (1 Tim. 5:20), Augustine had taught that when a fault or error was merely private in nature, then fraternal rebuke as a private act would suffice. Public sins, however, affected others, and not only the individual sinner. Consequently, when the sin was public, it created scandal. The error had to be corrected publicly so that others might fear.8 Important aspects of his thought on fraternal correction are contained in Sermons 351 and 82. Augustine exerted an enormous influence on 5  C.2, q.1, c.19. 6  For Augustine, see Sermo LXXXII, De verbis Evangelii Matthaei, cap. xviii, 15–18, PL 38, cols. 506–514, c.1, at 506. “Admonet nos Dominus noster non negligere invicem nostra peccata, non quaerendo quid reprehendas, sed videndo quid corrigas.” For Aquinas, Summa, 2a, 2ae, q.33. a.2, ra.4, 572. “[N]on opportet nos quaerere quibus impendamus, sed sufficit quod imnpendamus eis qui nobis occurrunt . . . ut [A]ugustinus dicit . . . in de verb. dom. quod admonet nos dominus noster non negligere invicem peccata nostra, non quaerendo quid reprehendas, sed videndo quid corrigas. ‘[A]lioquin efficeremur exploratores vitae aliorum contra id quod dicitur prov. xxiv, ne quaeras impietatem in domo iusti, et non vastes requiem eius.’ ” Guido Terreni made a smimilar comment based on Augustine, with respect to prelates. Following Augustine, he remarked that it was not the the job of the prelate to investigate the lives of others. The prelate was only to correct sinners about whom he had knowledge. See Quatuor unum, s.v. Vade, corripe eum inter te et ipsum solum: 629a. “Et est hic advertendum, quod quamvis unicuique, maxime autem Praelato, debeat esse cura de salute proximi, non tamen tenetur anxie inquirere, ut habeat quos corripeat, sed eos corripere solum debet quos novit pecasse, et ut tales sibi occurrunt . . . ne videaris explorator vitae alienae.” Similar statements can be found in many authors. 7  Augustine, “Sermo, LXXXII,” c.6, par. 9, PL 38, col. 510. “Coreptio alias secreta, alias publica esse debet. Duo ergo ista praecepta, fratres . . . sed discernere debemus, aliquando illud, aliquando illud esse faciendum; aliquandum corripiendum fratrem inter te et ipsum solum, aliquando corripiendum fratrem coram omnibus, ut et caeteri timorem habeant.” 8  Ibid., “Sermo, LXXXIII,” De verbis Evangeli Mathaei, cap. xviii, 21–22, col. 514–519, at c. 8, par. 8, 519. “ ‘Peccantes coram omnibus, corripe, ut caeteri timorem habeant’ (I Tim. 5:20). Certe si quis, quod solum verum est, distinguit tempora, et solvit quaestionem, verum est. Si peccatum in secreto est, in secreto, corripe. Si peccatum publicum est et apertum, publice corripe: ut ille emendetur, et caeteri timeant.”

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the theology of fraternal correction; and the i­nclusion of passages from these texts in the Decretum guaranteed as much.9 In addition, his discussion of fraternal correction as an affirmative precept also found its way into numerous discussions of the topic. Equally so, later authorities routinely accepted his position that the corrigibility of the sinner represented a sine qua non for correction to take place. Likewise, they frequently quoted his distinction between secret and public sins. Among others, Augustine influenced the great biblical commentator, Hugh of Saint Cher, whose gloss on the entire Bible proved so influential. By the thirteenth century, Hugh, in his commentaries on the Gospels of Matthew and Luke, had included five reasons for omitting fraternal correction, all of which were based on the Augustinian principles outlined above. These included: 1) when there was no hope of correction, 2) when there was lack of proof, 3) when the matter was notorious or known to the judge, 4) when there existed a b­ etter opportunity, and 5) when such rebuke would injure the church.10 Another commentator, Nicholas of Gorran, for instance, repeated these five reasons for omitting fraternal correction, even if he did not cite his fellow Dominican by name.11 In addition to transmitting the Augustinian principles, Hugh emphasized that the unworthy practice of fraternal correction amounted to a sin for the one rebuking when: 1) the sin could not be proven, 2) the person being rebuked was incorrigible, or 3) the person rebuking was in the same or worse state of sin and, therefore, a hypocrite.12 Thus, not only was it ill-advised 9  Cf. C.2, q.1, cc.18–19, respectively. 10  Hugh of St. Cher, Matthaeum, f. 62a. Hugh stated shortly after the lemma, s.v.: Sit tibi sicut Ethnicus et Publicanus: “Verumamen nota, quod quinque sunt casus, in quibus non obligantur aliquis hoc praecepto. Primus est, cum non est spes correctionis. . . . Secundus est, cum timetur defectus probationis, et criminaliter agitur, ubi scilicet obligatur actor ad talionem, si deficiat in probatione. Tertius est, cum Praelato, tanquam Judici notum est factum, quia notorium, vel ille convictus est, vel confessus. Quartus, cum meliori operi, vel ad minus aeque bono vocat aliquis. Quintus est . . . ubi correctio plus noceret, quam prodesset Ecclesiae.” 11  Nicholas of Gorran, In Evangelium Matthaei, f. 94v. s.v.: Quaeritur hic de correctione fraterna. 12  Hugh of St. Cher, Matthaeum, f. 62a, s.v. Sit tibi sicut Ethnicus et Publicanus: [U]nde qua­ tuor modis contingit male contingere. Primo per indiscretionem, ut si aliquis manifestaret crimen alterius sine praemonitione, vel quod probare non posset. . . . Secundo, peccat correptor per nimiam asperitatem. . . . Tertio, peccat corripiens, si non ex charitate et compassione corripiat, sed malisiose et derisorie. . . . Quarto modo peccat corripiens si inutiliter corripiat, quod fit quando scienter corripit incorrigibilem.” Hugh repeated the reasons for omitting fraternal correction and the sins associated with unworthy correction in his commentary on Luke. See Lucam, f. 234va, s.v. si peccaverit and Increpa illum.”

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in some instances to offer a charitable rebuke; it was, in fact, morally wrong to do so. As much as Hugh demonstrated the influence of Augustine, it is important to note that he also went beyond Augustine, particularly with respect to the issue of proof. Augustine never used the term proof in his discussion, but it is important to realize that the scholastic thinkers interpreted him in this way. Hugh, for his part, emphasized both the lack of proof and notoriety as factors influencing the decision to practice or set aside fraternal correction. In a similar way, Augustine’s influence on Aquinas is also clear.13 But, like Hugh, Aquinas also went even farther. In his Summa, the Angelic Doctor inquired whether the precept of fraternal correction demands that a private admonition should precede denunciation.14 In effect, Aquinas asked whether it was necessary to follow all the steps of fraternal correction before proceeding to judicial correction or, conversely, whether it was possible to omit fraternal correction under certain circumstances. Effectively, this meant the omission of fraternal correction in favor of judicial correction. In prior questions, Aquinas had already discussed some of the standard reasons for omitting fraternal correction, including: (Q. 5) Whether a sinner should correct another sinner, and (Q. 6) Whether fraternal correction should be omitted through fear that the sinner will become worse.15 But Shogimen has highlighted an important contribution that appears to have originated with Aquinas.16 The Angelic Doctor emphasized the role of injury to the common good and, consequently, argued that secret sins causing injury to another 13  To cite an example, see Aquinas, Summa theologiae, 2a, 2ae, q.33, a.2, ra.3, 2:572. “Ad tertium dicendum quod correctio fraterna tripliciter omitti potest. Uno quidem modo meritiorie, quando ex caritate aliquis correctionem omittit dicit enim Augustinus in 1 de civi. dei. . . . quia opportunius tempus inquiritur; vel ipsis eisdem metuit ne deteriores ex hoc efficiantur; vel . . . alios infirmos . . . avertant a fide.” The modern reference for Augustine is: De Civitate Dei, 1.9. 14  Ibid. 2a, 2ae, q.33, a.7, 2:571. “Septimo, utrum secreta correctio debeat praecedere denuntiationem.” This is the title of question. 15  Under separate questions, Aquinas addressed two circumstances that concerned the practice or omission of fraternal correction: (Q. 5) Whether a sinner should correct another sinner; and (Q. 6) Whether fraternal correction should be omitted through fear that the sinner will become worse. 16  For this aspect of Aquinas’s contribution, see Shogimen, “From Disobedience,” 603–605 and Ockham and Political Discourse, 110–113. Moreover, it is clear that he meant public denunciation because he specifically asked whether fraternal correction should precede denunciation. Hence, Aquinas could not have referred to evangelical denunciation – a synonym for fraternal correction because, then, the question would have made no sense, in effect, asking whether fraternal correction should precede fraternal correction.

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in either body or soul had to be denounced publicly without delay. Aquinas provided two salient examples of circumstances requiring such action: 1) the betrayal of the city into enemy hands, or 2) the act of turning others away from the faith, as in cases of heresy. According to the Dominican, when the sin – even a secret sin – caused imminent danger, the principles of fraternal correction did not apply.17 The sin had to be denounced immediately and publicly. Shogimen based his discussion upon the Summa theologiae and did not examine Aquinas’s other writings in detail. However, a reading of his Sentences commentary shows that, in that text, Aquinas further held that public denunciation was required when the sin in question was infective of others or harmful to them, such as murder or fornication.18 By including sins that were “infective” or “harmful,” Aquinas indicated that the offense did not need be labeled or understood as heresy in the formal sense of the term. By appealing to the dangerous and infectious nature of the crime, Aquinas effectively widened the scope of secret sins that demanded public denunciation – even if, for example, they did not rise to the level of full-blown heresy. Hence, to the conditions required of an affirmative precept as established by Augustine and to Hugh of St. Cher’s five general reasons for omitting fraternal correction, Aquinas added the effect of the sin on the common good as a determining factor in whether to pursue fraternal or judicial correction. As Shogimen has pointed out, this Thomistic distinction gained wide acceptance, showing up in the works of Pierre de la Palude, OP, Durand of Saint Pourçain, OP, Guido de Baysio, and Franciscus Meyronis, OFM, among others.19 The Franciscan Walter of Bruges took an even more stringent position with respect to a secret sin that placed others in danger. Whereas, Aquinas had permitted fraternal correction if it were firmly believed that the sinner would desist from his evil, Walter did not include that exception.20 Even prominent 17  Aquinas, Summa theologiae, 2a, 2ae, q.33, a.7, ra.3, 2:573. “Ad tertiam dicendum quando imminet periculum multitudinis, non habent ibi locum haec verba domini, quia tunc frater peccans non peccat in te tantum.” 18  Aquinas, Sententias, IV d.19, q.2, a.3a, ra.2, 1:552. “Si autem non speretur emendatio, tunc considerandum est, an illud peccatum sit infectivum aliorum, sicut est haeresis vel fornicatio, vel aliquid hujusmodi; aut etiam cedat in aliquod damnum alterius, sicut furtum vel homicidium, et hujusmodi. Si enim non cedat in damnum alterius, nec sit infectivum peccatum, tunc potest denuntiatio differri quousque videatur admonitionis effectus, praecipue si emendationem promittit. Si autem est infectivum aliorum, debet denuntiari praelato, ut gregi suo caveat. 19  See Shogimen, Ockham and Political Discourse,” 108–110. 20  See Walter of Bruges, Questiones Disputatae, Q. 32, 223. “Sunt autem quatuor casibus in quibus secretam correptionem praemittere non est necessarium. . . . Tertius casus est

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secular t­ heologians, such as Godfrey of Fontaines, showed the influence of the Thomistic formulation. Godfrey distinguished secret sins that injured the common good and, like Thomas, called for their immediate denunciation.21 Aquinas was not alone, nor the only influential writer on this topic. Walter of Bruges authored a lengthy series of disputed questions that went beyond, and even challenged, Thomas on various points.22 Among his contributions, Walter appears to be the first thinker to reframe, in part, the conditions necessary for fraternal (or judicial) correction to take place. Like Aquinas, Walter still devoted individual questions to specific factors governing the practice or omission of fraternal correction. But he did so in a more thorough and detailed fashion. In fact, in his Disputed Questions, Walter expanded the list of eight questions included by Aquinas to include a total of twelve questions in all.23 But based on the Augustinian directive that fraternal correction was an affirmative precept, Walter popularized a two‑fold distinction in which each of the participants – the one rebuking and the sinner – had to meet a set of three specific conditions. Only if all six conditions were met simultaneously could fraternal correction proceed. According to Walter, the three things required on the part of the one rebuking were: 1) certain knowledge of the sin, 2) gentleness in correction, and 3) lack of another suitable individual to perform the correction; while, on the part of the sinner, there needed to be: 1) hope for reform and not a worsening his condition, 2) mortal, as opposed to venial sin, and 3) the lack of a more suitable opportunity for rebuke.24 Initially, Walter’s quando, licet sit spes correctionis per secretam admonitionem, tamen mora periculum habet, tunc enim omissa privata correptione, statim denuntiare debet; sicut si quis chirugicus minor membrum infectum infra tempus aliquod curare speraret, timens tamen probabiliter quod mora periculum aliorum membrorum traheret, statim majori et potentiori chirurgico infectionem membri denuntiaret ut vel effecicacius remedium apponeret vel membrum amputaret ne corpus inficeret. 21  Godfrey of Fontaines, Les quatre premiers quodlibets de Godefroid de Fontaines, ed. M. De Wulf and A. Pelzer (Louvain, 1904), Quodlibet IV, q. 20, 294–297, at 297. “Sed de comittendis quae vergunt in nocumentum aliorum, debet superiori denuntiari, quaerendo emendationem proximi in quantum eius peccatum vergit in nocumentum aliorum.” 22  Walter has not received the attention that he deserves. 23  Walter of Bruges, Quaestones Disputatae, Q. 23–34, 179–238. 24  Ibid., Q. 29, 198–207, esp. at 202–204. “Quaeritur an frater, non sperans ex sua correptione, peccantem corrigi, sed potius timet ipsum deteriorem fieri, teneatur ipsum corripere. . . .” “Respondeo. . . . quod, tribus concurrentibus ex parte corripientis et tribus aliis ex parte fratris peccantis simul, transgressor est qui non corripit, alias non. Prima autem tria ex parte corripientis sunt certa peccati cognitio. in corripiendo mansuetudo, tertium quod in alio non sit tanta ad corripiendum aptitudo. . . . Tria vero, que requiruntur ex parte peccantis, sunt quod sit spes probabilis de correptione et non timor probabilis de p ­ ejoratione;

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innovation was popular among other Franciscans. The theologian and jurist Astesanus de Ast credited Walter of Bruges in his Summa de casibus conscientiae, also entitled the Summa Astensis.25 But Walter’s influence spread beyond his own order. His formulation was later repeated practically verbatim by the Parisian canonist, Henri Bohic, while other aspects of his treatment of fraternal correction were copied by subsequent authors, often without attribution.26 Although discussions of fraternal correction appear to be less numerous after 1340, Jean Gerson’s short treatise, “De correptione proximi,” exemplified continuity both with Augustine and Hugh of Saint Cher, as well as with the innovations put forth by Aquinas and Walter of Bruges. Given the dating of his treatise, this work provides a useful indicator of the contemporary understanding of fraternal correction in late fourteenth century Paris. In his work Gerson used language similar to that of Walter and Bohic, ordering his discussion in a similar fashion.27 Like his colleagues, Gerson began by discussing the six necessary conditions for the practice of fraternal correction. Furthermore, although Gerson did not specifically list notorious or public sins as a reason for omission, he implied as much because he framed his discussion solely in terms of the secret correction of sin. To these broad lines of continuity, Gerson also included the Thomistic emphasis on the common good, but in doing so, he framed this discussion in terms of the four possible conditions leading to the omission of fraternal correction as put forth by Walter of Bruges.28 Gerson stated that by force of precept, fraternal correction had to precede denunciation except in four cases, two of which have relevance here, namely: 1) when it appeared that the sinner would become worse as a result of rebuke; and item quod suum peccatum sit mortale, non tantum veniale; tertium quod non sit spes de majori temporis ad corripiendum opportunitate.” 25  Astesanus de Ast, Summa Astensis, ed. J. B. Lamberti, vol.1 (Rome, 1728) 268–277. Book 2, t. 67, 271a. “Respondeo secundum Gual[terus] ad hanc ultimam quaestionem, quod tribus concurrentibus ex parte corripientis, et tribus aliis ex parte fratris peccantis, transgressor est, qui nn corripit, alias non. . . . [etc.]” 26  Walter’s contribution to the definition of a secret sin will be discussed below. 27  Jean Gerson, “De correptione proximi,” 9:171. For his part, the chancellor of the university listed six necessary conditions for fraternal correction: Gerson observed that if these six conditions were not met, then fraternal correction could be omitted without sin. “Si tamen istae sex conditiones concurrant. Prima est certa peccati agnitio. . . . Secunda est mansuetudo in corripiendo. . . . Tertia est quod in alio non sit tanta aptitudo ad corripiendum. . . . Quarta est spes de correpti correctione. . . . Quintus est peccatum sit mortale. . . . Sextus quod non sit spes habendi majorem opportunitatem tempore ad corrigendum seu corripiendum.” 28  Walter of Bruges, Quaestiones Disputatae, Q. 32, Ro., 223–224.

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2) despite the hope for correction, secret admonition posed a danger to the common good.29 The worsening of the sinner emphasized the lack of hope for correction, as stated above, whereas Gerson’s concern for the common good clearly echoed the position put forth by Aquinas. Thus, in addition to showing continuity at Paris with the theology of fraternal correction as formulated by the early thirteenth century, Gerson’s work adopted Walter of Bruges’ scheme for categorizing the factors and also demonstrated the general acceptance of the Thomistic view concerning injury to the common good as a determining factor in whether or not to pursue fraternal or judicial correction. Overall, this brief survey of the views of Hugh of St. Cher, Aquinas, several Parisian scholastics, and Gerson could be supplemented by the writings of many other contemporaries who held similar opinions regarding the omission of fraternal correction. What is most important to recognize, however, is that, these authors demonstrate a general consensus among the members of the theological faculty itself. Moreover, given that Gerson’s short treatise on fraternal correction is not a polemical tract, it may be taken as a reasonable assessment of the contemporary understanding of fraternal correction that developed by the late fourteenth and early fifteenth centuries. To that end, it is necessary to address how this consensus shaped the implementation or omission of fraternal correction in cases of suspect teaching at Paris.

Judicial Correction and the Omission of Fraternal Correction

Of the various reasons that called for either the practice or the omission of fraternal correction in any given circumstance, several have particular 29  Gerson, “De correptione proximi,” 171–172. “Item ex vi praecepti secreta correctio vel admonitio debet praecedere denuntiationem, quatenus ipsa correctio cadet sub praecepto, exceptis his quattuor casibus in quibus non est necessarium: primus quando frater venaliter, non mortaliter peccat. . . . Secundus quando corripiens fraterm ex sua secreta correctione pejorem fore formidat. Tertius quando licet sit spes correctionis per secretam admonitionem, tamen mora periculum habet; tunc omissa privata correctione, statim denuntiari debet. Quartus quando corripiens sine propria culpa corripere non valet.” This last criterion usually concerned a Christian who was in a state of worse sin than the person being reuked. Since the other bachelors were not engaged in suspect teaching, they did not meet this criterion, so I have not dealt with it at any length. Gerson also included the criterion of mortal sin as a necessary criterion for practicing fraternal correction. Similarly, because there can be no doubt that suspect teaching was, prima facie, a mortal sin, (and, therefore, a reason for pursuing – and not omitting – fraternal correction), I have not dealt with this issue.

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r­ elevance to the way in which cases of suspect teaching were handled at Paris. For ease of analysis, these factors have been categorized in a slightly different fashion than the scheme used in the sources. Rather than grouping the factors in relation to either the sinner or the corrector, I have grouped them according to whether they concern the nature of the sin itself or, or the disposition of the participants (either sinner or corrector). With respect to the sin itself: 1) Did certain knowledge or proof of the sin exit? 2) Did the suspect teaching injure only the sinner or, did it also adversely affect the common good? And, additionally: 3) Did the suspect teaching represent a public or a private sin? With respect to the participants involved: 4) Did this instance represent the best opportunity for admonition? 5) Likewise, was the most suitable individual chosen to administer the rebuke? And, finally: 6) Was there a reasonable hope that the sinner would reform upon admonition? Each of these six factors – both separately, and in conjunction with the others – exerted considerable influence on the manner in which the faculty conducted its investigation into questions of suspect teaching.30 Moreover, these criteria, in large measure, also determined the procedure by which these investigations were resolved.

The Issue of Proof

The first, and most fundamental criterion was knowledge or proof that a serious, actionable transgression had been committed. Although it may seem to state the obvious, such knowledge or proof represented an essential precondition for making any determination regarding the appropriateness of either fraternal or judicial correction as a possible remedy.31 Augustine adhered to this principle; and Walter of Bruges, Henri Bohic, Jean Gerson and Gabriel Biel drew out its implications: Suspicion, alone, was an insufficient cause to proceed to fraternal correction, much less judicial correction.32 In theory, certain knowledge meant just that and nothing less. Yet, establishing such a baseline 30  Medieval thinkers categorized and organized these factors using a slightly different approach. See, for instance, Bohic, Commentaria, on the decretal, In nomine, 1:251–252, no. 5. X 2.20.2. “Nam tribus concurrentibus ex parte corripientis, et tribus aliis, ex parte peccantis, transgressor est, qui non corrigit, alias non.” 31  Interestingly, many theologians wrote merely assuming that proof or knowledge of the sin or offense was a given. Aquinas, for example, does not deal with the issue of proof in any detailed way. 32  Bohic, Commentaria, 1:251, no. 5. X 2.20.2. “Primum ex parte corripientis est certa peccati cognitio.”

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was not always easy or clear-cut. After all, with respect to speculative theology, what constituted suspect teaching was often a matter of considerable debate and represented a gray area, given that bachelors and masters lectured on the cutting edge of theological innovation. Andrew Larsen recently commented on the perils facing bachelors reading the Sentences at Oxford.33 He underscored the contrast between the clear-cut, canonistic definition of heresy – as formulated by Gratian and repeated by Robert Grosseteste and others – with the often hazy and practical reality of the classroom – where the ideas taught and expressed often fell into uncharted territory. As Larsen so pithily observed: “the debate was not simply whether the idea under consideration [was] heretical, but also where the threshold of heresy lay. Some scholars ventured an opinion on an issue within the gray area, only to eventually discover that the line of orthodoxy had been retroactively drawn behind them and that what had been gray had suddenly become black and white.”34 Much the same could be said for Paris. In the case of the bachelors, determining whether suspect teaching had occurred represented a crucial step in the initiation of any process or procedure. Nevertheless, both at Oxford and at Paris, it was often impossible to know with certainty at the outset whether the teachings in question rose to the level of an actionable offense. In reality, then, given that the purpose of the investigation was to determine whether the propositions at issue rose to the level of suspect teaching or heresy, it seems clear that the knowledge or proof required in this initial phase could more accurately be termed “probable cause,” rather than proof in the strict sense of the term. At the same time, however, the texts emphasize that the bar was set at a high level, approaching certain knowledge or proof. It remains to be seen how the bachelors and masters determined probable cause and, furthermore, how that determination affected or influenced the handling of cases at Paris. The rubric or standard for determining orthodoxy was contained in the bachelor’s oath or revocatio conditionalis. We shall now see how the contemporary understanding of fraternal correction – when analyzed in relation to the bachelor’s oath – influenced the course of the investigation.

