Law and the Illicit in Medieval Europe 9780812208856

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Law and the Illicit in Medieval Europe

THE MIDDLE AGES SERIES Ruth Mazo Karras, Series Editor Edward Peters, Founding Editor

A complete list of books in the series is available from the publisher.

Law and the Illicit in Medieval Europe Edited by Ruth Mazo Karras, Joel Kaye, and E. Ann Matter

University of Pennsylvania Press Philadelphia

Copyright 䉷 2008 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 Printed in the United States of America on acid-free paper 10

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A Cataloging-in-Publication Record is available from the Library of Congress ISBN 978-0-8122-4080-1

For Edward M. Peters

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Contents

Preface

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Introduction: The Reordering of Law and the Illicit in Eleventhand Twelfth-Century Europe 1 Edward M. Peters

PA R T I :

1

LEGAL SYSTEMS

A Fresh Look at Medieval Sanctuary

17

William Chester Jordan

2

Heresy as Politics and the Politics of Heresy, 1022–1180

33

R. I. Moore

3

Legal Ethics: A Medieval Ghost Story

47

James A. Brundage

4

The Ties That Bind: Legal Status and Imperial Power

57

James Muldoon

PA R T I I :

5

W R I T I N G T H E L AW

Licit and Illicit in the Yarnall Collection at the University of Pennsylvania: Pages from the Decretals of Pope Gregory IX 71 Robert Somerville

6

Judicial Violence and Torture in the Carolingian Empire Patrick Geary

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Contents The Ambiguity of Treason in Anglo-Norman-French Law, c. 1150–c. 1250 89 Stephen D. White

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103

Illicit Religion: The Case of Friar Matthew Grabow, O.P. John Van Engen

9

Marriage, Concubinage, and the Law

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Ruth Mazo Karras PA R T I I I : C A S E S A N D T R I A L S

10

Crusaders’ Rights Revisited: The Use and Abuse of Crusader Privileges in Early Thirteenth-Century France 133 Jessalynn Bird

11

Learned Opinion and Royal Justice: The Role of Paris Masters of Theology During the Reign of Philip the Fair 149 William J. Courtenay

12

Coin and Punishment in Medieval Venice

164

Alan M. Stahl P A R T I V : L AW B E Y O N D T H E L AW

13

Licit and Illicit in the Rhetoric of the Investiture Conflict 183 Alex Novikoff

14

Satisfying the Laws: The Legenda of Maria of Venice

197

Susan Mosher Stuard

15

Canon Law and Chaucer on Licit and Illicit Magic

211

Henry Ansgar Kelly

16

Law, Magic, and Science: Constructing a Border Between Licit and Illicit Knowledge in the Writings of Nicole Oresme 225 Joel Kaye

Contents List of Abbreviations Notes

241

List of Contributors Index

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Acknowledgments

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Preface

Although the general public may well associate the medieval period with lawlessness, it is rather the case that law, both as practice and as intellectual discipline, occupied a central and privileged place in medieval culture. Secular and religious authorities alike proclaimed justice and equity as their highest social ideals, and popes and kings vied to claim the exalted title of lawgiver. This deep respect for law and legal procedure cut across geographical and chronological boundaries, but a number of developments occurring over the late eleventh and twelfth centuries greatly accelerated the pace of legal development. The chapters that follow provide various perspectives on the dynamic process of legalization that both characterized medieval society and was instrumental in transforming it. If the goal of law was to delineate the realm of acceptable behavior and belief, guided by the ideal of justice, it often advanced to this goal through a process of negation. Defining what was legal regularly involved the simultaneous definition of its contrary, that which was, or had become, illegal. The definitional boundaries that gave ever more explicit shape to the sphere of the licit effectively shaped the sphere of the illicit as well. Acts or attitudes identified with the category of the illicit, even when they were not specifically outlawed, were marked by the law, and the actual implications of finding one’s actions or beliefs identified with the illicit, whether in the secular or the religious sphere, could be profound and painful indeed. While the story of the growth of medieval law is in large part a triumphant one— the imposing of order on an unruly warrior aristocracy, the diminishment of crippling fear and uncertainty, the creation of a ground for institutional, economic, and intellectual development—historians of the last half century have become increasingly conscious as well of the negative and punishing side of law’s powers of definition. The dynamic interchange between the positive and negative valences of law, between the linked construction of the lawful and the illicit, is the subject of this volume. The growth of social history as a field in the late twentieth century brought with it new perspectives on the forms and uses of law. As legal

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records such as court rolls and notarial documents were discovered to be an extremely rich trove of data for social historians, the recognition grew that their proper exploitation required a fuller understanding of the legal processes that gave rise to these records and the legal principles that underlay them. An increased sensitivity to questions of social function marked the understanding of law that emerged from this project. Similarly, as medieval historians moved to integrate anthropological methods and insights more fully into their research, legal practices and conceptions were again revisited and recast. The following chapters reflect these and related developments in the field of medieval history as they explore the many points of intersection between the institution of law in its broadest sense and other aspects of medieval society and culture. Several of the chapters are by legal historians; most, however, are by historians whose main field of research is not the law but who fully recognize its central place and importance in medieval life. The consequence of this recognition, developed over the last half century, is that older boundaries separating legal history from ‘‘other’’ histories—social, religious, political, intellectual, even literary—have been blurred, if not thoroughly dissolved. We, the editors and contributors to this volume, believe that this blurring of boundaries properly reflects the complexity of the historical picture. We are also united in our belief that no historian of the last half century has been more influential in demonstrating the full scope of the law’s place and power in medieval society than Edward Murray Peters, who provides both the inspiration for this volume and its Introduction. Peters begins the introduction by suggesting the range of institutional and social structures, both religious and secular, that were transformed by the development of law from the late eleventh through the twelfth century. He is careful to stress, however, that the historian of law must look beneath the level of structure to what he calls the pervasive ‘‘idea of lawfulness,’’ in order to grasp the centrality of law to historical development in this period. He then turns to consider a pivotal question in medieval legal studies: how did the new ascendance of Roman law, with the highly organized and intellectualized content (based on the newly rediscovered texts of Justinian’s Corpus Iuris Civilis) affect developments in twelfth-century common law and canon law (the law of the church), and in what fashion did the law that resulted differ from the law and forms of dispute settlement found in previous centuries? In the second part of the Introduction, Peters presents a complex picture of how law—secular and religious, written and oral, intel-

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lectualized and customary—intersected with political, institutional, and intellectual developments in the twelfth century to produce a vibrant new culture, one marked by new forms of religious belief and practice, new forms of affect and intellection, and, inescapably, new categories of the illicit and the excluded. With this conclusion, Peters sets the foundation for the rest of the volume, which is then divided into four sections, each of which touches on aspects of law and the boundary between the licit and the illicit. Part I, ‘‘Legal Systems,’’ examines the formation of diverse forms and structures of law. Since the work of the great legal and institutional historians of the late nineteenth century, it has often been argued that the profound respect for law in medieval culture, which was linked to the actual development of law in its myriad forms (Roman law, canon law, common law, customary law, feudal law), was the base upon which many of our most important modern institutions and legal conceptions were built: trial by jury, courts of appeal, forms of representative government, written constitutions, and other characteristic organs of state formation. Although the search for the origins of modern institutions no longer drives the field, it remains true that the medieval period was an unusually fruitful one for the growth of institutions of governance. The chapters in this first section echo this older yet still vital historical tradition, asking not so much (as in the past) how we got where we are today but what role law and its determination played in the formation of the central institutions of the European Middle Ages. In Chapter 1, William Chester Jordan analyzes a form of law that grew in the very intersection of licit and illicit: the law of sanctuary. In analyzing the legal forms of sanctuary and the particularities of its application, Jordan treats a number of subjects, including the range of illegal acts that might be covered by it, the conditions imposed by both secular and religious law upon its exercise, and the actual terms and penalties it enforced in lieu of the penalty of death. In doing so, he elucidates the social functions performed by this peculiar form of ‘‘institutionalized mercy’’ in making the legal system more flexible and in moderating its severity. By staying close to the medieval sources, Jordan rescues sanctuary from modern distortions concerning its character and application—primarily the notion that it represented an essential opposition between religious and secular authority— and, equally important, he challenges the received wisdom that the gradual erosion of sanctuary resulted from the growing assertion of the secular

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state’s authority over and against that of the church in the later Middle Ages. In Chapter 2, R. I. Moore continues to criticize the simplistic notion of an essential opposition between secular and religious law or secular and religious authority in the eleventh and twelfth centuries. Rather, through his study of early heresy trials, which took place at the courts of powerful aristocrats and not in strictly ecclesiastical settings, Moore comes to question the existence of any clear distinction in this period between the standard modern categories of ‘‘the political’’ and ‘‘the religious.’’ He demonstrates that an equally tenuous and penetrable boundary existed between the categories of heresy and sorcery and, in a larger sense, between the realms of the illegal and the illicit. Rather than the fixed terms and categories often applied by modern historians to these circumstances, Moore finds, in the period preceding the thirteenth century, relative indeterminacy, ambiguity, and overlapping at every level of jurisdiction and analysis. James Brundage examines the practice of law and the history of legal ethics in the medieval period from the perspective of lawyers and the legal profession. To what extent, he asks, did medieval legal ethical requirements (the chief of which was the single-minded attention to the interests of the client, which in turn spawned numerous related ethical demands) derive from guidelines embedded in Roman law, and to what extent were the lawyer’s ethical obligations shaped by the mores proper to the period of their practice? In answering this question, Brundage emphasizes the existence of a legal and professional continuity, grounded in Roman law, whose trajectory has continued into the modern day, but at the same time he describes a continuity that has continually adapted to the particular needs of the society employing it. Questions of continuity are also central to James Muldoon’s discussion of the legal justification for empire, in which he argues that the legal ideas developed in the course of the English conquest of Ireland in the twelfth century were later deployed in the colonization of the New World. In showing the similarities between legal texts applied to medieval Ireland and eighteenth-century Massachusetts, Muldoon makes a forceful case for the multiple uses of law and legal precedent (both secular and religious) that span the licit/illicit divide: as an instrument of intellectual and conceptual order; as an instrument well suited to justify and enforce the exercise of colonial power; and still further, because of the memory it encodes, as an instrument that could be used by the American colonists to justify their rights of rebellion.

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* * * The chapters in Part II, ‘‘Writing the Law,’’ are based on close readings of texts pertaining to law, though not always law texts per se. In the case of the Decretals, discussed by Robert Somerville, the text in question did constitute the law of the church, to be applied by judges in individual cases. Somerville raises a number of practical questions concerning the extant sources in medieval law, their physical transmission, and the conditions under which we can recover the raw materials from which medieval law can be studied. Patrick Geary takes us back to the Carolingian era to discuss the use of ‘‘judicial violence,’’ that is, torture, both as an evidentiary procedure and as corporal punishment. Geary argues that the lack of explicit violence in surviving judicial documents should not be taken as evidence that Carolingian justice was innocent of torture, as it often has been, because surviving narrative accounts tell a different story: that torture and extreme violence were integral to judicial procedure in the period. In support of this assertion, Geary brings to bear two poems by Theodulf of Orle´ans, which contain a sharp critique of extreme judicial violence and reveal a deep discomfort with the frequent use of torture and corporal cruelty in contemporary trials. Stephen D. White seeks to assess the power of kingship in the twelfth and early thirteenth centuries and the strength of resistance to it through an analysis of competing legal definition(s) of treason. Was any act in derogation of the king’s person or authority universally assumed to be treason? Or were certain such acts, including outright rebellion, recognized by some as licit and justifiable in certain situations? The answers here will help to determine whether in this period the king’s authority was abstract and absolute, contractual and conditional, or a subject of continuing contestation. Faced with a paucity of clear evidence on these points in legal sources and with conflicting interpretations in modern scholarship, White turns to contemporary epics, romances of antiquity, and Arthurian romances. As White convincingly demonstrates, these texts provide a surprisingly thorough and nuanced treatment of these legal questions, sufficient to show that the broadest definitions of treason and of royal power were resisted. John Van Engen approaches the extremely complex question of how, where, and by whom boundaries were to be drawn between the licit and the illicit in the realm of religion. He does so through the use of a single case study centered on a treatise by the fifteenth-century Dominican friar Matthew Grabow and its contemporary reception. Grabow clearly thought

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himself in a position of sufficient authority to draw the line, and believing so, he attacked a popular lay religious movement in his town, the Modern Day Devout, as an illicit religious group. But because of a complex of legal, doctrinal, and political factors, Grabow’s treatise itself came under attack as heretical. Van Engen’s study indicates the many areas of overlap between theology and law, with law, in essence, the battleground on which questions of licit belief and practice were played out. Law was also, as Ruth Mazo Karras shows, the arena for the negotiation of gender relations in medieval society. Karras’s analysis of a consilium, or opinion, by the fifteenth-century jurist Gui Pape shows how lawyers could take received Roman law concepts like concubinage and adjust them to the social structures of their own time. What emerges from her study is the conclusion that the exercise of law, rather than being unidirectional, involves a relationship with the subject in which both the subject and the law itself are modified in the process of application. Part III, ‘‘Cases and Trials,’’ deals with instances in which the survival of rich judicial documents permits a detailed analysis of the operation of courts and the law in practice. Each of the chapters in this section uses particular cases as a window on a larger set of questions and concerns. The first two deal with French kings and university scholars. Jessalynn Bird returns us to the thirteenth century and the conflicts that arose between the French crown and the church over the legal privileges granted to crucesignati, those who had taken the sign of the cross in order to go on crusade. Under a king, Philip Augustus, who was particularly wary of the expansion of ecclesiastical authority, judges had to tread carefully in interpreting and enforcing papal bulls on crusaders’ privileges. The cases of Herve´ of Nevers and Erard of Brienne provide examples of how the rights of crusaders functioned as just one part of a complex negotiation that was based on political power as much as on legal principle. William J. Courtenay’s chapter demonstrates the breadth of information that can be revealed through the analysis of a single legal situation. In late 1307, after having begun his judicial attack on the religious order of the Templars, the French king Philip IV sent a series of questions to the faculty of theology of the University of Paris, seeking clarification concerning the extent of his royal judicial authority over this particular order and over religious determinations in the larger sense. Courtenay asks why these essentially legal questions were posed, for the first time, to the theology faculty rather than to the faculty of canon law. In answering, he goes beyond theo-

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retical questions of jurisdiction to sketch a vivid history of the theology faculty at Paris, illuminating a series of relationships in the process: between king and university, between politics and doctrine, between theology and law. Alan M. Stahl, too, investigates the connections between law, politics, and institutional structures. He does so by delving into the State Archives of Venice to determine the different ways in which threats to the integrity of the Venetian coinage—and thus to the economic integrity of the state— were treated and punished. Utilizing a wealth of case studies, Stahl sheds light on the administrative and judicial culture of the great city. The evidence he provides for extreme inconsistency in the application of punishment exposes the often ad hoc nature of Venetian justice and brings into question the Venetian state’s reputation for administrative efficiency and harmony. While no one studying the medieval period can fail to be impressed by the exuberant growth of institutional structures in this period and the role played by law and the respect for law in that growth, governmental structures and actual legal proceedings represent only a small portion of the cultural field that historians now examine when they seek to uncover the effects of law. Part IV, ‘‘Law Beyond the Law,’’ addresses this wider field and provides some sense of its dimensions: social, religious, political, intellectual, and literary. Alex Novikoff examines the development of a rhetoric of licit and illicit conduct in the literature of the investiture conflict. Bypassing explicitly legal texts, Novikoff exploits the considerable polemical literature of the period to sketch how supporters of the pope and supporters of the emperor wrestled over which party could claim to speak for the law and, as a result, which party could gain the authority to formulate the boundary between licit and illicit. Focusing particularly on the writings of the propapal polemicist Bonizo of Sutri, Novikoff illustrates just how clearly the parties to this struggle understood the stakes involved in this rhetorical conflict. Susan Mosher Stuard writes about the Dominican Tommaso di Antonio da Siena’s life of Maria of Venice, showing how even in the realm of hagiography knowledge of the law (both municipal and canon law) gave shape to the writing. In making the case for Maria’s holiness, Tommaso had to explain away some of her actions that were technically in violation of legal norms, including sumptuary and dowry codes, in order to make the Vita conform to canon law and the Dominican Penitent Rule. While Tom-

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maso’s biography was not a legal document and his main concern was to demonstrate Maria’s holiness, the centrality of law to medieval culture was such that legal issues of necessity found a place in his work. Legal issues also echoed through literature. Henry Ansgar Kelly focuses on the understandings of magic in canon law and Chaucer. The Ordinary Gloss, the standard interpretation of Gratian’s Decretum in the Middle Ages, had no comment on Cause 26. Kelly shows how two canonists—John of God and Guy of Baisio, known as ‘‘Archdeacon’’—filled this gap. The English canonist William Lyndwood in the fifteenth century followed their lead in explicating the prohibition of illicit magic issued by Archbishop John Peckham, especially in the realm of medicinal lore. Herbs and gemstones, and even words, were thought to have healing powers and were allowable as long as there was no resort to demons or superstitious beliefs. These views are reflected in various works of Chaucer, notably the Miller’s Tale, where John the Carpenter’s night-spell would appear to fall within the limits of licit practice. Joel Kaye also considers the licit-illicit divide through the lens of attitudes toward magic. Through his analysis of Nicole Oresme’s writings from the later fourteenth century, Kaye reveals that Oresme’s innovative position on where to draw the border between magic and science (which is to say, between licit and illicit knowledge) was deeply influenced by the legal tradition. Particularly important in this regard were the strong links between law and the ideals of open argumentation, public judgment, and the common good, all of which Oresme took to be defining characteristics of licit knowledge. By locating elements of the legal tradition within the rarefied discipline of scholastic natural philosophy, and by showing how central those elements were to protoscientific speculation in the fourteenth century, Kaye provides further evidence for the extensive intellectual reach of the law in the Middle Ages.

Introduction: The Reordering of Law and the Illicit in Eleventh- and TwelfthCentury Europe Edward M. Peters

The subject of law and the illicit in medieval western Europe is broader than any single academic discipline and requires the study in combination of subjects that have usually been considered separately, from formal legal history and the academic and governmental structures that taught, defined, and applied the law to those social (including gender) relations, types of behavior, forms of thought, and individual consciences that were affected by it. The subject ranges from the law itself through the theology and canon law of sin to the psychology of the passions and affections as these were worked out in moral theology and pastoral care, especially in the literature on vices and virtues and understood by laity and clergy alike. It also requires consideration of the nature of varying publics and institutions, not only monasteries, houses of canons regular, cathedral chapters, schools, universities, and towns, but also methods, languages, media, and networks of communication, jurisdiction, and influence. Ideas of the illicit may begin with changing ideas and institutions of law, may privilege law, and may model themselves on law, but the subject of the illicit reaches out into many other aspects of society and culture, some ostensibly quite distant from the law. The problem of law and the illicit indicates the absolute centrality, not only of various kinds of law, but also of the idea of lawfulness itself in most aspects of early European life. When moral order, propriety, reason, and the administration of justice seemed to fail or absent themselves from any early European society, then anxiety, scandal, unrest, and fear of imminent divine retribution often replaced them.1 The illicit is a far broader category than the illegal, with broader consequences in society and culture. The eleventh and twelfth centuries, because of their respect for the often conflicting

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traditions and texts of the past and their need to force these to regulate a very different and rapidly changing world, are a useful place to begin. The beginnings of the process took place in Carolingian Europe in the ninth century, but the continuity of the process can be more easily traced from the later period. From the eleventh century and for several centuries later, law, pastoral theology, the formation of new and interested publics, and lines and institutions of communication created a continuum of instruction and discipline that allowed legal institutions of various kinds to reach out into ever more areas of everyday life ever more consistently. The circumstances of everyday life then looped back into the formation of legal institutions, as people more regularly went to law—or to confession. I consider first, some changes that occurred in the formalizing of law itself, and then those occurring in methods of ecclesiastical definition and discipline— chiefly penance and moral theology, and finally the networks of communications that linked these specialized worlds with wider publics and created the continuum just mentioned.2 At some point in the late 1180s in England, a jurist generally known as Ranulf de Glanvill produced a work that he called the Tractatus de legibus et consuetudinibus regni Anglie. In his Prologue, after lavishly praising King Henry II for defending the realm against both external and internal enemies and establishing consistent and impartial justice throughout the kingdom, Glanvill makes a point that offers a convenient perspective on the vast legal changes of the eleventh and twelfth centuries: Although the laws of England are not written, it does not seem absurd to call them laws—those, that is, which are known to have been promulgated about problems settled in council on the advice of the magnates and the authority of the prince—for this is also a law, that ‘‘What pleases the prince has the force of law.’’ For if, merely for lack of writing, they were not deemed to be laws, then surely writing would seem to supply to written laws a force of greater authority than either the justice of him who decrees them or the reason of him who establishes them. It is, however, utterly impossible for the laws and legal rules of the realm to be wholly reduced to writing in our time, both because of the ignorance of scribes and because of the multiplicity of those same laws and rules. But there are some general rules frequently observed in court which it does not seem to me presumptuous to commit to writing, but rather very useful for most people and highly necessary to aid the memory.3

For all his apologetic tone, Glanvill’s text contains a number of learned scholarly allusions, long considered a characteristic sign of twelfth-century

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legal learning. His opening sentence is a paraphrase of the opening sentence of the Proemium to Justinian’s Institutes, the opening phrase Regiam potestatem in Glanville substituting for and clearly paralleling the phrase Imperatoriam maiestatem that opens the Institutes. Glanvill later refers to Inst. 1.2.6. ‘‘What pleases the prince has the force of law’’ (echoed in Dig. 1.4.1, which Glanvill may not have known). Glanvill is nevertheless rhetorically aware that not everyone in late twelfth-century Europe would put the structure and learned character of law in England on a par with that of Justinian’s Roman Empire—in either learning or coherence—or with that of other parts of western Europe.4 Glanvill was also testily aware of late twelfthcentury learned criticisms of unwritten law and custom, and the paragraphs cited above are disarming and contrast sharply with the preceding lavish praise of Henry II and his council—and their juridical effectiveness. Glanvill’s defense of the dignity and effectiveness of English law, in spite of its ostensible shortcomings according to some twelfth-century criteria, offers a useful measure of the great changes that had taken place in European law over the course of the eleventh and twelfth centuries, at different rates in different places, producing an expanded range for law in the demographically, socially, and economically changing agroliterate polities of western Europe.5 First, law is a fundamental attribute of a legitimate society, and law should be written. Second, whether written or not, law is the product of the activity of legitimate lawmakers—in Glanvill’s case the idealized king and the magnates acting in council, promulgating laws with the king’s approval, a view also found in other contemporary or near-contemporary English and other texts.6 Only in this way can law be made according to justice and reason (two terms that also occur frequently in twelfthcentury learned law). Hence Glanvill’s understanding of the phrase ‘‘What pleases the prince . . .’’: only justice and reason, deriving from consultation with the leading men of the kingdom, can possibly please a legitimate Christian prince. Glanvill’s insistence upon justice and reason leads to his lame rhetorical turn of professing otherwise to find authority only in the written script of the laws, as if the bald fact of script alone validated law, a sentiment not unique to Glanvill during a period that often uneasily witnessed the transition in law and government from memory to written record.7 Third, recording all the laws in writing may be impossible, as Glanvill professed it to be in England, where there were so many laws and so few scribes (and by implication royal justices) who knew them all. Glanvill, however, seems to mean here not the simple textual accumulation of prom-