33  Larsen, School of Heretics, 1–22, at 9. 34  Ibid., 9.

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The Revocatio Conditionalis and the Oath to Report Suspect Teaching Every obligation, by its nature, provides a window into understanding both the author or authors who formulated it, as well as the audience for whom it was intended. In this regard, both the revocatio conditionalis, or, the promise not to teach unsound doctrine, as well as the duty to report suspect teaching, were no different. These two requirements shed light on the intentions of their authors and underscore the obligations or challenges that they created for the bachelors and masters upon whom they were imposed. In order to understand how this is so, it will first be necessary to place these obligations in their historical context. No original text of the revocatio conditionalis, or protestatio, for Paris has not survived. However, similar texts for Oxford do exist, dating from the 1330s. Given that Parisian practice generally provided a model for Oxford practice, it is likely, then, that the protestatio was in use at Paris from an earlier date, in all likelihood originating some time between the late thirteenth and early fourteenth centuries, that is, around or after the condemnations of 1270 and 1277.35 This time frame would also be consistent with the appearance of similar regulations within the Arts faculty. In what must have been a response to the 1270 condemnation by Bishop Stephen Tempier, the Arts faculty, in 1272, forbade its members – both masters and bachelors – from treating purely theological questions.36 With regard to questions that touched both philosophy and theology, the faculty required its members to determine any such questions in accordance with the faith. Those who violated either of these two provisions were required to revoke their errors publicly, in full congregation, within three days of being so warned, under pain of expulsion from the faculty. In addition, those who determined a proposition against the faith were deemed guilty of heresy.37 To ensure compliance, the Arts faculty required all 35  A later version presented by Grimerius Boniface is available. See on page 51, footnote 32. For a discussion of the protestatio conditionalis and associated references, see William Courtenay, Adam Wodeham: An Introduction to His Life and Writings (Leiden, 1978), 174. Also see Thijssen, Censure and Heresy, 4–5. 36  CUP 1, no. 441, 499–500. 37  Ibid., 499. “Statuimus et ordinamus quod nullus magister vel bachaellarius nostre facultatis aliquam questionem pure theologicum . . . determinare seu etiam disputare presumat. . . . Quod si presumpserit, nisi infra tres dies postquam a nobis monitus vel requisitus fuerit suam presumptionem in scolis vel in disputationibus publicis, ubi prius dictam questionem disputaverit, revocare publice voluerit, ex tunc a nostra societate perpetuo

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current masters and all future bachelors about to incept to swear an oath in the hand of the rector.38 This oath taken by bachelors in the Arts faculty bears a striking resemblance to the protestatio in the Theology faculty. Both oaths effectively represented a promise to teach only sound doctrine. Both oaths were taken in the hand of the respective head of the faculty – either the rector or the chancellor – and both oaths required a revocation of unsound teaching in order to avoid either expulsion from the faculty or being deemed a heretic. The Arts faculty, in effect, instituted its own version of a protestatio, or, revocatio conditionalis, coupled with a public revocation, or, revocatio actualis. Whether the practice in the Arts faculty influenced that of the Theology faculty or vice versa is not known. Because no original text survives for the protestatio conditionalis at Paris, it is unclear whether the similar oath taken in the Arts faculty became the model for the protestatio in the theological faculty, or, whether a pre-existing protestatio in the theological faculty served as the model for the protestatio in the Arts faculty. In any event, both faculties used an oath, or protestatio, as a means of securing compliance from their respective membership. But, what was the situation regarding the requirement to report suspect teaching? First, it should be noted that the statute of the Arts faculty made no mention of such a requirement. The statute, apparently, relied upon the voluntary cooperation and good will of the members, either to come forward and to admit any personal error or transgression, or, alternatively, to report anyone else who came under suspicion. Such an emphasis on voluntary cooperation, of course, did not preclude the bishop from conducting a more compulsory inquisitio. Nevertheless, what is of note here is the fact that, in 1272, there seemingly did not exist a specific requirement to report suspect teaching within the Arts faculty, either to the bishop or to the chancellor. In any event, only a few short years afterward, this emphasis on personal responsibility and collegiality in detecting unsound teaching began to shift sit privatus. Statuimus insuper et ordinamus quod si questionem aliquam, que fidem ­videtur attingere simulque philosophiam, alicubi disputaverit Parisius, si illam contra fidem determinaverit, ex tunc ab eadem nostra societate tanquam hereticus perpetuo sit privatus, nisi suum errorem suamque heresim infra tres dies post monitionem nonstram in plena congregatione vel alibi, ubi nobis videbitur expedire, revocare curaverit humiliter et devote.” 38  Ibid., 500. “Ut autem hec omnia inviolabiliter valeant observare, fide corporali prestita in manu rectoris nostre facultatis nos omnes et singuli magistri juravimus et nos omnes ad hoc spontanee concessimus astringendos. . . . Jurabit autem rector quilibet in facultate decerto creandus quod omnes bachellarios in nostra facultate incepturos ad hoc idem observandum astringi faciat corporalis fidei in manu sua prestito juramento.”

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in the direction of more compulsory measures. In 1277, when Bishop Tempier condemned 219 propositions in the Arts faculty, he threatened with excommunication all those who either listened to, or taught the condemned propositions, unless they revealed what they knew within seven days, either to himself or to the chancellor.39 Although Tempier’s prohibition was not an oath per se, his decree to report unsound teaching to either the bishop or the chancellor clearly embodied a set of principles that in fact, foreshadowed the later requirements of the English nation’s oath to report suspect teaching. Equally important, Tempier’s pronouncement invested the chancellor with authority to act on the bishop’s behalf in this matter. Tempier permitted individuals to bring notice of any violations regarding the censure either to his own attention, or to the attention of the chancellor. This enhanced role for the chancellor in the crisis of 1277, no doubt, set a precedent and helps to explain why, subsequently, in the faculty of theology, those reporting suspect teaching could notify either the bishop or the chancellor. Indeed, it is easy to see how, over time, the provisions of Tempier’s requirement to report violators of the 1277 statute formed the basis of, and eventually became the pattern for, the more general requirement to report suspect teaching. Nevertheless, in the late thirteenth century, no record of any oath to report suspect teaching existed, either in the Arts, or in the Theology faculty. Within the theological faculty, the general obligation to report suspect teaching was formulated and entered into common use sometime after 1277 and prior to 1316, when it is first mentioned by Frater Bartholomew.40 Yet, it is important to acknowledge that Frater Bartholomew did not call the requirement an oath, nor did he state that he swore to uphold it. Rather, he declared that it was imposed upon all scholars at Paris under pain of excommunication, suggesting, perhaps, a statutory requirement of the faculty, similar to the one enacted by Bishop Tempier in the crisis of 1277.41 From there, a similar obligation 39  CUP 1, no. 473, 543–557, at 543. “Ne igitur incauta locutio simplices pertrahat in errorem, nos tam doctorum sacre scripture, quam aliorum prudentium virorum communicato consilio districte talia et similia fieri prohibemus, et ea totaliter condempnamus, excommunicantes omnes illos, qui dictos errores vel aliquem ex illis dogmatizaverint, aut deffendere seu sustinere presumpserint quoquomodo, necnon et auditores, nisi infra vjj dies nobis vel cancellario Parisiensi duxerint revelandum, nichilominus processuri contra eos pro qulitate culpe ad penas alias, prout jus dictaverit, infligendas.” 40  Michalski, “La révocation,” 1097. “Quia iniunctum est parisius scolaribus sub pena excomunicacionis, quodsi audierint quemquam doctorem sive instruentem doctrinam, que sonet contra fidem et bonos mores, quod revelabunt infra quindenam episcopo parisiensi vel cancellario.” 41  For Tempier’s statute, see above, footnote 39.

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appeared in the English nation a generation later in response to the introduction of Ockham’s teaching in the Arts faculty. This obligation included an oath as an integral component. In 1341, the proctor of the English Nation at Paris, Henricus de Unna, decreed that no one could be admitted to any legitimate act in the nation, unless he first swore, under penalty of perjury, to reveal suspect teaching or activity on the part of the “secta Occania.”42 A comparison of these two requirements with each other is instructive, for, although they share similarities, important differences also exist. First of all, it must be recognized that there existed no general oath or requirement to report suspect teaching that applied to all faculties in the same manner. Thus, just as it has been shown that both the Arts faculty and the faculty of theology each enacted their own separate versions of what may be termed a protestatio conditionalis, so, it appears that each body or group within the university did likewise with respect to the requirement to report suspect teaching or, conversely, ignored the issue altogether. Hence, it not known whether the oath to report suspect teaching enacted by the English nation ever became a general requirement within the entire Arts faculty. Consequently, uniformity of practice across the university did not exist. This lack of uniformity explains, in part, why key information in the written record varies with respect to details. A comparison of the obligations in the English nation with those of the theological faculty shows that the timelines for reporting, the persons to whom violations were reported, and the punishments enacted differed considerably, or, in some cases, were simply omitted altogether.43 The development of the obligation to report suspect teaching underscores the fact that the protestatio conditionalis and the duty to report suspect teach42  Auctarium Chartularii Universitatis Parisiensis, ed. H. Denifle and E. Chatelain, vol. 1 (Paris, 1894) 52–53. “Nullus decetero admitteretur ad aliquos actus legitimos in dicta nacione, nisi prius juraret quod revelaret, si sciret, aliquos de secta Occanica ad invicem conspirasse de secta vel opinionibus erroneis fovendis, vel etiam conjuratos esse vel conventicula habere occulta, aliter nisi jure diceret si sciret, ex tunc penam perjurii incurreret. Et hanc ordinacionem voluerunt equivalere statuto.” Whether this oath to report suspect teaching ever became a general requirement of entire Arts faculty is not known. For a brief discussion of this statute, see William J. Courtenay, “Erfurt CA 2 127 and the Censured Articles of Mirecourt and Autrecourt,” in Die Bibliotheca Amploniana, ed. A. Speer, Miscellanea Mediaevalia 23 (Berlin, 1995), 341–352, at 342, n. 3. 43  Ibid., and see page 295, footnote 40. In the statute of the English Nation, no timeline for reporting is given, nor is any specific person or office mentioned as being responsible for receiving the report. Violators suffer the penalty of perjury. According to Frater Bartholomew, the deadine for reporting was fifteen days, the report was made to the chancellor, and the penalty was excommunication.

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ing initially developed along separate tracts. Another key indicator of this early phase of separate development concerns the different audiences to whom the protestatio and the duty to report suspect teaching were directed – particularly with respect to the faculty of theology. The specific wording reveals that, the revocatio, or protestatio conditionalis, was aimed specifically at bachelors reading the Sentences, while the duty to report suspect teaching, on the other hand, applied more generally, to “scholaribus,” and not only to “bachelors, as the witness of Frater Bartholomew reveals.44 Likewise, Grimerius Boniface observed that bachelors who swore the protestatio conditionalis were also required to report bachelors – or anyone else for that matter – who taught false doctrine.45 This more general application of the requirement to report suspect teaching within the faculty of theology helps to explain why scholars other than bachelors reading the Sentences were reported to authorities. In 1387, the aggrieved bachelors came forward and reported John of Monteson, an incepting master, for making unsound statements in his vesperiae and resumpta lectures. Other similar instances are well-known. To cite just one other example, in 1363, ­someone reported Johannes de Calore for unsound teaching in his vesperiae lectures as well.46 Given the separate development of the protestatio conditionalis and the obligation to report suspect teaching, the relationship between these two requirements is somewhat complicated. Nevertheless, the two requirements shared a common goal or aim: to preserve orthodox teaching. Thus, it is not surprising that, over time, authorities within the faculty exploited the potential of both of these oaths in the service of that goal. Because both Frater Bartholomew and Grimerius Boniface mentioned the oath to report suspect teaching, their dual witness across fifty years testifies to the fact that, from the outset as well as throughout the fourteenth century, the duty to report suspect teaching represented an integral component of the faculty’s procedural norms for detecting unsound teaching across several generations of scholars. Furthermore, given the fact that the protestatio conditionalis in the theological faculty, in all likelihood, also dated from the late thirteenth or early fourteenth century, it, too, functioned as a critical tool for preserving orthodoxy t­ hroughout roughly 44  For the comments of Grimerius Boniface, see on page 51, footnote 32. For the witness of Frater Bartholomew, see on page 295, footnote 40. 45  See on page 51, footnote 32. Note especially the phrase: “et quod si audiverit aut sciverit aliquem contrarium facientem bachalarium vel alium . . . domino episcopo vel cancellario . . . revelabit.” 46  CUP 3, no. 1288, 108–109, at 108. Johannes stated: “Quia in primo articulo mearum vesperiarum posui duas propositiones.”

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much of the same time period. Although Frater Bartholomew did not specifically reference the protestatio conditionalis in the preamble to his revocation, the actual wording of his retraction suggests its presence. Frater Bartholomew was careful to retract not only any blatantly heretical or suspect statements, but also to correct himself with respect to specific details wherein he had misspoken.47 This emphasis on correcting oneself was a salient feature of the protestatio conditionalis.48 Thus, from a chronological perspective, the two requirements appear to have been in force and in common use within the faculty during roughly the same time period, dating from the late thirteenth or early fourteenth century, and continuing throughout the century.49 According to Frater Bartholomew, the initial wording of the obligation to report suspect teaching required any bachelor who heard someone teaching against the faith or good morals to inform the bishop or chancellor within a fortnight, under pain of excommunication.50 The oath expressed the criteria for determining orthodoxy vs. heterodoxy in the broadest language possible, that is, as any teaching “against the faith and good morals”; and toward the widest range of individuals, namely, “any doctor or anyone teaching” [unsound doctrine]. Unfortunately, Frater Bartholomew did not quote the full text of the oath, so it is not known what other provisions or additional information, if any, it contained. However, the subsequent mention of the oath by Grimerius Boniface some fifty years later indicates that some procedural changes had taken place.51 First, and most readily apparent, the faculty of theology short47  Michalski, “La révocation,” 1097–1098. “4. Item dixi, quod relacio secundum suum totum genus est purum ens racionis. Istud revoco tanquam falsum, et si dixi, quod relacio secundum totum ambitum sui conceptus est purum ens racionis, istud recvoco tanquam erroneum in fide et propter relaciones divinas.” Again, at “7. Item dixi, quod opinio fratris Johannis parisiensis de paupertate erat bona et probabilis de possibili; si aliquis intelligeret me dixisse de facto, istud tanquam erroneum revoco; si de possibili, istud determinanacioni doctorum relinquo.” 48  See Jean Gerson, “De protestatione circa materiam fidei,” in Ouevres Complètes, 10 vols. (Paris, 1960–1973) 6:155–165, esp. paragraphs 2, 5, and 11. 49  Regrettably, Frater Bartholomew did not make any direct mention of the protestatio conditionalis in the preamble to his statement. 50  See on page 295, footnote 40. 51  See on page 51, footnote 32. It is clear that we are dealing with two different versions of the oath to report suspect teaching. The time frame for reporting an incident differs in each version – either eight days or fifteen days – as reported by Frater Bartholomew and Grimerius Boniface, respectively. Thus, some revision of the oath occurred between 1316 and 1364. Unfortunately, this oath is not included among those recorded by Denifle at the end of the volume 2 of the Chartularium.

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ened the length of time for notifying the authorities from fifteen days to one week only. Second, whereas Frater Bartholomew made no mention of the protestatio conditionalis, Grimerius, by contrast, not only mentioned the protestatio, but he also linked it together with the obligation to report suspect teaching. Grimerius Bonifaci’s commentary is insightful. First, he felt confident enough to make this linkage in a letter addressed to Pope Urban V.52 Second, in do so, he highlighted the relationship between the two requirements. Grimerius began by citing the protestatio conditionalis and by referencing Foulechat’s submission to its requirements. The chancellor then provided greater detail regarding the actual content of the protestatio conditionalis taken by Foulechat and his fellow bachelors in the theological faculty. The chancellor noted that every bachelor promised not to hold or teach anything against the Catholic faith, good morals, or that was bad sounding in the ears of listeners, and that the bachelor promised to teach only sound doctrine. In this much, Grimerius upheld the general standard of orthodoxy that Frater Bartholomew had maintained some fifty years previously. But interlaced with these general guidelines, Grimerius went beyond Frater Bartholomew and also referenced other, more specific requirements. In particular, Grimerius noted that the protestatio conditionalis required the bachelor not to teach anything against the determination of Mother Church, or in favor of articles condemned at Paris or in the Roman curia. Thus, in addition to maintaining a general standard of orthodoxy, Grimerius also referenced very specific theses or propositions that fell outside of the boundary of acceptability. Hence, by the mid fourteenth century and probably for some time prior, the protestatio conditionalis contained a set of both general and specific provisions that each bachelor was required to uphold in his lectures and disputations. Furthermore, apart from merely including a more detailed list of prohibited theses, Grimerius’s letter evidenced an important shift: Grimerius directly linked the oath to report suspect teaching to the specific wording of the protestatio conditionalis.53 Grimerius stated that a bachelor or anyone who heard another teaching contrary to the provisions of the protestatio conditionalis was required to report the individual to the proper authorities. According to Grimerius, the protestatio conditionalis became the standard for measuring the orthodoxy of lectures that someone heard in the classroom. Through this linkage, Grimerius Boniface effectively 52  Ibid., Grimerius discussed the two oaths in the same sentence and linked them together with the word, “insuper.” 53  Ibid., Immediately after listing the requirements of protestatio conditionalis, Grimerius used the phrase “insuper, et quod si audiverit et sciverit aliquem contrarium facientem bachellarium vel alium.”

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used the protestatio conditionalis as a rubric for determining, in large measure, what teachings were reportable under the duty to reveal knowledge of suspect teaching. Moreover, Grimerius claimed no originality on his own part. Grimerius prefaced his discussion of both the protestatio conditionalis and the requirement to report suspect teaching with a brief statement indicating that his p ­ redecessors in the faculty of theology had beneficially decreed these things.54 He effectively characterized these requirements as long-standing practices within the faculty, suggesting that the link between the protestatio conditionalis and the obligation to report suspect teaching had existed – at least within the t­ heological faculty – for some time. The witness provided by Grimerius Boniface indicates that, over time, the authorities within the faculty recognized the difficulties faced by students in bringing a charge against a fellow bachelor. Since it is likely, too, that the wording of the protestatio conditionalis changed over time, it is very probable that, at least initially, the wording of the protestatio was also more general and vague in nature and did not include any references to specific lists of condemned theses. Such a course of development with respect to the protestatio would also explain why the requirements for reporting unsound teaching, as recorded by Frater Bartholomew, were originally more vague and general in content. Overall, the statement by Grimerius Boniface linking the protestatio conditionalis and the duty to report suspect teaching suggests that, as the content of the protestatio conditionalis changed over time, so, too, matters deemed reportable as suspect also changed. By the mid-fourteenth century at the latest, and probably somewhat earlier, the masters had provided more precise guidance, based on the stipulations contained in the then current protestatio conditionalis. That is, the authorities now referred bachelors and scholars to specific lists of condemned teachings contained in the protestatio conditionalis – lists that took into account the contemporary academic environment. By making mention of “the teachings condemned by Mother Church,” the authorities no doubt, referenced the condemnations of the ecumenical councils and the “heresies of old,” as they were called.55 Yet, in a nod toward contemporary d­ evelopments, 54  Ibid., “Ea propter predecessores nostri theologi Parisisenses olim salubriter inter cetera statuerunt, fuit et hactenus Parisius observatum.” 55  In “Sermon 65” on the Song of Songs, Saint Bernard of Clairvaux informed his monastic audience: “For I do not recall among all their assertions which I have heard (and they are many), anything novel or extraordinary, but only commonplaces long since broached among the heretics of old, and by our divines confuted and crushed.” Quoted in Edward Peters, Heresy and Authority in Medieval Europe, 95–101, at 100. Peters also quoted this text in his work Inquisition (Berkeley, 1989), 42, where he included a brief discussion of the

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the faculty, by referencing the articles condemned in the Roman curia and at Paris, demonstrated its concern for potential dangers inherent in contemporary speculative theology. In this way, the masters of the faculty both cautioned the bachelors and others with respect to their own teachings and, at the same time, provided them with a mechanism for evaluating the views taught by others in the classroom. For their part, the masters, no doubt, must have felt satisfied with their accomplishment. They had both clarified the content of the protestatio conditionalis while, simultaneously, they had also provided members of the faculty with the tools necessary to comply with the requirement to report suspect teaching. From the perspective of the bachelors, however, these changes to the oaths probably seemed less straight-forward and more like a mixed blessing. On the one hand, this newer formulation aided them in launching a complaint because it provided clear, discernible benchmarks for deciding whether a given proposition was heretical. At the same time, however, the shortened time frame for reporting an incident, coupled with the threat of excommunication (which had remained unchanged) surely must have created a fair amount of anxiety. Consequently, when the teachings in question could be tagged as unequivocally heretical, because their content conformed to a previously well-defined heresy, the bachelors faced less difficulty in denouncing a fellow lecturer on the Sentences. Nevertheless, because they operated on the cutting edge of theological speculation, there must have been instances in which the heretical nature of the propositions remained unclear. In such cases, the vague notions of “bad sounding,” “offensive to pious ears,” provided the bachelors little help in determining a course of action, while their inaction placed them in potential jeopardy of excommunication if the matter later developed into a full-blown case of heresy. Given these parameters, an analysis of the censured propositions in the Foulechat and Monteson cases yields interesting results with regard to determining proof of suspect teaching. First, in many ways, these two cases shared much in common. Both defendants were each members of a mendicant order. Both friars concerned themselves with divisive theological issues: Foulechat, with the Absolute Poverty of Christ and the Apostles, and Monteson, with the Immaculate Conception. In each instance, the censure took place at a defined point in their academic career.56 Likewise, in both cases, the faculty attached tendency of medieval theologians to view contemporary heresies through the lens of the ancient heresies. 56  As noted above, Monteson’s censure took place during his lectures as as newly incepted master. However, as reported by Frater Bartholomew, the text of the oath required the

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the degree of error to each proposition by including terms such as false, erroneous, not properly understood, bad sounding, offensive to pious ears, presumptuous, scandalous, against the determination of the church, heretical, and other similarly worded phrases.57 Lastly, each friar rejected the Parisian condemnation handed down against him and appealed to a higher authority. Yet here is where the similarities largely end, for the censures of Foulechat and Monteson differed in one salient feature: On the one hand, in the Foulechat case, a pre-existing doctrinal statement authored by John XXII had declared as heretical the Absolute Poverty of Christ and the Apostles. On the other hand, in the Monteson case, no such doctrinal determination existed regarding the Immaculate Conception. In the Foulechat case, the faculty censured ten propositions in all. The faculty labeled six of the friar’s statements variously as false, erroneous, bad sounding, and the like. Of the remaining four propositions, the faculty categorized each as heretical. Moreover, the masters of theology went one step further. With regard to these four heretical statements, the faculty declared that two of them directly contradicted the decretal Quia quorundam of John XXII.58 By contrast, in the Monteson affair, the faculty censured fourteen propositions, the first of which, Monteson had raised only recitative, that is, for the sake of argument. Of the remaining thirteen propositions, the faculty judged only one – which appeared to reference the Beatific Vision (and not the Immaculate Conception) as being erroneous in the faith and condemned at another time at Paris. Nevertheless, the faculty did not explicitly declare reporting of anyone teaching unsound doctrine, not just those who were lecturing on the Sentences, as was the case with Foulechat. 57  Of these gradations of error, only the last two – against the determination of the church and heretical – provided any clear, objective measure of the heterodoxy of the statement. The remaining terms, such as “erroneous, bad sounding” or “offensive to pious ears,”while useful, lacked clarity and/or entailed subjective judgment. 58  CUP 3, no. 1298, 118. The text reads: “Ex predicta conclusione quarta inferebam primum correlarium, quod Christum non abdicasse hujusmodi possessionem et jus in temporalibus, non habetur ex nova lege, ymo potius oppositum, quia Matth., viiio [v. 20] ‘Filius hominis non habet ubi caput suum reclinet.’ Item, secundum correlarium fuit, quod hanc legem pro regula perfectionis Christus doouit et exemplo firmavit. Probavi per regulam antedictam, ‘Vade et vende,’ etc.  Etiam, quia vocati omnia dimiserunt, Mattheus theloneum, Petrus et alii rethia; Matth., xixo [v. 27]: ‘Ecce nos relinquimus omnia.’  ‘Ista duo correlaria revoco tanquarn falsa, erronea et heretica, et contra determinationem decretalis domini Johannis pape vicesimi secundi, que incipit: Quia quorumdam.’ ” For the text of Quia quorundam, see Extrav. comm. 5.14.5.

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the proposition heretical, nor did it cite any supporting text. With respect to the remaining twelve propositions, the faculty labeled them variously as false, erroneous, bad sounding, presumptuous, scandalous and the like – but not heretical.59 In itself, the faculty’s reluctance to declare the propositions heretical is not surprising, given that the doctrine of the Immaculate Conception remained a matter of theological debate for centuries and, ultimately, was only declared a dogma of the faith in 1854.60 This brief comparison and contrast demonstrates that the masters of theology had an easier time handling the Foulechat case as compared to the Monteson affair. From a purely numerical perspective, forty percent of Foulechat’s propositions were clearly heretical, while less than ten percent of Monteson’s teachings rose to the level of heresy. In the Foulechat case, it was easier to determine that at least some of the Franciscan’s teachings were heretical, given that John XXII had authoritatively established that the Absolute Poverty of Christ and the Apostles was a heresy. However, in the Monteson case, even after months of debate and discussion, the finest theological minds in all of Christendom could agree to condemn only one of the Dominican’s teachings as heretical – a proposition in many ways irrelevant to the major concern of the faculty, given that it concerned neither the Immaculate Conception nor the teachings of Thomas on the matter. Put another way, the ability to determine probable cause was easier to achieve in the Foulechat case than in that of Monteson. Hence, just like the faculty, the bachelors who heard these teachings in the classroom setting would have had an easier time determining that Foulechat’s teachings were suspect and needed to be reported to the chancellor or the bishop than those of Monteson. Given the challenges facing the bachelors, it is reasonable to hypothesize that they proceeded differently when the unorthodox nature of the teachings was evident, as opposed to those instances, when the heterodoxy of the propositions was a matter of debate. The presence or absence of a clear doctrinal statement, when placed against both the criteria for practicing or omitting 59  CUP 3, no. 1559, 491–496, esp. 493–495. At 493: “Prima proposicio: Major est unio ypostatica in Christo, quam unio trium personarum in essentia increata.  Itsam dixit se dixisse recitative, nichil asserendo. . . .   Tertia proposicio: Aliqua pura creatura racionalis potest in suis puris naturalibus Dei essentiam beatifice intuerei.  Revocanda est tanquam falsa, alias Parisius condampnata, et tanquam erronea in fide, maxime ad intellectum probacionis sue, videlicet de gracia anime Christi. Of particular note, propositions 10–13 were specifically labeled scandalous. 60  For a discusssion of the Monteson case, see Marielle Lamy, L’Immaculée conception, 562– 575. Also consult, Wenceslaus Sebastian, OFM “The Controversy after Scotus,” at 223–227.

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fraternal correction, as well as the stipulations of the bachelor’s oaths, serves to explain more fully both how and why these cases were handled differently, particularly at the initial stages. Consequently, it will be easiest first to analyze the process followed in Foulechat’s censure, then to compare these findings with the procedures adopted in the Monteson affair, paying particular attention to the role of fraternal correction in the course of events. The clear-cut nature of Foulechat’s heretical teachings effectively provided acceptable cause for his fellow bachelors to denounce him to the chancellor. In the Foulechat case, that is precisely what happened.61 As recorded in the bachelor’s oath, any suspect teaching was to be reported to the chancellor or the bishop, who would then conduct an investigation. When writing to Urban V, Grimerius Boniface began by stating the reasons that prompted his investigation. The chancellor recorded that certain individuals “forced by conscience and by the oath [taken prior to reading the Sentences],” denounced Foulechat to the authorities.62 Because, it has been shown in the earlier chapters of this work that the faculty operated with jurisdiction over less serious crimes, notifying the chancellor in this way signaled a judicial denunciation, rather than merely a fraternal one. And Grimerius’s statement to the pope is also consistent with the practice of judicial denunciation. The distinction is significant. Whereas Christian charity permitted anyone to offer fraternal ­correction – because the goal of the correction was to bring the sinner to repentance and to save his (or her) soul – the law, by contrast, admitted only persons of good character to judicial denunciation, given that the consequences for the defen-

61  Ibid., 115. Foulechat acknowledged that he had been denounced to the chancellor as the result of his suspect teaching. He stated: “[C]um fuerim delatus domino meo cancellario eccl. Paris., aliqua dixisse in meo principio Sententiarum que minus bene sonare dicebantur in auribus aliquorum verba mea et intentum minus favorabiliter recipientium, quorum verborum meorum murmur audiens, percipiensque nonnullos super hiis dubitare.” 62  CUP 3, no. 1299, 120–122, at 121. Grimerius observed: “Nichilominus idem frater Dyonisius, fama publica referente, in suo principio Sententiarum, in scolis Minorum Parisius, dixit plura erronea atque falsa, super quibus per nonnullos, etiam graves personas, conscientia atque juramento premisso cogentibus, apud nos delatus extitit, et querulosis clamoribus accusatus.” Interestingly, the text reflects the standard procedure in cases of judicial denunciation as outlined by Aquinas. Based upon a denunciation made by persons of good character (“graves personas”), public fama led the way and complaining cries took the place of the accuser, as required by inquisitorial method. Grimerius acknowledged that fama publica took the place of the accuser: “Dyonisius fama publica referente . . . et querulosis clamoribus accusatus.”

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dant included punishment.63 Thus, in accordance with the legal requirements for denunciation in the judicial forum, Grimerius made sure to inform the pope that Foulechat had been denounced by serious persons of good character.64 In the initial stages, then, the Foulechat case was unremarkable. The ­participants merely followed the standard procedures – both those internal to the faculty, as well as those prescribed in canon law. This, in fact, is precisely the point. Because it was easy to determine that at least some of Foulechat’s teachings were suspect, the bachelors exhibited no difficulty or hesitation in denouncing Foulechat to the chancellor. In fact, it is evident that more than one individual came forward; Grimerius spoke not merely of a single individual but, instead, of “serious persons.” Even Foulechat himself acknowledged that a plurality of individuals had both doubted and murmured against his teachings. Foulechat responded to the Dominican and Cistercian bachelors who 63  See the comments of Hostiensis, Summa, f. 228b. “Unde dico, quod denunciatio poenitentialis est Evangelica: et ad hanc quilibet admittitur. Iudicialis vero canonica est, ad quam non quilibet admittitur: ut apparet ex se. Aut enim peccatum occultum est, aut manifestum, scilicet fama, non dico notorium. Quando occultum est, non potest denunciari crimen, nisi ad poenitentiam peragendam, et in hoc casu quilibet Christianus admittitur, et sic intelligo auctoritatem domini. Si peccaverit, quis non refert quis sit denuntians: dummodo anima salvetur. . . . Quod si in hoc casu vellet denuntiare, ad hoc, ut temporalis poena imponeretur, scilicet, quod amitteret beneficium, vel simile, hoc casu repelleretur, quia tunc demum ad hoc potest quis denuntiare, quando crimen manifestum est fama: . . . sed et tunc dis[tinguendum] utrum sit bonae fame, nec inimicus, neque conspirator, neque ab ecclesia precisus, et tunc potest denunciationem prosequi, alias reppelletur.” 64  Grimerius Boniface is demonstrating that he followed the standard procedure in cases of judicial denunciation. In a similar way, Frater Bartholomew also acknowledged the good character of those who denounced him when he mentioned that the the chancellor had been informed by faithful testimony and the matter had been confirmed by suitable witnesses. See Michalski, “La révocation,” 1097. Et relatum est cancellario Parisiensi testimonio fide dignorum et probatum per testes ydones.” In any event, all the bachelors of the theological faculty would have been considered of good character initially. The statutes of 1366 provide a guide to practice in the faculty. Before being admitted to read the Sentences, a cursor had to appear before the faculty who deliberated with respect to his life, morals, and time spent in the faculty. Alternatively, at least three faculty members out of a seven member panel could swear on behalf of the candidate. See CUP, no. 1189, 699. “Item, quod nullus ad juramenta prestanda in admissione ad hujusmodi bacalariatum recipiatur, nisi prius fuerit super hoc facultas facultas specialiter vocata, et de ejus vita, moribus, et tempore deliberaverit . . . aut ad minus tres testes ydoneos deponentes de honestate vite, morum et tempore sex annorum, et inchoatione septimi, de quo in quodam superiori statuto fit mentio.” See footnote 17 of the CUP document, which further indicates that a similar custom had long been in effect in the faculty of Medicine.

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had personally challenged him in the principial debates.65 Taken together, the statements indicate that, in all likelihood, several people may have come forward but, certainly, at least two did. Indeed, the clarity of error in Foulechat’s teachings underscores the fact that when the heretical or suspect nature of the propositions was obvious and the provability factor high, the investigation could proceed normally, as expected. Fraternal correction was unnecessary.66 It is abundantly clear that the authorities within the faculty viewed Foulechat’s offense – and suspect teaching in general – as a public offense, one that did not merit fraternal correction. Pierre d’Ailly specifically made this point with respect to the Monteson case; moreover, he did so by citing the Thomistic discussion on fraternal correction that distinguished secret from public sins that was, ultimately, based on Augustine’s categorization of secret and public sins, wherein secret sins received the benefit of fraternal correction, whereas public sins received the weight of judicial correction.67 Unlike the Foulechat case, however, the Monteson case presented considerable ambiguity. This ambiguity essentially left the bachelors and the masters with a dilemma: How was the case to be handled: According to fraternal correction or judicial correction? Was fraternal correction to be practiced or omitted? The answer to these questions largely depended on the various factors governing the handling of cases. Of the six criteria affecting the practice or omission of fraternal correction, several can be dealt with easily. For example, on the dual requirements that correction be performed at the most opportune occasion and by the most suitable individual, there can be little doubt that the faculty represented the most suitable venue, and that either the dean or the chancellor represented the most suitable candidate to administer the correction, and to perform it with gentleness. As mere bachelors, the students who heard Monteson’s teachings would not have been qualified to determine whether the propositions rose to the level of suspect teaching or heresy. Thus, according to the theology of fraternal correction, they were not the most suitable candidates to offer admonition, 65  CUP 3, no. 1298, 119. “Item, respondendo ad quamdam racionem bacalarii de domo Sancti Bernardi, cum ipse dixisset quod Christus talia non abdicavit, illud negavi, et dixi quod Christus nichil sibi retinuit.” The chancellor reported Foulechat’s confrontation with the Dominican Bachelor, Hugh de Monteforti. See CUP 3, no. 1299, 121–122 and n. 3. “[S]ed sic revocare recusavit, [Dionysius] et totam scolam clamore replevit, dicens insuper fratri Hugoni, bachalario Predicatorum, qui contra eum, istos errores reprobando, arguerat, quod ipse bene responderet ad rationes suas.” 66  See page 193, footnote 84, and also page 192, footnote 81. 67  See on page 185, footnote 56.

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and were, accordingly, absolved from that responsibility. Instead, they did the next best thing: In the Foulechat case, they reported the matter to the chancellor, as required by their oath; in the Monteson case, they referred the matter to the dean. Referring the matter to the individuals most suited to the task also helped to assure that the correction would be performed with gentleness as required.68 Additionally, with respect to a reasonable hope for the sinner’s reform, the revocatio conditionalis, taken before reading the Sentences, implied that the defendant was amenable to correction and, furthermore, provided him with presumption of innocence, as long as he immediately retracted any unsound teachings.69 However, it must be remembered that this presumption of innocence could be set aside, given evidence to the contrary. Hence, three significant factors remain: 1) the ease or difficulty of proving the offense, 2) the public or private (secret) nature of the offense, and 3) whether the offense injured the republic or the common good.

Suspect Teaching and the Definition of a Secret Sin

It has already been established that the provability of Monteson’s errors was difficult from the bachelor’s perspective; so, it will be necessary to ask how these two remaining factors influenced the conduct of the investigation and to begin the analysis from another angle, namely, the secret or public nature of the sin. From the time of Augustine onward, one of the most fundamental tenets of the theology of fraternal correction concerned the distinction between secret and public sin. As Augustine had observed, secret sins were to be handled secretly and public sins, publicly, according to Paul’s letter to Timothy. Or put another way, secret sins were handled with fraternal correction and public offenses with judicial correction. Thus, determining whether suspect teaching constituted a secret or public offense was crucial. On the one hand, the church did not judge wholly secret crimes – known to God alone or to the priest in confession – which were left to God’s judgment alone.70 By extension, fraternal correction concerned sins that were not, in truth, wholly secret. But where did one draw the line between a secret and a public sin? 68  This factor will not be analyzed in detail; for a brief discussion, see pages 322 and 335. 69  On this topic, see the comments of Thijssen, Censure and Heresy, 34. 70  For a brief discussion of this issue, see Stephan Kuttner, “Ecclesia de occultis non iudicat: Problemata ex doctrina poenali decretistarum et decretalistarum a Gratiano usque ad Gregorium IX.”, in Acta congressus iuridici internationalis, Romae 1934 III (Rome 1936) 225–246.

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Interpreting Matthew’s text forced commentators to confront both the overall meaning of the text and, more specifically, what qualified as a secret sin. The answers to these questions were important, especially for the bachelors in the theological faculty. The debate over what constituted a secret sin had been simmering for some time. As Augustine had noted: If you alone knew that someone sinned against you, and you challenged him in the presence of others, you would be a betrayer of sin and not a corrector of sin.71 At the same time, the second step in fraternal correction created a problem because it required that one or two witnesses be brought in to convince the sinner. Hence, doing so entailed informing others about the otherwise secret sin. Did the action of informing others transform the one admonishing into a betrayer of another’s secret sin? The dilemma raised a serious question: Just how many individuals could know about a sin that was, nonetheless, still considered secret? Augustine had effectively limited knowledge of a secret sin to only two or three people, that is, the injured party along with the one or two witnesses mentioned in the Gospel text. Although Augustine had taken a strict interpretation of the Gospel text, other thinkers viewed Matthew’s passage differently. When Johannes Teutonicus glossed Si peccaverit, in the Decretum, he provided both a wider range of opinions and alternatives on the interpretation of the passage. Accordingly, the passage described either: 1) a wholly secret sin, or, 2) a manifest, or public one. Or, 3) as a third group believed, the beginning of the text referred to a secret sin, while the remainder of the text concerned a public sin. For each of these options, Johannes cited various authorities to show that the interpretation was incorrect. Johannes then cited the opinion of John of Faenza, or, Johannes Faventinus. Faventinus held that 4) the Gospel text described a secret sin that was known by many and able to be proved by some.72 Johannes recognized that the interpretation of John of Faenza appeared to contradict Augustine’s statement, “Tu solus nosti.” So he attempted to reconcile these differences and offered a compromise solution. He suggested that the word “solus” need

71  C.2, q.1, c.19. “Nam si solus nosti quia peccavit in te, et eum vis coram omnibus arguere, non eris corrector, sed proditor.” 72  CIC 1:828–829, C.2, q.1, c.19, s.v. in te. The gloss reads: “Scilicet laesem vel testem. Quidam totam hanc auctoritatem intelligunt de occulto peccato . . . . Alii intelligunt totum de manifesto. . . . Tertii dicunt quod principium de occulto, et sequens de manifesto loquitur. . . . Ioan [Faventinus] intelligit tali occulto quod scitur a multis, et potest ab aliquibus probari, et vocantur testes.”

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not be taken literally. It did not exclude a few, only a multitude.73 In the end, the glossator opted for a more restricted interpretation of the text than that offered by Faventinus, and stayed closer to the authority of Augustine. But even though Johannes Teutonicus did not wholeheartedly endorse the view of John of Faenza, the fact that he included the opinion is important for two reasons. First, Faventinus broadened the definition of what qualified as a secret sin: A sin known by many could still be considered secret if it was only provable by some. Second, Faventinus linked together the two factors of secrecy and provability (or lack thereof). For Johannes Faventinus, knowledge of the crime allowed witnesses to be called who could then prove that admonition had taken place.74 Other thinkers took a slightly different approach to analyzing the difference between secret and public sins. In his Sentences commentary, Aquinas recognized three gradations regarding knowledge about a sin. A sin could be 1) secret or 2) known [i.e. public], or 3) becoming known. Aquinas, for his part, did not develop these distinctions in any detail. He merely treated both public sins, and sins becoming known in the same manner. They both were to be

73  Ibid., “Sed isti opponitur: quare ergo dicit Aug. tu solus nosti? Respondet hic, solus, non excludit paucos, sed multitudinem sicut dist. 8 si solus. et ibi, Quomodo sedet sola ciuitas i[d est] cum paucis.” Also consult the analysis by Howard Hansen, Denunciatio Evangelica, 10–43, esp. 40. 74  Kenneth Pennington has kindly provided a manuscript citation for Johannes Teutonicus’s reliance on Faventinus. Admont 35 fol. 111v, C.2 q.1 c.19 s.v. Si peccauerit in te: [Johannes Teutonicus wrote:] “Jo. intellige de tali occulto quod scitur a multis et potest probari et uocantur testes ut probetur admonitio facta.” Faventinus makes the point that the admonition must be proven for the accusation to be valid. Space does not permit a full discussion of this gloss, but it apparently generated some debate, both over the actual wording of the gloss, as well as its meaning. In the 1506 edition of the Decretum published at Paris, for example, the gloss left out the words “a multis.” See Gratian, Decretum aureum domini Gratiani: cum suo apparatu (Paris, 1506), f. 181a. The text read: “Io. intelligit de tali occulto quod scitur ab aliquibus et potest probari.” The change in wording is significant because it affects the degree of certainty expressed therein. “Known by some and able to be proven,” emphasizes the number of people who know about the offense. “Known by many and able to be proved by some,” stresses both the number of persons who know, as well as the difficulty in proving the offense. As will be seen, Baconthorpe opted for this latter wording, which was subsequently accepted as the correct version. The full wording was restored in the 1582 edition of the Corpus Iuris Canonici. More work needs to be done to determine how widespread this discrepancy was and what impact this may have had.

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denounced without the benefit of fraternal correction.75 In terms of practice, Aquinas only distinguished between public and private sins. Thus, it comes as no surprise that in his Summa, Aquinas concerned himself with discussing only sins that were either secret or public, but devoted no discussion to sins that were becoming known.76 Walter of Bruges asked whether Matthew’s text concerned someone sinning secretly. In response, he proposed a paradigm that that distinguished three levels of secret sins. First, the sin could be wholly secret, that is, known to God alone, or to the priest in confession; second, it could be known only to the individual or, third, it could be known secretly among a few select people, such as the privy counselors to the king.77 Walter, like the glossator, quoted Lamentations. But he also added other scriptures, including those referencing Rahab with all her household as well as Adam before the creation of Eve. Thus, according to the Franciscan, a sin could be secret, known only to God; or it 75  See Aquinas, Sentences, IV d.19, q.2, a.3a, ra.2, 1:551–552. “Ad secundum dicendum quod in peccatis considerandum est utrum peccatum sit omnino occultum, aut ad notitiam aliorum devenerit, aut in promptu sit ut deveniat. Si autem peccatum jam ad notitiam aliorum devenerit, tunc debet denuntiari ei qui habet potestatem corrigendi, ut qui sunt scandalizati de culpa, aedificentur de poena. Si autem nondum in publicum devenit, sed est in via deveniendi; tunc etiam denuntiandum est, ut scandalo futuro occurratur.” 76  Aquinas, Summa, 2a, 2ae, q. 33, ar.7, co, 2:573. “Respondeo dicendum quod circa publicam denuntiationem peccatorum distinguendum est, aut enim peccata sunt publica, aut sunt occulta. Si quidem sint publica, non est tantum adhibendum remedium ei qui peccavit, ut melior fiat, sed etiam aliis in quorum notitiam devenit, ut non scandalizentur. Et ideo talia peccata sunt publice arguenda, secundum illud apostoli, I ad Tim. v, ‘peccantem coram omnibus argue, ut ceteri timore habeant,’ quod intellegitur de peccatis publicis, ut Augustinus dicit, in libro de verbis dom. Si vero sint peccata occulta, sic videtur habere locum quod dominus dicit, ‘si peccaverit in te frater tuus.’ ” 77  Walter of Bruges, Quaestiones Disputatae, 210, 214. “Quaeritur an illud Matth. XVIII, 15: ‘Si peccaverit in te frater tuus, vade et corripe ipsum’ (16) etc. totum intelligi debet de peccante occulte. . . . Respondeo. Duplex est peccatum, scilicet occultum et publicum. Occultum autem dicitur tribus modis: scilicet vel quod solus Deus novit vel homo per confessionem et de hoc non est quaestio, quia hoc spectat ad Deum, non ad nos quoad istam correctionis formam. . . . Secundo modo dicitur occultum, quia homo solus, id est non cum alio novit, Gen. 2:18: ‘Non est bonum hominem solum esse,’ id est non cum alio. Tertio modo dicitur peccatum occultum quod solus quis novit, id est unus cum paucis vel familiaribus, sicut rex dicitur esse vel facere aliquid in occulto vel esse solus quando est cum paucis familiaribus de quo modo solius Thren. I: ‘Quomodo sedet sola civitas plena populo’, id est paucos habitatores habens; et Josue V, d. 17 [sic. = Josue 6:17] ‘Sola Raab meretrix vivat cum universis qui cum ea in domo sunt.’ ”

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could be secret and known only to the sinner (Adam); or, it could be secret and known among a group of people (the counselors of the king or the remnant of a city). Interestingly, Walter did not set a precise number. But his overall paradigm was well received. Similar formulations appeared in the writings of Durand of Saint Pourçain, Pierre de la Palude, and even in the commentary on the Decretals of the mid-fourteenth century Parisian canonist, Henri Bohic.78 To be sure the exact number of persons who could know about the offense varied from commentator to commentator or remained unstated. Pierre de la Palude, for instance, seems to have limited this number to two or three other people with knowledge of the sin.79 But more importantly, what emerges from this review of the texts is the fact that the canonists and theologians were actively engaged in a debate concerning both the meaning of the text itself as well as the definition of a secret sin. The debate extended from approximately 1216 when Johannes authored the gloss until at least the early to midfourteenth century.

78   For Durand of Saint Pourçain, see In Petri Lombardi Sententias Theologicas Commentariorum libri IIII (Venice, 1571; rpt. Ridgewood, NJ, 1964). See IV d.19, q.4, at f. 351rb. “Responsio. Advertendum est quod peccatum fratris potest esse vel omnino publicum et notorium, vel sic occultum quod probari non potest, nec de eo infamatus est, vel partim occultum et partim notum, quod est quando innotefecit pluribus per quos convinci potest, vel apud graves personas diffamatus est, quamvis publica fama non sit.”, Hereafter This work will be cited as “Durand, Sententias, followed by the appropriate reference.  For Pierre de la Palude, consult his In Quartum Sententiarum (Venetiis, 1493). See IV. d.19, q.4, f. 107v. “Respondeo . . . quia delictum autem simpliciter publicum aut simpliciter occultum aut secundum quod publicum et secundum quod secretum [est].”  For Henricus Bohic, see his Commentaria at X 2.20.2, no. 8 at 1:252a on the decretal In nomine. The beginning of the the text states: “Item, duplex est peccatum, occultum, scilicet et publicum. Occultum autem dicitur tribus modis. Uno modo, quia solus Deus novit, vel homo per confessionem. . . . Secundo, quia homo solus id est non cum alio novit . . . . Tertio, dicit[itur] occultum, quia solus quis novit, id est unus cum cum paucis familiaribus, sicut rex dicitur aliquid facere vel esse in occulto, vel esse solus, quando est cum paucis, sibi familiaribus.” 79  Pierre de la Palude, In Quartum Sententiarum, IV, d.19, q.4, f. 107vb. “Si autem es partim publicum et partim occultum, quia, scilicet, possum eum per testes convincere, puta, duos vel tres sed omnes alii ignorant et reputant eum bonum.”