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ulgated law but the absence of an analytically assembled and rationalized text like Justinian’s Code, rather than collections, as in Carolingian capitularies and early canon law texts, organized according to genre, chronology, source, at random, or another equally user-unfriendly principle. In spite of these drawbacks, however, Glanvill insists that there are some general rules in England that can be written to aid the memories of those who need to know about them, and that is his purpose. He goes on to do a remarkably intelligent and successful job, not along the lines of explaining promulgated law, but on the classification of writs—not on what the laws and customs are, but on how they operate. Their methods of operation were crucial: only a royal writ could bring a dispute into a royal court, and only a royal court could profess to offer quick, certain, cheap, and attractive justice. Glanvill wrote one of the great how-to books in legal history. Glanvill’s concerns reflect some of the distinctive features that historians have recently identified as characteristic of the legal transformation of the eleventh and twelfth centuries. In a masterful essay, Peter Landau emphasizes that ‘‘Formally, [the new direction in law] could be seen as the definitive espousal of written forms of law and a renunciation of previous approaches which depended extensively on the continual adaptation of oral traditions.’’8 Glanvill knew well where England stood on the sliding scale of twelfth-century legal change; it had shaped a unique and effective kingdomwide legal culture in his own lifetime, and he doggedly asserted that England held a respectable position in these matters, as indeed it did.9 Although Glanvill had little to say about crime (and that, too, only on the basis of the few relevant writs), he had a great deal to say about the look and presence of the law in late twelfth-century England. Behind Glanvill’s terms of legal art and his stout confidence in the coherence of English law lay a century and a half of legal change, much of it signaled by Landau. But written law had long existed in western Europe, and in considerable volume. Not only the various versions or segments of Roman law and their local adaptations and the diverse sources and collections of canon law, but also the laws of early monarchs and peoples and those of the Carolingian rulers of the ninth century, their assemblies and church councils, were available, although rarely in toto anywhere, often unknown, and never coordinated.10 The possession of a textual folklaw might confer prestige on a people, but it did not necessarily imply an analytically arranged body of laws in a legal system that could be consistently used and thought about.11 Nor was this textual legacy easy to use, since the question of the authority of any particular collection could be challenged by con-

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flicting laws or canons cited from another or by the presence or absence of particular laws or canons in different collections. The authority of any single collection was uncertain, since these were often privately compiled for local or polemical use, as was the vast treasure trove of Pseudo-Isidore.12 One of the great eleventh- and twelfth-century changes in this respect was the working out of principles that served to reconcile apparently conflicting (and equally authoritative) canons—the principle that canonical texts were diverse, but not adverse. The reconciliation of apparently conflicting legal texts derived in part from the formal study of logic and depended on techniques laid out and applied in prologues to logical and legal collections, from Burchard of Worms at the beginning of the eleventh century to those of Ivo of Chartres and Peter Abelard (to his Sic et non) a century later. Just as important, however, as writing alone was the need to reduce this mass of material to a few distinct compilations of authoritative texts, arranged according to analytical categories, to expand the limited social role of law, to establish a human agency to decide and administer the laws, to make jurisdiction coincide with a defined territory (or, in the case of canon law, with universal Christendom, eventually directed by the bishop of Rome, but much less at first as a legislator, and then chiefly at infrequently held church councils, than as the court of highest appeal), and to enforce law equally according to different jurisdictions among clergy and laity in keeping with their separate and now more clearly defined statuses. The definition of clerical exemption from secular jurisdiction is one significant sign of the latter. Historians have noted that there also operated many kinds of satisfactory procedures in both speech and gesture, including those effecting property transfers, local custom based on memory or what was agreed to be memory, ad hoc practices of dispute settlement, and forms of ritualized and socially acceptable humiliation and reconciliation that people also spoke of as law.13 In these, too, most people considered lawfulness to be at work. That is, the changes signaled by Landau describe the transition not from an absence of law to law’s presence but from the predominance of one set of ideas and practices of law and justice and their attendant procedures to another, one closer, as Landau says, ‘‘to concepts based on modern law,’’ since those of modern law are often derived from them and have been used ever since to measure them. Recent scholarship on dispute settlement has become critical of such a set of polarized differences, and historians have emphasized instead the continuum rather than any disjuncture from an imagined elaborate Carol-

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ingian legal culture to the alleged lawlessness of the later tenth century and the need for new law to rectify it.14 An even longer continuum can be traced in the idea of certain kinds of offense that could not be resolved without the intervention of a superior authority—the excepted crimes from Roman law into the twelfth and thirteenth centuries, continuously identified in texts, even when there seemed to be no authority that could or would enforce the laws against them—or too often tempered their punishment with mercy, whimsy, or greed. Others have examined the long run of earlier doctrines that appear to have reached a flash point in the eleventh and twelfth centuries: clerical celibacy, relations with lay patrons and protectors, or the importance of reputation, eventually graded by a far more complex calculus than simple polarized honor and dishonor.15 The recent emphasis on the slower and more drawn-out character of the emergence, study, and application of a learned and professional canon and secular law rather than its sudden, explosive arrival has also allowed chronological room for such change to have occurred at different rates in different milieux during the eleventh and twelfth centuries—and for people to become accustomed more gradually to their implications in more and more areas of life.16 The frequency of dispute settlement and composition also indicates a world of limited disciplinary sanctions but also great concern for social stability. Gallo-Roman and Merovingian church councils could inflict anathema, excommunication, limited corporal punishment, penitential acts, very restricted imprisonment, and exile.17 Secular law added compurgation, composition, the ordeal, infrequent capital punishment, mutilation, and exile. Carolingian kings and bishops attempted to stiffen these sanctions by expanding the inquest, but repeated Carolingian denunciations of human sin and wickedness indicate that the legal coercive component of social discipline remained weak: all but the most serious punishments might be converted to a monetary fine, and even the most serious offenses might be pardoned when it was politically prudent to do so. The heaviest hand of punishment usually fell on those who could least afford to allay it. Abbots of monasteries had a far smaller repertoire of sanctions than bishops, especially outside the cloister proper: they might curse offenders, close their churches (and relics) to them and their community, or humiliate saints, but any more substantial enforcement power here depended upon the intervention of powerful patrons, the outraged local population, or a vengeful and perhaps coerced saint.18 Bishops had wider powers over the laity when they were inspired and able to use them: the imposition of public or private penance, anathema, interdiction, excommunication, and prohi-

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bition of Christian burial. But all these sanctions were limited in number and effect, and they were often ineffective—either because they were often believed to be abused by those who inflicted them or because of public indifference or skepticism.19 The classification of different but not necessarily competing jurisdictions became an important problem as the appropriate jurisdictional domain of each was slowly sorted out in the course of the twelfth century. The domain of canon law became clearer during the twelfth century, thanks to the work of Gratian and his commentators in the law schools, but secular laws kept pace, particularly Roman law, now containing all of Justinian’s sixth-century texts, including the theoretical jurisprudence of the Digest, to the intellectual complexity of which jurists of both laws had to attend.20 Although Roman law could not be applied readily to most of twelfth-century life, it existed as a set of intellectual and technical standards to which any other law might be compared and often found wanting—as Glanvill recognized in his Prologue. It also required understanding and explanation, and the jurists of Bologna and elsewhere created their own distinctive and highly original literature until a common consensus of interpretation was reached in the thirteenth century. The so-called ordinary glosses to collections of canon law and to the Corpus Iuris Civilis provided the basic teaching tools of the jurists and the learning tools of their students. As Landau observes, this meant that jurisdiction at the highest levels of the church was largely exercised as the response to legal appeals rather than as legislation (with the occasional exception of church councils and the rare papal command issued motu proprio) and that the schools, not the popes, controlled the understanding and application of law, as they also did of theology. Although Gratian’s Decretum is an instance of a private lawbook creating its own canonical status because of its acceptance by teachers, the first two collections of decretals by popes—the Compilatio Tertia of Innocent III in 1210 and the Liber Extra of Gregory IX in 1234—were both sent directly to the law faculty at Bologna. The fourth book of the Liber Extra was devoted exclusively to marriage, the fifth to crime—significant room for an expansion and definition of the illicit. By 1234, both secular and canon law had built up a distinctive criminal law, more technical in many ways than that of classical Roman law alone— indeed, the origin of subsequent criminal law. It was based not on an aggregate of particular offenses but on a concept and definition of crime and the canon law doctrine of criminal sin.21 The jurists had worked out the argument that the law, not the judge, punishes criminals and that it does so

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for medicinal purposes, because of its love of justice, without a thirst for vengeance. They had defined crimes that could not be compounded for, distinguished between civil and criminal law, and created a specialized literature that became an essential and one of the most original creations of the twelfth century. Canon law could develop as it did because of the structural reorganization of the church, the creation of a distinctive clerical identity and status, and the increasing recognition of the hierarchical position of the popes at its head. Most secular jurisdictions were not as neatly articulated as this. The many points at which secular and canon law touched, however, whether as a ‘‘mixed forum’’ or in treating different aspects of the same act, a learned ‘‘common law’’—ius commune—emerged throughout western Europe by 1200.22 The fact that efficient and usable forms of canon and various secular laws existed side by side and often overlapped after the late eleventh century meant that virtually all human actions fell into a context of estimation that descended from the greatest offenses to the most quotidian litigation, from treason to king or God (after 1200 the latter included heresy) down to private sins and domestic or neighborhood reputation. The eleventh- and twelfth-century changes in theology and canon law derived from a heightened awareness of a distinctive, expanded, and independent clerical status and the insistence that ecclesiastical reform and renewal direct the piety and efforts of both clerical and lay society. The original diverse impulses of reform were launched in monastic and occasional episcopal contexts in isolated centers in France, Lorraine, and Italy, and some of their concerns were taken up in several of the local church councils dealing with the peace.23 Their purpose was to protect ecclesiastical property and to produce a purified practice in liturgy and forms of monastic life that reflected the apostolic life of the early church as it was thought to be enshrined in the Benedictine Rule, one that would attract and assure anxious patrons of its spiritual effectiveness and guarantee the status of ecclesiastical property. Cluny is the conventional poster-monastery of monastic reform, but the movement spread far wider in monastic and other circles. The extension of reform principles to the secular clergy affected a far more varied and differently functioning group, not all of whose members were eager to accept the new monastic influences. Finally it spread in adaptable forms to all Christians, clergy and laity alike.24 As R. W. Southern once said, ‘‘The identification of the Church with the whole of organized

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society is the fundamental feature which distinguishes the Middle Ages from earlier and later periods of history.’’25 That process of identification was achieved in the eleventh and twelfth centuries. The legal aspect of that process touched the lives of everyone. Around 1100 a religious in northern Europe produced a text that became attributed to St. Jerome and was included in Gratian’s Decretum as C. 12 q. c. 7, Duo sunt: There are two kinds of Christians. One kind is free to perform the divine office and is given to contemplation and prayer, and it suits this kind to cease being troubled by temporal affairs. These are clerics, devoted to God, that is, converts. Cleros in Greek, Chosen in Latin. Hence by this means such men are called clerics, that is, chosen by lot. God chooses them to be among his own. They are therefore kings, that is, ruling over themselves and others by their virtues, and therefore they will have a share in the kingdom of God. And this designates the crown on their head. They have this crown [tonsure] by the institution of the Roman church as a sign of the kingship that they expect in Christ. The shaving of the head is truly the leaving of all temporal things. They are content with simple food and clothing and have no [private] property among themselves, since they ought to have everything in common. There is another kind of Christian, and these are the laity. Laos in Greek means people in Latin. It is permitted to these to possess temporal things, but only in order to use them. Nothing is more wretched than to show contempt for God because of money. To these are conceded the right to take a wife, to cultivate the earth, to judge between man and man, to inaugurate legal disputes, to place offerings upon the altar, and they may be saved, if they avoid vices by doing good things.26

The text clearly derives from the movement for clerical reform—its ‘‘clergy’’ are distinctly monastic and ascetic, and tonsured. Its laity are rather depressingly Augustinian—their life in the world is spiritually risky: possession of temporal goods except strictly for use triggers avarice, the rights to marry (a status less perfect than that of the virgins and the continent), to farm, to judge, and to litigate seem grudgingly conceded and only essential for the minimal needs of daily life. Only tithing, avoiding the vices, and doing good deeds (unspecified) will offer the possibility of salvation. The laity here get not only short space but also short shrift. The redefinition and enhanced dignity of the lay life was a remote and probably unanticipated consequence of those early and often sporadic local movements of monastic reform. But monks and embattled bishops often needed protection, and fighting men had to be inspired to provide it—as they were when the Holy Land needed rescuing, creating in the process a greater legitimacy for the status of Christian warrior. Layfolk also had a vastly greater variety

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of things to do in the late eleventh and twelfth centuries than simply to take wives, cultivate the land, pay tithes faithfully, and occasionally take one another to court. They also found more ingenious ways of getting into difficulties in a society that contained far more than two or three conventionally identified orders, sometimes included large numbers of nonChristians—Jews and Muslims—and resettled itself in newly configured large towns and cities. Monks, the spiritual militia Christi, took up the idea of reconstituting the apostolic life, and secular clergy modeled their own clerical status by attempting or being commanded to attempt to live in a manner more like monks.27 In a world in which outward appearance and actions, rather than or at least as much as interior states, were considered signs of the purity of a monk or a secular cleric, conduct—including liturgical conduct—was outwardly visible and could be estimated and criticized by observers. In an ever more closely crowded and observant world, monks and other clergy had not only to be pure but to seem pure. Visual representations of the liturgy in the tenth and eleventh centuries illustrate the point—the hieratic priest is distinguished not simply by his costume but by his stature, gestures, and remoteness from the viewer.28 In liturgical practice, yet another way of instructing both clergy and laity, this distancing can be seen in the administration and understanding of the sacraments, notably the Mass, in pious biographies of pastoral bishops, in the hagiography of reforming, active saints, and in the versatile uses of space in the church building. The language of monastic and other clerical reform in the tenth and eleventh centuries was steeped in images of ritual cleanliness and pollution across a broad range of topics.29 In this context it is important to note the degree to which much of the rhetoric of reform used the language of sexual violence in order to assert its own authority. Long ago Gerd Tellenbach indicated the extent to which the imagery used to indict the offenses of nicolaitism and simony spoke of the degradation of the Church from the Bride of Christ to a harlot: ‘‘The struggle against simony and the domination of the laity was never more full of hatred nor expressed in more unrestrained terms than when the leading thought was the fate of the Bride of Christ and the low and vulgar crimes that were being committed upon Her body.’’30 The violence of this imagery is clearly intended to horrify, to inspire disgust, as was much of the other rhetoric of late eleventh-century reform. With it must be considered the increasingly common designation of heresy and schism as a disease that must be excised before it contaminates the body of the faithful. These are hardly legal arguments, but they intensify the

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obligation of those responsible for the law and must be considered as well as the theological and legal lines that identified nicolaitism and simony as heresies. Reform publicists expanded traditional terms to cover entire categories of behavior and to define these categories as heresy, especially clerical sexual activity (nicolaitism), the complex tradition of gift exchange in the acquisition of clerical office and property (simony), and all forms of bloodshed (and the other signs of secular life in general) by clerics. They criminalized those who attacked clerics and prohibited the ordination of the unfree on the grounds that a serf or slave’s obligations to a master were stronger than his obligations as a priest. Both nicolaitism and simony challenged old family and kin structures and property rights. So with the condemnation of clerical marriage and concubinage, the wives, concubines, and children of such clergy became a new class of people whose status was ruthlessly and vastly diminished. Not only was the old and relatively limited term ‘‘heresy’’ applied to these practices and greatly expanded and intensified in the process, but condemnations of them as crimes reached widely out into society. The illicit was spawned by a new definition of the illegal. Far more than the purely local and uncertain manifestations of popular dissent on the one hand, and the relatively restricted theological disputes of the learned on the other, the use of the term and expanded concept of heresy among now-errant and reform-resistant clergy shaped the category that took on a new social life and a far wider range of applications after the eleventh century. But between the often polarized categories of orthodoxyheresy lay a broad spectrum of belief, assent, doubt, skepticism, and concern that is often missed. After the eleventh-century polemics, canon law collections, and slow routinization of rulership in both secular and ecclesiastical arenas, what preserved the legacy of reform was the schools. The teaching of the seven liberal arts, and especially the predominance of the study of logic, provided a common language and style of thinking that were applied, not only to legal problems, but also to the text and understanding of Scripture. Sometimes this reached a point so extreme that even devoted reformers found worrisome the minute and often contentious analysis of words and theological problems that were settled by techniques of logical analysis rather than the inspiration of the Holy Spirit or the contemplative technology of monastic study. The emergence of a common and widely accepted body of running commentary on Scripture, later made clearer by the divisions of the text into chapters in the thirteenth century, which made subdivision

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into verses easier in the sixteenth century, produced a common text, understanding, and method of teaching of scripture that narrowed the possibilities of interpretation into a manageable canonical range that established the outer parameters of orthodox belief. The inner parameters were defined in the schools.31 The movement from there to the growth of the teaching of moral theology, especially at Paris, constituted the establishment of the canon of orthodox Latin Christian belief, applied it in sermon and confession, and made clear the difference between the licit and the illicit in scriptural understanding and interpretation. Lay status too had to be revalued, clearly if reluctantly, at the expense of relaxed strictures on sexual activity, marriage, the uses of violence, and the widening range of forms of secular life, including commercial and political activity. An expanded evaluation of the lay life had to take place and some lines between the licit and the illicit redrawn. Moreover, for reform to succeed, the laity, at least the most important of them, had to support it (without claiming the right to direct it). Lay support could vary greatly, from extending patronage and relinquishing proprietary rights to ecclesiastical property to being part of the crowd raised by enthusiastic reformers against the unreformed—who were painted in increasingly violent and repulsive colors as the reform movement encountered resistance or inertia. Once raised, the crowd was difficult to control and could sometimes claim a dangerous voice of its own in the affairs of its pastors and spiritual guides, as did some elements of the First Crusade in 1096 and later. It took the formation of a new idea of aristocratic conduct to turn the upper levels of the crowd, at least, into the Christian knight.32 Subsequent canon law prudently afforded the laity no standing whatsoever in the regulation of ecclesiastical affairs. But regulating the behavior of the laity was the second major task, after defining and regulating that of the clergy, of the ecclesiological transformation of the late eleventh and twelfth centuries. From one perspective this is the shaping of R. I. Moore’s persecuting society.33 From another, however, it is the initial shaping of a scrutinizing and self-informing society, one whose concern for law and the illicit indeed led to the varieties of social categories and hostility depicted by Moore, but also one that created an apparatus of regulatory and criminal law and a public awareness of both in the course of creating those categories. To the more general categories that Moore discusses—heretics, Jews, lepers, and male homosexuals—need to be added Muslims, criminous clerks and laymen, excommunicates, and schismatics, entire categories that were increasingly created and addressed by secular or canon law, a point that Moore

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significantly fails to make. John Bossy has also signaled a kind of trade-off to the persecuting society: the social miracle of Christian fraternity and community and the enhanced prospect of the legitimacy of lay life and of salvation for the laity.34 The ordinary layman or -woman will in theory have been instructed by liturgy, preaching, confession, and performing of penance. That instruction shaped not only a sense of the self, but also a sense of society, of family, kin, and neighborhood—and perhaps a sense of the internal constitution of others. It also shaped conscience, which was expected to recognize sin and to repent by confessing in the internal forum, the forum internum of the confessional (made mandatory, utriusque sexus annually, by Canon 21 of the Fourth Lateran Council of 1215). The confessor could assess the sin and either treat it privately or recognize that it was sufficiently serious as to require the determination of a higher clerical authority. If the offense reached the bishop’s court, the forum externum, it would be treated by specialists whose decisions were routinely approved by the bishop. In the thirteenth century those specialists could employ an expanded range of trial procedure, including inquisitorial procedure, first against criminous clerics, and only later against heretics. In the case of some offenses, the best known but not the only one of which is heresy, the bishop’s court had to invoke secular authority, the point at which ecclesiastical and secular jurisdictions combined in a mixed forum with its own strained etiquette and sets of rules.35 It is rather in the cooperation of ecclesiastical and secular authorities than in their often overdramatized opposition that the reordering of law and the illicit took place in the eleventh and twelfth centuries. The changes in law and the illicit briefly discussed here were mobilized and given an institutional basis that guaranteed their continuity by two events and two institutional changes in the period 1200–1250: the pontificate of Innocent III (1198–1216) culminating in the Fourth Lateran Council (November 1215); the compilation of the Liber Extra by Raymond of Penafort and its dispatch to the masters at Bologna by Gregory IX in 1234; the dominance of the scholastic method and the vast work of moral theology and law at the new universities at Bologna, Paris, and elsewhere; and the emergence of the mendicant orders, initially as papally commissioned specialistpreachers and confessors. All of these are signs of an immense and continuing pastoral and social revolution. Taken together, these four were both the products of eleventh- and twelfth-century change and the forces that guar-

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anteed its results for centuries. Unlike the extensive attempts at reform of the Carolingian period, the changes of the eleventh and twelfth centuries, building on the Carolingian legacy, also provided ways to invent the means of their own communication throughout Christian society and thus their continuity for centuries to come.