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The Contribution of John Baconthorpe

Against this background, one can better understand John Baconthorpe’s contribution.80 Precisely when John read the Sentences at Paris is not known. Traditionally, scholars believed that he did so prior to 1318; however, current scholarship places the date closer to 1320–1321.81 Like Walter of Bruges, he too included topics related to fraternal correction that Aquinas had not ventured to discuss. In fact, he began by asking a fundamental question not raised by the Angelic Doctor: How should one understand the precept of fraternal correction? The influence of the glossator is readily apparent, for Baconthorpe reproduced much of the gloss to Si peccaverit, reiterating the four options listed by Johannes Teutonicus.82 The passage described: 1) a wholly secret sin, or 2) a manifest, or public sin; or 3), as a third group believed, the beginning of the text referred to a secret sin, while the remainder of the text concerned a public sin. Baconthorpe then repeated the view of Johannes Faventinus who held that 4) the text described a sin that was known by many but only provable by some. Yet here, the Carmelite parted company with the glossator. He did not accept the solution proposed by Teutonicus that restricted knowledge of the sin to only a few instead of many. Whereas, Johannes Teutonicus had cited Augustine and offered a compromise solution, Baconthorpe – who obviously was very familiar with the gloss – ignored that alternative entirely and merely let stand the solution originally proposed by Johannes Faventinus: A secret sin could be known by many, but only provable by some. In further support of this interpretation, Baconthorpe ended his discussion by appealing to the solemnity of the canons, wherein Christ had taught that “the rebellious were to be

80  Baconthorpe also authored a commentary on the Gospel of Matthew that remains in manuscript form only. I hope in the future to study this work. See Beryl Smalley, “John Baconthorpe’s Postill on St. Matthew,” in Medieval and Renaissance Studies 4 (1958), 91–145. 81  Simon Nolan, “John Baconthorpe,” in Encyclopedia of Medieval Philosophy: Philosophy between 500 and 1500, ed. Henrik Lagerlund (Dordrecht, 2011), 594–597. 82  Baconthorpe, Quaestiones, IV, d.19, q.1, a.1, 440. “Respondet glo. in cap. Si peccauerit, dicens: Quod quidam totam hanc auctoritatem intellexerunt de occulto peccatore. . . . Alii intelligunt totum hoc capitulum de manifestis delictis. Alii. ut ibi dicit, intellexerunt principium huius capituli de occulto; et quod sequitur, si te non audierit au. adhi. etc. de manifesto. . . . [A]lii intelligunt totum hoc capitulum de occulto, quod tamen scitur a multis, et potest ab aliquibus probari.”

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excommunicated, but only after admonitions, and then, only after the secret sin that was known by many had been clearly proven.”83 In essence, by hearkening back to the gloss of Faventinus, Baconthorpe again widened the spectrum of a secret sin and, to some extent, blurred the line between secret and public offenses. Consider, for instance, that, just as Baconthorpe redefined the notion of a secret sin, so he also redefined the meaning of a public one. He effectively recast a public sin known by many as a secret sin when it could be proven only by a limited number of people. At the same time, Baconthorpe, following Faventinus, also linked together two key factors in the theology of fraternal correction: the concept of provability and the secret-public distinction regarding sins. It is fair to ask then, whether Baconthorpe’s radical new formulation shaped or influenced the investigation of suspect teaching at Paris? The evidence strongly points in that direction. First, Baconthorpe was not alone in blurring the line between what was public and secret. Suspect teaching at Paris shared characteristics common to both secret and public offenses, a fact that was implied by the very terminology used by the authorities in the faculty. When the authorities described the suspect teaching activity of a given bachelor or master, they did not use plain and simple terms, such as “publicly” or “privately.” For example, in the Foulechat and Monteson cases, the documents do not state merely that the friars taught publicly or privately, but offer, instead, a qualified description of the bachelors as teaching “publicly within the schools.” It is clear that the phrase, “publicly in the schools” is itself ambiguous.84 It is neither unequivocally secret nor unambiguously public. The documents do not elaborate on the meaning, but the term suggests or implies the existence of a middle ground hovering between a wholly secret or entirely public offense. That is, when considered from the faculty’s vantage point, the offense was public: a sufficiently 83  Ibid., “Quarta opinio est secundum solemnitatem canonicam. Docet enim canon, quod Christus per has monitiones praecedentes docuit tandem contumacem excommunicari. . . . Sed hoc non est faciendum, donec occultum, quod a multis scitur probetur manifestum.” 84  For Monteson, see CUP 3, no. 1564, 502. “Prima veritas est, quod anno Domini M°CCC° octogesimo septimo, ante mensem Julii, dictus fr. Johannes in scolis frat. Predicatorum Parisius publice dogmatisavit 14 propositiones falsas, erroneas et plurimum scandalosas.” For Frater Bartholomew, see Michaelski, “La révocation,” 1097. “Et relatum est cancellario parisiensi . . . quod ego, frater Bartholomeus dixi, sustinui, et docui publice in scholis.” In the Foulechat case, the chancellor described the friar as laboring under “fama publica” in the schools of the Franciscans. Cf. CUP 3, no. 1299, 121. “Nichilominus idem frater Dyonisius, fama publica referente, in suo principio Sententiarum, in scolis Minorum Parisius, dixit plura erronea atque falsa, super quibus . . . apud nos delatus extitit.”

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large body of people within the faculty – at least a classroom of students – either witnessed or knew of the suspect teachings. Nevertheless, with respect to the wider Parisian diocese, the matter remained secret and unknown. Thus, depending upon one’s perspective, teaching within the faculty could be considered as either a public or a secret activity. This blurring of the distinction between public and secret sins entailed significant implications. Fortunately, the redefinition of the boundary between a secret and public sin opens up a new avenue of analysis. When considering Baconthorpe’s redefinition of the distinction between a public and secret sin, one wonders if he had in mind the issue of suspect teaching. The very placement of the text indicates that this was so. Baconthorpe redefined a secret sin in Book IV, Distinction 19, Question 1, Article 1. In the very next article, after putting forth this interpretation, he specifically cited Aquinas’s discussion of fraternal correction and heresy. Given that Baconthorpe read the Sentences only a few years after 1316, one wonders, too, if he was thinking about the censure of Frater Bartholomew, of which he would have been very aware. In any case, his concept of a secret sin corresponded closely to the circumstances of the Monteson case: Many bachelors knew about the case, but their ability to prove the suspect nature of the teachings was limited. Consequently, it is worthwhile pursuing Baconthorpe’s discussion of secret sins, heresy, and fraternal correction in order to determine what information may be gleaned regarding the handling of the Monteson case and others like it. The Resolute Doctor began his discussion by citing the Angelic Doctor’s treatment of fraternal correction in the Summa. Recall that Aquinas had taught that a secret sin that injured the common good, such as betrayal of the city into enemy hands or heresy, had to be denounced both immediately and publicly, unless it was firmly believed that fraternal correction would immediately put an end to the danger. Baconthorpe specifically referenced the Summa and paraphrased Thomas.85 But, here, the Resolute Doctor parted company with the Angelic Doctor. The Thomistic requirement to denounce this secret sin publicly and judicially caused Baconthorpe problems. First of all, as Hugh 85  Baconthorope, Quaestiones, IV, d.19, q.1, a.2, at 2:440b. Et concordat multum iam dictis quod respondet Tho. secunda secundae q.33 art. 7, distinguendo, quod quaedam sunt occulta peccata quae sunt in nocumentum proximorum, vel corporale, vel spirituale. Puta, si aliquis occulte tractet quomodo civitas tradatur hostibus, vel haereticus avertit homines a fide. Alia sunt occulta, quae solum in malum peccantis, vel eius, in quem peccavit facto, vel exemplo. In hoc secundo casu non debet peccator publicari, aut denuntiari, sed in primo debet, nisi forte aliquis firmiter aestimaret quod statim per secretam admonitionem posset eum a malo, quod concepti facere impedire.”

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of Saint Cher had opined, it was a sin not only to denounce a sin that was unprovable, but even to rebuke the sinner fraternally. In addition, the requirement that the corrector have certain knowledge of a sin, as expressed by Walter of Bruges, Henri Bohic, and others, set a high bar with respect to the practice of fraternal correction. Yet, apart from the spiritual consequences of sin, other more temporal and mundane consequences attached to anyone denouncing a secret sinner. Baconthorpe argued that, because one could not prove that the wrongdoer was, in fact, a traitor or a heretic, the Christian who accused or denounced opened himself up to punishment. Moreover, the sinner would be propelled to even worse evil, since his sin would not be overcome.86 Baconthorpe, therefore, cautioned the one revealing not to reveal the sin “as to a judge and by way of either accusation or denunciation.” Rather, he advised the concerned Christian to reveal the matter to the judge as one who is able to benefit and not hinder the sinner.87 By using this language, Baconthorpe echoed the additional step of fraternal correction instituted by Augustine and recommended its use in these types of cases. Indeed, other scholastics had pointed out the difficulties surrounding the handling of secret sins. In reality, Walter of Bruges was one of the first commentators to make this point. Basing his argument on Augustine, he stated that revealing a truly secret sin to the whole church would do no good because the sin could not be proved and the corrector would only injure himself.88 Guido Terreni, Baconthorpe’s teacher, likewise recognized the danger of publicly revealing secret sins that injured the common good. They could not be proven because they were secret; even if witnesses were brought in, the witnesses could not prove the fact of the sin, only that they had been informed

86  Ibid., 440. “Sed hic oritur difficultas; Nam secundum hanc viam talis publicans posset seipsum gravare, quia debet puniri, cum non posset probare alium esse haereticum, vel proditorem ac etiam publicandus posset in malo audacior fieri, cum non vinceretur.” Baconthorpe addressed the issue of secret sins that could not be proven. However, the same principle applies as well to propositions on which the church hand not issued any pronouncement. 87  Ibid., 440–441. “Propter quod talis publicans debet cavere quod non dicat peccatum occultum aliis nociuum, tanquam iudici, et per formam denuntiationis vel accusationis, sed tanquam illi, qui prodesse, non obesse.” 88  Walter of Bruges, Quaestiones, Q. 31, ro., 216. “Et Augustinus . . . ‘Si peccaverit in secreto, corrige in secreto’. . . . Si autem nec sic te audierit, dic Ecclesiae, id est praelato tantum, qui prodesse potest in occulto et obesse non debet; nam si diceres multitudini Ecclesiae, nihil valeret, quia probare non posses, immo tibi noceret, quia probare non posses.”

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about it.89 Guido, instead, recommended that the sin be revealed privately.90 Second, by noting that the matter could be told to a vir probus, as a private person, Guido indicated that one did not have to go only to the prelate as a private person but that another suitable individual could be sought out for assistance. With respect to the faculty, this meant that one did not have to seek out the chancellor, but the dean could function as a vir probus and a suitable alternative. Overall, Baconthorpe was not the first scholastic to discuss the difficulties in handling secret sins, but he was original in discussing the issue in relation to heresy and, seemingly, with reference to the faculty of theology. Regrettably, neither Walter, nor Terreni, nor Baconthorpe wrote about the consequences or punishment related to denouncing unprovable sins. However, their elder colleague, Durand of Saint Pourçain, addressed this topic in greater detail. Given the dating of his commentary, Durand was one of the earliest thinkers to depart from the Thomistic stance requiring the immediate denunciation of secret sins injuring the republic. But, for our purposes here, it is his discussion of potential punishments that is of interest. Durand clearly spelled out the consequences of accusing or denouncing someone when their sin was unprovable because it was known by only the accuser. The voice of one was insufficient; the one denouncing exposed himself to danger. The accused could, in turn, complain to his superior that the false denunciation had slandered him and unjustly damaged his reputation, thereby invoking the punishment of calumny on the plaintiff.91 The penalties for slander or calumny were 89  Guido Terreni, Quatuor unum, 630a, s.v. Si autem te non audierit adhibe tecum adhuc unum vel dos: “Ergo, si peccatum occultum et secretum non debet revalri Paraelato ut Iudici, longe minius debet revelari aliis, ut sint testes ad dicendum in iudicio Ecclesiae. . . . Primo, . . . isti testes non possent testificari de commisso peccato, quod eis est incognitum et occultum, nisi de dicto tantum, quod ille eos adhibens, sic dixit. . . . Secundo, quia poterit iste peccans cum audierit se publicari, qui occultus erat, negare; et sic publicans per testes et non potens probare, punietur.” 90  Ibid., “Et ubi peccatum occultum est, in nocumentum non solum peccantis, sed etiam aliorum vel communitatis non debet revelari prelato vel Iudici, cum non possit probari, licet peccatum tale nocivum aliis, vel communitatii, notum in secreto, extra c­ onfessionem ­sacramentalem possem revelare in secreto probo viro, qui sciat et possit, ac velit prodesse, et non obesse, non ut praelatus, sed ut privata persona et ut probus homo in secreto provideat saluti fratris peccantis. Et sic loquitur Aug.” 91  Durand, Sententias, IV, d.19, q.4, par.4, 351v. “Si autem peccatum sit solum nociuum peccanti, nec sit ita notum quod possit probari, nec de eo sit peccator infamatus, tunc secreta monitio locum habet sive valeat, sive non, sistendum est in ea, nec procendum est ad aliquam denunciationem faciendam superiori, ut superior est et persona publica. . . .  Quod autem non possit sequi correctio patet, quia in nullo probatur crimine, quia vox omnium non est nisi vox unius. Item denuncians exponit se periculo, quia si pecca-

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significant. According to the decretal, Cum dilectus filius (X 5.2.2), anyone who slandered another by false accusation or denunciation was suspended from office and benefice until he himself performed purgation and established his innocence.92 As an alternative to denunciation or accusation, Durand suggested bringing the matter to the attention of prelate as a private person so as not to damage the sinner’s reputation.93 In many ways, these authors set the stage for Baconthorpe who brought together the various strands of thought scattered in their works. It seems likely that once Aquinas insisted on the judicial denunciation of sins injuring the common good with only limited recourse to fraternal correction, he sparked a significant debate on the topic. The theologians began to reassess both what constituted a secret sin as well as the advisability of following Thomas’ suggestion. By requiring the judicial denunciation of a secret – and hence, unprovable – sin, Aquinas had placed a heavy burden on his colleagues, even if he did so out of his overwhelming concern for the greater good. Walter of Bruges appears to have been one of the first contemporaries to recognize the tor neget crimen potest conqueri superiori de eo quod denuncians eum infamavit imponendo coram pluribus crimen quod non comisit, et sic alter merito puniretur.”  Unlike Baconthorpe, Durand here discussed a sin that injured only the sinner, not ­others. Nevertheless, what is crucial is the fact that the sin could not be proved and, therefore, anyone who denounced the sinner publicly would unjustly defame him and run the risk of punishment. 92  X. 5.2.2. When the master of students in the diocese of Palencia, Spain falsely accused his bishop of wrongdoing, Innocent declared that the accuser was to be suspended from office and benefice until he proved by suitable canonical purgation that he had not been motivated by a spirit of calumny. The rubric to the decretal reads: “Denunciator, in probatione criminum deficiens, ab officio et beneficio suspenditur, donec innocentiam suam purget.” The text reads: “Cum autem processum negotii et dicta testium examinaverimus diligenter, nec intelligere potuerimus, probatum esse sufficienter aliquid de praedictis, eundem episcopum de consilio fratrum nostrorum absolvendum decernimus ab obiectis, vobis per apostolica scripta mandantes, quatenus memoratum magistrum scholarum, donec canonice suam purgaverit innocentiam, scilicet quod non calumniandi animo ad huiusmodi crimina proponenda processit, ab officio et beneficio suspendatis, ut ceteri, simili poena perterriti, ad infamiam suorum facile non prosiliant praelatorum.” 93  Durand, Sententias, IV, d.19, q.4, par.4, 351v. The text reads: “Videtur, ergo in hac casu fitendum sit in monitione secreta, sic quod nunquam sit ulterius procedendum ad denunciationem faciendam Praelato ut est persona publica: quod dico pro tanto, quia si probabiliter credatur quod Praelatus, ut bonus vir, et non ut iudex, potest prodesse peccatori et non obesse . . . potest ei in secreto dici peccatum fratris ut adhibeat remedium quod poterit adhibere, et eodem modo posset dici aliis non praelato si crederetur quod vellet et posset alteri prodesse.”

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d­ anger of denouncing a secret sin due to its improvability. Durand, Terreni, and Baconthorpe, each abandoned the Thomistic insistence on denouncing such sins publicly and instead favored bringing the matter to the attention of either the prelate as a private person, or to another upright individual who could benefit the sinner. In defense of Thomas, it is true that he permitted fraternal correction before denunciation. But, for Thomas, this was possible only if it were firmly believed that such admonition would be effective. Thus, his acquiescence to fraternal correction represented more of an exception than a rule. Walter, Guido, Durand and Baconthorpe, on the other hand, all viewed ­admonition by a vir probus as routine in this circumstance. Durand further spelled out potential punishments that one accusing or denouncing might face, dangers to which the other writers alluded without going into detail. Furthermore, although Durand envisioned only one person as the denouncer, the same dangers applied to several individuals who could not prove the offense, as in the case of suspect teaching. The question remains: Why would Baconthorpe and other bachelors want to redefine a secret sin, particularly with respect to heresy? The answer is simple. Designating suspect teaching as a secret sin helped the bachelors to avoid any potential for denunciation in the judicial forum. From the perspective of the authorities in the faculty, suspect teaching was considered a public offense within the faculty. This designation meant that suspect teaching was to be denounced immediately to the chancellor without the benefit of charitable admonition. This requirement was consistent both with the Augustinian principle that public sins were handled publicly and, furthermore, with the provision of the revocatio conditionalis that required bachelors to report the matter directly to the chancellor or the bishop. On the other hand, from the perspective of the bachelors, the denunciation created problems. To the accused, it harmed his reputation. To those denouncing, it opened them up to the potential for punishment arising from calumny if the denunciation could not be substantiated. However, if a sin were still considered secret when difficult to prove, despite being known by many, then fraternal correction could be offered first, thereby protecting both the bachelor from judicial denunciation and the denouncer from charges of calumny. Baconthorpe appears to have applied the fruits of this debate, that had been simmering since Aquinas introduced the concept of the common good, to the discussion surrounding fraternal correction. The Carmelite reframed these elements in a way that suited the circumstances of scholars within the faculty. When one steps back and views his analysis of Thomas Aquinas on these issues, along with his own modifications, it becomes clear that the end result in terms of procedure closely parallels the procedure used in the Monteson case.

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First of all, from the perspective of the bachelors, Monteson’s offense appeared to be known by many, but, provable by only some, and, almost certainly, not by the bachelors in theology. This, no doubt, created a sense of angst on their part. On the one hand, if they denounced Monteson to the chancellor or the bishop, they ran the risk that he might charge them with slander, if the charges proved false. On the other hand, they risked excommunication for failing to report the matter to the chancellor or bishop. Thankfully, a third option existed. Even Aquinas had recognized that, in the case of a secret heresy or other infective sin, fraternal correction could still be offered if it was believed to be immediately effective. Thanks also to the teachings of Augustine and others, the bachelors could seek out the assistance of the dean who, as a vir probus, could offer the admonition. The chancellor need never know. After all, it wasn’t his job to go snooping around, but only to respond to those matters brought to his attention, or about which he had direct knowledge. Hence, although Monteson’s teaching injured the common good, nonetheless, the dean and the entire assembled body of theological masters, striving to protect the friar’s reputation, first offered him a general and secret charitable admonition, just as Christ had done to Judas, his betrayer. Extending fraternal correction, although not required, represented the most reasonable course of action. On a practical level, this option avoided any potential charges of false accusation or calumny. In addition, the faculty had every expectation that Monteson would cooperate and that the matter would be resolved quietly and privately. Like his colleagues and the masters before him, Monteson had taken the bachelor’s oath which not only provided him with a presumption of innocence, but also signaled his willingness to reform immediately, upon request. Thus, the dean and the faculty were clearly astounded when Monteson, who had not yet been named, not only identified himself, but also rejected the rebuke and declared that he would defend the propositions unto death. Monteson left no doubt in anyone’s mind. There was no hope for voluntary correction on his part.

The Issue of Incorrigibility

According to the theologians, hope for correction, or corrigibility, was a fundamental requirement for the administration of charitable rebuke. But what happened when no hope for correction existed? Fraternal correction was omitted in favor of judicial correction, particularly when the offense was infective of others and placed them in danger. As the events of the Monteson case illustrate quite vividly, bachelors, unfortunately, did not always accept the fraternal correction offered. As Aquinas and others had made clear, upon the failure

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of charitable admonition, the offense was to be denounced immediately and publicly. The friar’s forceful rejection of the faculty’s admonition as well as his promise to defend the propositions unto death made it abundantly clear that there remained no reasonable hope for correction or reform. By his words and actions, Monteson willingly discarded the protection afforded to him by the bachelor’s oath. After all, it was a sin to offer fraternal correction to someone who would be made worse by it. Furthermore, incorrigibility was perceived as a serious threat. Humbert of Romans remarked that incorrigibility was very dangerous and, above all, contagious.94 In Monteson’s case, not only would correction have made him worse, his incorrigibility had the potential to infect others and to encourage them to rebelliousness as well. In addition, as Guido Terreni remarked, although an individual could omit fraternal correction if he believed the sinner would become worse, a prelate wielding judicial correction could not.95 The friar’s refusal to accept the rebuke effectively altered the legal landscape in which he found himself. By refusing the charitable rebuke in such a dramatic fashion, Monteson effectively crossed a line of demarcation that separated the spheres of fraternal and judicial correction. Consequently, judicial correction remained as the only suitable alternative. In this way, his actions vividly underscored that the subsequent actions taken by the faculty (the drawing up of the list of propositions and the revocatio actualis, or public revocation) fell within the realm of judicial correction. Whereas Thijssen had characterized the faculty’s procedure up to an including the revocatio actualis as merely a disciplinary procedure and an example of fraternal correction, this was not the case. Rather, to the contrary, the formulation of the list of suspect propositions and the demand that Monteson retract them represented, in reality, steps in the judicial process as the faculty exercised its jurisdiction over less serious crimes.

94  Humbert of Romans, Expositio Regulae Beati Augustini, in Opera De Vita Regulari, ed. J. J. Berthier, vol. 1 (Turin, 1956), c.105, 338–339. “[N]otandum quod vitium illorum qui culpam committunt, et poenitentiam recusant, dicitur incorrigibilitas. . . . Item, est infirmitas periculosissima. . . . Item, sciendum quod incorrigibilitas dicitur vitium contagiosum, quia tales . . . corrumpunt alios.” “ 95  Guido Terreni, Quatuor Unum, 628a–b. “Et licet omitenda sit correctio [fraterna], si ubi ipse, qui corriperetur, deterior inde efficeretur, correctio tamen iudiciaria, quae locum habet respectu peccatoris manifesti, non est omittenda, etiamsi ipse ex hoc, quod corripitur, deterior efficiatur. Nam etsi peccator non emendetur, satisfit tamen laeso et Republicae, quam scandalizavit, et eius exemplo coercentur mali saltem timore poenae.”

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Public Correction and the Presence of Scandal

Once the investigation passed into the phase of jurisdiction over less serious crimes, the faculty handled it in a sophisticated and nuanced manner, consistent with the overall theology of correction, both fraternal and judicial. Because suspect teaching injured the common good, it required a public remedy; likewise, a public remedy was also needed because suspect teaching frequently generated scandal. For example, the involvement of the aggrieved bachelors in the Monteson case signified the eruption of scandal within the corporate body. Indeed, Pierre d’Ailly observed that the very propositions that Radulphus Glachardi read in Monteson’s presence were, in fact, the same propositions that had scandalized the aggrieved bachelors.96 It is interesting to note that Glachardi did not use the word scandal when he initially described the bachelors who approached him; however, d’Ailly did. Nor was Monteson the only wayward student whose teachings generated scandal at Paris. D’Ailly also quoted the letter of Urban V in which he referenced the scandalous nature of Foulechat’s teachings.97 For his part, Foulechat admitted both the “murmur” of voices against him as well as the scandalous nature of some of his ­teachings.98 Scandal, no doubt, was a typical consequence arising out of unsound teaching. Many of the censures survive only as lists, occasionally with a short preamble. Still, these lists at times evidence a link between scandal and suspect teaching in the university community. In 1354, in what must have been a tearful revocation, Aegidius of Medonta, OESA, displeased with himself, admitted that he had become an occasion of scandal, both within the faculty and in his order, because he had provoked his listeners to impiety and subversion by his vain 96  CUP 3, no. 1564, 502–505, at 502. “[C]um theologice facultatis decanus cepisset quasdam ejus proposiciones sibi fideliter per scolasticos (qui ex eisdem scandalizati fuerant) scripto tenus exhibitas recitare.” D’Ailly’s comment is interesting from another perspective. D’Ailly’s comment indicates that the dean had apparently drawn up a preliminary list of suspect propositions, based upon the testimony of the students who had approached him. This list, in effect, predates the formal list of propositions censured and must have formed the basis of the official investigation into Monteson’s teachings. 97  See on, page 217, footnote 57. Note especially the phrase: “multas earum scandali causativas.” 98  CUP 3, no. 1298, 115. “Cum fuerim delatus domino meo cancellario eccl. Paris., aliqua dixisse in meo principio Sententiarum que minus bene sonare dicebantur in auribus aliquorum verba mea et intentum minus favorabiliter recipientium, quorum verborum meorum murmur audiens, percipiensque nonnullos super hiis dubitare, dominum meum cancellarium adivi.” Likewise, at Ibid., 119, Foulechat added: “Istud correlarium revoco tanquam falsum et scandalosum; nec probationes sunt ad propositum.”

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and profane words.99 Even in those cases where the teachings did not meet the standard for scandal, the use of qualifiers, such as “bad sounding, and “offensive to pious ears,” hinted at and evoked the specter of scandal, even if the offense did not rise to the level of scandal itself.100 Aquinas touched on the issue of scandal in his discussion of fraternal correction, when he distinguished public and private sins. There, he observed the close relationship between public sins and scandal. A “scandalum” was, by definition, a stumbling block. Unlike a private sin that concerned only the sinner, a public sin generated scandal that acted as an impediment to other Christians. Therefore, a public sin required a two-fold remedy: 1) one for the sinner, so that he became better, and 2) a second for those who had become aware of the sin and had suffered scandal as a result.101 Recall, too, that Aquinas had taken a hard-line stance against sins injuring the common good. Even when a sin was only “becoming known,” it still had to be denounced publicly to avoid any future scandal.102 Yet, even so, for all of Thomas’s emphasis on the greater good and the common good over that of the individual, the notion of public in this context was limited. Despite his preference for the common good, he also recognized the importance of the individual’s reputation and the value of preserving and protecting it. The Lord, he observed, had ordered the steps of correction to protect and preserve the sinner’s reputation as much as possible.103 Aquinas thus bal99  CUP 3, no. 1218, 21–23, at 21. Aegidius read the following words: “Hoc anno legendo et respondendo ambulavi in magnis et mirabilibus super me, verbum veritatis non recte tractando, sed verbis contendendo profanis et vaniloquis, que ad impietatem provocant et audientium subversionem. Ex quibus factus sum occasio scandali in sacratissima facultate et Ordine meo, quod michi displicet bono corde.” 100  C UP 3, no. 1270, 95–97, at 96. See, for example, the comments of Louis of Padua, OFM, censured in 1362: “(9) . . . Non debui ita dicere, quia in auribus audientium male sonant et falsa sunt.” 101  See above, page 310, footnote 75. Note especially the wording: “Si autem peccatum jam ad notitiam aliorum devenerit, tunc debet denuntiari ei qui habet potestatem corrigendi, ut qui sunt scandalizati de culpa, aedificentur de poena.” 102  Ibid., Note especially the wording: “Si autem nondum in publicum devenit, sed est in via deveniendi; tunc etiam denuntiandum est, ut scandalo futuro occurratur.” 103  Aquinas, Sentences, IV, d.19, q.2, a.3, co., 1:551: The text states: “[E]t hunc ordinem dominus servari praecepit, cum peccatoribus corripiendo spiritualiter medicamur, peccator autem ex peccato duo mala incurrit; innocentiae damnum, et famae dispendium. Et ideo prius tentandum est ut taliter innocentia restituatur quod fama etiam conservetur, sin autem, debet negligi fama, ut conscientia reparetur, famae etiam dispendio subveniri, si aliter non potest, debet quantum potest; ut scilicet primo paucis, et postea multis crimen prodatur. Et ideo dominus hunc ordinem corripiendi statuit, ut primo frater corripiatur

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anced this principle against that of the common good. In providing a remedy for public sins and scandal, he recommended that the public sin be judged in the presence of those who knew about the sin.104 At first glance, it is easy to pass over the significance of this statement. But one must also be clear about what Aquinas is not recommending as well. Aquinas did not favor publicizing the sin beyond those who already knew about it. He was not recommending correction in the presence of the general public. Thomas here used the term ‘public,’ in a limited sense to mean only those who knew about the sin. Because the preservation of an individual’s reputation represented one of the highest goods, injuring someone’s reputation was considered contrary to the teachings of Christ and the Evangelists and, outright diabolical.105 Consequently, it’s not surprising that even when a secret sin injured the common good, Durand of Saint Pourçain insisted that the sinner’s reputation was to be preserved as much as possible.106 Pierre de la Palude likewise agreed.107 Hence, these examples illustrate the duty to preserve the sinner’s reputation whenever feasible. This goal was accomplished often by keeping a matter – even a matter considered public – strictly within the confines of the group secreto, ut sic et innocentiam recuperet, et famam non perdat: quod si haec medicina non fuerit efficax, debet paucis ostendi, ut non totaliter fama perdatur; et deinde si non corripitur, debet omnino fama negligi, et in publicum prodi: quod si etiam publica correptio vel admonitio non profuerit, debet omnino abscindi ecclesiae. 104  Aquinas, Summa theologiae. See page 310, footnote 76. Note especially the wording: Si quidem sint publica, non est tantum adhibendum remedium ei qui peccavit, ut melior fiat, sed etiam aliis in quorum notitiam devenit.” 105  Humbert of Romans, Expositio Regulae Beati Augustini, c.103, 330. “Patet ex his quod laedere famam alienam est contrarium evangelistis, et contrarium Christo, et opus diabolicum. Et ideo quantum possibile est, salva justitia, cavendum est ab hujusmodi laesione. Et ideo dicit Augustinus: ‘si forte possit secretius correctus non innotescere caeteris;’ ut scilicet parcatur ejus famae.” 106  Durand, Sententias, IV. d.19, q.4, par.4, f. 351b. “Si autem peccatum sit omnino occultum . . . aut illud non solum est nocivum peccanti, sed in detrimentum aliorum temporale vel spirituale . . . [et] Si autem probabiliter timeatur de emendatione eius, denunciandum est illi qui periculum occurre, salva tamen fama eius quantum est possible.” For a brief discussion of this and related issues, see also Shogimen, Ockham, 110–111, where he quotes, respectively, Thomas from the Summa theologiae and the Durand from his Commentary on the Sentences. 107  Pierre de la Palude, In Quartum Sententiarum, IV d.19, q.4, 107v. The text reads: “Si autem sit [peccatum] ita occultum quod non est infamatus nec potest sufficienter probari iudicio. . . . Si vero speretur correctio . . . tunc subdistinguendum per tria membra quia aut illud peccatum quod creditur facturus est in periculum communitatis et tunc denunciandum est illi conservando fama quantum potest cum salute rei. pu.”

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that actually knew about the offense. In essence, a matter was public in proportion to the people who actually knew about it, while the public extent of the punishment was proportional to the public knowledge of the offense itself. The writings of Aquinas, Durand, and others show that the members of the university community adhered to a principle of proportionality in theory. The handling of cases of suspect teaching at Paris shows that the authorities and the university community as whole also put this principle into practice. For example, by describing the bachelors and masters as teaching “publicly in the schools,” the authorities within the faculty could invoke their lesser jurisdiction in order to censure the offender and to redress the scandal or offense suffered by those who heard the wayward teachings. The faculty, of course, accomplished this redress through the public revocation. However, just as the matter was considered public only within the schools, so the punishment, or revocation, as a public event, was limited to only those people who already knew about the offense, those who had a need to know, and members of the university community.108 By modern standards, the university community was small, so it was very likely that knowledge of any doctrinal dispute or scandal would have spread beyond the confines of the theological faculty itself and become known in other faculties as well. This fact helps to explain why some members from other faculties or a few members outside of the university were present at public revocations. Either they themselves were scandalized by the 108  In the Foulechat case, for example, several individuals were “specially” in attendance as witnesses, some of whom may have been brought by Foulechat himself. See CUP 3, no. 1298, 116: “Acta fuerunt hec in predictis scolis fratrum Predicatorum predictorum, sub anno, indictione, mense, die, hora et pontificatu predictis, presentibus venerabilibus et discretis viris dominis et magistris, Adam de Francovilla, magistro in medicina, Johanne Daudin, canonico sacre capelle palatii regalis Paris., Roberto de S. Nicolao, bacalario in predicta facultate theologie, Yvone de Trevery, notario publico, Corisopitens. dioc. cler., necnon religiosis viris, fratribus Petro dicto Ponfichet, et Johanne Scabini, monachis monasterii S. Dionisii in Francia, et pluribus aliis testibus ad premissa vocatis specialiter et rogatis.” Apart from these witnesses, members of the faculty, and the notary, only a small group of individuals present for hearing the disputation attended. See Ibid., 114. “[The event took place] in scolis fratrum Predicatorum Parisius, coram venerabili et circonspecto viro, domino et magistro Grimerio Bonifaci cancellario eccl. Paris., doctore in facultate theologie, pluribusque bacalariis dicte facultatis ibidem existentibus et congregatis ad disputandas questiones dicte facultatis, ut moris est in studio Parisiensi, et, ut prima facie videbatur, etiam pluribus scolaribus Universitatis Parisiensis aliisque clericis et personis ibidem congregatis pro predictis questionibus disputandis audiendis; inmediate post prandium illius diei, in mei notarii publici et testium infrascriptorum presentia personaliter constitutus religiosus ac honestus vir, frater Dionisius dictus Foullechat, Ord. fratr. Min.”

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teachings or they may have stood as representatives of those who had. In any case, the total number of these attendees was small, and the documents indicate that these individuals were in attendance “specialiter,” that is, as special invitees; or, they were there specifically present to hear the disputation. The “public revocation,” however, was not open to general public of Paris. In reality, the event was public in a limited sense, and in accordance with the general principles of fraternal and judicial correction. In this way, the authorities both repaired the damage done by any scandal and, simultaneously, limited any damage to a defendant’s reputation, preserving it as much as possible. In turn, this arrangement made it possible for the students to inform either the dean or the chancellor, as appropriate, knowing that, in doing so, they both fulfilled the obligations of the bachelor’s oath while, at the same time, they preserved the reputation of their colleague as much as possible. In fact, it is clear that, as long as the bachelor or master revoked his teachings without hesitation, according to the revocatio conditionalis, few outside of the university ever needed to know about the incident at all. Augustine had hinted at this principle of proportionality in Si peccaverit. There he had argued that public sins were to be handled publicly and secret sins more secretly according to the specific needs of each circumstance.109 In a very real sense, the defendant, and not the faculty, determined whether and how widely known the matter became outside of the university community. In general, those outside of the university community were usually only made aware of any of these revocations when the defendant refused to recant. Only then did the matter shift from being one that was “public in the schools” to one that was “public” in the wider sense of the term. Consider, for example, that Grimerius Boniface only informed the bishop and the local inquisitor after Foulechat had appealed. Similarly, no notification outside of the faculty occurred until Monteson failed to appear to perform his revocation.110 Further, when a bachelor or master revoked his suspect teachings as requested, he was restored to full membership in the faculty of theology. From that point on, he had little worry that anyone outside of the schools would ever learn of his past indiscretion. The statutes of the faculty did not address suspect teaching. But as a student in the faculty, the individual promised to 109  C.2, q.1, c.19. “Ergo ipsa corripienda sunt coram omnibus que peccantur coram omnibus. Ipsa corripienda sunt secretius que peccantur secretius. Distribuite tempora, et concordet scriptura.” 110  C UP 3, no. 1559, 491–496. The faculty drew up the revocation on July 6, 1387. When Monteson did not appear, the faculty informed the bishop who issued a sentence of prohibition and excommunication on on August 23, 1387.

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defer honor, reverence, and obedience to the faculty, the dean, and to the individual masters. The student also agreed to preserve the honor of the individual masters to whatever state he should come.111 Dishonoring the faculty or any of its members by speaking ill of someone’s past was frowned upon, which certainly would have included mention of someone’s past dalliances with suspect teaching. In addition as a reigning master, the incumbent subsequently promised to keep the secrets of the faculty and not to reveal to anyone testimony regarding bachelors.112 Glachardi apparently followed the spirit of this oath in the Monteson case. A careful reading of the document shows that he neither revealed the names of the bachelors who approached him (their testimony), nor the name of the individual (Monteson) about whom they had complained. For his part, everything remained secret. Hence, the content of these oaths make it unlikely that anyone ever casually revealed the past suspect teaching of a fellow colleague. What happened in the faculty stayed in the faculty. Indeed, the authorities had no better source for this practice than Augustine, who had so aptly stated: “Where a sin happens, there it dies.”113 An offense that injured the common good and generated scandal called for the omission of secret, fraternal correction in favor of public, judicial correction. Nevertheless, even in these cases, the faculty acted cautiously. Based on the theology of fraternal correction, the scholastics understood the term public in a limited sense, as including only those people who knew about or who had been affected by the offense. Applying this definition, the faculty limited the attendance at public revocations accordingly. In this way, the faculty balanced two opposing priorities. It fulfilled its duty to quell the scandal and public disruption caused by the sin while, at the same time, it limited the damage to the defendant’s reputation as much as possible, all in the most nuanced and judicious manner possible.

111  See on page 51, footnote 31. Given the turnover of individuals in the faculty, this was a general prescription and applied, no doubt, to all masters. For example, although the incumbent chancellor or dean might change after the oath was taken, the terms of the oath clearly applied to any successor. 112  C UP 2, no. 1190, 705–707, at 706–707. “Juramenta que magistri novi prestare habent in prima congregatione facultatis post eorum magisterium. . . . (38) Item, non revelabitis secreta facultatis. Among the statutes of the faculty, CUP 2, no. 1189, 697–704, at 702–703: “Pro magistris regentibus. . . . (64) Item, quod nullus magister sub debito juramenti depositiones singulorum bacaloriorum alicui relevabit, ad personam deponentem referendo, nec bacaloriorum alterum alteri. 113  C.2, q.1, c.19. “Ubi contingit malum, ibi moriatur.”

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The Contributions of Humbert of Romans, OP, and Nicholas of Gorran, OP

At the beginning of this study it was demonstrated that the faculty’s use of general anonymous admonition in a group represented an acceptable modification of the first step of fraternal correction. In addition, it has been shown that the faculty adopted Augustine’s additional step, based on the ­principle that one could approach the prelate or another upright individual, not in his capacity as a judge, but as someone who could “benefit and not hinder the sinner.” And it was also shown that in this role, the prelate or dean could be considered as one of the witnesses used in the second step of fraternal correction. In the Monteson case, the matter was first brought to the attention of the dean; then, Monteson was anonymously rebuked in the presence of the masters. On the surface, then, it would appear that the faculty actually reversed the order of fraternal correction. Monteson was first brought before a witness (the dean) and then admonished secretly in a group. It is reasonable to ask what the sources say about this reversal in procedure. Because of the influence of Augustine’s Rule, commentaries on that work, such as the one authored by Humbert of Romans, prove quite valuable. When discussing the order of fraternal correction, Humbert asked whether it was permissible to inform the prelate, or some brothers, or even the chapter about someone’s fault without prior secret admonition.114 In resolving the question, Humbert recognized that there might be instances when fraternal correction would be insufficient or not beneficial and, therefore, one could reveal the fault to the prelate, or to some good men who could benefit and not hinder the sinner. Humbert even held that it was possible, based on their counsel, to proclaim the fault in chapter if proof were available. In Humbert’s statement, one can see the development of a procedure. When secret, face-to-face admonition was not practicable, the fault could be revealed to a person or persons acting outside the judicial sphere who, in turn, could make a determination regarding whether and to whom to reveal the sin. It should be noted that, in this case, Humbert included an important caveat: Proof of the fault was necessary.115 114  Humbert of Romans, Expositio Regulae, c.97, 304. “Sed quaerit aliquis circa primam: An liceat culpam fratris indicare praelato, vel aliquibus fratribus, vel in capitulo proclamare publice, non praemisa secreta admonitione? 115  Ibid., c.97, 305. “Aliquando vero contingit, propter aliquas circumstantias, creditur probabiliter quod per hujusmodi secretam admonitionem, non sufficienter provideatur saluti delinquentis, vel statui religionis suae: et tunc potest omitti hujusmodi correctio secreta, quia non speratur de fructu; et potest et debet indicari factum praelato, vel aliis bonis, qui

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But what if proof was unavailable? Luckily, Humbert dealt with that situation as well. In asking whether it was possible to announce crimes that could not be proven, Humbert answered in the affirmative. In fact, he believed that it was acceptable to reveal the matter to those who could benefit the sinner, even if that included all the members of the corporate body. Furthermore, he argued that the penalties of calumny did not apply as long as the correction was handled in a non-judicial manner.116 Humbert’s discussion is instructive because it resolved specific difficulties encountered when offering fraternal correction. Since it was a sin for an individual to offer fraternal correction without certain knowledge, how were cases to be handled that did not meet the standard criterion of certain knowledge or proof? In the absence of proof, and as an alternative to the standard procedure, Humbert held that a Christian who suspected another of wrongdoing could inform a competent authority.117 This authority – a prelate, or some brothers – would act in a non-judicial fashion for the benefit of the sinner and could then determine a course of action that included, among other options, proclaiming the matter in the presence of a group of other likeminded individuals. Humbert’s solution solved two problems: It provided an acceptable procedure to be followed in cases where proof was lacking or difficult. Second, it provided for the general admonition of a sinner in the presence of a group even when the witnesses required by the Gospel text were lacking. Fortunately for the historian, a chance remark included by Nicholas of Gorran confirmed Humbert’s view regarding the handling of cases when proof was lacking. Gorran indicated that, normally, someone sinned through indiscretion when he revealed a sin without proof. But then, in an almost offhanded way, possint prodesse, et non obesse. Vel etiam de eorum consilio potest fieri proclamatio in capitulo, si tamen potest culpa probari.” 116  Ibid., c.104, 333–334. “Secundo quaeritur utrum liceat proclamare de criminosis, cum non possit probari? Et videtur quod sic. Licet enim talia dicere illis qui possunt prodesse, et non obesse, etiam sine testibus: ergo si omnes de collegio sunt tales, licet coram illis sic proclamare.  Contra: Jura dicunt quod denuntians, qui non potest probare crimen, poena denuntiati puniendus est, sicut dicitur Ëxtrav. de calumn. cap. Cum dilectus, 2. . . .  Respondeo quod concedendum est, cum fit in forma juris. Ex quo patet solutio ad contrarium. Quando enim charitative dicitur extra formam juris, potest dici aliquibus qui possunt prodesse, et non obesse, etiam si sint multi.” 117  It is true that Humbert did not use the specific term, “viri probi,” but this is, clearly, what he had in mind. He does not mean referral to anyone, but referral to those who are able to benefit the sinner. It is in this sense – as a synonym for a competent authority, or viri probi, that Humbert included referral to others within the community, apart from the prelate.

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he continued: “unless, by chance, he would denounce it to the one who is able and wishes to benefit and not hinder the sinner.”118 Here again, Gorran used that very specific phrase which referred to a competent authority – a judge, a prelate, or a vir probus – who acted outside of the judicial system.119 By this comment, Gorran agreed with Humbert that even when proof was insufficient, it was still acceptable to bring the sin or crime to the attention of a reasonable authority who could then determine a course of action – provided that the authority acted in a fraternal manner. Humbert also stood on firm ground when he argued that the sin could be revealed to many people, as these individuals intended to benefit the sinner. Johannes Teutonicus stated that Christ did not betray Judas when he revealed the betrayer’s sin to the other apostles because Christ revealed the sin to those who were able to benefit Judas.120 Several points in Humbert’s and Gorran’s writings explain procedures in the faculty. When dealing with cases that were difficult to prove, Humbert and Gorran both make clear that the first step – in order to avoid sin – was to refer the matter to someone who could benefit the sinner and who could act in a non-judicial fashion. This step or principle explains why the faculty first went to the dean in the Monteson case. Humbert also made clear that, even if the sin or crime could not be proven, it could still be revealed to all those who could benefit the sinner – even if that included the entire group. This principle, in turn, explains how, after referral to the dean, Monteson could then be admonished in the presence of all the masters even though the Gospel text included at most only three individuals in the process. All the other masters, along with the dean, would surely have been considered viri probi who could benefit the friar in a non-judicial, i.e., fraternal way. It should be remembered as well that both Humbert and Gorran, as Dominicans, followed the Rule of Augustine. 118  Nicholas of Gorran, In Evangelium Matthaei, f. 94v, s.v. sit tibi sicut Ethnicus et publicanus: “Quarto, queritur quot modis homo potest peccare circa correctionem fraternam. Responsio. . . . Primo, per indiscretione, ut si manifestaret crimen alterius sine praemonitione, vel quod non posset probare, nisi forte denuntiaret ei qui potest et vult prodesse et non obesse.” 119  Cited in, Bonaventure, Commentaria in Ioannem, 7:432, q. 5. respondeo, and n. 3. In the response to Question 5, after his commentary on chapter 13, Bonaventure (or the scholia) observed that: “Quod vero dicitur, quod non est peccator prodendus; intelligendum est, quod non est publicandus, sed tamen dici potest his qui possunt prodesse et nolunt obesse.” The editors to the edition noted that as early as Gregory the Great, the phrase, “sed [qui] prodesse potest” was understood to refer to rectors and prelates, that is, to competent authority figures. The editors cited Gregor., Regul. pastoral. ll. c.6. 120  See on, page 276, footnote 116. Ockham quoted the gloss as his source. Ockham, however, did not believe that everyone could be informed because many want to hinder rather than benefit the sinner.