PA R T I

Legal Systems

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Chapter 1

A Fresh Look at Medieval Sanctuary William Chester Jordan

One meaning that attached to the word ‘‘sanctuary’’ in the thirteenth century was that of a refuge for criminals trying to avoid legitimate and illegitimate attempts at vengeance.1 For a thousand years ecclesiastics had been routinely claiming that churches, because of their holiness, should be recognized as such places. This tradition paralleled an even more ancient tradition among non-Christians that certain sites—temples or designated cities—should be considered sanctuaries. The various secular governments of the Middle Ages that recognized sanctuary developed, by the thirteenth century, an extraordinary body of law on the extent or, put differently, the limits of sanctuary. Indeed, it was in the thirteenth century that sanctuary really began to flourish. I have two aims in this chapter: first, to address, but unfortunately not to solve, the problem of the jurisdictional and territorial extent of the enforcement of the law of sanctuary in thirteenth-century Europe and, second, to describe a few aspects of the application of the law that raise troubling historical issues in the later Middle Ages as a whole, in particular, the general absence of criticism of sanctuary as a system (despite quibbles about details) and the discourse about sanctuary in the alleged attempts of late medieval rulers to establish their jurisdictional supremacy over the church. A brief conclusion points to areas of needed future research on the social implications of the existence of relatively large numbers of successful sanctuary seekers in parts of Europe.

The Territorial Extent of Sanctuary Broadly speaking, the secular law or process of sanctuary and the ecclesiastical law and process, part of the ius commune of Catholic Europe, are distorted images of each other.2 Princes sometimes had more expansive and

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sometimes less expansive understandings of sanctuary’s conceptual parameters than the canonists had. In the best studied case, thirteenth-century England, for example, rulers and churchmen in the kingdom enforced the law of sanctuary in a somewhat more liberal manner than that prescribed by the Church Universal.3 The principle, expressed in writ after writ from rulers to the enforcers of secular law, was that suspected felons (even including categories of men and women who would be denied sanctuary under ecclesiastical rules) could not be seized and taken into custody on holy ground: ut eum capiatis, ubicumque extra loca sacra. By convention, scholars distinguish two forms of sanctuary in Britain, one called general (the focus of this chapter) and the other known as special or chartered. General sanctuary was the privilege that attached to churches to receive suspected felons for a fixed interval (the establishment of a time limit was not required under canon law), during which the government determined whether they were legally entitled to the church’s protection. If they were and were willing to go into exile, the Crown forwent capital punishment. A chartered or special sanctuary, as the two names imply, on the contrary, was characterized by a charter issued by a prince giving the institution in control of a church additional privileges beyond those understood to pertain to its asylum for suspected felons. Chartered holy places therefore became special, in the sense of distinct from ordinary sites of sanctuary. Chartered or special sanctuaries were never very numerous: Westminster, Saint-Martin-Le-Grand (London), Durham, Beverley, all in England; Holyrood in Scotland; and contested Cistercian claims throughout the island. Each chartered sanctuary, the refuge of lesser offenders, tended to be geographically large, however, and by the thirteenth century they were well on their way to becoming little more than permanent debtors’ settlements, for there was no obligation to depart. The management and policing of these upscale counterparts of debtors’ prisons were at times annoying to churchmen, and their very existence was occasionally a cause for criticism from lay officials. Like debtors’ prisons, however, they served a useful economic purpose in the absence of bankruptcy laws, and, in any case, churchmen were unwilling to alienate their rights.4 If mainstream canon lawyers had had their way, every church in Catholic Europe and its political hinterland, like the Crusader States, would have enjoyed the privilege of general sanctuary in the thirteenth century, but this wish was hardly fulfilled even by the end of the century. The number of parish churches and consecrated churches and chapels in monasteries, leprosaria, hospitals, and almshouses in England and northern France, where,

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it is clear, sanctuary applied and was enforced, would have exceeded 30,000.5 But for several reasons it is uncertain how many churches in other principalities of Europe should be added to this figure. In the first place, other jurisdictions, even those where abundant records have survived, have not been investigated with the thoroughness that has been accorded to the English case or to thirteenth-century northern France. Second, what research has been done, thorough or not, raises considerable doubts about the Continent-wide enforcement of the law of general sanctuary. Consider, for example, the contemporary Iberian kingdoms. There is tantalizing evidence in favor of both official and popular recognition of the law of sanctuary. Moreover, the powerful state apparatuses of the Iberian kingdoms suggest a parallel with England and France in the thirteenth century. But the situation is far from certain. Jill Webster did assemble a number of cases detailing the presence of refuge-seeking fugitives in Franciscan churches in the Crown of Aragon. From these it is possible to deduce that churchmen (or, at least, Franciscans) acted as if sanctuary attached to their churches, and that some criminals acted in this manner too. Prisoners in Aragon who escaped medieval jails also thought it was worth trying to seek and claim sanctuary. But these same cases also appear to show that the royal government was inconsistent in its support or enforcement of the law of sanctuary, the universalizing impulses of the spokesmen for the ius commune notwithstanding.6 Italy provides almost no evidence of the application of the law of sanctuary, so far as I have been able to discover. There is a single index entry to ‘‘sanctuary’’ in Augustine Thompson’s magisterial Cities of God: The Religion of the Italian Communes, 1125–1325, but the page to which it directs the reader has nothing on sanctuary, and there is nothing on it anywhere else in the book.7 The exquisite thoroughness of Thompson’s research suggests the absence of the phenomenon. One possible explanation is that the governments of Italian urban centers created municipal institutions that achieved the goals that sanctuary elsewhere accomplished, like gracious releases of convicts on feast days.8 Italian cities were also precocious in adopting, despite learned juristic opposition, punitive imprisonment in the thirteenth and especially the fourteenth century as an alternative to exile for felons.9 However, these explanations, if true, would apply principally to northern and urban coastal Italy, not to most of the south or to the great Romance-speaking islands of the Mediterranean, like Sicily. To repeat, the issue (the mirror image of that of punitive imprisonment) is not whether formal legal codes or treatises, secular or ecclesiastical, recognized the valid-

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ity of sanctuary or threatened those who would violate it. In the kingdom of Sicily in the thirteenth century the law enjoined the death penalty on violators.10 But whether royal authorities at the local level routinely granted claims of sanctuary is a question that, as far as I can tell, remains open. The Scandinavian and central European principalities also provide scanty evidence of any general enforcement of the law of sanctuary. Whether more will come to light as investigation continues is uncertain, partly because the documentary base for some regions is relatively thin. Moreover, many of these principalities lacked the relative jurisdictional homogeneity and central control that characterized thirteenth-century England and northern France (and the Iberian kingdoms and Sicily) with their powerful state apparatuses that at least made the systematic application of the law of general sanctuary possible, although not necessarily inevitable (pace Iberia). Wolfgang Mu¨ller is of this opinion, based on parallels drawn from his work on the medieval criminalization of abortion, where canonistic claims far exceeded adoption and enforcement by secular jurisdictions in central Europe.11

Aspects of the Law of General Sanctuary The law of general sanctuary is often characterized as distinctively ‘‘medieval,’’ that is to say, exotic by modern ‘‘enlightened’’ commentators. Otherwise excellent scholars have often been uncritical in its study, but the popular understanding of sanctuary (expressed in novels, on television, and in films) has engendered a positively gross distortion of its technical character and application. Thus, it is absolutely essential to set out the general parameters of the law in the thirteenth century as reconstructed from canonistic writings, secular law books (like Bracton’s De Legibus et consuetudinibus regni Anglie, Fleta, and Beaumanoir’s Coutumes), and other normative texts, as well as from legal proceedings and stories. General sanctuary attached itself in theory to every church. Princes often extended immunity to churchyards, as far as thirty or forty paces, and to clerical residences like episcopal palaces, although not all canonists thought this appropriate.12 Authorities carefully distinguished among the dependencies of monasteries. If a priory, cell, storage house (domus), or hermit’s lodging dependent on a monastery had a chapel or church, sanctuary applied to these chapels and churches. But if the cells or the like served merely as lodging for monks and estate workers at, say, planting, harvest,

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or market time, clerics and secular officials agreed that these were not places of sanctuary. Clerics and princes also denied the beatitude of sanctuary to private chapels and private oratories, to churches in regions under interdict, and in France to fortified churches, especially during the early period of the Peace of God movement, say, the eleventh and twelfth centuries, when they were likely to be sites of bloodshed. By the thirteenth century, despite looser earlier practice, one could only seek general sanctuary for felonies (for nearly all felonies, despite misgivings about some in canon law), crimes that could upon conviction have incurred the death penalty.13 A person, however, could not claim general sanctuary for a felony committed in a church. This was sacrilege, whether the crime was committed against a cleric, nun, or layperson, or against the sacred objects or environs, say, by urinating on an icon as an act of desecration.14 Minors were not typically admitted to sanctuary because they could not incur criminal responsibility in capital cases, but the protection did apply to most lay adults—men and women (married women with the consent of their husbands)15 —unless they brought weapons with them when they entered the church or churchyard, which was an act of sacrilege. Typically, clergy were ineligible for sanctuary, because extending eligibility to them would give secular authorities what canonists regarded as improper jurisdiction over them. In England, this was certainly the case, and the actions of the few local authorities who occasionally granted sanctuary to churchmen were regularly repudiated by higher authorities.16 But in Normandy not only was sanctuary extended to felonious clerics, but secondary processes, authorized by the secular authority, were imposed, albeit after canonical degradation.17 Other categories of people ineligible for sanctuary included Jews, serfs, excommunicates, and heretics. Canonists at least thought about the possibility that sanctuary might be extended to Jews, with the holiness of the place trumping the infidelity of the Jews, but this opinion had no practical consequence.18 As for serfs, in both canonistic texts and in secular contexts like Sicily, the principle extrapolated from the Roman law of slavery was that a man (the serf’s lord) could not be deprived of his property or, rather, his right (ius suum). Serfs who sought sanctuary were supposed to be punished and returned to their masters.19 Finally, barred by their status from entering a Catholic holy place until they were reconciled with the church, excommunicates and heretics could not be granted sanctuary. In November 1312, after Pope Clement V suppressed the Templar Order at the Council of

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Vienne, a Knight fearing for his life fled to a hospital for sanctuary. His claim was denied because of the papal condemnation, the presumption being that he had incurred automatic excommunication. Royal officials claimed him as a result, but King Philip IV the Fair, enemy and chief persecutor of the Order of Knights Templars though he was, couched his claim in language that otherwise explicitly confirmed hospitals as sanctuaries.20 Far more men than women appear in the sources as seekers of sanctuary, at least according to English records, a gender breakdown that mirrors that of criminal indictment and conviction.21 There was a strong, but not universal, sentiment against extending sanctuary to those already convicted or for whom formal trial process had begun.22 Ideally, only allegations could lie against sanctuary seekers, although local authorities may have had trivially differing opinions about what actually marked the beginning of formal process. Because the legal establishment in the Middle Ages took suspects’ reputations into account, people who had once been formally accused or convicted of a serious crime were notorious. That they were alive at all implied that they had benefited from the mercies of the legal system, like commutation of sentences, pardons, or the evident preference of medieval (English) juries to acquit, once the criminal trial jury system was firmly in place and exile no longer followed acquittal.23 Their abuse of these acts of grace by committing additional felonies made them ineligible for sanctuary.24 To ensure that the conditions required for the successful seeking of sanctuary were met, officials were informed by letters of the fugitives’ desire for sanctuary.25 In one such letter from Westminster Abbey, the sheriff and barons of Sussex were notified that one Turbern of the Weald ‘‘requested the mercy of God and the altar of Saint Peter and the tomb of King Edward for his freedom. For it is the custom and privilege and dignity granted by the kings of England of old that the fugitive for the crime of which he is accused should lose neither his life, nor members, nor any of his property.’’26 The phrase ‘‘any of his property’’ would become anachronistic by the thirteenth century. The Westminster archive also preserves a set of oaths from the early thirteenth century and in continuous use until the close of the Middle Ages, which seekers of sanctuary took.27 The first three oaths would have been more or less common to those seeking general sanctuary and chartered/special sanctuary. They required fugitives to give the true cause of their flight, the circumstances under which they fled, and the precise names of the persons injured; to behave appropriately as long as sanctuary was afforded them and to do their best to defend the privileges and

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customs associated with sanctuary; and to obey the keepers of the sanctuary in all their legitimate commands. Villagers and townsfolk kept watch over the buildings in order to forestall lynch mobs’ and overzealous lay officials’ attempts to violate sanctuary and also to prevent those in sanctuary from escaping before the process was complete. Attempts to escape were especially likely by people who were not entitled to sanctuary. Once it was discovered that they were ineligible, they lost protection and were liable for criminal process and judgment, and probably execution, since earlier mercies had obviously failed. If their attempts were successful, they became outlaws in the legal sense.28 Some communities successfully negotiated for immunity from the burdensome service of guarding sanctuaries, in which case it was shifted onto secular officials.29 Within the sanctuaries the clergy, on pain of excommunication, protected and provided food for the sanctuary seekers until their situation was resolved.30 Claimants of sanctuary had to confess their crimes before magistrates who came to receive them and, it is presumed, also had to undergo the sacrament of confession. Laypersons in France and England granted sanctuary, and in Normandy churchmen as well, once defrocked, underwent a secondary process (described below) leading to exile. There were two different sets of time limits for the primary and secondary processes. Sanctuary per se could not extend beyond eight days in Normandy and forty days in England, measured ordinarily, though possibly not always, from the first day of entry rather than from the arrival of the official to interrogate the fugitive.31 The secondary process commenced in France after the legitimacy of the claim to sanctuary was determined. Successful claimants then had to appear before lay magistrates who assessed the mitigating or compounding circumstances of the crimes, the claimants’ reputations (although by definition they were not notorious before, otherwise sanctuary would have been denied), and their origin (were they outsiders or foreigners). Taking into account all these factors, the magistrates could banish them perpetually or for a term of years. (Canonists were iffy on the justness of exile, presumably since they saw it as a form of punishment.)32 Banishment made grantees of sanctuary notorious for the future and was signified by branding with a red-hot iron fleur-de-lys.33 Fugitives claiming sanctuary who were discovered to be baniti were denied it, a rule noted, for example, in the records of the Parlement of Paris in 1254.34 Similar but more elaborate was the postconfession process in England and Normandy, abjuration, literally ‘‘forswearing.’’ The most thorough his-

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torian of abjuration, Andre´ Re´ville, argued that the process adopted a number of practices that flourished long before the thirteenth century, including the treatment of those who succeeded at the ordeal and aspects of the process known as outlawry. Success at the ordeal formally established innocence, but suspected felons were not sent to the ordeal except by the powerful suspicions of the community that they were guilty; they had lost their good reputation. Consequently, those who succeeded at the ordeal were commanded to leave the realm. If they tried to avoid exile or ever returned from exile, they became outlaws. In the metaphorical language of the time, they bore the wolf’s head and could be beheaded with impunity by any of the king’s subjects.35 It was lay officials, generally speaking coroners, who administered the oaths of abjuration, taken in front of local representatives, groups identical with or drawing on the same pool of men as local juries.36 There the abjurers promised to leave the kingdom for ever.37 The process was not always smooth, because there were efforts to persuade the fugitives to stand trial rather than go into exile. Circumstances may have changed and tempers cooled to the potential abjurers’ benefit. Or, some may have had crises of conscience for not paying for their crimes. But those who decided to abjure came forward in the garb of penance; some thirteenth-century texts use the word ‘‘sackcloth,’’ emphasizing the enduring religious overlay of the ritual.38 If fugitives had confessed to theft, any stolen goods recovered were, with the proper royal writ, returned to the rightful owners.39 By the thirteenth century, whatever earlier practice might have been, it was good law that abjurers’ chattels went to the Crown in England or the duke in Normandy, while their lands escheated to their direct overlords.40 In England by 1290, it had become recognized legal practice, however, not to penalize the innocent wives of abjurers by confiscating their marriage portions.41 In England abjurers expressed their willingness to go to a seaport and seek passage from the realm.42 Law writers of the time say that the abjurers chose the seaports. Record evidence, however, suggests overwhelmingly that the coroners chose them, or perhaps heard requests but then rejected or accepted them as they thought right.43 Higher-ups rarely admonished, let alone punished, these literalist deviations from the spirit of law-book norms. Consequently, the seaports of debarkation were almost never the ones nearest to where the abjurers originally claimed sanctuary.44 Alternatively in England, abjurers from sanctuaries in the north of the country could choose to leave or be ordered to leave the realm at a town or port bordering with Scotland. The exile was not, in any case, from all the juris-

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dictions the king of England held but from the one (provincia) in which the crime and abjuration took place. Thus, abjurers of England might go to the Channel Islands, which did not fall under specifically royal jurisdiction in the thirteenth century or later Middle Ages.45 After taking the oath, abjurers, as remarked earlier, had a limited time to get to the departure point.46 There was always the danger that victims or victims’ kin and friends would risk their lives to lay hands on abjurers on their way to the point of exile. Out of fear some abjurers refused to leave sanctuary. What could be done? In the mid-thirteenth century, legal authorities—in writings and in practice—differed about what kind of action officials could take to force them out. Clergy wished to avoid bloodshed, since the pollution of sanctuaries required their reconsecration.47 A typical way was to cut off food from being brought in from the outside.48 True, churchmen expressed dislike at being complicit in starvation.49 But the tactic mirrored another common law practice in England. When captives held in jail refused to plead and accept trial by jury, which was technically a voluntary option offered after unilateral ordeals ceased to be used in English courts in the early thirteenth century, they were induced to do so by prison (peine) forte et dure, that is, by being semistarved, served bread and water on alternate days, or crushed by weights.50 In any case, far and away the principal point of embarkation for abjurers of England was the port of Dover.51 Though other ports show up in the record evidence, the overwhelming preponderance of Dover suggests the primary role of royal officials in choosing the destination point, presumably because of the need to coordinate the numerous exiles. (The exact number is an issue to be addressed momentarily.) This is further emphasized by the distances involved. Documentation has survived that shows abjurers traveling from sanctuary in Yorkshire to Dover, up to two hundred ninety-nine miles.52 Given the conditions of travel and the territorial distribution of abjurers, Dover could not often have been the first choice for embarkation.53 True, abjurers were allowed to retain some travel expenses from their chattels (or have them provided if they had no chattels), but otherwise they departed sanctuary, whatever the weather, bareheaded, barefooted, and in the simplest clothing.54 They carried wooden crosses to identify themselves as abjurers under the protection of the church. Later in the Middle Ages, the English appropriated the French practice of branding, with abjurers getting an A on one of their thumbs to prevent them from being taken for pilgrims.55 They were ordered to stay on the king’s highway and therefore

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in his peace, also an inheritance from Anglo-Saxon law.56 If they veered off, it was presumed that they were seeking to escape, and they bore the wolf’s head and could theoretically be beheaded without fault. I believe it was customary for a constable or guard to accompany each individual or group, since they were in the king’s peace.57 R. F. Hunnisett’s idea that they almost always proceeded on their own, despite a few documented examples to the contrary, is hard to accept. Indeed, it may be that discrepancies in the time of abjuration and departure for exile, which have long troubled historians, reflect royal officials’ coordination of abjurers into groups, thus reducing the number of trips that they had to supervise. The frequently repeated assertion that because of poor enforcement most abjurers never actually went into exile goes back to another of Hunnisett’s unsubstantiated guesses.58 Indeed, anything about enforcement and rates of escape must remain unsubstantiated, given the almost total absence of relevant evidence on this phase of the process. Despite the evidentiary problems of making general and comprehensive statements about enforcement and rates of escape, there are nevertheless numerous examples of individual escapes and attempted escapes. A number of abjurers did try to flee to woodlands, and some undoubtedly succeeded, adding in England to what Ralph Pugh regarded as the vast pool of outlaws.59 It was expected, however, that if everything went smoothly and they arrived at the point of departure and embarked, they would never return unless they received the prince’s pardon. I do not assume that those who abjured committed all the felonies they confessed to.60 But guilty or innocent in truth, they were guilty in law, and if they dared to return to England without being pardoned they bore the wolf’s head.61 Abjurers at Dover and other seaports were to take passage on the first available ship.62 (There must have been captains operating out of Dover for whom this was a more or less regular part of their transport business; yet on this no evidence has been found.) Until the ships allowed them to board, they waited in full sight on the beach. Daily, as testimony to their willingness to fulfill their oaths, they entered the water—some writers and documentary evidence suggest they went in until the water lapped their knees; others, their necks.63 Again, keeping our eyes on England, for which the most thorough—yet still a very unthorough—count has been made, one can imagine every year approximately one to two thousand abjurers, according to one count, or hundreds, according to another, or about two hundred, according to R. F. Hunnisett.64 Of course, if the majority really did escape before going into exile, as Hunnisett asserted, the number of

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those who actually took ship for the Channel Islands or France or went over the border into Scotland would have to be reduced by at least half. Either way, every year anywhere from one hundred to two thousand (the extreme range) men and women left England for new lives elsewhere as abjurers. And these numbers were augmented by those who succeeded at the ordeal (before its abolition) and by exiles for other causes. Re´ville believed there were far fewer exiles from Normandy, where, even after the French reconquest of 1204, abjuration was also practiced. Of course, the duchy with 1.5 million people had perhaps only a quarter of the kingdom’s population.65 But Re´ville thought that sanctuary was simply appealed to less in Normandy and thus produced fewer abjurers. My sense of the lower rate of survival of evidence from medieval Normandy than from England prevents me from endorsing this conclusion. In any case, the rituals and legal practices attached to sanctuary, whether followed by abjuration, banishment, or simple freedom and immunity from prosecution for felonious churchmen, were something precious in the universe of discourse and practice in the High Middle Ages. The scribes of Westminster Abbey always adopted particularly florid styles when they wrote charters that dealt with important matters or that they sent to particularly important people. They were very deliberate in this practice. Emma Mason has noticed that sanctuary was a matter that evoked these styles in letters, say, addressed to sheriffs notifying them of the presence of fugitives.66 Moreover, the monks vigorously defended sanctuary, preparing numerous copies of the charters that confirmed their privileges in this matter when it came under a frontal assault from Protestants in the sixteenth century.67

The Problem of Social Realities In the heat of pursuit of a suspected felon, even people who in cooler moments would affirm the hallowed character of sanctuary might violate it.68 Churchmen complained of occasional violations.69 In 1303 the dean and chapter of the cathedral of Sens, for example, denounced five members of the town watch for seizing and beating an alleged miscreant (in fact, a subdeacon) and taking him off to the communal prison after he claimed sanctuary. The churchmen complained to the king. Parlement deprived the five men of their offices, forbade them to hold similar offices in the kingdom again, and sentenced them to public humiliation and two large fines, 120