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So, it seems, too, that this use of someone to benefit the sinner represented a further modification of Augustine’s additional step – a modification that helped the authorities establish a reasonable level of proof before initiating either fraternal, or ultimately, judicial correction, if needed. The discussion by Humbert and Gorran shows that, even though on the surface it seemed as if the theological faculty had arbitrarily reversed the steps of fraternal correction in the Monteson case, the faculty, – to the contrary, and in reality – had merely f­ ollowed a set of well-established principles that were derived, in large part, from the contemporary practice of the Dominican Order, as based on the Order’s interpretation of the Rule of Saint Augustine. Conclusion The discussion of the theology of fraternal correction has opened up new vistas on understanding both how and why the theological faculty acted as it did in the policing of suspect teaching within its ranks. At the beginning it was shown that both fraternal correction and judicial correction existed on a legal continuum. As a result, the two forms of correction were intimately linked together; thus, factors that influenced fraternal correction also shaped the course of judicial correction. Fraternal correction, if unheeded, could lead to judicial correction and judicial correction ensued upon the omission of fraternal correction; for although it was possible to omit fraternal correction, judicial correction, as performed ex officio by a prelate, was mandatory, when the offense was public, or injured the common good. Judicial correction could only be omitted when fraternal correction was deemed to be immediately effective in the case of sins injuring the common good; for, if the sin were truly secret and known only to the sinner or to the priest in confession, the church did not judge such crimes. At the outset of this chapter, six criteria or factors governing the practice or omission of fraternal correction were outlined. Throughout the course of this section, the analysis has demonstrated how these factors – and the debates surrounding them – influenced the handling of cases at Paris. Augustine, set the broad parameters regarding the medieval understanding of fraternal correction. In particular, he distinguished between secret and public sins. Secret sins were handled by fraternal correction, while public sins came under the sphere of judicial correction. In addition, he labeled fraternal correction as a virtuous act or, in other words, as an affirmative, rather than a negative precept. Thus, as an act of virtue, fraternal correction could only be practiced when certain conditions were met. By the early to mid-thirteenth century, Hugh of

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Saint Cher, OP, the great biblical commentator, had codified this list of basic conditions in his gloss. Later, medieval thinkers from Walter of Bruges onward tended to categorize these six factors according to whether they concerned the Christian who was rebuking or the sinner who was being rebuked. On the part of the one rebuking, there needed to be certain knowledge of the sin, gentleness in correction, and a lack of anyone else better suited to perform the task. On the part of the sinner, there needed to be hope for reform, mortal rather than venial sin, and no reasonable expectation of a better or more suitable opportunity. To these basic conditions, Aquinas then added an emphasis on the injury to the common good as a factor requiring the omission of fraternal correction in favor of judicial correction. Although the Angelic Doctor’s emphasis on injury to the common good was well-received, his emphasis on immediate denunciation – particularly in cases of secret heresy or treason – appears to have been a matter of lively debate. But, here, it would be useful to pull together the results of this research before proceeding further. For the sake of clarity, it is important to mention that the issue of mortal versus venial sin was not discussed simply because, by definition, suspect teaching would have been perceived as a serious sin requiring correction. Some general conclusions were obviously clear. First, it was shown that the use of the dean and the chancellor, represented the most suitable members to conduct the admonition, while, second, the assembled faculty provided the most suitable venue or opportunity for its administration. The analysis of the remaining factors was complex, often because various factors exerted simultaneous influences on the conduct of the investigation. For example, the issue of provability (or lack thereof) was discussed and its relationship to the Foulechat and Monteson cases was explored. In the Foulechat case, this analysis was straightforward. When the provability of the offense was easy, the procedure followed its normal course according to the terms of the bachelor’s oath and resulted in judicial denunciation to the chancellor. However, in the Monteson case, the analysis was more complex because the provability of the offense was more difficult and also touched on the secret/ public nature of the offense. In addition, because suspect teaching injured the common good, Aquinas had argued that immediate judicial and public denunciation was necessary. Judicial denunciation, however, posed a real problem. If the sin could not be proven, several thinkers, including Walter of Bruges and Durand of Saint Pourçain, realized that such action exposed the denouncer to the penalties of calumny. This dilemma, in turn, forced thinkers to reevaluate both what constituted a secret sin, as well as how to handle these types of cases. In the process of this reevaluation, these thinkers also reinterpreted the meaning of the Gospel passage itself. Walter of Bruges developed a schema for

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understanding degrees of secret sins, while John Baconthorpe accomplished two major feats: First, following the lead of Johannes Faventinus, he broadened the definition of a secret sin to include sins known by many but only provable by some. In this sense, the definition more adequately mirrored the circumstances in the faculty. Many bachelors might know about suspect teachings, but only some in the faculty could prove that the teachings were actually suspect or heretical in nature. This redefinition protected the bachelors in two ways. If the suspect teaching were considered public because many individuals knew about it, immediate denunciation would be necessary. However, because the bachelors could not prove that the teachings were heretical, they opened themselves up to charges of calumny. So, first, the redefinition protected the bachelors and bought them some time. Second, Baconthorpe used this redefinition to propose an alternative method of handling such cases. He recommended bringing the matter to the attention of the prelate, not as judge, but as a private person who could benefit the sinner. In the case of the theological faculty, this meant bringing the matter to the attention of the dean who could recommend general secret admonition without triggering a legal action, as would be the case if the chancellor became involved. The sources further demonstrated how each group – the students and the authorities – defined the secret or public nature of the offense to suit their particular needs. By linking the definition of a secret sin with the concept of provability, Baconthorpe addressed the repercussions of calumny that bachelors faced if the charges could not be proven. At the same time, the designation of suspect teaching as ‘public within the schools’ served the needs of the authorities who frequently needed to redress the injuries that arose from the eruption of scandal as a result of the teachings. Finally, the theology of fraternal correction allowed the faculty of theology to police its own membership according to its misdemeanor jurisdiction while preserving both the reputation of the defendant as well as the secrets of the faculty in accordance with its own laws, customs, rights, and privileges. It was also suggested that although no documentation existed showing that Baconthorpe’s redefinition of a secret sin and procedural modification was accepted by the faculty, the events of the Monteson case indicate that Baconthorpe’s ideas were accepted and implemented. The evidence showed that the faculty had been debating the issue; and the facts of the Monteson case fit seamlessly with his interpretation and procedural recommendations. In the course of analyzing the Monteson case in light of the theology of fraternal correction, considerable emphasis was placed on the hope for correction, both as evidenced in the sources, as well as in the reality of the Monteson

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investigation. The Monteson case illustrated the presumption of reform granted to the bachelors as a result of the protestatio conditionalis. At the same time, Monteson’s refusal to accept correction demonstrated unequivocally that when no hope for correction existed, or when it was believed that the sinner would become worse, judicial correction ensued. Once judicial correction ensued, however, the theology of fraternal correction continued to exert an influence on the handling of the case. The theology of fraternal and judicial correction balanced two competing needs: 1) the need to protect a sinner’s reputation (fraternal correction) and 2) the need to redress scandal when it occurred (judicial correction). Because the authorities considered suspect teaching to be a “public offense within the schools,” they treated its correction with discretion. Both in theory and in practice they limited the correction only to those who knew about the offense or who had reason to be present. In this way, the faculty satisfied the need to protect the sinner’s reputation while simultaneously addressing the scandal and offense to others that had occurred. Moreover, it is also clear that the general regulations and statutes of the faculty also functioned in such a way as to protect the reputation of anyone who had come under suspicion of suspect teaching while at the university. The oaths taken by the members of the university community required each person to preserve both the secrets of the university as well as the honor of other masters in all circumstances. Hence, no one outside of the university community would ever even know that a former or current member of the university had ever come under suspicion of heresy. Finally, in a more general sense, this enquiry began by asking three questions regarding the censures of suspect teaching at Paris. First, were these censures merely examples of fraternal correction and, therefore, only disciplinary in nature; or, were they, in fact, judicial in nature? Second, if the censures were judicial in character, at what point did they shift from being fraternal and advisory to judicial and compulsory? Third, why were the censures of Foulechat and Monteson seemingly handled according to a different set of procedures? In response to the first question, the study of fraternal correction has demonstrated that the censures of the bachelors and masters, were, in fact, instances of judicial correction, consistent with the misdemeanor jurisdiction of the faculty. The denunciation of bachelors, including Denis Foulechat and Frater Bartholomew, indicate that this was done according to laws relating to judicial denunciation which required that those denouncing be reputable persons and of good character. In addition, the public character of the teachings in the school as well as the presence of scandal within the community placed

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the censures within the realm of public, that is, judicial correction. This fact, too, was consistent with the faculty’s right to enact legislation and exact punishment, if needed. As the text of Matthew clearly indicated, and as Gerson himself had remarked, there existed a continuum of correction that began with fraternal correction and ended with excommunication and expulsion from the Christian community. A close analysis of Foulechat and Monteson cases, in particular, helped to resolve the second major question raised in this study, namely, at what point did the investigative process shift from being an act of fraternal correction to be being an instance of judicial correction. As the ­analysis of these cases illustrated, judicial correction began when either 1) a l­istener informed the chancellor of suspect teaching according to the bachelor’s oath, as recorded in the Foulechat; or 2) fraternal correction proved ineffective and the faculty began to draw up the list of suspect teachings, as happened in the Monteson case. The documents squarely placed within the sphere of judicial correction the drawing up of the list of suspect propositions because either the accused had been judicially denounced and an inquisition had been initiated, or, because fraternal correction had been attempted and had failed with no further hope of correction. Likewise, the public revocation was not merely a disciplinary procedure. It was, in fact, a judicial proceeding because it was both public and compulsory in nature. Moreover, its characterization as a judicial action was entirely consistent with one of its chief aims, namely to quell the offense and/or scandal that had arisen as a result of the suspect teachings, thus providing a public remedy. Third and finally, even though the public revocations represented instances of judicial correction, this study has demonstrated that fraternal correction did play a significant role in the investigation of suspect teaching at Paris. Indeed, modifications to the procedure described in the Gospel of Matthew helped to explain specific procedures within the faculty. First, Augustine incorporated an additional step of referral to the praepositus (or dean). In addition, the Church Fathers, especially Jerome, recognized that it was possible to admonish someone generally within a group. Both the referral of Monteson’s case to the dean (and not the chancellor) as well as his general admonition in the presence of the assembled faculty underscore the adoption of these modifications by the theological faculty. The theology of fraternal correction, at least initially, created certain difficulties as well. For example, if certain knowledge or proof was required to initiate fraternal correction, how could one correct an erring bachelor if it were not possible to prove that suspect teaching had risen to an actionable level? The commentary of Humbert of Romans on the Rule of Saint Augustine pro-

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vided key insight into this issue. His interpretation showed that when provability was difficult, the matter could be brought to a competent authority who could decide what to do. The Dominican Nicholas of Gorran also confirmed this point. In particular, Humbert also noted that the authority could decide to reveal a secret sin to several good men if he believed that they would benefit the sinner and, if they were acting in a non-judicial manner. The contributions of Gorran and Humbert are important because they demonstrate the influence that contemporary practice within the religious orders exerted over procedures within the faculty. Yet, at the same time, this level of influence is not surprising given the adoption of Augustine’s Rule by three of the four mendicant orders at the university. One of the more surprising an intriguing facets of this study has been the discovery of the role of Judas in developing the theology of fraternal correction. Subsequently, an analysis of the figure of Judas and Christ’s treatment of him at the Last Supper played a key role in the contemporary understanding of fraternal correction. On the one hand, Christ’s long-suffering of Judas provided the model for general admonition among a group. Yet, among those who saw Christ as denouncing Judas, the wayward disciple spurred them to articulate the reasons for omitting fraternal correction in favor of judicial correction. Indeed, the potential repercussions resulting from false accusation made fraternal correction via the dean the safer and preferred course of action, and further suggests that the bachelors probably did not use accusations of suspect teaching as a routine way to give vent to their inter-order rivalries. The very real penalties attached to calumny and the concern evidenced about it in the sources further suggests that the correction offered within the faculty was done in accordance with the theology of fraternal correction. That is, it was done in gentleness and for the right reason, and not as a means of attacking or persecuting a rival. In analyzing the scholastic treatment of fraternal correction, special emphasis was given to those theologians writing from Aquinas onward through Baconthorpe. From a chronological point of view, these authors wrote in the period when the faculty was establishing its procedures for policing its own membership. In this regard, the works of Aquinas, Walter of Bruges, Durand of Saint Pourçain, Pierre de la Palude, Guido Terreni, and, especially, John Baconthorpe have provided critical insights. In addition, because Baconthorpe continued to revise his work, as did Durand, the writings of these authors serve as a backdrop for the Foulechat and Monteson cases. In assessing the significance of these contributions, the recent work on the production of Sentences commentaries in the period from 1250–1340 and beyond is instructive. Russell Friedman has remarked on the tendency of

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authors to comment more selectively on topics of interest during the period from 1300 onward, in essence, discussing topics of contemporary concern. Fraternal correction represented such a topic throughout the period; in fact, given that the topic was not originally part of Lombard’s text but was introduced by Alexander of Hales, one can rightfully characterize fraternal correction as a “hot topic” throughout the period from of Alexander of Hales through Baconthorpe.121 As Paul Bakker and Chris Schabel have observed, in the period after 1344 greater emphasis was placed on Book I of the Sentences.122 As noted above, discussions of fraternal correction became less common. In the period from the middle of the thirteenth- until the middle of the fourteenth centuries, Friedman has also noted the shift from an argument-centered focus to a position-centered focus in the commentaries. This shift is particularly noticeable in the work of Baconthorpe where he laid out the various viewpoints regarding the meaning of Matthew’s text and discussed them in some detail, only revealing his position at the end of the discussion. Likewise he added questions not typically included in the discussion. One cannot say definitively that Baconthorpe was responding to the recent censure of Frater Bartholomew when he authored his discussion of fraternal correction, but the status of fraternal correction as a topic of interest in the period suggests that Baconthorpe was responding to contemporary concerns within the faculty, if not to specific events. In this regard, he also addressed aspects of fraternal correction that heretofore had not been emphasized, including the handling of secret sins that touched on questions of heresy. Finally, the contribution of these various authors underscores a final conclusion of some importance. Many authors contributed significantly to the development of the theology of fraternal correction – not just Thomas Aquinas! Thomas made some important contributions to the theology of fraternal correction, but he was not alone in this effort, nor always the most dominant contributor. The Disputed Questions of Walter of Bruges, for instance, are a testament to alternative views to Thomas. It is also clear that Walter was a successful and influential commentator in his own right, one who has prob-

121  Russell Friedman, “The Sentences Commentary, 1250–1320. General Trends, the Impact of the Religious Orders, and the Test Case of Predestination,” in Medieval Commentaries on the Sentences of Peter Lombard: Current Research, ed. G. R. Evans, vol. 1 (Leiden, 2012), 41–128, esp., 88–100, and 127–128. 122  Paul J. J. M. Bakker and Chris Schabel, “Sentences Commentaries in the Later Fourteenth Century,” in Medieval Commentaries on the Sentences of Peter Lombard: Current Research, ed. G. R. Evans, vol. 1 (Leiden, 2012), 425–464, at 425–431.

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ably not received the attention he deserves. Much the same could be said for Durand of Saint Pourçan or John Baconthorpe. This current study on fraternal correction has had for its goal a limited scope: To understand and apply the contemporary theology of fraternal correction to the Parisian setting, with respect to the censure of suspect teaching. For this reason, both the set of authors, and the time frame examined, have been limited. Indeed, fraternal correction, as a topic, is only beginning to receive the attention it merits. Apart from the University of Paris and its theologians, many more areas remain to be examined. The conclusions in this study represent only a starting point. The role of fraternal correction in medieval life represents a rich and vast arena that remains to be explored.

Conclusion The history of academic censure at Paris touches on many topics, only some of which have been explored in this brief study. The emphasis of this work has focused on questions of corporate structure, jurisdiction, and internal procedure in the carrying out of academic censure within the faculty. In this respect, it is part of a growing trend in the study of academic censure that has shifted attention away from purely intellectual and doctrinal concerns to questions emphasizing legal and procedural issues. Precisely because the individual circumstances of each instance of academic heresy often varied widely, it was necessary to limit the focus of this study. Indeed, the set of cases presented here represents a small subset of a much larger number of cases and of a much vaster and more complex phenomenon. Yet, the value in concentrating on such a small sample comes from the control it gives the researcher over the data studied. All these cases share several aspects in common. The individuals censured were all active members of the corporate body of the theological faculty at the time of censure; and each had taken an oath to uphold the statutes of the faculty. Each candidate, with the exception of Petrus Berchorius, was censured at a specific point in his academic career, either as a bachelor giving his principial lectures on the Sentences or as a newly licensed master ­presenting his vesperiae and resumpta lectures. The overall similarity of the origins, institutions, and contexts of these cases serves to plant the conclusions about academic heresy derived from these cases in firmer soil that, hopefully, will nurture future comparisons with, and analyses of, other examples of ­academic censure. In terms of the historical development of the faculty and of the impact of that development on the jurisdiction and procedures implemented by the ­faculty – especially when censuring instances of suspect teaching – several conclusions stand out. First, in terms of corporate structure, the relationship between the structure of the cathedral chapter and the faculty of theology seems clear. In large measure, the theological faculty eventually formed itself along the lines of another familiar corporate structure, the cathedral chapter. Throughout the early history of the university until the middle of the thirteenth century, at least two conceptions of corporate structure and identity presented themselves as viable options upon which to organize the structure of the university in general and the theological faculty in particular: The Roman or secular model of a corporation, which conceived of the corporation as a free association; and the ecclesiastical model of a corporation, which conceived of the corporate structure as representing a body composed of head

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and members, and whose structure once formed was not easily dissolved. The series of conflicts, beginning with the disputes of the early thirteenth century and lasting until the conclusion of the secular-mendicant controversy at midcentury and slightly beyond, presents ample evidence of the prevalence of both these ideologies. Ultimately, at least in the theological faculty, the model of the ecclesiastical corporation triumphed and exerted a significant influence on the development of the faculty. This adoption of the capitular model by the theological faculty led to the hypothesis that the functioning of the theological faculty was similar to that of a cathedral chapter. Such a hypothesis suggested that the policies and procedures that the chapter employed to correct the excesses of its own members could be used to illuminate the manner in which the theological faculty conducted investigations, including actions against its members who uttered heretical assertions or taught suspect doctrine. An analysis of the decretal legislation on cathedral chapters revealed that by the middle of the thirteenth century a fairly comprehensive body of law and commentary existed that set out detailed procedures to be followed when the chapter issued correction. Perhaps most importantly, this analysis revealed that over time, and especially as a result of the decretal Irrefragabili, the cathedral chapter acquired jurisdiction over its members with respect to less serious crimes or offenses committed by them. Further, a comparison between the legal practice mandated for cathedral chapters with the actual practice of censure at Paris – as illustrated extensively from the cases of John of Monteson and Denis Foulechat – demonstrated that the theological faculty, in fact, closely followed the policies and procedures established for the correction of canons in the cathedral chapter. Of course, it would be inaccurate to claim that the faculty of theology merely copied the policies and procedures of the cathedral chapter. Despite the close relationship between these two bodies, they remained separate structures, serving different social functions. Consequently, the bachelors in the faculty possessed no direct counterpart in the cathedral chapter. Nevertheless, it has been demonstrated that in terms of policies, such as the granting of the license to teach, the model of bishop and chapter exerted a significant influence on the development of policies of the theological faculty. Similarly, with respect to the role of the dean in administering correction, or with regard to the practice of forming subcomissions to deal with complex issues, the pattern of the cathedral chapter continued to exert considerable influence in shaping the internal procedures of the faculty. After demonstrating the close kinship between the cathedral chapter and the theological faculty in terms of policies and practices it was necessary to

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demonstrate that misdemeanor jurisdiction was, in fact, conferred upon the theological faculty as it was upon the cathedral chapter. Although no direct legislation exists that conferred this jurisdiction on the faculty, the Apologia of Pierre d’Ailly addressed this specific issue. D’Ailly followed the thought of Gratian who had insisted that jurisdiction consisted of two parts, or keys: the key of knowledge, that is, the knowledge of the law or, in the case of the theologians, the knowledge of what constituted orthodox and heretical thought; and the key of power, that is, the coercive power necessary to enforce punishment. A comparison between the content of d’Ailly’s arguments and contemporary legal theory and practice regarding custom, appeals, and specific issues relating to law and jurisdiction generated a substantial body of evidence. D’Ailly relied upon the bulwarks of papal privilege, Roman law, and long-standing custom to support his argument. Indeed, the preponderance of this evidence supported his overall conclusion that the faculty of theology as a corporate body possessed both elements of jurisdiction: that is, the key of knowledge, embodied in the knowledge of the law (and of the content of heretical thought), in addition to the key of power, or the ability to enforce its decision over the sworn members of the faculty. Finally, after establishing that the theological faculty possessed misdemeanor criminal jurisdiction over its members, it remained simply to put this development in a chronological context. The faculty’s acquisition of jurisdiction over less serious crimes required the coming together of several separate strands of the legal tradition. Indeed, the theological faculty could acquire jurisdiction only after various other developments had taken place. These developments included the codification of the policies, procedures, and jurisdiction relative to the cathedral chapter, settling the issues regarding the status of exempt clergy, the establishment of degrees of heretical crimes and appropriate punishments, and the clarification of the relationship among bishops, inquisitors, and other individuals or entities charged with the investigation of heretical assertions. Upon reviewing the body of legal evidence relative to these issues it became clear that many of these elements were in place by the end of the second quarter of the thirteenth. Most importantly, Innocent IV in 1246 permitted the masters the use of their own seal, and subsequently in 1247 by means of the decretal Quotiens had granted them jurisdiction that included both the right to make statutes and the ability to enforce punishments. Hence, he gave them judicial authority to complement the doctrinal authority that they possessed by virtue of being theologians. Nevertheless, the clarification on the role of bishop, inquisitor, and theological faculty in the investigation of heresy remained elusive until some time after the promulgation of the decretal Per hoc in 1303. As a result, the body of contemporary law indicates that

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the theological faculty did not acquire the right to judge the suspect teachings of its own members until some time after 1303, probably during the first ­quarter of the fourteenth century. Consistent with the body of contemporary law, the day-to-day practice of censure at Paris showed that only after 1305 did the faculty adjudicate cases on its own initiative, a process that began with the censure of Friar Bartholomew in 1316 and continued through the end of the fourteenth century and into the beginning of the fifteenth century. By demonstrating that the faculty acted judicialiter with respect to its members, this study further demonstrated that the censures of bachelors and masters were not merely examples of fraternal correction. But clearly, as shown, fraternal correction did play a role in the process. Moreover, just as the legal framework in which the theological faculty functioned supported its limited jurisdiction over its members, so, too, the investigation into the theology of fraternal correction and its omission under certain circumstances produced similar, consistent results. Various principles, such as the public nature of the teachings and the use of inquisitorial procedure guaranteed that, while fraternal correction might still be practiced as an act of charity, its use was not required; and under certain circumstances, it had to be omitted altogether in favor of judicial correction. No institution, nor the policies and procedures it follows, develops in a vacuum, but instead, all institutions develop in relation to, and in the context of, other influences and institutions within society. The application of medieval corporate theory and canon law to the inner workings of the theological faculty has served to illuminate the development of academic censure at Paris in a detailed fashion that, in turn, has placed those censures within an historical and legal framework. The results of these investigations also point to other conclusions. The view that the university as a whole grew directly out of the cathedral school at Paris represented the thought of an earlier generation. Although this broad thesis cannot still be maintained, the fact that the theological faculty functioned in a manner analogous to that of a cathedral chapter suggests a more limited but no less important historical connection between the theological faculty and the Parisian chapter. The events of 1219–1228 support this position and suggest that in this narrower sense the relationship between the theological faculty and the cathedral chapter requires further exploration. In a similar way, the application of corporate theory to the early constitutional history of the university has placed the conflicts between the chancellor and the masters in a new light. Much of the scholarly literature concerning this aspect of the university’s development has focused on whether the chancellors and masters were engaged in an arbitrary battle for control of the university or,

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rather, acted more cooperatively. The application of corporate theory to these events explains the behavior of the participants in a consistent way, clarifies the solutions ultimately achieved, and provides a rationale for understanding issues at stake in the disputes. The analysis of the Foulechat and the Monteson cases has also provided much new information regarding the inner workings of the faculty and, at the same time, this analysis has raised new questions. The two cases were similar in many respects: Both Foulechat and Monteson were members of religious orders; both were sworn members of the faculty who were censured at specific points in their careers; and both ignited disputes over particularly controversial and disruptive issues, namely, the poverty controversy and the doctrine of the Immaculate Conception. But beyond these and other similarities, the two cases differed in significant ways. First, from a theological standpoint, the cases were markedly different. With regard to the Foulechat case, the Holy See under John XXII had previously issued a definitive ruling that declared the doctrine of the absolute poverty of Christ and the apostles to be a heresy. Hence, the decision to censure Foulechat’s propositions was, in many ways, more pragmatic and straight forward, given that the faculty could and did cite specific decretals to support their actions. By contrast, as noted, no similar ruling existed with respect to the Immaculate Conception. This lack of clarity, no doubt, goes a long way in explaining why the bishop of Paris did not outrightly condemn Monteson as a heretic when the accused failed to appear to answer the charge of unsound teaching. Instead, the bishop only prohibited the teaching and dissemination of the friar’s teachings and excommunicated him for failing to appear. The events of each case, too, were very different, with important implications. One key difference concerns the response of the defendants to the charges against them. On the one hand, Foulechat appeared as required and appealed; then, subsequently attempted to manipulate the system to his advantage. On the other hand, Monteson – both at Paris and at Avignon – refused to appear and, thus, was contumacious. He was eventually excommunicated, and while not formally declared a heretic, he verged on becoming one. After all, he failed to purge himself of error, he was excommunicated, and he remained in that state for over a year; according to Hostiensis, someone suspected of heresy who remained excommunicated for more than a year effectively lapsed into heresy.1 Foulechat, by contrast, eventually completed his purgation, clearing his name and reputation. 1  See above page 169, footnote 16.

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343

The differing course of events in both cases means that each case preserved a unique set of records. For the historian, this is both a blessing and a curse. In a positive sense, the uniqueness of the documentation helps to fill in gaps in our knowledge of how cases were handled. For instance, the Monteson case preserves a greater amount of documentation regarding the very beginning of the controversy that the Foulechat case does not. As a result, the documentation in the Monteson case has provided a much-needed window on the role of the fraternal correction in the process of censure at Paris that was absent from many otherwise similar cases. D’Ailly’s treatise, along with faculty’s documentation makes clear that, although fraternal correction was not required, its use was routine within the faculty.2 At the same time, the fact that Monteson never appeared to revoke his suspect teachings means that the standard document in which the chancellor presided over the public revocation was never produced. Consequently, as the result of an accident of history, the Monteson case appears to give a greater role to the dean of the faculty (Radulphus Glachardi) who administered the fraternal correction than to the chancellor (Johannes Guignicurte) who appears to play less of a role. The sporadic and uneven nature of the documentation should remind the historian to be wary. A similar lacuna existed with respect to the case of John of Mirecourt until William Courtenay uncovered the original form of Mirecourt’s condemnation, which showed the chancellor presiding over his public revocation, as expected.3 In yet another way, though, the uniqueness of the documentation has opened up new vistas and raised new questions. One of these areas concerns the role of the disputation in relation to the public revocation. In the Foulechat case, the disputation and revocation seem to have almost coalesced. When Foulechat appeared on the appointed day, supposedly to revoke his suspect teachings, the chancellor offered him the opportunity to dispute or to read the revocation. By contrast, in the Monteson case, the friar approached the faculty before any determination had been made regarding the orthodoxy of his teachings and requested that members from his order be present as witnesses in a ­disputation.4 The issue of the disputation, and its role in the process, represents an important question because it touches on the right of the accused to a proper defense and because, in the Monteson case, it highlights procedures used by the faculty at the very beginning stages of the ­investigation. To be sure, 2  On the routine nature of fraternal correction in the faculty, see above page 240, footnote 7. D’Ailly stated that fraternal correction in the Monteson case was not required. See above page 193, footnote 84. 3  See above page 179, footnote 42. 4  See above page 180, footnote 45.

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Conclusion

this issue and many more issues need to be resolved, such as the sources for some unique practices within the faculty, such as the revocatio conditionalis, which seems to have had no counterpart in the life of the chapter. Likewise, this study has focused on the Parisian phase of the conflict and has not addressed issues arising out of the appeals of either Foulechat or Monteson – topics which also merit more in-depth consideration. Due to limitations of space, availability and the parameters of this study, many texts still remain to be examined. These include, among others, the contributions of Johannes Vitalis, OFM to the case against Johannes Monteson. In addition, numerous texts in the field of medieval biblical commentary, as of yet, remain in manuscript form and unexplored. These include, among others, the commentaries on the Gospel of Matthew by Peter Olivi and John Baconthorpe. These parts of the story, along with many others, remain to be told. This much, however, is clear: The theology of fraternal correction represents a largely unexplored aspect of medieval spirituality that can offer insights into how medieval thinkers approached issues in their daily lives. Likewise, the application of medieval canon law and medieval corporate theory to the every day problems of university life will continue to enhance our understanding of how medieval intellectuals thought, worked, lived, and contributed to their world.

Appendix A That many of the chancellors of the faculty were routinely masters of theology at the time of their appointment to the office is supported from the evidence. As early as the twelfth century, the bishops of Paris, Maurice and Odo of Sully, appointed prominent masters of theology to the office.1 It is not possible within the framework of this study to survey the academic degrees held by all the chancellors of Notre Dame. However, as the cases of academic heresy occurred principally within the fourteenth century, it will suffice to look chiefly at those individuals who occupied the chancellorship across that century. The following table summarizes the degree status of each of the chancellors at the time of appointment or confirmation to the office and indicates the source(s) for that information.



Fourteenth century chancellors and their degrees2

Name

Dates

Degree held

Petrus de Sancto 1296–1303 Master Audomaro Symon de Guibervilla 1303–ca. 1309 Master of Theology

Franciscus Caraccioli ca. 1309–1316 Master of Theology Thomas de Bailliaco

1316–1328

Master of Theology

Johannes de Blessis (Jean de Blois)

1328–1329

Unknown (not stated in the documents)

Sources CUP 2, no. 595, 69–71 CUP 2, no. 635, pp. 102–103, and no. 595, CUP 2, no. 673, 136–137 CUP 2, no. 686, pp. 146–147, esp. n. 1. CUP 2, no. 686, 147, and CUP 2, no. 879, 314, n. 1. CUP 2, no. 879, 314, and CUP 2, no. 896, 331. See the article by Courtenay, “Jean de Blois, Chancellor of Paris (1328– 1329),” in Roma, Magistra Mundi. Itineraria Cultura Medievalis, homage à Leonard Boyle, 3 vols. Ed. J. Hamesse (Turnhout, 1998).

1  See Stephen Ferruolo, Origins of the University, 296–297. 2  Data taken from A. Gabriel, “Conflict between the Chancellor and the University,” 148–150.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004311336_012

346

Appendix A Fourteenth century chancellors and their degrees (cont.)

Name

Dates

Degree held

Guillelmus Bernardi

1329–1336

Master of Theology

Sources

CUP 2, no. 896, 331–332. Cf. CUP 2, no. 998, 459. Robertus de Bardis 1336–1349 Master of Theology CUP 2, no. 998, 459–460. Johannes de Aciaco 1349–1360 Master of Theology CUP 2, no. 1177, 656–657. Grimerius Bonifaci 1360–1370 Master of Theology CUP 3, no. 1259, 76–77. Johannes de Calore 1370–ca. 1380 Master of Theology CUP 3, no. 1362, 193–194. Nicholas de Saturnino 1380–1381 Master of Theology CUP 3, nos. 1460, 1461, 300–301 Johannes Blanchard 1381–1386 Master of Theology CUP 3, no. 1520, 402–411. Johannes de 1386–1389 Bachelor of Theology CUP 3, no. 1527, 414–415; Guignicurte CUP 3, no. 1552, 482–483. Pierre d’Ailly 1389–1395 Master of Theology CUP 3, no. 1553, 482–483.

Of the twelve chancellors who occupied the office throughout the century, only two clearly failed to possess a Master of Theology degree, Johannes de Blessis (Jean de Blois) and Johannes de Guignicurte. Of these two chancellors, only Johannes de Guignicurte had any involvement with a case of academic heresy. Regretfully, no case of academic heresy arose during the chancellorship of Johannes de Blessis; thus, it is not possible to compare procedures in cases where the incumbent chancellor did not possess a Master’s Degree in Theology. Hence, in only one case out of the twelve instances of Parisian academic heresy was the chancellor not a member of the corporation of masters of theology. Overall, then, the position of the chancellor within the faculty mirrored the position of the bishop within the cathedral chapter. Just as the bishop was both head and member of the chapter, so the chancellor, in cases of academic heresy, was consistently, with only one exception, both head and member of the faculty as well.

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Index of Legal Citations The chart below indexes the canon law and Roman legal texts referenced in this study. Canon law citations are provided according to Corpus iuris canonici, ed. E. Friedberg et al., 2 vols., (Leipzig, 1879–1881). Online citations to the Roman law sources are provided. Page references corresponding to the current study are also included for ease of reference. Standard Citation D.20, d.a.c.1 D.86, d.p.c.22 D.86, c.23

Friedberg/ Reference 1:65 1:303 1:303

C.2, q.1, d.p.c.17 C2, q.1, c.18 C.2, q.1, c.19

1:446 1:446–447 1:447–448

C.2, q.5, c.13 C.2, q.6, c.38 C.2, q.6, c.41 C.6, q.3, c.2 C.11, q.1, c.38 C.11, q.1, c.45 C.15, q.7, d.a.c.1 C.15, q.7, c.1 C.15, q.7, c.2 C.15, q.7, c.3 C.15, q.7, c.4 C.15, q.7, c.5 C.15, q.7, d.p.c.5 C. 15, q. 7, c. 6

1:459 1:480 1:481–483 1:562 1:637 1:640 1:756 1:756–757 1:757 1:757 1:758 1:758 1:758 1:758

C.18, q.2, c.15 C.22, q.4, c.23 X 1.1.2 X 1.2.8

1:833 1:881–882 2:6–7 2:9–11

X 1.3.20 X 1.3.21 X 1.4.2 X 1.4.8 X 1.4.9 X 1.4.10 X 1.4.11 X 1.6.23 X 1.6.33

2:25 2:25 2:36 2:39–41 2:41 2:41 2:41 2:66–68 1:79

Page Number 206 n. 15 112–113 112–113, 115–117, 119 n. 65, 120–121, 126, 134, 146 n. 43, 155 n. 73, 163 272 272, 285 244 n. 17, 272, 276, 285, 312–313, 325 175 55 196 n. 95 130 133 n. 10, 135 n. 16, 141 n. 33 135 n. 15 105, 106 n. 8, 154, 155 n. 72 108–109, 112, 154, 162 114–116, 126 154 n. 69 154 n. 69 106, 112 107 n. 11 107 n. 12, 116, 129–130, 133–134, 139–140, 146 n. 43, 151, 162 120 n. 67 110 n. 27 209 86 n. 20, 95 n. 36, 124 n. 74, 139 n. 27 233 n. 96 182 n. 48 222 n. 71 221 88–91, 93, 95, 98–99 221 221 56 n. 48 133

364 Standard Citation

Index Of Legal Citations

X 1.6.36 X 1.8.1 X 1.28.5 X 1.28.6 X 1.29.19 X 1.29.30 X 1.29.42 X 1.31.1 X 1.31.3 X 1.31.13

Friedberg/ Reference 2:82–83 2:100 2:157 2:157 2:164 2:175 2:182 2:186 2:187 2:191

X 1.43.6 X 2.1.13 X 2.1.17 X 2.2.1 X 2.2.9 X 2.2.13 X 2.20.2 X 2.25.5 X 2.28.21 X 2.28.38 X 2.28.52 X 3.5.15 X 3.8.15

2:234 2:242–244 2:246 2:248 2:250 2:252 2:315–316 2:376 2:416 2:422–423 2:432 2:468–469 2:499

X 3.10.2 X 3.10.4 X 3.10.5 X 3.42.3 X 5.1.17 X 5.1.24

2:502 2:502–503 2:503 2:644–646 2:738–739 2:745–747

X 5.2.2 X 5.3.17 X 5.3.31 X 5.5.3 X 5.7.2 X 5.7.7 X 5.7.8 X 5.7.9

2:748–749 2:754 2:760–761 2:769–770 2:778 2:779 2:779–780 2:780–782

X 5.7.10 X 5.7.13

2:782–783 2:787–789

X 5.31.1

2:835

Page Number 39 n. 118 120 n. 67 45–46 46 n. 15 49 n. 22 49 n. 22 142 n. 35 8, 157–159 43, 44 n. 6, 45, 47 n. 18, 86 n. 20 53 n. 36, 59 n. 61, 128–151, 156, 163–164, 181–182, 185, 197–199, 224–235, 231–233, 339 227 221 119 223 28 n. 89 221–225, 230–232 291 nn. 30, 32; 311 n. 78 195 222 n. 71 196 n. 98 136 n. 19 140, 222 53, 67 n. 80, 70 n. 88, 71 n. 89, 126 n. 81, 146 n. 43 57 n. 51, 178 n. 39 32 n. 102, 71 n. 90, 85, 89 32 n. 102, 85, 89 6 n. 19 119, 120 n. 66, 121 n. 69 119 n. 63, 120 n. 66, 121–124, 146 n. 43, 193 n. 83 317 74 119–122, 127, 192–193 32 n. 102, 63, 73 185 210 191 n. 77 8, 49–51, 157, 159–161, 174 n. 26, 182 n. 47, 207, 212, 231, 234–235 166 n. 3 8, 28 n. 88, 157–161, 169 n. 16, 170, 174 n. 26, 207 152–153, 157 n. 76

365

Index Of Legal Citations Standard Citation X 5.33.23 X 5.34.6 X 5.34.8 X 5.34.10 X 5.40.19 X 5.41.11 VI 2.15.1 VI 2.15.3 VI 2.15.4 VI 2.15.7 VI 3.20.1 VI 5.2.1 VI 5.2.7 VI 5.2.17 VI 5.7.1 VI 5.9.2 Clem.5.3.3 Extrav. Comm. 5.14.5 Cod. 2.55.1 Dig. 2.1.14

Friedberg/ Reference 2:866 2:871 2:871–872 2:872–874 2:917 2:928 2:1014–1015 2:1015–1016 2:1016 2:1017 2:1056–1057 2:1069 2:1071 2:1076 2:1082–1083 2:1090 2:1183–1184 2:1230–1236

Page Number

http://www.thelatinlibrary .com/justinian/codex2.shtml http://www.thelatinlibrary .com/justinian/digest2.shtml

226

75 n. 99 174 n. 26 175 n. 28 175 n. 28, 193 n. 83 75, 120 n. 67 74 196 196 196 196 243 n. 15, 248 n. 26 155 n. 71, 161 n. 89, 162 n. 90 170, 188 n. 65 211, 215, 230, 235–236, 340 50–52, 225, 231 155 n. 71, 161 n. 88 210–211 302

227

Index of Biblical Citations Biblical Text John 13:21 254 13:22 260, 271 13:23–26 263–264 13:24 263 n. 74 13:24–26 260 13:26 265, 271 13:26–27 259, 267–268 13:26–30 268–269 13:27 260 13:28 262 13:29–30 260 Luke 22 (Catena Aurea) 262 22:21 259, 263 22:21–23 255–256, 260 22:23 260, 263, 271 Mark 14 (Catena Aurea) 262 14:18 267 14:18–21 255 14:19–20 259

Matthew 8:20 302 n. 58 16:19 4, 267 n. 88 18:15 259, 264 n. 77, 268, 269–270 18:15–17 250 n. 33, 267 n. 88 18:15–18 37 n. 114, 242 18:15–22 242–245 26 (Catena aurea) 262 26:20 259, 270 26:21 255, 269–270 26:21–24 257, 265 n. 80 26:21–25 268 26:23 255, 270 26:24 255, 270 26:25 259, 262, 265 n. 80, 267, 270–271 Romans 1:32

282

1 Timothy 5:20

284

Titus 3:10

255, 257

Index of Names and Subjects Adam de Francovilla 324 n. 108 Adam Wodeham 293 n. 35 admonition 59, 122, 185, 193, 205 n. 13, 238–239, 241, 243–244, 248, 249 nn. 27, 28; 250–253, 256–259, 261–262, 264, 269, 271, 273–275, 278 n. 120, 279, 280–281, 286, 287 nn. 18, 20, 290–291, 307, 309, 313–314, 318–320, 327–328, 331–335 General 252–253, 256–257, 259 n. 58, 262, 269, 273–274, 280–281, 328–334–335 Aegidius de Campis 25 Aegidius de Medonta 7 n. 20, 321 Albert the Great 247–248, 258–262, 265, 273 Alexander of Hales 247, 249, 256, 258, 273, 336 Alexander, III, pope 32, 73–74, 152–153, 158, 210 Alexander, IV, pope 45, 63–64, 71, 96–102, 213, 215 Amalricians 212 Ambrose, Saint 109 n. 20, 282–283 Anselm of Laon (attributed) 256–257, 272 n. 108 Antczak, Robert 263–264 apostoli 12, 241 appeals 47, 54–55, 60, 64, 67, 72, 76, 82–83, 86, 88, 97, 128–132, 187, 197–199, 219–220, 227, 241 Arts Faculty (of Paris) 60, 69, 76, 84, 93, 204, 224, 293–296 Astesanus de Ast 289 Athanasius, Saint 210 Augustine, Saint 209, 245–246, 252 n. 35, 264–265, 269, 272, 306–309, 312, 315, 319, 325–327 De civitate Dei 283, 286 n. 13 De doctrina Christiana 209 Omission of Fraternal Correction  283–291 passim, 306–309, 312, 315, 319, 325–327 Rule of 274–280, 327, 329–330, 334–335 Sermon 351 272, 284 Sermon 82 272, 284 n. 7 Sermon 83 284 n. 8 See also C. 2, q.1, c.18; C.2, q.1, c.19

Augustinians See Aegidius de Medonta and Thomas of Strasbourg Avignon 9, 12, 14, 16–17, 24–26, 44, 204, 220, 342 Aymericus de Maigniaco 17 Baldus of Perugia 45–47, 119, 120, 147–151, 164 Baldwin, John W. 36 Baronio, C. 216 n. 55 Bartholomew of Brescia 118, 120, 124, 130–131, 134, 155 n. 70, 164 Bartolus of Saxoferrato 63 Beatific Vision 210, 302 Bede the Venerable, Saint 4, 255–256, 261–263 Bellini, Piero 246, 247 n. 22 Benedict XII, pope 3, 210 Benedictines See Bede the Venerable, Saint, Johannes Scabini, Petrus Berchorius, Petrus de Allainvilla, and Petrus Ponfichet Benedictus Deus 210 n. 33 Benson, Robert L. 29 n. 90, 44 n. 7 Bernard of Clairvaux 253–254, 300 n. 55 Bernard of Parma 30, 45, 70, 119, 123, 141, 143, 149, 153, 158, 174, 191, 197 Bernard of Pavia 48, 63 Bernstein, Alan 31 n. 99, 32 n. 101, 33 n. 105, 48 n. 21, 62 n. 65, 237 n. 1 Bianchi, L. 2 n. 4, 19 n. 52 bishop and chapter 24, 32–42 passim, 61, 62, 67, 70–166 passim, 176–177, 182, 192, 199, 226, 339 bishop, sitting ut canonicus 53, 67, 125–127, 139 n. 26, 140, 151, 156–157, 177, 182, 198 bishop, sitting ut praelatus 53, 67, 109 n. 19, 125, 127, 140, 151, 156–157 Black, Antony 31 n. 99, 86 n. 20, 100 n. 51 Blanchard, Johannes 17, 48, 346 Bohic, Henri 150, 185, 249 n. 29, 289, 291, 311, 315 Bonaventure 258 n. 54, 262–264, 273, 329 n. 114 Brucker, Charles 17–18 n. 51 Brundage, J. 12 n. 30

368 Calumny 316–319, 328, 331–332, 335 Canning, Joseph 86 n. 21, 148 n. 52 Cardinal Romano of S. Angelo 88 Carmelites See Franciscus Bachonis, Guido Terreni, John Baconthorpe, and Michael Aiguani of Bologna cathedral chapter 32, 34–36, 39–42, 44, 56, 59–63, 67, 70, 72, 75–80, 85, 87, 90–91, 93–95, 97, 100–164, 176–178, 184, 188, 192, 195–201, 232–233, 237–238, 339–341, 346 Procedures 31 n. 99, 33–35, 37, 41, 63, 76–77, 94, 103, 108, 119–123 132–133, 135, 157 n. 78, 157–158, 163, 183, 186, 188–189, 191–200, 223–224 Celestine, III, pope 34, 92 chancellor of the University of Paris 1, 3, 10–21, 27, 33–35, 38, 41–56, 60–102 passim, 165–167, 173–241 passim, 251–252, 274–275, 278–280, 289, 294–96, 298–299, 303–307, 313, 316–319, 325–326, 331–334, 341, 343, 345–346 dual Personality of 53–56 jurisdiction over exempt clerics 49–53 ordinary jurisdiction of 43–49 relationship with the cathedral chapter 34 See also Jean Gerson, Johannes de Candelis, Stephen Tempier, and the list of chancellors referenced in Appendix A cathedral chapter and heresy 157–163 and jurisdiction 139–157, 163–165, 224 and misdemeanor jurisdiction 135, 137, 153, 164, 202, 230–231 and shared jurisdiction 103, 108, 123–128, 136, 154–157, 161, 165, 206 Charles V, of France 17 Chenu, Dominique 74 n. 98, 175 n. 28 Chodorow, Stanley 5 n. 12, 30 n. 93, 158, n. 78, 166 n. 3 Cistercians See Bernard of Clairvaux, Frater Bartholomew, Johannes de Novavilla, and Ogier of Locedio Clarke, Peter D. 282 n. 1 Classen, P. 2 n. 4

Index Of Names And Subjects Clement VII, pope 25–26, 47–48, 171 n. 21 Clerici, Agostino 247 n. 22 Coing, H. 247 n. 22 Congar, Yves 175 n. 28 corporations ecclesiastical model 31–32, 34, 37, 40–41, 77–78, 95, 99–102, 338–339 Roman or secular model 31–34, 95, 99–100, 102, 338 Costello, J. 247 n. 22 Council of Tarragona 170, 234 Craun, E. 247 n. 22 custom 47–48, 51, 57–58, 75–77, 88, 131–132, 135–137, 141–146, 148–149, 151–152, 163–164, 177 and Faculty of Theology 212, 216, 219, 220–232, 236, 240, 278, 280, 305 n. 64, 332, 340 Davy, M. M. 28 n. 89 Decock, Wim 244 n. 16, 246, 247 n. 22 Delhaye, P. 64 n. 71, 243 n. 13 Denis Foulechat 7 n. 20, 9–18, 22, 27, 38, 40, 52, 166–167, 173, 179–190, 193, 195–197, 199–200, 216–220, 225–226, 231–232, 239–241, 253, 266, 279–280, 299, 301–307, 313, 321, 324–325, 331, 333–335, 339, 342–344 appeal 9–15, 166, 179–180, 183–184, 195–200, 217–220, 239, 241, 325, 342, 344 Policratiucus 17, 18 Denis Foullechat, See Denis Foulechat denunciation 59, 121–123, 185 n. 56, 192, 243–244, 246, 249, 259, 271, 273, 281, 286–289, 304–305, 315–318, 331–333 judicial (Private) 243, 246 judicial (Public) 122, 243–244, 271, 273 disputation 11, 13, 20–22, 52, 84, 92, 95, 101, 173 n. 23, 180–181, 184, 186, 293, 299, 324 n. 108, 325, 343 Dominican Order 9 n. 24, 18, 20, 204, 278, 330 Dominicans See Albert the Great, Durand of Saint Pourçain, Eckhart (Meister), Guillelmus Rochini, Guillelmus Romani, Hugh of Saint Cher, Hugo de Monteforti, Humbert of Romans, Innocent V, pope, Johannes de Parma,

Index Of Names And Subjects John of Monteson, Nicholas of Gorran, Peter of Tarentaise, Pierre de La Palude, Stephen of Venizy, and Thomas Aquinas Doncoeur, P. 18 n. 52 Douie, Decima 11 n. 26, 96 n. 37, 210 n. 33 Du Pin, Louis 18 n. 52, 25 n. 78, 202 n. 3, 204 Duggan, Anne 118 n. 57 Durand of Saint Pourçain 1, 37 n. 114, 264–265, 273, 287, 311, 316–318, 323–324, 331, 335, 337 Edwards, Kathleen 56, 59 n. 59, 60 nn. 62, 63 Eichbauer, Melodie H. 103 n. 1, 104, 158 n. 78 English Nation 295–296 Evans, G. R. 272 n. 107, 336 nn. 121, 122 Excommunication 5, 16, 23–26, 49, 77, 80–82, 87–88, 93, 96–97, 112, 152–154, 162–163, 166, 169–172, 175–176, 188, 195, 204, 223, 239, 244–245, 272–273, 279, 295–296, 298, 301, 313, 319, 325 n. 110, 334, 342 Exempt Clergy 49–52, 207, 225, 231–232, 234, 340 Faculty of Theology jurisdiction, doctrinaliter 4–5, 33, 187–188, 202, 206, 209, 211–212, 216–217, 220, 228, 230–231 jurisdiction, judicialiter 4–5, 33, 188, 202, 207 n. 24, 213 n. 46, 214, 217 n. 58, 216 n. 54, 218–219, 220 n. 67, 226 n. 87, 228 n. 93, 230–231, 341 jurisdiction, misdemeanor 168, 172, 187–189, 199, 201, 220, 231–232, 241, 324, 333, 340 parallels with Cathedral chapter 40, 42, 61–63, 71, 78, 177, 182, 190 n. 74, 236 n. 98, 237 procedures 1–2, 7, 9, 27, 34–35, 37, 41, 66, 69, 73, 76–77, 97, 101, 165–201, 235, 240–241, 243–245, 249–253, 278–281, 304–305, 318, 320, 327, 329–344 right to make statutes 80–100, passim See also cathedral chapter; Jurisdiction Ferruolo, Stepehen 38 n. 115, 345 n. 1 Fitzmaurice, E. B. 37 n. 114 Fowler, Linda 30 n. 97