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pounds tournois payable to the chapter and 100 payable to the Crown. Until their guarantors made good on the fines, the five men were held in prison. The mayor and communal government of Sens were exonerated in the absence of evidence that they had condoned the breach.70 Invoking incidents like this, churchmen also periodically issued decrees in synods and councils warning against violations of sanctuary.71 No doubt violators wanted secular judicial authorities to empathize with their hot-blooded desire to bring felons to justice, but in a number of cases violations of sanctuary or lax enforcement, like that in Sens, incurred punishment, not leniency.72 Sanctuary, along with banishment and abjuration, might well have been resented in the societies that received confessed felons. The abjurers who escaped into the woodlands on their way to Dover or some other point of exile and bloated the numbers of English outlaws must have engendered resentment when criminal gangs were apprehended and they were found to be among their members. The French presumably resented English abjurers and other exiles, while the English feared and loathed French baniti. I suspect that these resentments, unless magnified by the recent memory of war, ordinarily remained mental and verbal rather than violent because most of the exiles would have drifted to already established, ethnically similar immigrant subcommunities or joined large roving work gangs, rather than outlaw gangs, which provided seasonal labor to help repair damage done by spring floods, bring in crops at harvest time, and so forth, much like legal and illegal immigrant labor today. But just as immigrants today who commit crimes or are suspected of doing so often receive rough treatment, the same would have been true of escapees from sanctuary, exiles, and baniti, who joined the ranks of ‘‘vagrants.’’ In France it was precisely these people who were most likely to be tortured and executed if they came under suspicion of criminal activity.73 In England strangers were always at risk, like two, in a rather vivid example, who were arrested, imprisoned, and branded on their members (!), evidently without sufficient cause, in Surrey in 1235. An investigation was ordered.74 But the point is the peril of rootlessness. When the alleged crime was sedition, and when pursuit into or the forcible taking of a fugitive out of sanctuary or other breaches of clerical immunity occurred, those acting directly in the king’s interest were likely to be the perpetrators. A great deal has been written on these causes ce´le`bres and ultimately the formal exclusion of treason from the protection of sanctuary and benefit of clergy.75 These do make dramatic cases, but high churchmen and aristocratic fugitives were the extreme rarity among seekers of sanctuary. The annual exodus of one thousand or one hundred abjurers

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from England mostly consisted, insofar as one can tell, of a rather sad lot materially speaking. I suspect that many were ashamed, many despondent at leaving their families, and many almost paralyzingly and quite rightly fearful of a future in hostile foreign lands, where if they got into any trouble at all, the punishment would almost certainly be death. The observations above raise many questions, but, as Helmholz observes, they do not fit neatly into the usual scenario scholars and antiquaries have constructed to explain the demise of sanctuary, namely, that it was a casualty of a longstanding church-state struggle for political supremacy.76 This explanation draws on snippets of complaints about the unfortunate behavior of a few sanctuary seekers, abjurers and baniti, the occasional violation of sanctuary by hotheads, and particularly the way prosecution for treason in England came to trump sanctuary. It presumes that the complaints and violations indicate that statesmen were merely biding their time until the state achieved the power to abolish sanctuary. It should come as no surprise that this argument held sway first in Protestant countries and later, during the Enlightenment, in Catholic ones.77 One had to have a caricatured Middle Ages—papist, priest-dominated, and superstitious for radical Protestants; obscurantist and irrational for philosophes and their intellectual descendants—in order to read the evidence this way. Defenders of this thesis have also argued that emergent clarifications in the law of sanctuary are evidence of statesmen chipping away at the conceptual edifice of sanctuary continually from the very beginning of the time one can describe its complex legal and practical instantiation in the thirteenth century.78 The assumption is that every time an aspect of sanctuary was clarified in the Middle Ages, it had as a subtext the intent to destroy the entire institution. This scholarly tradition speaks of a steady—and deliberate—erosion of sanctuary. The emergent state slowly but ever so steadily washed away the top soil of the unspeakable ecclesiastical privilege that was sanctuary, first and most dramatically with respect to treason and then with respect to every kind of high crime. In fact, there is a much more persuasive, if perhaps still partial, explanation of what was going on. The twelfth, thirteenth, and fourteenth centuries witnessed the systematization of many legal systems, concepts, and practices, including those concerning sanctuary. Yet, sanctuary remained a living, breathing system. As one pushed the envelope (to mix metaphors), clarifications were necessary. One of the earliest, with respect to spatiality, was the decision not to regard fortified churches as sites of sanctuary. But

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there are others. Did sanctuary extend thirty or forty paces from the sacred building? It is not that churchmen insisted that sanctuary extended a set number of paces—in excess of thirty or forty—and that lay administrators in the thirteenth century only cut it down because they did not yet possess the power to restrict it completely. It makes more sense to regard such specifications as contingent on circumstantial disputes, such as when the legitimacy of a fugitive’s claim to sanctuary was in dispute. Was he sufficiently near when he claimed the protection? Or, to give another example: a fugitive hides in a barn on a parson’s glebe land. Can he claim sanctuary? It is not that the pristine system allowed sanctuary before in such a place. The decision—as a practical matter of adjudication—followed the claim with acceptance or rejection. The same can, finally, be said of the specifications that emerged with respect to the crimes, including treason, and the sorts of persons that sanctuary applied to. It never applied to all crimes and was then reduced steadily and prophetically until it was limited to only a few crimes and ultimately no crimes, and it never extended to all people only to be reduced incrementally over time and by deliberate projection to a few people and then to no one. The metaphor of erosion, let alone deliberate erosion, as Rosser agrees, is wholly misleading.79 The post-medieval attack on the legitimacy of sanctuary did draw fuel from some of the earlier arguments in the long history of its clarification, but it is inappropriate to read the medieval history of sanctuary from the early modern assault on it. A more interesting set of questions might focus on its apparent vigor in the medieval period, by which I mean its universal articulation in normative texts and its significant, though apparently patchwork, enforcement regionally from the thirteenth to the early sixteenth century. According to Gervase Rosser, speaking specifically about England, a communitarian-based theory offers the most powerful explanation. The fact is that the English legal system and, one might add, the many other territorial legal systems that were steadily centralized in the thirteenth century became in the process far more draconian. Just as ordeals—at least the ordeal of fire and the ordeal of hot water—had given communities time to reach consensus about the fates of members who were suspected felons in the three days during which their burned or scalded hands were permitted to show signs of healing, so, too, sanctuary offered time, forty days in England, during which, as Rosser argues, ‘‘negotiations’’ occurred.80 One cannot always know why negotiators sometimes tried to persuade sanctuary claimants not to abjure but to face the music. Perhaps on occasion it was because community sympathy was with the fugitives, and conviction was

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unlikely. But full abjuring, as Krista Kesselring argues, was also a way for a community and magistrates to resist the draconian punishments increasingly imposed by law.81 A great many people succeeded at the ordeal and suffered therefore not death but exile.82 A glance at eighteenth-century England and the routine and extensive employment of the death penalty there is suggestive.83 Transportation to colonial Australia finally helped reduce the number of gibbeted men in the metropole. In our own time, it is a commonplace that plea bargaining keeps a great many minor repeat drug felons free from the mandatory life sentences written into New York state law during the governorship of Nelson Rockefeller. Sanctuary seems more or less to fit this paradigm. It appealed to orthodox medieval religious notions of mercy, to the prevalent belief in the immanence of God in daily life, to the widespread contemporary Catholic sensibility that certain places were endowed with a very special holiness, and finally to the reluctance to execute members of one’s own small community. Sanctuary was harsh and punitive in its sequel, loss of property and exile. It did not always function well. Lynch mobs sometimes violated sanctuary, and princes abrogated it when it was a matter of state. But ‘‘no [medieval] king chose wilfully to disregard proven privilege of sanctuary.’’84 When every year in thirteenth-century England one hundred felons or two thousand or some number in between, most pretty ordinary as far as one can tell, were spared a trial that could have cost them their lives, they owed this to the institutionalized mercy one calls sanctuary. They may not have remembered walking into the sea on the Channel Coast in a cold wind while awaiting a departing ship as a pleasant experience, but they were alive to remember it. And this is just England. Sanctuary was available not just as a legal theory of the ius commune in many other jurisdictions. Just how many in the thirteenth century, given the importance of the system, will demand of future scholars concerted, intensive research. Moreover, for those jurisdictions where the law of sanctuary was not applied in the thirteenth century, research is necessary into alternatives that might have been functionally parallel in their basic result. For the fundamental outcome of sanctuary was the saving of the lives of vulnerable people. That is why the word has had such powerful resonances down the years—for slaves during the abolitionist and Underground Railroad movement in the antebellum United States and for victims of political violence from Central America in contemporary American churches, both Protestant and Catholic. Books on modern sanctuary move-

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ments or tracts in their support always begin with the invocation—often radically idealized and fantastic—of medieval practice.85 And that is how, as life-saving and liberty-affirming, sanctuary has entered popular culture and how it has been fictionalized in stories, novels, movies, and television shows. And yet, for all the technical misunderstandings of medieval sanctuary by abolitionists, compassionate political liberals, romantic novelists, and Hollywood fabulists, they have got this right. It saved lives.

Chapter 2

Heresy as Politics and the Politics of Heresy, 1022–1180 R. I. Moore

‘‘Of the three great twelfth-century institutions that transformed the whole of European life,’’ Edward Peters remarked in The Magician, the Witch, and the Law, ‘‘the court has been discussed the least. Cities and universities, perhaps because they have survived into the modern world, have undoubtedly received far more attention.’’1 Though courts and court life have been the subject of much distinguished work since 1978, this aperc¸u, like so many in that wonderfully perceptive and still refreshing book, remains underexploited, not least in relation to heresy. Discussion, of which there has been a great deal, has invariably been conducted on the Aristotelian (or Glanvillian) premise that heresy was either ‘‘popular’’ or ‘‘learned,’’ categories that correspond to Peters’s cities and universities. And (Heinrich Fichtenau honorably excepted2) the distinction has been taken as a hard and fast one, with little significant overlap or interchange between the two kinds of heresy. They have been treated in quite different contexts—the one in relation to the evangelical movements, popular dissent, and the path to inquisition and persecution, the other as intellectual history, part of the development of scholasticism and the rise of the universities—and generally by different people. Yet a significant proportion of eleventh- and twelfth-century heresy accusations originated and were played out in royal or princely courts and must be understood in that context. Moreover, courts themselves, like everything else in this period, underwent a process of differentiation and specialization, which is reflected in, and which reflected on, not only the ways they dealt with heresy accusations, but also the ways heresy itself was conceived and charges of it deployed. In particular, the separation of the secular from the spiritual sphere was juridically expressed by the treatment of heresy exclusively in ecclesiastical courts. This was not, as we shall see, a simple

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once-for-all development, but one that came about gradually during the middle decades of the twelfth century. It was necessary not because anyone had ever denied that heresy was a spiritual matter, but because the court itself, in the eleventh century and before, was differentiated neither in function nor in composition from the collectivity of the prince’s leading subjects, what a later age might call the political nation. That is one reason—not the only one—why the accusation of heresy was inescapably, whatever else it might be, a political matter. When, in Vergentis in senium (1199), Innocent III equated heresy with treason, he followed the code of Justinian—but he also institutionalized in contemporary form what had always been perceived as its essential character. As Peters showed, the courtly and political contexts of heresy accusations shaped some of our most influential sources. The understanding of popular heresy presented by the monastic writers on whom we depend for the eleventh and twelfth centuries was heavily influenced not only by their scriptural and patristic reading but also by a specific rhetorical tradition of invective associated with the skills of the courtier. Peters illustrated the point with a close analysis of the famous story, usually dated to c. 1180, which the Cistercian chronicler Ralph of Coggeshall heard from the courtier Gervais of Tilbury, of the young woman in Reims who had betrayed herself as a heretic by refusing Gervais’s sexual advances on the ground that the loss of her virginity would bring her to damnation. ‘‘That the story as it stands is a rhetorical fabrication cannot be doubted,’’ Peters concluded— though without certainty as to how credit for the elements of the fabrication should be divided between the chronicler Ralph and the courtier Gervais—‘‘Its greatest importance lies precisely as an illustration of the manner, not the accuracy, in which the depiction of heretics was accepted in the late twelfth century.’’3 Fabrication is not the same as invention. Some of the elements of the story, like the escape of the girl’s instructress from the archbishop’s palace where she was being interrogated by throwing a ball of string for spirits hovering outside the window to haul her out, are obviously fictional, but others—perhaps including the admiration of the onlookers for the courage the girl herself displayed in the flames4 —exhibit aspects of the behavior and belief of twelfth-century heretics that can be documented from other sources. One of the functions of the story, therefore, over and above the instruction of the Cistercian novices whom Ralph doubtless had immediately in mind, was to weld into some kind of coherent account the miscellaneous, disparate, and often disturbing reports and ru-

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mors of heretics and heresy that were circulating widely in northern Europe by the last quarter of the twelfth century. Peters finds another courtier of Henry II, Walter Map, similarly conflating elements of fantasy with generalized rumors of contemporary heresy, and another leading Angevin chronicler, William of Newburgh, uses the same technique in his account of the heretic Eon de stella.5 In due course, responsibility for warning the world of the dangers of heresy would be taken over altogether more systematically by Dominican friars, but in the meantime the role of the courtiers, in conjunction with the monastic chroniclers, was indispensable. In this context the distinction between ‘‘popular’’ and ‘‘learned’’ becomes less clear-cut, the categories themselves less meaningful, than we have usually supposed: the story of the virgin of Reims simply is not susceptible to deconstruction in those terms. Probably the best known and certainly the most controversial heresy trial of our period took place at Orle´ans in 1022. R. H. Bautier showed that the charges that resulted in the burning of some fourteen clerks of the royal household and others, including the queen’s chaplain, Stephen, were contrived by the faction aligned with the interests of the count of Blois to undermine Constance of Arles, third wife of Robert I, and her connection.6 In doing so he vindicates Peters’s analogy between accusations of heresy and of sorcery, for a sorcery charge would have served the purpose in just the same way. Peters’s case is further illustrated by the construction of the narrative of Paul of St. Pe`re of Chartres to add intimations of sorcery to the accusations brought against Stephen and his fellows.7 Although it was written about fifty years after the event, Paul’s account has been widely accepted as a leading source because it comes from the house in which Herfast, who was said to have uncovered the heresy, took vows in 1024. When it is compared with those of John of Ripoll, written immediately after the burnings, and Andre´ of Fleury, the biographer of Gauzlin of Bourges, who conducted the examination, and himself very possibly an eyewitness,8 we can see that Paul’s elaborations are largely structured by the need to establish the secrecy on the part of the accused which Peters identified as essential to a charge of sorcery, but which is plainly at odds with the canonical definition of heresy as openly avowed and publicly defended. According to Paul, the group was exposed by Herfast, a senior member of the Norman ducal family.9 He heard of it when a clerk of his household was converted by the heretics while visiting Orle´ans. Herfast himself went there anonymously and (acting on the advice of sacristan Everard of Chartres) infiltrated the sect, learned its secrets, and dramatically de-

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nounced its members before the royal court. The earlier accounts, regrettably silent on how the group came to be uncovered, offer no hint of this cloak-and-dagger melodrama. However, the assertion of one of them, Rodolfus Glaber, that the heretics had drawn attention to themselves by sending someone to Rouen to convert a certain priest there suggests a possible inspiration for it and reinforces suspicion of a link between Norman political interests and the attack on Stephen and his circle.10 Finally, with its description of orgiastic ritual, the invocation of the devil, and the ointment made from the ashes of burned babies that fixed people irrevocably to the sect, Paul’s text clearly conforms to Peters’s account of monastic invective as a literary form which provided a model for describing the activities both of heretics and of sorcerers. We are unlikely ever to achieve a complete understanding of what lay behind the burnings at Orle´ans.11 In general terms, however, it seems fairly clear that a group of enthusiasts for the spiritual, or neoplatonist, reading of Scripture in the late Carolingian manner, probably quite well known and with connections among the pupils and prote´ge´s of Gerbert of Aurillac, made a convenient vehicle for an attack on its members’ patrons through the allegation that there was a sinister and hitherto secret aspect of its activities. In its form and procedures the Orle´ans trial illustrates the undifferentiated character of the court. Paul of St. Pe`re says that the heretics were ‘‘arrested by royal officials at the house where they met and brought before the king and queen and an assembley of clerks and bishops at the Church of Ste. Croix.’’ It is to the king that Herfast addresses his accusation, describing his infiltration of the group and concluding, ‘‘let the bishops who sit with you decide and judge whether I committed any crime in that.’’ The examination of the accused is led by Bishop Guarin of Beauvais, but at its conclusion, according to Ademar, ‘‘King Robert ordered them first to be deprived of priestly orders, then expelled from the Church, and finally burned by fire.’’ Then ‘‘they were all commanded to put on the holy vestments of their order and immediately stripped of them again with full ceremony by the bishops,’’ expelled from the church—that is, the building itself, also standing for the church as a spiritual body—and taken outside the city to be burned. In short (and irrespective of the accuracy of their accounts in other respects), while they describe the participants as performing their allotted roles, Ade´mar and Paul are indifferent to any distinction between the secular and the ecclesiastical aspects of the matter as such: for them it is both a religious and a political affair.12 Sorcery accusations were part of the repertoire of intrigue in the

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princely courts of this period, marking the fault lines of discrepancy between ascribed status and actual power.13 At Le Mans in 992, a convert named Sehok ben Esther had been convicted of trying, by planting a wax figure representing himself in the synogogue, to incriminate his former coreligionists of plotting against the count of Maine.14 In 1028 four women were burned at the stake at Angouleˆme not as heretics but as witches: they were the victims, as Richard Landes has shown, of a plot by the count’s son and successor to cover up the murder of the count.15 As the first in the medieval west be burned as heretics, the clerks of Orle´ans are traditionally regarded as opening a path that led to Cathars, crusade, and inquisition. Yet by molding their story to make it look and feel more like sorcery, thus averting the possibility of lingering sympathy for the victims on the basis of their reputations for good lives or learning, Paul effectively reminds us that they had less in common with Leutard of Champagne or Henry of Lausanne than with Sehok’s intended victims or the women burned at Angouleˆme. The affair at Orle´ans was, as far as I can see, the only occasion in the period considered in this chapter when the accusation of heresy was used by one faction to discredit another within a single court. In this respect it served a purpose usually associated with sorcery charges, whereas the cases that remain to be considered concern rivalries between different courts or their members. However, another case, which ended with the hanging at Goslar in 1052 on the orders of the emperor, of some people accused by Duke Godfrey of Lower Lorraine and condemned by their refusal to kill a chicken, may have shared both the neoplatonist background and the courtly setting.16 The scantiness of the evidence here underlines the improbability that in cases of this kind even the trace of intrigue, let alone the detail that allows us to recognize it as such, will have reached a surviving record. The enmities that erupted at Orle´ans originated in the seizure of the throne by Hugh Capet in 987. The involvement of Herfast, as well as of the house of Blois, makes the affair an occasion of inter- as well as intracourt rivalry, and politically a forerunner of the celebrated series of confrontations, culminating in the Council of Reims of 1148, that arose from accusations of ‘‘learned’’ heresy, and contested the great issues of realism and nominalism, and their theological implications. The connections that interest us here lie not in the intellectual substance of those issues, or the dialectical method of those who engaged in them, but in their role in conflicts which regularly mirrored the struggle for hegemony between the Capetians and the houses of Blois-Champagne, Normandy, and Anjou that domi-

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nated the politics of northern Francia throughout the eleventh and twelfth centuries. We have grounds for suspecting that the charges against at least two of the best-known heretics (or alleged heretics) of the period used them to at least some extent as surrogates for their prominent patrons. Certainly neither Berengar of Tours nor Peter Abelard could be accused of shrinking from controversy or of undue emollience. Nevertheless, though in Berengar’s case the evidence is entirely circumstantial, and in Abelard’s very nearly so, personal rivalry and the intellectual anxiety aroused by their teaching are insufficient to account for the difficulties that dogged both their careers. The extra ingredient, it is suggested, is that a heresy accusation was a challenge that precipitated a confrontation, formally played out, between the representatives or champions of political rivals. Since the heretic sets himself apart from the community by defying lawful authority, the issue was one well adapted to challenge or assert the legitimacy of the authority of the respective patrons. The appropriate forum, therefore, was the assembly of the community itself, embodied in the court whose composition and procedures changed with the world whose structures they reflected. As a pupil of Fulbert of Chartres, Berengar must have been well aware of the burnings at Orle´ans and the tensions from which they arose. He came from a prosperous family of canons of Tours, where he was earning his own reputation as a teacher by the 1030s; by 1040 he had joined the court of Count Fulk Nerra and become archdeacon of Angers.17 Fulk’s successor Geoffrey Martel was intent (from 1044) on the annexation of Maine, whose count was a child under the guardianship of Bishop Gervase of Le Mans. In 1048 Geoffrey imprisoned Gervase, and Berengar, now treasurer of Angers cathedral, wrote in defense of his action. Threatened with excommunication by the Council of Reims, Geoffrey released Gervase, who was promptly elevated to the archbishopric of Reims. The first attacks on Berengar’s teachings on the Eucharist, by Hugh of Langres and John of Fe´camp, seem to have come at about this time. Berengar was called to Rome to defend his opinions at the Easter Synod of 1049, and later in the year, having failed to appear, at the Synod of Vercelli, where he was condemned in absentia. In 1050 Duke William of Normandy convened at Brionne the first of a series of councils in Normandy and France to consider Berengar’s teachings,18 his principal opponents apparently being John of Fe´camp and his cross-bearer Durand of Troarn. The continuing attacks on Berengar during the 1050s coincided with the gradual decline of Geoffrey’s power vis-a`-vis his Norman and French rivals. Their political significance is difficult to assess: the materials are