369 Fraher, Richard 122–123 n. 72 Franciscans See Adam Wodeham, Alexander of Hales, Denis Foulechat, Franciscus Meyronis, Hervaeus Natalis, Johannes Gorrel, Johannes Vitalis, John Peckham, Louis of Padua, Nicholas of Lyra, Pierre Jean Olivi, Walter of Bruges Franciscus Bachonis, OCarm. 266 Franciscus Meyronis, OFM 287 Fransen, G. 112 n. 38 Frater Bartholomew, OCist. 7 n. 20, 236, 239 n. 6, 295–301, 305 n. 64, 313 n. 84, 314, 333, 336, 341 fraternal correction  8, 19, 27, 37, 122–123, 166, 182, 184–186, 200, 205–206, 229, 236, 237–338 passim, 341, 343–344 and common good 286, 287–291, 307, 314–315, 317–319, 321–323, 326, 330–331 and denunciation 193, 286–290 and duty to render 282 and gentleness 288, 307, 331, 335 and incorrigibility 244, 259 n. 55, 264, 285, 319–320 and issue of proof 272, 285–286, 291–292, 301, 327–330 and possible omission 282–291, 306–320, 326–327, 330–331, 335, 341 and scandal 171 n. 20, 173, 175, 217 n. 57, 237 n. 2, 238 n. 4, 284, 302–303, 310, 313 n. 84, 320 n. 95, 321–326, 333–334 and suitable opportunity 283, 285, 288, 291, 331 not required in Foulechat case 306 not required in Monteson case 193, 274, 319, 341 See also Admonition; Denunciation, evangelical; Rebuke Frère Barthélemy, See Frater Bartholomew Fried, J. 2 n. 4 Friedberg, E. 74 n. 96, 109 n. 24 Gabriel Biel 37 n. 114, 253–255, 280, 291 Gabriel, Astrik 34 n. 107, 42 n. 1, 44, 46 n. 17, 345 n. 2 Gallagher, C. 143 n. 38 Galleranus de Pendref 20 n. 56, 21, 22 n. 63 Garcia y Garcia, Antonio 118 n. 59, 133 n. 7, 134 n. 12, 135 n. 14

370 Gaudemet, Jean 32 n. 100, 126 n. 82, 182 n. 48 Gauthier de Bruges, See Walter of Bruges Gerhohus of Reichsberg 256 n. 47 Germanus Celati 76 Gierke, Otto 31 n. 99, 70 n. 87 Gillet, P. 70 n. 87 Glorieux, P. 37 n. 114, 167 nn. 6, 7, 277 n. 119 Godfrey of Fontaines 288 Goffredus of Trano 118, 124, 137–138, 141, 148, 163, 174 n. 27 Goñi Gatztambide, J. 19 n. 52 Gratian 4–5, 29–30, 33, 55, 103–110, 112–119, 122, 126, 139, 154–155, 157, 159, 162–163, 175, 192, 195–196, 205–206, 244, 247, 272, 292, 307 n. 70, 309, 340 and School of Laon 271–272 dicta of 5, 105, 107–114, 126, 154, 205–206 Distinction 20 4, 5 n. 12, 30 n. 93, 205 Theory of the two keys 5, 29–30, 33, 139, 143, 202, 204–206, 218, 231, 235, 244, 247, 340 Gregory I, pope 104–105, 108 n. 13, 112–114, 119, 210, 329 n. 119 Gregory IX, pope 29, 68–69, 71, 74, 91 n. 33, 118, 161, 195, 272 Grimerius Bonifaci 10, 12, 14, 17, 38 n. 117, 51 n. 32, 167, 173 n. 23, 180, 182–184, 186–187, 193, 195, 199, 218, 220, 222, 239, 293, 297–300, 304–305, 325, 346 Grison, R. 160 n. 84 Gualterus de Bruges, See Walter of Bruges Guérard, B. 44 n. 8, 75 n. 100 Guido de Baysio 47 n. 18, 130, 287 Guido Terreni 162–163, 264–265, 273, 277–278, 284, 315–316, 318, 320, 335 Quatuor unum 264, 265 n. 80, 277 n. 118, 284 n. 6, 316 n. 89, 320 n. 95 Guido, Cardinal 25 Guillelmus Bernardi 76 Guillelmus Charlot 189–191 Guillelmus de Lumbris 58 Guillelmus de Seignelay 82–84 Guillelmus Rochini 12, 17 Guillelmus Romani 12, 15 Hansen, Howard, OFM 246, 247 n. 22, 282 n. 1, 309 n. 73 Henry of Segusio(a), See Hostiensis

Index Of Names And Subjects heresy 1, 7–11, 15, 27–28, 33–34, 41, 49–50, 104, 123, 157–237 passim, 246 n. 21, 250, 287, 292–293, 300–301, 303, 306–307, 314, 316, 318–319, 333, 336, 338, 340, 342, 345 heresy, academic 1–2, 7–9, 27, 33–34, 164–200, 234, 236–237, 292–293, 300–303, 338, 345 See also suspect teaching Hervaeus Natalis, OFM 266 Honorius III, pope 80–83, 88, 90 Honorius, Master 115 Horst, U. 18 n. 52 Hostiensis 28 n. 88, 30 n. 97, 45–46, 48–49, 56, 57 n. 48, 59, 70–71, 75, 81, 119, 124–127, 143–153, 156, 159–161, 164, 169–170, 172, 174, 176, 182–183, 185, 188, 190–191, 194–195, 197–200, 219–222, 224–225, 231, 233–234, 243–244, 248–249, 305, 342 Hugh of Besançon 76 Hugh of Saint Cher 267–268, 271, 285–287, 289–290, 315, 330 Hugo [de Monteforti] 306, n. 65 Hugo de Sancto Martiali 16 Huguccio 29–30, 113, 115–117, 162 Humbert of Romans 320, 323 n. 105, 327–330, 334–335 Ille humani generis 8 Immaculate Conception 3, 18–19, 202, 208, 230, 238, 301–303, 342 Innocent III, pope 29 n. 90, 53, 64, 67, 75, 91–92, 95, 118–123, 127, 129, 131, 166, 209, 222 Innocent IV, pope 35 n. 109, 43–46, 50, 53, 67, 74, 86 n. 20, 95–97, 118, 124, 138–152, 164, 175 n. 28, 182, 197, 213–215, 222, 225, 234, 243, 340 Innocent V, pope 266, 275 n. 114, 277 n. 118, 278 n. 121 See also Peter of Tarentaise Inquisitorial Procedure 119–121, 123, 127, 157–163 Iribarren, Isabel 37 n. 114 Ivo Britonis 72 Jacobi, E. 157 n. 78 Jean de Blandiaco, Cardinal 15

Index Of Names And Subjects Jean de Dormans, Cardinal 10 n. 25, 13, 15–17, 216, 279 n. 123 Jean de Monzon, See John of Monteson Jean Gerson 166–170, 172–173, 176, 250, 277–278, 289–291, 298, 334 de correptione proximi 277, 289–290 de protestatione circa materiam fidei 166–169, 298 Jerome, Saint 245, 255–257, 261–263, 265, 267, 274, 283 n. 4, 334 Johannes Andreae 52, 75, 147–152, 154–155, 157, 159–160, 164, 170, 185, 191, 194, 197–200, 210–211, 215, 219, 249 Johannes Blanchard 17, 48, 346 Johannes Daudin 324 n. 108 Johannes de Aurelianis 72 Johannes de Calore 7 n. 20, 44 n. 9, 297, 346 Johannes de Candelis 64–65, 67, 72–75, 78, 80, 93, 98, 100 Johannes de Guignicurte 20, 47, 178, 180–181, 184–185, 275, 278, 343, 346 Johannes de Novavilla 25 Johannes de Parma 211 Johannes Faventinus 308–309, 312, 332 Johannes Gorrel 7 n. 20 Johannes Scabini 324 n. 108 Johannes Teutonicus 50, 67, 117–120, 122–123, 127, 129–130, 133–139, 141–142, 146, 149, 155, 164, 192, 276, 308–309, 312, 329 Johannes Vitalis 202 n. 3, 344 John Baconthorpe 37 n. 114, 265–266, 273, 277, 309 n. 74, 312–318, 332, 335–337, 344 John Chrysostom, Saint 260–261, 265, 267, 269 John Guyon 7 n. 20 John of Hesdin 58, 179 n. 40 John of Mirecourt 7 n. 20, 179, 296 n. 42, 343 John of Monteson 3–7, 9–10, 18–27, 59–60, 166–167, 171–173, 176–190, 193–197, 199–205, 207–209, 219–220, 225, 228–232, 237–241, 250–253, 274–275, 278–281, 297, 301–304, 306–307, 313–314, 318–321, 325–327, 329–335, 342–344

371 appeal 3 n. 10, 4 n. 11, 9–10, 24–26, 166, 179, 195–200, 219–221, 227, 239, 278, 340, 344 John of Salisbury 17, 18, n. 51 John XXII, pope 210, 302–303, 342 Juan de Monzón, See John of Monteson Judas 252–281, 319, 329, 335 jurisdiction 3–5, 7–9, 27–34, 41–52, 77, 83 n. 10, 85 n. 18, 87, 102–237 passim, 241, 244, 247 n. 23, 304, 320–321, 332–333, 338–341 corporate 31–32 delegated 30–31, 44, 48–49, 81–83, 90, 142, 151, 165, 198, 216–217 medieval concepts of 27–32 ordinary 5, 30–31, 42–53, 77, 130, 161, 166, 179, 204, 217–219, 221–223, 240, 279 Kaluza, Zénon 19 Kelly, Henry Ansgar 158, 166 n. 5, 202 n. 3, 240–241 Kelly, J. F. 202 n. 3 Kéry, Lotte 158 n. 78 Kessler, P. J. 243 n. 15 Kibre, Pearl 9 n. 24, 35 n. 108, 89 n. 25 Kieckhefer, R. 158 n. 78 Kilcullen, J. 276 n. 116 Koch, Josef 1 Kuttner, Stephan 52 n. 33, 112 n. 38, 147 n. 46, 160 n. 84, 307 n. 70 Kynysh, G. 276 n. 116 Lambert, Malcolm 11 n. 26 Lamy, Alice 201 n. 1 Lamy, M. 18 n. 52, 303 n. 60 Landau, Peter 103 n. 1, 104, 115 n. 47, 122 n. 70, 272 n. 108 Larsen, Andrew F. 2, 8, 292 Last Supper 253–257, 267, 270, 272–273, 280–281, 335 See also Judas Lateran Council, III 32, 53 n. 35, 74 Lateran Council, IV 39, 118, 120–122, 127–129, 131–136, 158, 163, 209, 233 Laurentius Hispanus 118–119, 123, 127, 130 Le Bachelet, X. 18 n. 52 Lea, Henry Charles 9 n. 24, 10 n. 26 Lefebvre, C. 233 n. 96, 247 n. 22

372 Leff, Gordon 35 n. 108, 89 n. 25, 96 n. 37, 158 n. 78 Lemesle, B. 123 n. 72 Leo I, pope 265 letters dimissory, See apostoli Little, A.G. 37 n. 114 Longpré, E. 37 n. 114, 277 n. 118, Lottin, O. 272 n. 107 Louis of Padua, OFM 7 n. 20, 171 n. 20, 322 n. 100 Lucius III, pope 74, 159 Lytle, Guy Fitch 1 Madigan, Kevin 256–257 Maisonneuve, Henri 157 n. 78 Matter, E. Ann 247 n. 22 McLaughlin, Mary Martin 1, 9 n. 24 McLaughlin, Terrence 112 n. 34 McManus, Brendan 118 n. 58 Meister Eckhart, OP 1 Melloni, Alberto 44 n. 6, 53 n. 36, 67 n. 81, 85 n. 15, 86 n. 20, 139 n. 26, 140 n. 28 Michael Aiguani of Bologna, Ocarm 266, 267 n. 89 Michalski, K. 7, 295 n. 40, 298 n. 47, 305 n. 64 Michaud-Quantin, P. 31 n. 98, 36 n. 112, 38–40, 45 n. 11, 100 n. 52 Miethke, Jürgen 2, nn. 4, 5 Müller, Wolfgang 108 nn. 13, 14, 109 nn. 18, 21, 110 n. 26, 111 n. 33, 113 n. 43, 115 n. 52 Nicholas of Autrecourt 7 n. 20, 296 n. 42 Nicholas of Gorran 268–271, 273, 283 n. 4, 285, 327–330, 335 Nicholas of Lyra, 210, 249, 268, 270, 271, 273 Nicole Oresme 11, 12 n. 29 Nolan, Simon 312 n. 81 Oakley, Francis 201 n. 1 oath(s) and Roman law 234 chancellor’s residency 46–47 exemption from 51, 54–55, 62, 65, 73–76, 79–80, 93 Foulechat 12–13, 16 in the Faculty of Arts 294–296 Master’s mutual 36

Index Of Names And Subjects of obedience 50–52, 62, 65, 73–76, 79–80, 93, 225–227 to confer license justly 69 to give faithful testimony 53–55 to report suspect teaching 179, 235, 239 n. 6, 241, 252, 274, 279, 293, 295, 297–299, 301, 304, 307 to uphold statutes of the faculty 91–92, 213, 216, 225–227 vicar’s residency 47 See also revocatio conditionalis Oberman, Heiko 37 n. 114, 253 n. 37 office of the dean (chapter) 56–57, 60 See also praepositus office of the dean (faculty) 56–57, 60 See also praepositus See also Guillelmus de Lumbris, John of Hesdin, Symon Freron; Praepositus Ogier of Locedio 254–255 Oxford 2, 8, 11 n. 26, 239 n. 6, 292–293 Panormitanus, Abbot 57–58, 114 n. 46, 178 n. 39 papal privileges 50, 81 n. 4, 91, 94–95, 191, 212–216, 230 Parens scientiarum 43, 53, 63–64, 69, 73, 91, 94–95, 98, 100–102, 214 n. 49, 215 Pascoe, Louis 201 n. 1 Paucapalea 108–109, 117 Paul, Saint 250, 255, 284, 206, 307 Pavloff, G. 30 n. 97 Peckham, John 263–264 Pennington, Kenneth 50–51, 84, 86 n. 21, 103 n. 1, 108, 109 n. 18, 110, n. 26, 111 n. 33, 113 n. 43, 118 nn. 57, 59, 62, 119 n. 65, 120 n. 66, 137 n. 21; 138 nn. 23, 24; 143 n. 37, 147 n. 46, 148 n. 52, 150 n. 56, 155 n. 70, 166 n. 3, 233 n. 96, 243 n. 15, 273 n. 111, 309 n. 74 Peter of Tarentaise 3 n. 7, 266 n. 84, 275, 277, 278 n. 121 See also Innocent V, pope Peter, Cardinal of Embrun 25 Peters, Edward M. 2 n. 4, 8, n. 22, 122 n. 70, 157 n. 78, 166 n. 3, 170 n. 17, 300 n. 55 Petrus Berchorius 7 n. 20, 189–191, 200, 338 Petrus de Allainvilla 25 Petrus Ponfichet 324 n. 108

Index Of Names And Subjects Pierre d’Ailly 3–10, 19–23, 25, 31–33, 47–49, 62, 166, 171, 172, 176, 178, 185, 187–188, 200–241 passim, 250–251, 266, 280, 306, 321, 340, 343, 346 Radix Omnium Malorum est Cupiditas 48 n. 21 Super Omnia Vincit Veritas 48 n. 21 Tractatus or Apologia 4, 8 n. 21, 171–172, 178 n. 35, 185 n. 56, 187–188, 193 n. 84, 201–220, 225–232, 234, 236, 237 n. 1, 340 Pierre de la Palude 266, 287, 311, 323, 335 Pierre d’Orgemont 18 n. 52 Pierre Jean Olivi 257, 344 Pomposiano, Abbot 122 Post, Gaines 31 n. 99, 35 n. 108, 38, 73 n. 94, 83 n. 9, 84, 89–90 Poverty Controversy 10–11, 230, 301–303, 342 Praepositus 56–57, 275, 278–279, 334 See also Office of the dean praescription 149–150, 221 n. 70 precept affirmative 283, 285–289, 330 negative 283, 330 proportionality, Principle of 324–325 protestatio conditionalis 169, 293, n. 35, 294–301, 333 See also Revocatio conditionalis Pseudo Bernardine Corpus 254 punishment 8, 13, 16, 28, 73, 83–84, 102, 105, 113, 121, 139, 143, 147, 149, 151–152, 154–156, 168–170, 172–176, 188, 214–215, 217–219, 223, 225–226, 228–231, 234, 248–249, 255, 259, 296, 305, 315–318, 324, 334, 340 purgation, canonical 169–176, 188, 200, 317, 342 Quasi lignum vitae 63, 98–99, 213, 215, 230 Quotiens 97, 213–215, 230, 234–235, 340 Radulphus Glachardi 19–22, 58–60, 177–178, 186, 194–195, 237–239, 251–262, 278, 280, 321, 326, 343 Rashdall, Hastings 36 n. 113, 38, 84, 89, 96–97 rebuke 8, 19, 27, 37, 122–123, 166, 182, 184–186, 200, 205, 229, 236–271 passim,

373 273–292 passim, 304, 306–309, 312–315, 317–323, 325–337 passim, 341, 343–344 resumpta and vesperiae lectures 18, 21, 180 n. 45, 228, 238, 297, 338 revocatio actualis 167–168, 173–176, 238, 294, 320 revocatio conditionalis 166–169, 179, 193, 235, 239, 292–294, 297–298, 318, 325, 344 See also protestatio conditionalis Richard Fitzralph 11 n. 26 Robert Grosseteste 292 Robertus de Bardis 44 n. 9, 179, 346 Robertus de Freto 25 Robertus de S. Nicolao 324 n. 108 Rolandus 109, 110 n. 27, 117 Roman Law 30–31, 36, 86, 184 n. 53, 226, 227 n. 89, 230–231, 234, 236, 340 Rubric for determing orthodoxy 292, 300, 303 Rufinus 29 n. 90, 109–111, 117, 122 n. 70 Rupert of Deutz, OSB 256 n. 47 Sayers, Jane 30 n. 97 Schneyer, J. B. 242 n. 10 School of Laon 271–272 Sebastian, W. 18 n. 52, 303 n. 60 secular mendicant controversy 95–102, 215, 339 Shogimen, Takashi 245 n. 19, 246–247, 249 n. 29, 250 n. 31, 266 n. 86, 273 n. 111, 286–287, 323 n. 106 Sicut expedire 91, 93 n. 31, 95, 214 n. 49 Simon of Bisignano 113–115, 117, 120–122 simony 73–74, 122, 192, n. 80 sins public 284–285, 289, 306–307, 312–314, 318, 322–323, 325, 330 secret 252 n. 35, 269, 272, 278, 286, 289, 306–318 passim, 323, 325, 330–336 Stephen Langton 83 Stephen of Tournai 110–113, 117 Stephen of Venizy 3, 165, 187, 235 Stephen Tempier 53–55, 60–61, 72, 293, 295 Summa ‘Animal est substantia’, Summa Bambergensis 116–117 Summa ‘Omnis qui iuste iudicat’ 115 Summa ‘Elegantius in iure divino’ seu Coloniensis 112–113 Summa Parisiensis 112

374 suspect teaching 3, 5, 13, 17–18, 22–23, 41, 50, 52, 165 n. 2, 167–179, 180 n. 45, 183, 186–187, 192–193, 195, 199–203, 207–208, 221, 226, 228–230, 232, 234–236, 238–240, 246, 252, 279, 290–301, 303–307, 313–314, 318, 320–321, 324–326, 328, 330–334, 337–339, 341–343 private aspects 317–319, 324–326, 331–333 public aspects 8, 10–11, 13, 23, 24 n. 69, 52, 167, 172–175, 178–179, 180 n. 45, 181–182, 184–185, 193, 196 n. 95, 204, 216 n. 54, 218–221, 228 n. 93, 231, 239 n. 6, 240–241, 252, 278–279, 281, 291, 293–294, 304 n. 62, 306–308, 321–326, 331–334, 341, 343 suspension 72 n. 92, 112, 114–115, 121, 147, 152–154, 155 n. 73, 162–163, 173–174, 175 n. 28, 189, 228–229, 317 See also punishment Symon de Guibervilla 60–61, 345 Symon Freron 11, 12, n. 29, 58 Taber, Jr., Douglass 7 n. 19, 19 n. 52, 202 n. 3, 204–208, 210 Tancred of Bologna 118, 122, 227 Tanner, N. 131 n. 6 Thijssen, J. M. M. H. (Hans) 2, 3 n. 10, 6 n. 19, 7 n. 20, 8, 9 n. 24, 15, 25 nn. 77, 78, 155 n. 74, 166 n. 5, 168 n. 11, 173 nn. 24, 25, 197 n. 99, 202 n. 3, 205–206, 208, 212 nn. 40, 42, 228–229, 237 n. 1, 240–241, 275, 293, 307 n. 69, 320 Thomas Aquinas and the Immaculate Conception 18, 25 authority of the Masters 210 Catena aurea 262 fraternal correction 37 n. 114, 248, 283 n. 4, 286–291, 312, 314, 317–319, 322–324, 331, 335–336 Judas 261–262, 265, 273 judicial correction 248–249 Lectura super Ioannem 262 Lectura super Matthaeum 262, 277 n. 117 Quaestiones de virtutibus 248 n. 27, 261–262

Index Of Names And Subjects Rule of Augustine 276–277 secret/public sins 309–310 Sententias 37 n. 114, 261 n. 66, 276–277 n. 117, 287 Summa theologiae 249 n. 28, 261–262, 264 n. 79, 283 n. 3, 284 n. 6, 286–287, 310, 314, 323 nn. 104, 106 Thomas of Strasbourg, OESA 266 Tierney, Brian 5 n. 12, 30 n. 93, 32–33, 35, 37, 53 nn. 35, 36, 56, 62 n. 65, 67 nn. 80, 82, 70, 71 nn. 88, 89, 77 n. 102, 124–127, 136–137, 156, 160 n. 84, 183 n. 51, 184 n. 53, 197 n. 100 Turley, Thomas 162 n. 90 Tusen, W. 123 n. 72 Ullmann, Walter 158 n. 78, 184 n. 54 Urban IV, pope 54–55, 57, 72 Urban V, pope 10 n. 25, 11–17, 51 n. 32, 173 n. 23, 180, 183 n. 50, 186, 187 n. 63, 188, 216–220, 279 n. 123, 299, 304, 321 Urban VI 26 Van de Kerckhove, M. 29 nn. 90, 91, 30 Varkemaa, J. 250 n. 33 Verger, Jacques 35 Verheijen, Luc 275 n. 113 Vicar, office of 45–47, 50, 77, 165–166, 182 Vincentius Hispanus 118, 129, 133, 135–137, 149, 163 Vir probus 280, 316, 318–319, 329 Vodola, E. 233 n. 96, 245 n. 18 Walsh, Katherine 11 n. 26 Walter of Bruges, OFM 37 n. 114, 277, 287–291, 310–312, 315–318, 331, 335–336 Watt, J. 160 n. 84 Weigand, Rudolf 108 n. 13, 110 n. 26, 111 n. 33, 112 nn. 34, 37, 115 nn. 47, 48, 51 William Bragose 15 William of Auvergne 3, 165 n. 2 William of Auxerre 258, 273 William of Ockham, OFM 1, 19 n. 52, 210, 245–247, 276 n. 116, 278 n. 120 Winroth, Anders 103–106, 107 n. 11 Woodward, M. S. 210, n. 33 Yvone de Trevery 324 n. 108