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scanty and focus on Berengar’s alleged views rather than the circumstances in which they were debated. Nevertheless, it must be weighed, as at Orle´ans, in the context of fora that, summoned and presided over by secular princes, cannot be thought of simply as ecclesiastical councils. Nor do they appear to have responded to pressure from wider ecclesiastical opinion specifically from Rome, which does not seem to have become involved until after Cardinal Humbert of Moyenmoutiers took a hand, to secure a condemnation by the Lateran Council of 1059; at Tours, in 1054, Cardinal Hildebrand had been content to allow Berengar to affirm his orthodoxy with a statement of his own devising. That Abelard’s fortunes throughout his career were intimately connected with those of the shadowy but formidable figure of Stephen de Garlande has always been recognized, but has not featured prominently in popular accounts of his intellectual and other exploits. It is unnecessary to dwell on how Abelard presents, in terms plainly evocative of knightly prowess, the rivalry with Garlande’s enemy William of Champeaux which shaped his early career and whose reverberations followed him to the end.19 Whether or not it was his success against William that attracted Garlande’s patronage, as we tend to assume, we know, thanks once more to Bautier,20 that every subsequent step in Abelard’s career, both forward and back, coincided directly with the vicissitudes of Garlande’s, until the final eclipse of Garlande at the death of Louis VI opened the path that led to the council of Sens. We also know that Abelard’s friends were Garlande’s friends, and his enemies, headed by Suger of St. Denis and Bernard of Clairvaux, Garlande’s enemies. The question is not simply whether Berengar and Abelard depended on their patrons; that is obvious. It is, rather, how far they owed their difficulties to that dependency and encountered their troubles not just as their own undoubtedly provocative and irascible selves, but as surrogates of the great men behind them. That is to ask why they enjoyed the patronage. Berengar was seemingly from Angevin noble stock—it looks as though his canonry of Tours was hereditary—and as a letter writer occasionally placed his rhetorical skills at the count’s disposal, as in the matter of the imprisonment of Gervase of Le Mans. The ordinary expectations and obligations of lordship may be enough to account for his connection with the court, though that would in no way detract from the political reverberations of his theological controversy. But we can be as nearly certain as possible that Abelard, from a Breton family of merely local importance, had no claim of kinship or connection on the Garlandes or (unless it was through Heloise21)

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on the counts of Champagne, whose protection he also enjoyed. Nor is there anything to suggest that he made himself useful to them in any obviously practical way, apart from attacking the teaching of their rivals’ prote´ge´s. Indeed, it is tempting to wonder whether he was brought to Paris for that purpose,22 just as Clanchy conjectures that he may have been sent to Laon by Garlande to undermine Master Anselm’s influence in the city in the aftermath of the murder of Bishop Gaudry in 1112 and the consequent intrigues for the succession.23 Abelard’s misfortunes paralleled in some ways those of his first important teacher, Roscelin of Compie`gne, who had secured the protection of the Count of Anjou, having been driven from the French and then the Anglo-Norman kingdom after being denounced (though not actually condemned) as a heretic at Soissons in 1092.24 John of Salisbury’s account of how St. Bernard tried, and failed, to repeat against Gilbert de la Porre´e at Reims in 1148 his triumph over Abelard at Sens in 1141 is rightly regarded as describing a landmark in establishing the capacity (I do not say the right) of the masters to debate ‘‘academic’’ issues in their own terms and within their own conventions.25 The crucial moment was the refusal of the cardinals to allow Bernard to predefine the issue in private, as he had done at Sens. Gilbert would have the opportunity of defending himself that had been denied to Abelard, and since ‘‘once given the chance of speaking he almost always made his will prevail,’’ his victory was assured. His case was that he was not responsible for his students’ lecture notes; the book on which the charges against him were founded was not his; and he joined the assembly in anathematizing the errors it contained. Accordingly, at the pope’s command, ‘‘the subdeacon cut the book into tiny fragments and scattered them. But as a great crowd of laity was present the pope explained in the vernacular [Gallica lingua] on the bishop’s [Gilbert’s] behalf that this had not been done to his discredit, for the book was not his; and indeed he had been found orthodox on all points and faithful to apostolic doctrine, and was at one with the Roman church in condemning these and all other heresies.’’26 Here we are at the interface of two political and legal worlds. We think of this Council of Reims, summoned and presided over by Pope Eugenius III, attended by the cardinals and an impressive list of higher clergy, resolving a long list of issues and disputes, as one of the milestones of twelfthcentury church government. When the Council was over a group of senior prelates from the region—prudentiores et viciniores27—stayed behind, meeting in a chamber in the archiepiscopal palace, to settle the issue between Bernard and Gilbert. But laymen were present—multitudo laicorum ad-

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erat—and not only present, but of such significance to the proceedings that Eugenius felt obliged to account to them, Gallica utens lingua, for the outcome of Gilbert’s case.28 His doing so contrasts with the habitual reluctance of churchmen dealing with ‘‘popular’’ heresy to discuss in the vernacular matters relating to it. In short, this meeting still retained to an important extent the character of councils and assemblies in the old world, not governed by formal rules and distinctions as to their composition and functions, least of all by any absolute distinction between the secular and the spiritual, but drawing their power and purpose from the principle not so much that they represented as that they embodied the political community. That this was the character of Abelard’s trials at both Soissons and Sens is confirmed, not only by the presence at both of numerous and important secular as well as ecclesiastical magnates, but by the public and intensely melodramatic nature of the proceedings.29 Though we lack similarly vivid descriptions of the trials of Berengar and Roscelin, there can be little doubt that they too conformed to Timothy Reuter’s description of such assemblies at this period as staged and ritualized occasions ‘‘for celebration and persuasion,’’ at which open conflict or opposition was a profoundly serious and potentially dangerous matter, implying insult and threatening feud.30 It is not only the deficiencies of the evidence that prevent us from categorizing these councils more precisely. Some of the same ambiguities and uncertainties attended the occasions themselves. None of those mentioned here is susceptible to characterization in terms of the familiar polarities. They were not simply either ‘‘secular’’ or ‘‘ecclesiastical,’’ ‘‘public’’ or ‘‘private‘‘; the issues at stake were not simply either ‘‘religious’’ or ‘‘political.’’ It was, of course, always to be expected that the ecclesiastics present would determine any issue of heresy and communicate their verdict to the secular magnates for enforcement, as Eugenius III did at Reims. But how and by whom it was determined precisely what was at stake and on what basis it was to be decided is another question. Notoriously, the proceedings at Soissons in 1121 and even more at Sens in 1141 were much influenced, and the outcome arguably confused, by different understandings among the participants about the nature of the occasions, the authority by which they were conducted and to which they were responsible, and the appropriateness of the procedures. In showing how the letters with which Bernard deluged the Roman curia after Sens were carefully constructed to present what had taken place there as a judicial process, as opposed to the disputatio to which Abelard had looked forward, Wim Verbaal has confirmed Abelard’s reason for halting the proceedings by appealing to Rome immediately the charges

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began to be read; in pointing out that it can only have been at that moment, and not sooner, that Abelard realized what was happening, he illustrates the formal fluidity of all these occasions, for it means either that there had been no clear general or public understanding of what the nature of the meeting was to be, or that (as seems probable), if there was such an understanding, it was vulnerable to hijacking.31 Another element of uncertainty about the status of these confrontations is injected by Abelard’s report that at Soissons ‘‘I and the few pupils who had accompanied me narrowly escaped being stoned by the people on the first day we arrived for having preached and written (so they had been told) that there were three Gods.’’32 The implication is that his enemies, lacking confidence in their capacity to better him in debate, tried to settle the matter by inciting a mob against him before the formal proceedings got under way. Clanchy points out that Roscelin had been stripped and stoned at Chartres and physically assaulted in England, and that these actions had been condoned, the former certainly by Bishop Ivo of Chartres, and the latter apparently by Anselm of Canterbury.33 In coupling these events with the burning of Everard and Clement of Bucy at Soissons in 1114, however, as ‘‘the lynching of heretics,’’ Clanchy begs an important question, as I did above in using the phrase ‘‘political community.’’ Who constituted these crowds, and what was the relationship between their action, or threatened action, and the councils or assemblies in question? How far did their actions constitute or imply a claim for jurisdiction in accusations of heresy, which appeared as a repudiation not of the church alone but of the whole community? In his fine discussion of ‘‘assembly politics’’ in this period34 Reuter made an important pragmatic distinction, as he put it, between ‘‘general assemblies’’ and ‘‘assemblies by invitation.’’ I have not noticed anything of the kind made explicit in the accounts of any of the meetings discussed here. Clearly at each of them many of those present were there by personal invitation or by virtue of their offices, but that does not exclude the possibility that others attended by right, or as free men, without having been specifically invited. The latter case, however, would raise the further question how far any such right had been eroded in northern Francia, certainly by the twelfth century, and even in the early eleventh.35 Guibert of Nogent makes it quite clear that the burning of Clement and Everard by ‘‘the faithful people,’’ of which he approved so warmly, took place after they had been convicted by ordeal, and after Bishop Lisiard of Soissons had then decided that their case should be put to an ecclesiastical council.36 Burnings of here-

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tics at Lie`ge in 1135 and 1145 and Cologne in 1143 seem to have occurred in similar circumstances and to have resulted from a clash in which clerics were perceived as usurping traditional communal jurisdiction.37 But these local confrontations were much smaller affairs than the magnificent assemblies of grandees at Soissons and Sens, just as the ‘‘heretics’’ they dealt with, whatever they may have taught, were humbler figures by far than the celebrities, princely favorites, or favorites of princely favorites, who have been our protagonists here—and, indeed, just as stoning is a different matter from burning, uncertain though we may be as to the precise protocols and symbolism of either at this period. It is only to be expected that the business and procedures of meetings and assemblies should have become more clearly defined and differentiated in the world in which they functioned, and that they should have been shaped increasingly by two processes of exclusion of which we usually know little in terms of day-to-day and region-by-region specifics—of laymen from ecclesiastical business, and of the formerly free from public business of every kind. Accusations of heresy followed a similar course. From the middle of the twelfth century the distinction between learned and popular heresy does hold and (whatever occasional connections or influences between them there may have been) corresponds to the legal personal status constructed by the new social order. The Council of Reims of 1148 marked not only, following the triumph of Gilbert de la Porre´e, a retreat of learned heresy—that is, of heresy accusations against acknowledged masters—from the public arena, but also an escalation of concern about heresy among the unlearned, in the condemnation of the Breton Eon de stella. Eon himself was spared the stake as obviously insane, but some of his followers were not.38 From this time forward, claims that heresy was spreading among the rustici feature ever more prominently in the proceedings of ecclesiastical councils at all levels, and in most parts of Latin Europe. The frequency and scale of executions, both of those accused of spreading it and of the recalcitrant among their converts, increases markedly. Whatever the truth of those claims, whatever the nature and degree of heterodox opinion and activity among the people of Europe, their continuing centrality to the development of European culture and institutions, secular no less than ecclesiastical, and including legal institutions, is not in doubt. This review suggests, however, that before the middle of the twelfth century the categories of ‘‘popular’’ and ‘‘learned’’ heresy correspond much less closely to the circumstances in which heresy accusations actually arose.

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The common factor in the cases we have considered is that (irrespective of other motives, which we have not excluded) the accusation was used as a political weapon, capable of deployment in a wide variety of circumstances and through a variety of legal or quasilegal mechanisms. These may be contrasted with the cases that arose from the classic, even the defining source of ‘‘popular’’ heresy, namely unlicensed preaching, including those of Leutard of Vertus, the ‘‘manichees’’ of Aquitaine, the people examined by Gerard of Cambrai in 1024, and those reported to Wazo of Lie`ge c. 1042, and in the twelfth century Tanchelm of Antwerp, Henry of Lausanne, and Peter of Bruys.39 The two strands were joined, in principle, when the anxiety about heresy, which had been stimulated at court, or the technique of exploiting it, was turned outward not just against rival elite groups but as a vehicle of repression against the population at large. It seems that this first happened in Aquitaine, in the second and third decades of the eleventh century, culminating in 1028 when Duke William ‘‘summoned a council of bishops and abbots to Charroux to wipe out the heresies which the Manichaeans had been spreading among the people.’’40 Unfortunately, we know nothing else about that council or its aftermath. Anselm of Lie`ge, writing some fifteen years later, refers to ‘‘the usual hasty frenzy of the Franks’’ as a result of which ‘‘heretics had been identified only by the paleness of their faces, as though anybody who was pale was undoubtedly a heretic, and many Catholics had been killed as a result of this hysterical mistake.’’41 Some have taken this as referring to a recent period of widespread and violent repression, but if so it has left no other unambiguously visible traces. About the years before the Council of Charroux in 1028 we are better informed, but not much more satisfactorily. Each individual piece of evidence is capable of being read either as showing that heresy was indeed being preached among the people, ‘‘causing many to wander from the faith,’’ as Ademar claimed, or as rationalizing the repression of popular enthusiasm aroused by the movement for the Peace of God but thought to be getting out of hand, or as part of a rhetorical strategy to bolster the ideological claims of the ecclesiastical hierarchy, with little reference to anything that actually happened.42 This is not the place to review the arguments again,43 but it is worth noticing how they illustrate a problem that continues to dog every attempt to assess the reality that lay behind assertions of danger lurking among the people. It arises from the difficulty of allowing for two rhetorical conventions, both familiar in the tradition of invective that Peters described in The Magician, the Witch, and the Law, and both capable, like the cases he examined there, of generating confusion between rhetorical

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constructs and straightforward assertions of fact. There is the topos that heresy is brought by strangers, rootless people from far away, which some of us think exemplified by the Italian woman whom Rodolfus Glaber describes as bringing heresy to Aquitaine in the 1020s, and by the Italian Gundolfo, who is named as the master of the sectaries arraigned before Bishop Gerard of Cambrai in 1024–25.44 And there is the topos drawn from the conventional structure of the sermon, the requirement that a discourse designed for general admonition should be presented as arising from or prompted by a particular occasion. Hence Guy Lobrichon thinks that those sectaries themselves, together with the synod at which they were questioned, may have been no more than Gerard’s device to introduce the lengthy treatise presented as the sermon he preached that day. On the same grounds Lobrichon doubts the reality of the heretics of the Pe´rigord whose description by an unknown Cluniac monk he has redated from the 1160s to the 1020s.45 Some, it need hardly be said, prefer to regard all of these as references to real heretics, at real times and places. Whatever the scale of popular heresy or its repression in the first decades of the eleventh century, this review confirms that it did not inaugurate a continuous history. Following Peters in distinguishing clearly between assertions of heresy arising in courtly—that is, essentially political—contexts and those arising from unauthorized preaching reinforces the case I have made elsewhere that before c. 1140 the impact of true ‘‘popular’’ heresy was both local and limited.46 The emergence of such heresy in the 1130s and 1140s as a major anxiety of leading churchmen, and increasingly of the church as an institution, had much less to do with the heresy itself than with the need of an emergent clerical intelligentsia to define itself, establish its collective identity, and in asserting its exclusive right to distinguish between licit and illicit religious activity, to enforce with a new degree of clarity its claim to the cultural leadership of Latin Christendom.47 In the 1160s and 1170s, however, the history of heresy returns to the princely court—especially the Angevin court. Once again the imputation of sheltering heretics was leveled at a great lord, but this time the ostensible target was not a single overconfident master intoxicated by the exuberance of his own dialectic, but a whole province, host to a teeming heresy, now ‘‘spreading like a cancer from Toulouse through Gascony and neighbouring regions.’’48 In the following decades the foundations were laid for the Albigensian crusade and all that followed from it. An indispensable part of the work—on what foundation of truth remains hotly in dispute—was to display the County of Toulouse before a terrified Christendom as a nest and

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breeding ground of heresy, its rulers at best helpless in the face of it, at worst its covert but powerful protectors and fomenters. As Edward Peters showed, the image of popular heresy that beguiled and titillated late twelfth-century Europe to sustain that sinister legend owed much to the rhetorical and legal skills of courtiers. It was not by coincidence that they were mostly Angevin courtiers.

Chapter 3

Legal Ethics: A Medieval Ghost Story James A. Brundage

Sir Paul Vinogradoff (1854–1925) nearly a century ago described the twelfth-century renewal of interest in Roman law as a ghost story on the grounds that it dealt with ‘‘a second life of Roman law after the demise of the body in which it first saw the light.’’1 Later scholars have questioned Vinogradoff’s metaphor. Did Roman law really disappear from the empire’s former provinces once Germanic kings had replaced Roman governors in the West? Might one not more accurately speak instead of a lingering presence of Roman law, enfeebled perhaps, but still functioning among the ‘‘Roman’’ subjects of Visigothic, Frankish, Burgundian, and Lombard kings?2 Alan Watson and others are unconvinced by Vinogradoff’s further assertion that ‘‘Within the whole range of history there is no more momentous and puzzling problem than that connected with the fate of Roman Law after the downfall of the Roman State.’’ After all, legal systems routinely borrow ideas and institutions from one another, and Watson finds it perfectly natural that medieval law teachers and lawyers appropriated Roman practices on such a vast scale that the medieval ius commune resembled a resurrection of late ancient Roman law.3 Here I examine one facet of these larger questions that seems particularly significant for the history of the legal profession. Since at least the second century of the common era, Roman lawyers had clearly constituted a profession.4 In the wake of the fifth-century barbarian migrations, however, professional lawyers disappeared from what had formerly been the Western Roman Empire. Roman law schools in the classical period trained jurists systematically.5 The public treasury still supported law professors at Rome around the middle of the fifth century. Evidence of formal legal training in the West fades away thereafter and vanished during the sixth century.6 From the early seventh until the late eleventh century, only some shreds of Roman legal

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learning occasionally surfaced in schools that primarily trained monks or clerics. Those schools valued legal texts for the study of rhetoric. Rigorous, systematic legal teaching for the practice of law seems to have vanished altogether for roughly half a millennium.7 ‘‘Law schools make tough law,’’ Frederick William Maitland (1850– 1906) observed.8 Without schools that taught the subject rigorously, the barbarian kingdoms could not produce lawyers with truly professional skills. This is not to say that clever and gifted legal advisers were unknown during the early Middle Ages, but rather that those men did not constitute a profession in any strict sense of the term. Renewed interest in Roman law reappeared toward the close of the eleventh century. The circumstances remain controversial. Some connection with the eleventh-century church reform movement seems certain, although scholars disagree about the form that connection took and about how critical it was.9 The reformers’ vigorous insistence on the church’s jurisdictional rights seems clearly responsible, however, for a startling rise in the number of disputes referred to bishops and popes for resolution. Church authorities accordingly sought to improve the efficiency and regularity of their judicial procedures to cope with the growing volume of judicial business.10 These developments in turn produced a demand for the services of skilled lawyers. It is no coincidence that around the beginning of the twelfth century a market for thorough and systematic training in Roman law, training that would prepare lawyers to practice effectively in the courts of popes, bishops, and archdeacons, began to reappear in the West and grew rapidly thereafter.11 By the mid-twelfth century we begin to see a completed textbook, the Decretum of Gratian, which presented students not only with a comprehensive collection of legal texts drawn from both ecclesiastical and Roman sources, but also with a method for resolving the inconsistencies and contradictions in those texts.12 This in essence was what Vinogradoff’s ghost story was about. The ghost story I want to tell concerns the resurrection of Roman ideas about legal ethics. Although Vinogradoff passed this over in silence, it was essential for the development of a medieval legal profession. By the third quarter of the twelfth century, men trained in Roman and canon law were numerous enough to form a visible occupational group in a handful of cities in northern Italy and southern France.13 As they grew increasingly prominent and prosperous, these lawyers also became concerned about their collective identity. Beginning around the 1180s law

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teachers commenced to pay increasing attention to what the texts they studied had to say about the rights and obligations of advocates in the courts. Those texts told them that legal knowledge was sacred. Jurists, they read, were priests of the law and belonged to a social and political elite.14 They also knew that legal knowledge and skill were valuable. As a contemporary verse put it: Galen gives you wealth and so does Justinian’s law; From these you gather grain, from the others only straw.15

With prestige and prosperity, however, came ethical obligations both to their clients and to the courts in which they practiced. Jurists taught would-be lawyers that they were morally bound to use all their strength, skill, learning, ingenuity, and energy to advance their clients’ interests. They were obliged to keep secret the confidential information that clients entrusted to them. They must be faithful to the client, even when that ran counter to their own interests. Charges for their work must be reasonable and moderate, depending on the value of the stakes at issue, the difficulty of the case, the amount of work they put into it, and their skill and reputation, as well as the customary fee levels in the region where they worked.16 They owed an even longer list of obligations to the court. Lawyers were the court’s gatekeepers and must screen the cases they brought before it.17 They should not waste the court’s time with frivolous or unwarranted litigation. Should a lawyer discover that a case was groundless, he must immediately abandon the client and inform the judge of his reasons for doing so. He must be unflinchingly honest in his dealings with the court, so that the judge could rely upon the truth of the representations he made. A lawyer must never coach clients or witnesses about their statements to the court, produce perjured witnesses, or introduce fraudulent documents in evidence. He must avoid causing unnecessary delays in litigation, whether by making tardy appearances at court sessions or by proposing frivolous exceptions to opponents’ arguments. He must sacrifice some of his professional time and energy to the public welfare by acting free of charge for impecunious litigants. He must treat the judge with the utmost respect and deference. The admissions oaths that lawyers swore when they were admitted to practice enumerated these basic principles of professional ethics. Their authority rested either on the libri legales, the authoritative texts that law stu-

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dents studied, or on other Roman writings about legal matters used in the liberal arts curriculum. Requiring advocates to take an admissions oath was a Roman practice reintroduced in the West during the early 1230s by French church councils as a condition for receiving the right of audience, that is, the right to be heard in court.18 When he swore that he would observe a set of ethical principles, an advocate became an officer of the court. Clients employed him and paid him for his work, but he was answerable for his actions to the presiding judge and his deputies. The provisions of these admissions oaths derived mainly from the calumny oath that litigants and their advocates in late antiquity took when they had answered one another’s pleadings and defined the matters at issue. Roman law labeled this stage of a process litis contestatio because it marked the formal beginning of a lawsuit.19 The calumny oath required a lawyer to pledge that he would use all his strength and skill to secure what was right and just for his client, that the case he was about to present was genuinely worth the court’s time, that it was grounded on solid proof, and that he would produce no false evidence or arguments to support it. He further swore that if he became aware that the case he was presenting was unsound, he would immediately abandon his client and resign from the case.20 The Roman calumny oath fell out of use during the fifth and sixth centuries as the rulers of the new barbarian kingdoms in the West introduced other means of discouraging baseless or malicious lawsuits. Thereafter only the few with access to Roman law books were aware of the sacramentum de calumnia vitanda. Early eleventh-century records show the calumny oath beginning to reappear in northern Italy and southern France. Why this happened is not clear.21 References to the calumny oath grew increasingly common until by the middle of the twelfth century its use was routine in the French Midi and in some regions of northern Italy.22 Around 1159 John of Salisbury described it as a normal element of ecclesiastical civil procedure.23 No surviving evidence prior to the beginning of the 1230s shows either ecclesiastical or secular courts requiring advocates to go through a formal admissions process. Then in 1231 two church councils, at Rouen and Chaˆteau-Gontier, commanded that thenceforth every advocate must take an admissions oath before he could practice in the courts within their jurisdiction. These oaths largely reproduced the Roman calumny oath.24 In that same year Emperor Frederick II (1197–1250) promulgated the Liber Augustalis, a set of constitutions for his Sicilian kingdom. Its provisions required

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prospective advocates to be examined by a judge in order to determine their fitness to practice. Those who passed must take an admissions oath before they could begin practice and renew it annually thereafter. The Sicilian oath, like those of the two French councils, was largely based upon the Roman calumny oath. It also required advocates to promise that they would not raise their fees during litigation and would refrain from demanding what we now call contingent fees. Both requirements stemmed from provisions in Justinian’s Code. The judge had the right to ban advocates who violated these undertakings from further practice and to impose hefty fines on offenders.25 Authorities elsewhere soon began to require practitioners to take similar admissions oaths. In 1237, for example, a papal legate, Cardinal Otto da Tenengo (d. 1251), insisted that advocates in English church courts take an admissions oath based on the calumny oath; English diocesan councils and synods soon adopted statutes to implement his demand.26 Other French councils adopted similar provisions during the next few years, as did courts in Barcelona, Valencia, and Mallorca.27 Finally in 1274 the Second Council of Lyon’s constitution Properandum required advocates and proctors throughout the Latin church to swear an admissions oath.28 Let us now look more closely at three of the most basic obligations to clients, ones that remain at the center of modern notions about legal ethics and the professional responsibilities of a lawyer: loyalty to the client, preserving confidentiality, and avoiding conflict of interest. Medieval admissions oaths invariably required advocates to serve their clients faithfully, as their modern counterparts still do. Twelfth- and thirteenth-century jurists lived in societies where access to economic, social, and political power commonly involved vassalage relationships based on a pledge by one person to render faithful service to another. When medieval jurists wrote about the loyalty that an advocate owed to his client, they did so within that context. Faithful service to clients meant that a lawyer undertook to fight on his clients’ behalf, not with weapons made of steel, but with words and arguments. Legal writers described the advocate not only as a priest of the law, but also as a soldier (miles): Laws are called weapons and soldiers are called advocates, nor do we believe that the only fighters in our realm are those who employ swords and breastplates, but also advocates who boldly defend hope, life, and future generations of workers behind the bulwark of their glorious voices.29

The voice is the voice of Azo, writing around 1210, but the words are the words of the Emperor Leo I (457–474) almost 800 years earlier.

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Fidelity in Azo’s world meant first and foremost that the advocate must do everything he ethically could in order to protect the interests of his client. Once he had agreed to plead a case for a client, he must strive to secure that client’s interests until the matter was resolved. It would be a gross breach of duty to abandon one client’s case in order to take on a different, perhaps more profitable, case for someone else. If an advocate attempted to do this—and they sometimes did—the original client could sue to recover compensation for the resulting expense and inconvenience.30 Lawyers knew, however, that a client’s chances of securing an adequate judgment in this way were slim. Ulpian (d. 223) had told them so in a passage from Justinian’s Digest that they studied in law school. Other disciplinary mechanisms offered more effective deterrents to dissuade advocates from abandoning inconvenient clients. An advocate who deserted a client became legally disreputable (infamis), which entailed serious disabilities, both legal and social.31 In principle infamia resulted from public knowledge that a person had behaved disgracefully. Scandalous actions themselves created infamia, while the community as well as the courts enforced the penalties attached to it. As Edward Peters once put it, ‘‘The doctrine of infamy existed in the streets and squares of early Europe, as well as in its law books.’’32 The consequences of incurring infamia could be devastating for an advocate. If an adversary brought an exception of infamia against him and proved the exception, the advocate forfeited his right of audience. In consequence he could no longer practice his profession unless or until he purged himself of the disgrace, which entailed among other things making reparations to the client he had abandoned.33 Far worse than simple desertion was betrayal by an advocate who joined the opposing party either overtly or covertly and revealed secret information that the original client had confided to him. Jurists of the medieval ius commune called this praevaricatio, or collusion.34 In common law the usual term for this is ambidexterity, because the treacherous lawyer takes fees from both sides in a dispute. If convicted of this heinous transgression he could be held criminally guilty of fraud (dolus) or forgery (falsum), which not only produced infamia but also subjected him to more severe punishments.35 Faithful service to the client was, and is, an admirable goal, but implementing it in practice was neither easy nor straightforward, then or now. Prelates and lay magnates, for example, frequently employed one or more lawyers on long-term retainers to assure that their services would be avail-

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able when required. These arrangements sometimes paid an annual fee in cash. Even more commonly they involved an appointment to some position that would generate a regular income, although the appointee need not necessarily perform its duties in person. For clerics this typically meant a benefice or cathedral canonry, while lay advocates might receive a fief or a public office of some sort. Successful advocates often had several such arrangements at any given time. But what if two of those clients decided to sue each other? Which was he obliged to help? How could he avoid alienating the other client, with a consequent loss of steady income? Law professors debated these questions in law schools because they often arose in practice.36 When academic jurists dealt with this problem, they normally based their arguments on a constitution of Emperor Caracalla (r. 211–17) that forbade advocates employed by the imperial treasury to undertake any action against the treasury on behalf of a private client.37 Gratian incorporated this passage in the vulgate version of his Decretum, but added, ‘‘Nowadays, however, [former treasury advocates] can take private clients, even against the treasury, although they declined to accept those cases while they were treasury advocates.’’38 Medieval jurists reasoned that by analogy an advocate who acted for an opponent against a current client was guilty of gross misconduct and deserved to forfeit any fief or benefice he held from that client.39 Yet opinions on the matter were not unanimous. One anonymous Anglo-Norman glossator at the end of the twelfth century, for example, declared that an advocate faced with this situation ought to take the side of the defendant. Bernard of Parma (d. 1266) more cautiously maintained that he should remain neutral and not act on behalf of either litigant.40 Vincentius Hispanus (d. 1248) distinguished between the situation of an advocate who held a fief or benefice gratuitously and one who received it as compensation for his services. If it was gratuitous, an advocate who acted for an opponent of the person or institution from whom he held the fief or benefice should forfeit the holding. If it represented compensation for services, however, he could accept a brief against his benefactor, who would have no legal grounds for reclaiming the property. Pope Innocent IV (r. 1243–54), in contrast, preferred the first come, first served approach to this problem, while Cardinal Hostiensis (d. 1271) advised an advocate in this situation to try to mediate between the parties and thus avoid litigation altogether. William Durand (1241–96), the preeminent proceduralist of the later Middle Ages, reported Vincentius’s opinion, but added that the advocate would do

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better to refuse the opponent’s case, ‘‘because not everything that is permitted is honest.’’41 Loyalty and conflict of interest issues became still more complicated for an advocate retained by a corporate client, such as a monastery or a church. Although the law treats a corporation as a person, the legal interests and goals of its members can readily clash with the corporation’s. The abbot of a monastery, for instance, might wish to use a cash surplus to build a new church, while the prior and the monks might prefer to use the money to put more and better wine on the table. If they decided to sue each other, the monastery’s advocate must decide who his client was. Did his professional obligations require him to assist the abbot whose interests conflicted with those of the community? But did the community have no claim on his skill and assistance in this situation? Likewise, when a bishop paid his advocate by granting him a prebend in his cathedral chapter, as often happened, the advocate could face a quandary if the chapter should decide to sue the bishop—also a not uncommon occurrence. Which party should he assist? Hostiensis thought that he should act for the chapter unless he believed that the lawsuit was unjust, in which case he should go to the bishop’s aid. But what if taking the bishop’s side would leave the chapter without a skilled advocate? Then, according to Hostiensis, he should act for the chapter— unless the bishop gave him a direct order not to do so, in which case he was obliged to obey the bishop.42 Similar issues arose when an advocate who represented a client in an action was later approached to act for the opposing party on appeal. Durand argued that although the law might allow this, he really ought to refuse the brief. Johannes Andreae (ca. 1270–1348) declared that this was the general opinion among the learned doctors of law at Bologna and went on to explain his own reasons for adopting it: ‘‘I would not appear for any reason against a client to whom I had given paid advice, especially if I had done so in writing. If I gave him proper advice, I should not attack it unjustly; if I was in error, I ought to spare my reputation.’’43 Pierre de Belleperche (d. 1308) looked at the situation from the client’s point of view. The advocate, he declared, should by this point know all the secrets of his former client’s case. If he opposed the client on appeal, the client would almost certainly suspect him of betraying confidential information—information that the advocate’s oath of office obliged him not to reveal. During the initial hearing of the case, moreover, the advocate must have sworn that he believed that the client’s contentions were well grounded in law and in fact. During appeal, however, he would have to

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argue that they were not, thus contradicting his earlier sworn statement. Rather than leave himself open to accusations of betrayal and perjury, either of which could disqualify him from practice, he must refuse to represent the opponent on appeal.44 Law professors expounded these rules to their students and elaborated on them in their lectures. But professional lawyers were not the only ones who knew the rules. Medieval theologians and pastors regularly dealt with the moral and spiritual pitfalls of legal practice. Pastoral handbooks instructed priests to raise questions concerning the ethical conduct of advocates, proctors, judges, and other legal functionaries when they came to confession in order to discover whether they had departed from their profession’s moral standards and how frequently they had done so.45 Ordinary laymen untrained in law or theology likewise knew about the elements of legal ethics from the exempla that preachers used to enliven their sermons and drive home moral lessons.46 Litigants sometimes used this knowledge. A crafty plaintiff, for example, might consult many, perhaps even all, of the advocates who practiced in the court where he planned to bring a lawsuit. As William Durand explained: ‘‘I have often seen people seek a legal opinion, not in order to use it, but so that [the lawyer they consulted] would blush to furnish advice to an opponent. If I were the advocate in that situation, I could not side with the opposing party because otherwise I would be guilty of the crime of praevaricatio.’’47 Of the four authorities Durand cited to support this statement, incidentally, three cited Roman law texts, while the fourth referred to a statement in Gratian’s Decretum based on a passage in Justinian’s Digest. This ancient ploy was neither difficult nor even extravagantly costly, since few medieval courts had more than a tiny number of advocates—seldom more than four or five— practicing at any given time.48 The practice of law in medieval Europe inevitably produced conflicts of interest, mixed loyalties, and ethical dilemmas of the kinds touched upon here. Medieval lawyers were acutely aware that how they dealt with these matters might have grave consequences for their livelihood and reputation. When medieval popes, bishops, judges, or law professors needed to prescribe solutions to problems in legal ethics, they routinely adapted models from Roman law sources to cope with analogous situations in their own day. The writings of second- and third-century Roman legislators and jurists, to be sure, seldom furnished tailor-made solutions for the ethical dilemmas that arose in legal practice a thousand years later. Too much had changed for that. But they could and did contain principles that clever law-

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yers could adjust to fit the changed circumstances. Medieval lawgivers and lawyers found resort to Roman precedents particularly attractive because their venerable authority gave special weight to their solutions. The ethical questions that medieval lawyers confronted have not gone away. Conflicts of interest and the difficulties involved in maintaining confidentiality and loyalty to clients’ interests still raise many of the same ethical choices for modern lawyers that their predecessors faced centuries ago.49 As a historian I am struck by how closely the solutions that the legal profession in our own day prescribes to meet those challenges resemble conclusions that their opposite numbers in the Middle Ages arrived at by following the directions signaled by their still earlier counterparts in late antiquity.50 The ghost story, it seems, still continues.

Chapter 4

The Ties That Bind: Legal Status and Imperial Power James Muldoon

To speak of the legal history of European expansion would seem to express an oxymoron. How could the expansion of Europe and the creation of the great overseas empires of the early modern world have anything to do with legality?1 While expansion does call up images of heroic feats of arms, it is also true, as the Habsburg experience demonstrates, that empires can begin with fortunate marriages, dowries, and unexpected inheritances. Furthermore, even when conquest leads to the acquisition of new lands, it is only the first stage in the creation of an empire, because an empire is not simply an agglomeration of territory and peoples held together by force.2 To survive in the long term, an empire requires not only garrison commanders, it needs tax collectors, customs officials, clerks, and lawyers, especially lawyers. The lawyers provide formal justifications for conquest and empire building and then they create a legal structure that transforms a series of combat actions, inheritances, and other territorial acquisitions into a functioning imperial administrative system. In addition, it is obvious that the long-term survival of an empire inevitably requires the creation of bonds of common interest between the imperial rulers and the conquered or colonized people. The conquered must give at least some minimal level of assent to the imperial rulers if there is to be a stable imperial order. There must also be some ties that bind the conquerors, colonizers, and local representatives of the imperial power to the central governing powers of the empire, particularly after the newcomers are well established and the imperial power secure. Will the descendants of the original conquerors and colonizers remain loyal to the interests of the imperial mother country or will they seek goals befitting their own interests, even at the expense of imperial goals?3 In this chapter I examine the development of ties linking the English

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king to important segments of two colonial societies, twelfth-century Ireland and eighteenth-century Massachusetts, focusing on the way in which English governmental policy regarding the status of English settlers abroad evolved. The history of the British Empire from twelfth-century Ireland to eighteenth-century North America illustrates the ways in which imperial officials confronted the situation of those royal subjects who went abroad as conquerors or as colonizers, even as potential autonomous rulers, and then tested the strength of the ties that joined them to the royal government. Eighteenth-century American revolutionaries, the descendants of the original colonists, saw their situation in broad terms of imperial jurisdiction, arguing that their situation was similar to that of the English in Ireland. The Americans deployed the history of the English in Ireland in the polemical warfare that preceded the battles at Lexington and Concord. From the American perspective, there was a continuous history of English overseas expansion stretching from twelfth-century Ireland to eighteenth-century North America, and therefore a history of the development of the legal status of those who were engaged in the imperial project. Furthermore, the Americans asserted that in spite of this long history, the legal position of colonizers was not as yet satisfactorily defined.4 The English entry into Ireland is an oft-told tale, but one that has to be understood carefully. Writers often refer to it as the English conquest of Ireland, but this is quite misleading.5 As Gerald of Wales, a member of one of the Anglo-Norman families that went to Ireland, pointed out in his history of Ireland, the coming of the English into Ireland was complicated. The immediate cause was not an English royal desire for expansion but the need for mercenaries by one of the participants in a local war in tribal Ireland. According to Gerald of Wales, Dermot MacMurrough, the chief who ruled the area around Dublin, had sought the assistance of two English mercenaries already in Ireland, offering ‘‘each of them in turn his first-born daughter with the right of succession to his kingdom,’’ an offer that each refused because he was already married.6 Subsequently, in 1166, MacMurrough was ousted and, while in exile, sought military support from abroad in order to regain his throne. He approached Henry II, who, it turned out, had no interest in engaging in the Irish wars. MacMurrough apparently swore an oath of allegiance to Henry, however, and received permission to recruit troops in England from among the Normans settled on the Welsh border.7 He offered the troops lands in Ireland if they were victorious, and he offered to their leader, Richard of Clare, Strongbow, his daughter in

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marriage and succession to his kingdom as his reward. According to Gerald of Wales, Richard of Clare only agreed to accept Dermot’s offer after requesting Henry to grant him ‘‘leave to trust himself to Fate and Fortune in foreign parts,’’ that is to seek his fortune abroad without endangering his possessions and status in Henry’s domains.8 It is difficult to determine exactly what each party to these agreements understood by them. Ireland was not organized along feudal lines, so it is quite possible that Dermot saw his oath of fealty to Henry II only as a personal oath and not one that surrendered his lands to Henry.9 It is also possible that Richard of Clare was unaware that Irish rulership was not hereditary and that Dermot had no right to promise it to him.10 In any event, even before Richard of Clare went to Ireland, the first troops that Dermot recruited in England were successful in restoring him to possession of Leinster and even extending his power by invading adjoining lands. In 1170, Richard entered Ireland, defeated Dermot’s enemies, and married Dermot’s daughter.11 At this point, the situation in Ireland became of interest to Henry II. It was one thing to authorize Dermot to recruit English mercenaries to fight in Ireland. If the leader of these soldiers became a local ruler, however, what would be his relationship to the English monarch? Henry II was certainly aware of the problem, given the fact that he was not only king of England but also duke of Normandy and lord of several other parts of France as well. A king in England, he was a subject of Louis VII of France for his possessions on the continent, a situation fraught with great difficulties as the various conflicts between the French and English kings over the centuries demonstrated. Henry’s youngest son, John, was eventually to lose the duchy of Normandy in 1204 because he refused to accept judgment in the court of his overlord, Philip II of France, in a case involving his treatment of one of his Norman vassals.12 The question of the relationship between Ireland and England was not a new one in 1171 when Henry II arrived in Ireland with a formidable army, and it was not based solely on the presence of English mercenaries there. The archbishops of Canterbury had for at least a century claimed jurisdiction over the bishops of Dublin and asserted a vague primacy over the church in Ireland.13 The fact that the Gregorian reform of the church had not made much headway in Ireland apparently encouraged Theobald, archbishop of Canterbury, to obtain from Pope Adrian IV the bull Laudabiliter (1155), authorizing Henry II to enter Ireland in order to reform the church.14 In this, Henry II had a formidable predecessor, William of Normandy, who

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had entered England in 1066 bearing a banner blessed by the pope as a result of having promised to assist in the reform of the church there. Victorious, he appointed the monk Lanfranc as archbishop of Canterbury with responsibility for imposing the Gregorian reforms on the English church, as subsequently Laudabiliter authorized Henry to enter Ireland in order to reform the church.15 The bull outlined what the pope believed to be the problems with the Irish church and indicated what reforms should be implemented. The pope explained that Henry II had Expressed to us your desire to enter the island of Ireland in order to subject its people to law and to root out from them the weeds of vice . . . you shall enter that island and execute whatsoever may tend to the honour of God and the welfare of the land; and also that the people of that land shall receive you with honour and revere you as their lord.16

Ireland presented Henry II with three distinct but related problems about legal status: relations with Richard of Clare and the Anglo-Normans now established in Ireland; relations with the Irish clergy as they strove to implement the Gregorian reforms under English direction; and relations with the Irish rulers and their subjects. In other words, in spite of claims to have conquered Ireland, English power there depended largely on the establishment of lines of jurisdictional authority that would link the members of each of these three groups to the English crown. Henry II faced a set of problems and relationships that eventually were to be characteristic of European overseas expansion. The first demonstration of Henry II’s jurisdiction over the adventurers in Ireland had been to forbid Richard of Clare from leaving England for Ireland to join the troops already there. Richard ignored this order, went to Ireland, and campaigned successfully. In the summer of 1171, however, with Henry II preparing to go to Ireland, Richard returned to England, met with the king, begged forgiveness for disobeying the original order, and swore homage for his lands in Ireland. Irish historian Michael Dolley pointed out, ‘‘Rightly Strongbow had diagnosed Henry’s fear of too great subjects, and even more of tenants-in-chief passing out of his jurisdiction, and so escaping liability for service in the wars on the continent that were ever the Angevin preoccupation.’’ In addition, according to Katherine Simms, Richard of Clare probably recognized that Henry II could not have favored ‘‘an independent Norman kingdom on his western seaboard’’ either.17 The English in Ireland were thus to remain subject to the English monarchs in order to prevent the creation of such a kingdom. The problem that required

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a solution concerned the status of the Anglo-Norman adventurers within what might be termed the emerging Angevin Empire.18 The second action Henry II took to ensure his control of Ireland was to hold a church council at Cashel (1172), where the clergy were informed of the pope’s demand that the Irish adhere to the Gregorian reforms. The opening lines of the Constitutions of Cashel identified Henry as ‘‘king of England and conqueror of Ireland’’ who had ‘‘obtained the dominion of that island’’ from the pope, a phrase that exaggerated the nature of the English presence. The stated aim of the English in Ireland was to ‘‘bring the blessings of peace and the growth of religion’’ to Ireland and to abolish ‘‘all sorts of wickedness [that] had prevailed among this people for a long series of years.’’ The council then issued a series of statements regarding the law of marriage, tithes, the making of wills, and other points of canon law that the Irish had long failed to obey, thus initiating the papal reform program in Ireland.19 Subsequently, Pope Alexander III issued three letters confirming Henry’s occupation of Ireland. These letters stress that the Irish are ‘‘barbarous, . . . uncivilized and ignorant of the Divine law,’’ a people who ‘‘destroy themselves in mutual slaughter,’’ ‘‘a race uncivilized and undisciplined’’ and who dwell in the ‘‘enormity and filthiness of their vices.’’20 Laudabiliter did not explicitly state that Henry II gained permanent possession of Ireland by virtue of a papal grant, but the king’s making his son John lord of Ireland in 1177 reinforced the notion that the entry of the English into Ireland was to be a permanent occupation, not a temporary arrangement to last only until the Irish church was reformed along Gregorian lines and the population raised to a civilized level of existence.21 The final element in Henry II’s program of asserting jurisdiction over all of Ireland was to receive homage from Rory O’Conor, high king of Ireland, in 1175. According to the text of the Treaty of Windsor, ‘‘the king of England [Henry II] has granted to Roderick [Rory], his liegeman, king of Connaught, as long as he shall faithfully serve him, that he shall be king under him, ready to his service, as his man.’’22 In theory, Ireland would be brought presumably into the English feudal order. Whether O’Conor and the other Irish chiefs understood what they were doing in those terms is debatable. Irish society was not, after, all organized feudally in the way England was, even though to the English it might have appeared to be. One important issue that was not resolved and continued to affect English government in Ireland was the status of the native Irish below their kings and subkings. Specifically, were they subjects of the king of England

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and, if they were, were they subject to and beneficiaries of the English common law or were they to remain under their own rulers and subject to traditional Irish law? From the English perspective throughout the Middle Ages, law was the key to shaping control of the Irish and fulfilling the responsibility imposed on them by Laudabiliter to transform the Irish from a people that was ‘‘barbarous . . . uncivilized and ignorant of the divine law’’ to one that was Christian and civilized. In 1277, there was a proposal to extend English Common Law to the Irish on the grounds that ‘‘the laws which the Irish use are detestable to God and contrary to all law so much so that they ought not to be deemed law’’ at all.23 The proposed extension was not acted on at that point, but throughout the Middle Ages, English officials saw in the law the vehicle for securing English rule and improving the life of the native Irish.24 By the end of the thirteenth century there was an Irish parliament representing the interests of the Anglo-Norman settlers, but it did not include the native Irish, reinforcing the sharp distinction between the settlers and the Irish. This move suggests that the English had given up on the initial goal of reforming the Irish church and civilizing the Irish people and, presumably, incorporating them within the English legal structure. The immediate goal now was the limited one of strengthening the identity and the position of the Anglo-Norman colonists in the face of continuing opposition from the Irish. When Henry II proclaimed his youngest son, John, lord of Ireland he appeared to have set Ireland on a path that would lead to some sort of incorporation into the Angevin Empire. The subsequent history of the English in Ireland, however, demonstrates that the situation in Ireland was more complex than Henry II appears to have appreciated. Only a part of Ireland was conquered and occupied, as opportunities elsewhere, such as the wars in France, drew the attention of the warriors who might otherwise have been employed in the conquest of Ireland. One consequence of this partial conquest was that there emerged in Ireland two categories of people whose status in the English order was not well defined. The first group consisted of the native Irish who lived outside the region the English controlled, the Pale, and continued to function according to their own laws and customs, including religious ones. The second consisted of those AngloNorman families that had gone native, in contemporary terms—adopted Irish dress and speech, and employed Irish law in their disputes among themselves and with the native Irish, a sign that English rule was not effective in controlling and transforming the native Irish.25 Instead, English families in Ireland that wished to secure possession of the lands that English

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kings had granted them in Ireland had to come to terms with the existing culture, creating what one early fourteenth-century observer termed a ‘‘middle nation’’ or the Degenerate English, a body of people who claimed to be English yet looked and acted more like the native Irish.26 Where did these people fit in the English scheme of things? The part of Ireland under direct English control had shrunk steadily throughout the Middle Ages, leaving the Anglo-Norman families in a difficult position. One possibility that appears to have occurred to members of the dominant Anglo-Norman family in Ireland, the FitzGeralds, was to obtain supreme power within Ireland: perhaps as permanent viceroys of the king, perhaps, according to their enemies, as kings of Ireland, independent of England.27 The public execution of the leaders of the FitzGerald family at Tyburn in 1537 and Henry VIII’s subsequent adoption of the title King of Ireland in 1541 settled the status of Ireland and ended the possibility of creating an independent Kingdom of Ireland ruled by the descendants of those who came with Richard of Clare.28 Therefore, by the mid-sixteenth century, at the point when the English were beginning to move into North America, they had almost five centuries of experience with the settlement and conquest of an overseas territory. The subsequent Irish wars by the Tudors, the Stuarts, Oliver Cromwell, and, finally, William III, which led to the complete conquest of the island, were a consequence of that experience. These wars aimed at completing the conquest of Ireland, subduing the native population permanently, bringing in additional colonists to occupy the land taken from the Irish, and creating an effective imperial administrative structure. At the same time, the English were moving into North America, facing similar problems and often responding to them along lines suggested by their experience in Ireland. Indeed, a number of the early English explorers and colonists in the New World had been active in the Irish wars as well.29 Consequently, it should not be surprising that when eighteenth-century Americans sought to assert their position within the British Empire they looked to the example of the English in Ireland, seeing their position as quite like that of the Anglo-Normans.30 When we examine the initial English attempts at colonizing North America five centuries after the Anglo-Norman entry into Ireland, we find a pattern similar to that found in the earlier experience. A private group was incorporated for the purpose of colonization and received a royal charter authorizing the establishment of a colony in a defined region.31 The monarch formally authorized the colonists to leave England in order to protect

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from confiscation the property of those who left, which would have occurred if they had left without permission.32 The charter did not, however, grant land in North America to the colonists, only the right to acquire land and settle in the specified area under the protection, that is the jurisdiction, of the English king. The settlers would have to make their own arrangements about acquiring land. The early charters also contained a statement about the responsibility of the settlers to convert the inhabitants of the lands they settled to Christianity and lead them to civility. As long as the colonists adhered to the terms of the charter, they and their heirs would retain all the lands, properties, and rights that they possessed in England itself, the king would retain jurisdiction over them, and they would hold from the king the lands that they acquired in the New World. By accepting these terms, the colonists could claim the protection of the English king if they required it. As the English experience of expansion, internal and overseas, in the Middle Ages provided early modern colonizers with five centuries of experience to guide their efforts, so too did the lawyers who drafted the charters and other documents related to overseas colonization possess four centuries of legal texts from which to draw the language they employed. In effect, the early modern charters encapsulated this experience, expressing in legal language the various elements of colonial policy that had developed over time. A charter began by identifying its author and stating its purpose. The charter of the Massachusetts Bay Company, for example, (1629) began: ‘‘Charles, by the Grace, of God, Kinge of England, Scotland, Fraunce, and Ireland, Defendor of the Fayth, &c’’ has awarded a charter to the ‘‘Councell established at Plymouth’’ for the purpose of the ‘‘planting, ruling, ordering, and governing of Newe England in America’’ and described the specific boundaries of the lands assigned to the corporation for settlement. Furthermore, the colonists could not occupy any land within the assigned boundaries ‘‘actuallie possessed or inhabited by any other Christian Prince or State’’ or within the boundaries of the Virginia colony.33 The obvious intention of these phrases was to prevent conflicting claims to specific territory. One of the most important functions of colonial charters, treaties, and other legal documents was to regulate access to the newly discovered lands in order to avoid wars among the emerging European overseas empires, wars that were rooted in the intra-European wars of the era, as well as to avert conflicts among English colonies in the New World. The opening words of the Charter of Massachusetts echoed the lan-

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guage in English borough charters and similar documents, but also in the papal documents that from the fifteenth century outlined the Portuguese and Spanish occupation of the islands of the Atlantic and the discovery and division of the world between them by the terms of Alexander VI’s Inter caetera (1493). As Supreme Head of the Church in England, Charles I was acting as the pope claimed to act with regard to Europeans in the New World. He claimed the right to authorize his subjects to enter and occupy a part of the New World that no Christian ruler effectively claimed for his own subjects, just as the pope had authorized the Spanish and the Portuguese to do. The Charter of Massachusetts made no reference to any rights of the Indian population of Massachusetts in the lands they occupied. The assumption seems to be that the land was terra nullius, that is, land formally possessed by no one.34 From this perspective, the Indian population only moved over and through the land but did not farm it on a regular basis. Furthermore, the death from disease of a large percentage of the Indian population before the Puritans actually landed in 1630 meant that the Puritans could see themselves as repopulating an empty land.35 Once the colonists established themselves in New England, they would hold their land as from the king ‘‘in free and comon Soccage,’’ in effect bringing themselves and their lands under the king’s jurisdiction.36 This gave the English colonists a claim to English protection in the event that the French, Spanish, or other European colonizers attempted to occupy the lands that the English colonists occupied. The charter mentioned the Indians only in connection with the responsibility of the colonists for their spiritual and moral elevation. The colonists should live ‘‘soe religiously, peaceablie, and civilly governed, as their good Life and orderlie Conversacon, maie wynn and incite the Natives of Country, to the Knowledg and Obedience of the onlie true God and Sauior of Mankinde, and Christian Fayth,’’ a task that ‘‘is the principall Ende of this Plantacion.’’ Here again the charter echoed the language of the papal letters that had authorized the occupation of the Canary Islands and the Americas by the Spanish in the fifteenth century as well as that of Laudabiliter.37 Finally, the Charter of Massachusetts also set out the outlines of colonial local government. There were to be a governor and deputy governor, 18 assistants, all ‘‘constituted, elected and chosen out of the Freemen of the saide Company . . . for the best disposeing and ordering of the generall buysines’’ of the colony. The assembled officials are authorized ‘‘to make

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Lawes and Ordinances for the Good and Welfare of the saide Company . . . soe as such Lawes and Odinances be not contrarie or repugnant to the Lawes and Statuts of this our Realme of England.’’ The colonists were, so to speak citizens of the Massachusetts Bay Colony and subjects of the king as well. As in Ireland, self-government in Massachusetts included only the English colonists, not the native population. During the seventeenth and eighteenth centuries, the English colonists and their descendants in both Ireland and North America complained about their status within the emerging British Empire.38 In both places, the issue of representation in Parliament was central. There was a Parliament in Ireland but its actions were constrained by Poynings’ Law (1495), which required its acts to receive the approval of the English government first.39 If they were the legal equals of Englishmen, why should the actions of the Irish parliament be subject to English parliamentary supervision and why did not the American colonists have a parliament of their own? Underlying the debates about parliamentary representation was the fear that if the English parliament was seen as the sole parliamentary body within the empire then the colonists and their descendants who had no direct representation in the English parliament would be reduced in status to the level of subject peoples, like the Irish and the Indians. The threat of incursions by other European rulers, especially the French, encouraged the British colonists to emphasize their relationship to the imperial government from which they sought protection. The subsequent success of the British in the eighteenth-century imperial wars with the French that ended in 1763 ironically made it easier for the Americans to seek a fuller role in the governance of British North America by removing the greatest external threat to their survival. At the same time, the growing pressure for a more centralized state power at home and pressures to systematize the collection of lands that comprised the empire, led to English efforts to bring the American colonies under tighter royal control even before 1763. The revocations of colonial charters, the attempts to rationalize the administration of the North American colonies during the seventeenth century, the creation of an imperial trade policy by the series of Navigation Acts, and the general thrust of English policy in the seventeenth and especially the eighteenth century echo the increasing interest of the London government in the administration of overseas colonies and control over those who dwelled there.40 One important difference was that in British North America the native population had died off, had been defeated in battle, or had moved away from English set-

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tlement so that, unlike the situation in Ireland, where the native population was belligerently present. In North America the English government had only to concern itself with the English colonists. From the perspective of the American colonists, they were Englishmen with the rights, liberties, and privileges pertaining to them. They claimed what James Otis termed ‘‘the rights of freeborn Englishmen,’’ rights that stemmed from the ‘‘ancient constitution,’’ the common law, and the Magna Carta.41 These rights and privileges were guaranteed by the colonial charters and could not be taken away by subsequent acts of Parliament, according to the colonists. While the English officials saw the Americans as subjects of the central government, especially of Parliament, the Americans tended to see themselves as subjects of the king and sought some form of representation, even an American parliament, as they believed was their due. The king of England was, after all, king of Ireland, and there was an Irish parliament. If the English in Ireland could enjoy such a form of government, why could not the English in North America? There were even those who argued that as the king of England was also king of Scotland and king of Ireland, he was also king of Massachusetts, Connecticut, and so on.42 That is, some Americans saw the British Empire as a collection of separate territories, joined only by the fact that they shared a common king. Others, however, saw it as a hierarchical structure with the king in Parliament at the summit. The American Revolution broke that deadlock. The problems that the Angevins had faced in ruling Ireland in the late twelfth century foreshadowed the problems that the Tudors, Stuarts, and Hanoverians faced in ruling British North America in the seventeenth and eighteenth centuries. Overseas expansion was less a matter of dramatic conquest and more a matter of accommodation and adaptation to new circumstances. In both cases those who would adventure abroad, whether as mercenaries or as peaceful colonizers, did so at their own risk. The ruler who authorized their going risked nothing, only legitimating their endeavor and guaranteeing that they would not lose their status in England as a consequence of leaving. As the Charter of Massachusetts also pointed out, the descendants of the colonists would possess English legal status as well and could reclaim it by returning to England. Once the adventurers had succeeded, however, the monarchs took a different stance with regard to the settlements. Henry II went to some lengths to ensure the permanent subordination of the English in Ireland by obtaining the fealty of Richard of Clare and then obtaining oaths of fealty from the Irish chiefs. By then making John lord of Ireland, Henry II created

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the outlines of a legal structure that could administer Ireland if the English in Ireland and the chiefs of the Irish tribes played the roles that contemporary lawyers assigned them. In both Ireland and North America, the English government also faced the problems posed by an indigenous population that did not immediately accept English rule except in the most nominal way. That is, the Irish chiefs may have sworn allegiance to Henry II and their successors to other English rulers as late as Elizabeth I, but the practical significance of this submission appears minimal. What the Irish did not voluntarily give, the English were in no position to coerce until the late sixteenth and seventeenth centuries when the conquest of the native Irish took place. In North America, English policy pushed the Indians to the outer fringes of colonial settlement and focused almost entirely on the English colonists. Any expectation that the Indians would become civilized Christians and perhaps enter into the English political order soon ended. In the final analysis, over a period of several centuries the colonizing and settlement experience of the English, beginning with the occupation of Ireland, was reduced to some basic legal principles that could then be employed in the formation of new colonies. Several centuries of English colonizing experience had not provided, however, a satisfactory solution to the question of the legal status of those who went abroad to colonize, a situation made more dangerous for the long-term survival of the empire by the failure to develop strong ties with the native populations of Ireland and North America. British imperial control of North America depended almost entirely on rapidly fraying bonds of tradition and affection with the descendants of the original colonists. As late as 1775, the British Empire lacked a concept of imperial citizenship and an imperial parliament that would have satisfied the members of the increasingly powerful English parliament, the American colonists, the English in Ireland, and the other Englishmen who were establishing colonies around the world. The ties with the English colonists that had been created over the centuries turned out not to be strong enough to withstand the pressure that the colonists’ demands for equal status in legal theory and participation in representative institutions created.43 The American Revolution was the result as the frayed ties finally gave way.

PA R T I I

Writing the Law

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Chapter 5

Licit and Illicit in the Yarnall Collection at the University of Pennsylvania: Pages from the Decretals of Pope Gregory IX Robert Somerville

By the early thirteenth century the Latin church possessed two collections of papal letters that were in some sense considered to be official. The compilation of letters of Pope Innocent III (1198–1216), prepared by Peter of Benevento in 1209–10, was endorsed by a papal bull from Innocent; the collection of Pope Honorius III’s (1216–27) letters, assembled by the canonist Tancred in 1226, was prefaced by a bull from Honorius. Both collections were responses to the flood of questions and litigation engulfing the courts of the church as the papacy struggled in the first part of the thirteenth century to define a centralized canon law for Latin Christendom. Throughout its long history the church ‘‘requires norms according to which it is defined and constituted, and procedures by which it operates,’’ and papal enactments are among the most important forms of law in the Western tradition.1 Decisions from the bishops of Rome were important even in pre-Constantinian times, and from the fourth century onward papal letters survive that present responses to questions that were posed from outlying areas. Such responses are called ‘‘decretals,’’ a word derived from the past participle of the verb decernere, meaning ‘‘to decide, to judge, or to decree.’’2 Despite their antiquity, it is especially from the mid-twelfth century that decretals play a leading and even a dominant role in medieval church law, and the specific types of letters that should be designated as decretals, and their scope, were questions debated by scholastic canonists. Peter of Benevento’s collection was, as far as is known, the first canon law book to be promulgated with a papal bull attached guaranteeing its authenticity. It can only be wondered that the papacy had not felt the need to take some such an authoritative step earlier. But exactly what Pope Inno-

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cent’s intention was in approving Peter’s work has been a matter of debate. The pope is not explicit about it, noting only that the texts of the collection were contained in the papal registers, and thus they could be used without any hesitation (about their authenticity, presumably) in judgments and in the schools. Honorius III, in contrast, offered details about the problems inherent in the burgeoning canon law of the early years of the thirteenth century and also showed an awareness of the need to come to grips with those problems. From the mid-twelfth century onward, with the appearance of Gratian’s Decretum and an increasing number of papal decisions that circulated throughout the church, new opportunities were at hand for the study and use of canon law. The result was an intensified interest in ecclesiastical law and the concomitant appearance of a number of new collections, especially of recent papal rulings. Not all churchmen of the time applauded those trends, and one late twelfth-century writer likened the growing volume of new law to an ‘‘unmanageable forest.’’3 In his bull authorizing Tancred’s collection, Pope Honorius III stated that new cases required new legal remedies, and his intention was to offer a book of papal laws that dealt with such emerging issues. Echoing Innocent III, Honorius went on to say that these decisions could be used without any doubt about their authenticity, but he then expanded on what he hoped to accomplish. These texts, he indicated, had been formally published, presumably by the prefatory bull, and Tancred was to make an effort to have other scholars use them in judgments and in the schools. The same covering letter was addressed to the masters at Padua, emphasizing Pope Honorius’s intention to have the new compilation circulate.4 Leonard Boyle demonstrated that Tancred worked directly from Honorius III’s papal registers in preparing his compilation, as opposed to Peter of Benevento, who used earlier collections for texts of Innocent III’s enactments.5 The thirteenth-century papacy thus was increasingly active in both shaping and controlling the church’s law. Nonetheless, there simply was too much law bounding around in church courts, and the potential confusion within that law is exemplified by an anecdote concerning the early years of Gregory IX’s pontificate (1227– 41). As the story goes, a decretal that could not be found in various earlier compilations, including the collections of Innocent III and Honorius III, was cited before the pope. Losing patience, Gregory ordered that the book of decretals—presumably the volume where the vagrant ruling finally was located—should be destroyed, and, furthermore, he decreed cessation of

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the study of decretals until he could make a decision about how to handle their proliferation.6 Whether that account is true or not, early in his reign Pope Gregory engineered a massive reshaping of the Latin church’s canon law. All earlier compilations of decretals were superseded by a great new work that was assembled by the Dominican master, Raymond of Pen˜afort. The bull of promulgation for the Gregorian Decretals, where an outline of the enterprise is given, was addressed first to Bologna, but, as with Honorius III’s collection, copies were transmitted elsewhere.7 The new collection was organized into five books, with each book subdivided into titles, using a model that had been developed for decretal compilations in the late twelfth century. Gregory gave Raymond great latitude in editing the texts from earlier collections; and Raymond also inserted a series of new items, presented under Gregory’s name, which were meant to clarify matters that required more than editorial manipulation of earlier rulings. As did Innocent III and Honorius III, Gregory IX wrote that his new work was to be used in both judgments and schools. But Gregory and Raymond went farther, stating at the end of the bull of promulgation that ‘‘we firmly prohibit that anyone presume to make another [compilation] without the express authority of the apostolic see.’’8 The Decretals of Gregory IX were promulgated in 1234 and had a very long life as an official law book in the Roman Catholic Church. Together with later official collections, the work remained in effect until 1917. This section of the study moves far beyond the world in which the Decretals were promulgated, but deals with a world where they still could be living law. The remarks to follow center on nineteenth- and early twentieth-century Philadelphia and focus on textual threads from the thirteenth century.9 Ellis Hornor Yarnall (1839–1907) was a native of Philadelphia and a graduate of both Haverford College and the University of Pennsylvania Law School. Yarnall was an anglophile and a convert to the Episcopal Church who had been baptized in 1864 in the newly founded parish church of St. Clement’s.10 Throughout his life, he ‘‘was devoutly and steadfastly committed to the Anglo-Catholic expression of religious life,’’ and St. Clement’s was a center of a High Church faction in the Episcopal Church in Philadelphia.11 Yarnall’s will, written in 1898, provided for the establishment in Philadelphia of an endowed ‘‘Library of Theology’’ at the parish church of St. Clement’s. The history of this unusual arrangement and the unusual library thus established, and the developments that brought the Yarnall Collection

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to the University of Pennsylvania, were studied by Joyce L. White in 1979. She characterized the library as ‘‘a library of books relating to the history, doctrine, and worship of the Catholic Church as treated by the early Fathers, the Doctors of the medieval period and current Anglican theologians . . . for the benefit of both clergy and students.’’ Although the books were the property of St. Clement’s, the library was from early on housed at the Philadelphia Divinity School in West Philadelphia. The collection grew and included major research tools for church history such as volumes of the Monumenta Germaniae Historica, Migne’s Patrologia Graeca, and ‘‘five folio volumes of Nicolaus de Lyra’s Postillae in their original bindings as published in 1501–02.’’12 At the point of its removal to the University of Pennsylvania, a move that will be described in the following paragraph, the Yarnall Collection included 20,000 volumes.13 In 1973 the Philadelphia Divinity School was merged with the Episcopal Theological Seminary in Cambridge, Massachusetts, and the school’s operations in Philadelphia were closed. Despite pressure to move the Yarnall Collection to Cambridge, the board of managers of the library was committed to following the provisions of the founder’s will for maintaining such a library of theology in Philadelphia.14 At that point, Richard De Gennaro, director of libraries at the University of Pennsylvania, stepped in and invited the library’s board to consider Penn as a possible home. On the conditions that the collection be separately housed within the main library and that its catalogue be separately maintained, arrangements were made to house the Yarnall Library of Theology in the Dietrich Graduate Library Building at Thirty-Sixth and Walnut Streets. The collection was to be freely accessible in the building for use by scholars; items deemed ‘‘rare books’’ were deposited in Penn’s Annenberg Rare Book and Manuscript Library but shelved separately. The author was a faculty member at Penn in 1975–76 and quickly became acquainted with the riches in the Yarnall collection. In the course of that academic year, a colleague alerted me to an interesting discovery in the aforementioned volumes of Nicholas of Lyra’s Postillae.15 Nicholas (1270/ 75–1340) was a Franciscan theologian at Paris whose Postillae were very popular throughout the late Middle Ages and influential on Luther.16 The Yarnall copy contains the six-volume edition by Sebastian Brandt, printed in five folio tomes at Basel in 1498–1502 by Johannes Froben (vols. 5 and 6 are printed in one book).17 Early modern printers’ use of pages from medieval manuscripts as backing and binding material is well known. The boards that make up the

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front and back covers of the Yarnall copy of the Postillae are the originals, here and there restored. They contain a group of pastedowns from medieval philosophical and legal manuscripts, including parts of pages from the Decretals of Gregory IX. Those medieval fragments have been trimmed to fit the printed books’ boards, but the Roman and canon law texts can be identified. Tomes 1–2, front and back covers: mutilated pages from an unglossed thirteenth-century copy of Aristotle’s Topics, specifically identified in the fragments at the back of tomes 1 and 2. Tome 3, front cover: late thirteenth-century, with marginal glosses, X 2.24 (‘‘On Oaths’’ [De iureiurando]), cc. 25–26, both of which are from decretals of Pope Innocent III.18 ———, back cover: twelfth/thirteenth century, mutilated page from the Codex Iustinianus (9.49.1–9), with a marginal gloss at the bottom of the inner column but most of the extensive gloss that once surrounded the text on all sides appears to have been erased. Tome 4, front cover: late thirteenth century, with marginal glosses, X 5.12 (‘‘On willful and accidental homicide’’ [De homicidio voluntario vel casuali]), cc.19–22; 19–21 are from Innocent III, and 22 from Honorius III. ———, back cover: late thirteenth century, with marginal glosses: (i) X 5.17 (‘‘On plunderers, arsonists, and violators of churches’’ [De raptoribus, incendiariis et violatoribus ecclesiarum]), cc. 5–7; 5 is from Alexander III, 6 from Lucius III, and 7 from Innocent III. (ii) X 5.18 (‘‘On thefts’’ [De furtis]), cc. 1–5; 1 is from the Book of Exodus, 2 from the Council of Tribur (895),19 3 from the ‘‘Penitential of Theodore’’(‘‘vere,’’ the Excarpsus Bedae-Egberti),20 4 is from ‘‘Jerome on Proverbs’’ (‘‘vere,’’ the Glossa ordinaria on Proverbs),21 5 is from a decretal of Alexander III. Tome 5, front cover: late thirteenth century, with marginal glosses, X 2.26 (‘‘On prescriptions’’ [De praescriptionibus]),22 cc. 9–13; 9 is from Alexander III, 10 from Lucius III, 11–13 from Innocent III. ———, back cover: late thirteenth century, with marginal glosses, X 2.23 (‘‘On presumptions’’ [De praesumptionibus]),23 cc. 12–15; 12 is from Alexander III, 13 from Clement III, cc. 14–15 from Innocent III. These fragments seem to derive from two different late thirteenthcentury Italian manuscripts.24 The pieces from the Decretals are accompanied,

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as would be expected, by the standard commentary known as the Ordinary Gloss. This apparatus was assembled by Bernard of Parma in the early 1240s and revised up to the time of his death in 1266.25 The specific provenance of the pages under discussion is uncertain. Basel was an international city and manuscripts from throughout Europe would have been available there. The history of the Yarnall copy of Nicholas of Lyra is unknown prior to its arrival in Philadelphia. A bookseller’s stamp on the back of the front board of tome 1 (also on the front of 3) reads: ‘‘John M. Stark / Bookseller / 64 Market Place / Hull.’’ A handwritten note in the outer margin of tome 1 reads: ‘‘H. L. Hastings Bought These Books of Segatt Books N.Y.’’26 Horace Lorenzo Hastings (1831–99) was a publisher and Christian pamphleteer. A Millerite and First-Day Adventist, Hastings was interested in study of the Bible and was an opponent of Higher Biblical Criticism.27 He was active in New England and New York state, and his interest in the Bible could have brought Nicholas of Lyra to his attention in one way or another. The trail is not a very clear one. The whereabouts of the five books of Nicholas between Hastings’s day and their arrival in Philadelphia is uncertain. The Postillae seem to have been added to the Yarnall Library only in 1944; the acquisition was especially noteworthy, it seems, because the work survived in its original binding.28 Of the ten medieval fragments used as backing material in the Yarnall Nicholas, six were from legal manuscripts. These fragments of manuscripts placed in the Nicholas bindings surely were inserted at random, simply because the manuscripts were at hand and were deemed no longer of intellectual interest. Pieces from legal texts are very prominent among the parchment used in the bindings and boards of early printings. Codices of those works were plentiful in the Late Middle Ages. There are, for example, approximately 700 surviving medieval manuscripts of the Gregorian Decretals, and in the year 1500 there would have been many more.29 Gratian’s Decretum and the Gregorian Decretals were among the first works to be printed, and Friedberg noted 45 fifteenth-century printings of the Decretals, nine of them produced in Basel.30 Important, numerous, but also in some sense dispensable in the late fifteenth century, such manuscripts were thus more likely targets for dismembering and trashing than other sorts of medieval books. This section returns to the medieval setting of the Yarnall fragments. The discussion at the beginning of the chapter outlined the developments that led to the great compilation of decretals by Raymond Pen˜afort on behalf of

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Pope Gregory IX, and the subsequent tabulation lists the specific texts from the Decretals that are included in those fragments. Details about individual readings would need to be sought in the texts themselves, for a modern critical edition of the Decretals is not at hand nor likely to be available any time soon.31 That being the case, medieval manuscripts in this collection, including fragments of the work, could yield variations from the printed versions, and the value of such readings can only be assessed in conjunction with examination and classification of the manuscripts. Thus the Yarnall fragments of the Gregorian Decretals retain a potential textual significance for the history of canon law. Those thirteenth-century ‘‘membra disiecta’’—castoffs from Frobin’s printing house in Basel and now preserved in Philadelphia—are isolated remains of an official legal tradition that stretched beyond the Middle Ages. As such, these fragments can be said to represent discrete, medieval elements of ‘‘the licit and the illicit.’’ With an eye, therefore, on that theme, it might be interesting, in conclusion, to look at one decretal from among those embedded in the Yarnall fragments. Title 12 of book 5 of the Decretals is, as noted above, ‘‘On willful and accidental homicide’’ (De homicidio voluntario vel casuali) (Nicholas of Lyra, Postillae, tome 4, front cover—see above). Canon 20 of title 12 concerns abortion. This is a text of Pope Innocent III, issued in 1211 and sent to the prior and to the Carthusian Brothers. The text was included in one of the important pre-1234 decretal collections, the so-called Compilatio quarta, assembled by the canonist Johannes Teutonicus early in 1216.32 Wolfgang Mu¨ller, in his magisterial monograph on abortion, notes that Raymond of Pen˜afort probably included this decretal in his compilation, not because of the subject matter per se, but rather with a desire to use the text as one in a series that emphasized editorial and legal questions about homicide.33 Notwithstanding such a scholastic perspective on Raymond’s part, X 5.12.20 in and of itself reveals an interesting and tangled set of circumstances, full of human drama, where the boundaries between licit and illicit are very much to the fore. The decretal will be presented here both through Friedberg’s Latin text and in an English translation. In this instance collating the Yarnall fragment with the text of the decretal in Innocent III’s Register, and with Friedberg’s text printed in the Liber extra, yielded only a very small number of insignificant variants.34 Idem Priori et Fratribus Carthusiensibus.35 Sicut ex literarum vestrarum tenore accepimus quum quidam presbyter vestri ordinis, qui prius fuerat niger monachus, quandam mulierem praegnantem, cum qua

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contraxerat consuetudinem inhonestam, et quae asserebat, se concepisse ex eo, per zonam arripuerit, quasi ludens, ipsa36 . . . per hoc sic se asseruit esse laesam, quod occasione huiusmodi abortivit; propter quod idem presbyter, proborum virorum usus consilio, se ipsum duxit ab altaris ministerio sequestrandum. . . . Nos vero devotioni vestrae insinuatione praesentium respondemus, quod, si nondum erat vivificatus conceptus, ministrare poterit; alioquin debet ab altaris officio abstinere.37 The same [Pope Innocent III] to the Prior and Carthusian Brothers. We have learned from your letter that a certain priest of your order, who previously had been a black monk, playfully grabbed by the girdle a certain pregnant woman, with whom he had been bonded together in an indecent intimacy and who asserted that she was carrying his child. As a result of this [grabbing] she claimed to be injured, consequently suffering an abortion. For this reason the priest, on the advice of prudent men, decided to refrain from ministry on the altar. Et infra.—[There follows a report of a plea on the part of the Carthusians for papal mercy, a line that was excised from the text in the Decretals—hence the words Et infra.—and Innocent III then continues.]38 But we are responding to you by the present letter that if the fetus was not yet animated, he can minister; otherwise he ought to abstain from duty on the altar.

Chapter 6

Judicial Violence and Torture in the Carolingian Empire Patrick Geary

Medieval scholars of judicial procedure, particularly those concerned with the Early Middle Ages, have in the past two generations brought enormous clarity to our understanding of how the operation of Frankish justice was deeply embedded within the context of Frankish society. A primary goal of this scholarship has been to demonstrate the pragmatic and ‘‘rational’’ nature of early medieval judicial procedure. In the immediate postwar period, scholars such as Franc¸ois Louis Ganshof studied Carolingian justice with an emphasis on rational institutional procedure and institutions.1 More recent scholarship, drawing on the processural school of legal studies, tends to present Carolingian justice as though it were primarily concerned with fines and financial settlements rather than with blood and torture.2 This is in marked contrast to the approach of legal historians in the first half of the twentieth century, who viewed early medieval justice as ‘‘arbitrary and irrational,’’ emphasizing such practices as the ordeal that threatened physical pain, mutilation, or death to those who underwent it.3 Physical violence in the early Middle Ages has not been neglected, but recent studies tend to focus on violence as though it existed outside and opposed to the formal apparatus of the courts. The emphasis has been on legal procedures as means of eliminating violence, specifically the feud, and keeping peace, rather than exploring the violence the Carolingian state itself exercised in the course of performing justice.4 As important as this corrective has been, however, as a result in recent decades virtually nothing has been written about the use of what might be generally termed judicial violence, that is, torture and corporal punishment inflicted to elicit confessions from those accused or to punish those convicted. Instead, recent scholarship has emphasized that such relatively pacific procedures as oath helping, the use of written evidence, and interro-

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gation of witnesses were integral to Frankish legal procedure. The result has been, as Barbara Rosenwein has suggested, that two generations of historians have developed an image of justice that might rightly be called irenic.5 A notable exception to this approach is Edward Peters’s Torture, a bold and important book that, in a concise treatment, traced the history of torture in Western judicial tradition to the twentieth century.6 Not surprisingly, the early Middle Ages is a period to which Peters devotes only a few pages in his powerful book: he is clearly after bigger game. At the time of its publication the book was one of those rare monographs by a professional medievalist that succeeded in reaching a wider audience, not only of scholars and students, but also of educated men and women concerned with the historical dimensions of an important, if somber, aspect of the judicial tradition. Recently and sadly, world attention has again been directed to the question of torture and judicial cruelty, not only in those many parts of the world where they never disappeared and continue to be an integral part of daily life, but also in Western democracies. To what extent American justice, with its death penalty, permits ‘‘cruel and unusual punishment’’ and whether the ongoing, transnational struggle against violent anti-Western terrorism requires incorporating torture have once more become publicly debated issues. And yet, while such debates about contemporary violent justice dominate headlines and although scholars are aware that torture and excruciating corporal punishment existed in early medieval judicial proceedings to some extent, medieval torture is generally said to have become common only in the thirteenth century. Robert Bartlett has perceptively discussed the reappearance of torture in the context of the decline of the ordeal and has emphasized that torture, when it reappeared in the High Middle Ages, was explicitly regarded as an alternative to the ordeal.7 In what follows, I would like to reconsider the Carolingian uses of judicial violence, including corporal punishment and torture employed to elicit confessions, to correct the image of Carolingian justice that has developed in recent decades. I also wish to put forth as a hypothesis that one might extend Bartlett’s thesis by suggesting that not only did the disappearance of the ordeal contribute to the increased use of judicial torture but also the ordeal may have replaced judicial torture in parts of post-Carolingian Europe. In spite of the relatively abundant extant records of Carolingian courts or placita, we know very little about the torture or physical punishment exercised in the course of Carolingian justice. This is in part because virtually all the surviving placita concern property disputes or claims of free

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status on the part of individuals or groups of peasants. In such cases, which today would be considered issues of civil rather than criminal law, remedies are the surrender of real property or the submission of individuals to the authority of their masters rather than fines or physical punishment. By their nature, what we would term criminal cases are unlikely to have left documentary evidence—punishment would have been immediate and definitive—and even if such records did exist, there would be little reason for them to have been preserved after the death of the parties involved. As for torture, the protocols of Carolingian placita provide no place for the description of the circumstances under which individuals gave testimony. If pressure or even torture was indeed employed, it is absent from the formal record. As a result, the image written sources provide of Carolingian justice is remarkably pacific: cases held by counts or missi, whether resolved by clear judgments or settled through amicable compromise, provide no evidence of physical pain, suffering, mutilation, or death. To some extent, this is also the image presented in the so-called ‘‘Germanic’’ or ‘‘barbarian’’ laws that continued to be copied, amended, and thus, we can infer, applied in the later eighth and ninth centuries. In these various legal compilations, drawn up under the influence of Roman vulgar legal practice, and by the eighth century more territorial than personal, the vast majority of offenses can be atoned for by the payment of wergild. Only if the offender and his kindred are unable to make this payment is a corporal penalty, usually death, the alternative. Only the unfree are regularly subject to corporal punishment rather than payment for their offenses.8 Corporal punishment is more present in the capitularies, specifically in those directed toward the Saxons, for whom a wide range of behavior merits death. Two capitularies in particular, that of Herstal and the capitulare de Latronibus,9 do address the punishment of theft. The former in particular prescribes specific punishments: for the first offense, the loss of an eye; for the second, the loss of a nose; and for the third, death.10 Such explicit references to violent punishment are rare, however, and generally penalties tend to include fines and, more rarely, exile. But it would be hopelessly naive to believe that Carolingian justice functioned without judicial torture or without corporal punishments, ranging from beatings to mutilation to death in a variety of excruciating manners. Narrative sources mention blindings, drownings, and execution with sufficient frequency, even if only in connection with elites caught up in political conflict, to make us cognizant of the ever-present possibility of corporal punishment in Carolingian justice.

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Nor is this in any way surprising. Much of Carolingian law and legal practice derives from Roman law, in which torture, mutilation, and execution were prescribed both for the interrogation of unfree witnesses and as punishment for a wide range of offenses.11 Thus it would be a grave error to imagine that these penalties are evidence of ‘‘barbarian’’ tradition—they are inherited from Roman tradition. Torture was a normal and even necessary part of the interrogation of unfree witnesses or accused, and the public infliction of pain, mutilation, and execution as penalties meted out on less privileged members of the community had long characterized the exercise of Roman justice. Such measures, largely restricted in the Republic and the Principate to slaves and noncitizens, became increasingly common in their application to all but the honestiores in Late Antiquity. Such practices were incorporated into Visigothic legal practice and into other ‘‘barbarian’’ codes as well.12 The threat of physical pain at the hands of judges was thus a normal expectation for the vast majority of the inhabitants of the late empire and its successor kingdoms. Such violence in the pursuit of justice was an integral part of Carolingian justice, both in regions largely under Roman law and in areas where Germanic laws predominated, even if its exercise has left relatively little evidence in the written record. Those few who have addressed the question of criminal justice in the Carolingian period have concentrated less on the harshness of the justice meted out by judges than on their failure to provide justice at all. This is indeed the focus of Paul Fouracre’s excellent summary of the rhetoric of judicial reform in the Carolingian world.13 Fouracre notes that the capitularies of Charlemagne that most address the problems of criminal justice, primarily Herstal and the capitulare de Latronibus,14 focus specifically on ‘‘the failure to accuse criminals and the failure to deliver criminals up to the count for justice.’’15 Certainly the corruption of judges and their failure to prosecute criminals vigorously are recurrent issues in Carolingian reform language, but they are not the only ones addressed by reformers. At least a few were concerned not simply with judges who did not pursue criminals but also with those who did so with excessive or arbitrary violence. Three Carolingian texts shed particular light on the use of corporal punishment in the courts of the ninth century. They are poems rather than records of courts, but all three purport to describe the proper exercise of justice by royal officers. The anonymous Carmen de Timone comite, produced in Bavaria sometime in the mid-ninth century, presents what might

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be seen as the majority image of the proper use of violence in Carolingian court proceedings: Therefore, when the count arrives, he orders that thieves be hanged, And that the cheeks of robbers be forever branded. That criminals be disgracefully maimed by having their noses cut off; This one loses a foot, and that one loses a hand.16

This image of comital justice accords well with Fouracre’s description of how a judge ought to act: to punish thieves with severity and not to be swayed by bribes or external considerations. Such a view of Carolingian justice, however, is only part of the story. If unjust judges fail to enforce the law with proper severity, others, according to Theodulf of Orleans, do so with too much cruelty. Theodulf develops this other critique of Carolingian justice in two poems, his Paraenesis ad judices, also known as his Address to Judges,17 and his Comparison of Ancient and Modern Laws, a poem that contrasts human and divine law.18 In what follows, I will attempt to speculate on how Theodulf’s poems, besides documenting extremes of cruelty as a judicial punishment, may also suggest the widespread use of torture in obtaining testimony in certain cases involving questions of free status, uses that may have contributed to the subsequent use of threats of ordeal, which, in turn, may have replaced torture as a coercive measure between the tenth and thirteenth centuries. In order to understand Theodulf’s criticism of corporal punishment and of the use of torture to obtain testimony, one must consider the structure and organization of the Paraenesis as a whole. Theodulf’s long poem, because of the detailed description of an antique vase offered to Theodulf if he would find in favor of a party, has been the focus of a great amount of scholarship on the knowledge of classical mythology in the Carolingian renaissance.19 However, its essence is a systematic critique of the work of a royal judge that incorporates his own experience as a royal missus in Provence and Septimania at the end of the eighth century, and is an extended exhortation to royal judges to act with justice and mercy. Much of the poem is devoted to the universal problem of bribery and concentrates on the temptations facing a judge to accept gifts from parties in lawsuits to favor their cause. However, while much of the poem is an exhortation to judges and others involved in the administration of justice to resist bribery and to act with honesty in court, the poem also outlines the steps of a judicial proceeding: the entry of the judges into a city; their arrival at the thronged court; the admission of litigants by the (normally corrupt) door-

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keeper; the proper seating of litigants and judges; the investigation of the individual case by hearing the arguments of the litigants; the interrogation of witnesses; the taking of oaths; the judgment; and the meting out of punishments. The poem then ends with a plea to judges to show mercy.20 It is in the final sections, the description of punishments and the plea for mercy, that Theodulf addresses judicial violence both in the use of corporal punishment and in torture to elicit confessions. Discussing punishments, he describes the penalties permitted by law and contrasts, on the one hand, the demands that these be applied and, on the other, an exhortation to clemency. ‘‘The law commands that the evil heads of the condemned be cut off, their legs, genitals, eyes, backs, hands; to burn their limbs, to fill their mouths with molten lead, or whatever else human laws demand.’’21 Still Theodulf is uncomfortable with such punishments which, he contends, contradict the Christian obligation of compassion. In Theodulf’s second poem, the Comparison of Ancient and Modern Laws, he expands on his critique of human justice, contrasting the penalties demanded by modern law with those of the Bible. Theodulf argues that if ‘‘In early times punishments were severe, in our times they are even more cruel.’’ Theodulf contrasts biblical punishments that demand restitution and compensation with contemporary punishments that, he contends, demand death or mutilation even for theft. To Theodulf, biblical punishments better fit the crime than do the human penalties of his day: if the Bible commanded that ‘‘he who steals a beautiful lamb from the flock restore it twice over to him who took it,’’ then ‘‘it is unknown except in our day that the apprehended thief is punished by death.’’ He goes on to enumerate the penalties prescribed by contemporary law for thieves: ‘‘Modern law takes away eyes, the source of begetting beautiful offspring, a leg and hand at the same time. They order that backs be cut with brands, lead be poured into the mouth, that ears, noses and all that is beautiful be cut off. They order that swift feet be amputated and that with a rope around it, the neck, suspended from a high pole, should bear the weight of a thief.’’22 In only one area does he see modern law as less severe than that of the Bible: biblical law required, he writes, an eye for an eye and a life for a life, while modern law requires that human blood pay for that of animals. And yet, if someone strikes and kills another in rage, the price for this offense is cheap: money, livestock, or fear of imprisonment.23 Theodulf’s objection to mutilation and other forms of corporal punishment are not simply based on the disparity between biblical and modern justice. In his Comparison of Ancient and Modern Laws, he contrasts what

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he considers the cruelty of the modern law with the Gospel admonition to return good for evil. ‘‘The Lord did not order to return evil for evil, reproach for harsh reproach, attack for attack.’’ In the Paraenesis, however, his opposition to mutilation and execution is more sociologically grounded. First, in response to those who might insist that Theodulf is opposing the restraint of evil, he urges that judges be neither too lenient nor too savage. Neither should law make one cruel nor pity, soft. He urges that the guilty be enchained, that they be beaten, but he urges, ‘‘do not stain your blade with wretched blood.’’24 He would rather be known as a judge who saves lives and whose sight returns strength to the weakened body of the throng. These thoughts of mercy are encouraged by a further consideration: the plight of the poor oppressed by the rich. Pauper in Carolingian Latin is often opposed to potens, the poor being those who are without power, not simply without wealth.25 This is clearly the case in Theodulf’s poem, in which pauper, miser, or inpos designates one unable to purchase justice. ‘‘What a poor man loses, he is said to lose justly; What a rich man grabs, he is thought to take justly.’’26 Here, in Theodulf’s experience, is the crux of the problem in the administration of justice. He presents bribery and corruption not simply as general evils affecting justice but most particularly as leading to the tyranny of the powerful over the weak. This tyranny is most painfully evident in the practice of judicial torture to elicit confessions. For it is here alone that he broaches the question of the inflicting of physical pain not as punishment but to extract confession. He suggests a series of accusations that the rich bring against the poor: ‘‘he is a thief, he is ready to flee; his mind is deceitful; he is deceptive, he steals and robs, he plots to avoid our service, he has been fleeing our neighbor for a long time. Bind them to a post, chain their arms, make them confess their evil, make them bear the lash of whips.’’27 This list of accusations is more than simply a random series of reproaches. The suggestion that the pauper is fugax (inclined to flee), that he attempts to avoid services owed the dives, and that he has fled the accuser’s neighbor, are all accusations brought by a landowner who is claiming that peasants who assert their freedom are in fact servile. The specific instance of abuse, then, is one commonly observed in Carolingian placita: a group of peasants refuse compulsory services demanded by a local landowner; they attempt to elude his authority and that of other local landowners. They declare that the lands that they work are their own, not those of a lord. Theodulf’s statement that the lords then demand that these paupers be subjected to torture so that they might ‘‘confess their evil’’ is consistent with this

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claim of servile status: if indeed servile, they are subject to corporal punishment to force them to testify. The demand on the part of their accuser that they be chained and beaten in order to reveal their legal status is thus a demand that they be treated from the start not as freemen but as servi. Little wonder, then, that Theodulf comments that those making these demands do so because ‘‘they wish to strip them of their property, not of their vices.’’28 Within Theodulf’s critique of judicial cruelty, then, is a critique not only of torture as punishment but also of the torture of individuals intended to coerce confession to the accusations of the powerful. Theodulf’s concern that powerful landowners are urging judges to use judicial torture, permitted, as we have seen in both Roman and Barbarian law only on the unfree, to prove the unfree status of peasants, resonates with a general issue remarked upon by Janet Nelson. Talking about West Frankish dispute settlement, she pointed out that ‘‘Lords were clearly short of manpower, and used the courts to impose their demands on refractory peasants, sometimes putting the machinery in motion to secure a judgment on the servile status of a single man or woman.’’29 Nelson cites a number of placita and formulary texts that indicate the relative frequency of such actions.30 Disputes concerning servile status were indeed an important issue in the ninth century. Among the Formulae Senonenses recentiores from the reign of Louis the Pious, for example, one finds a series of protocols for judgments in which men lose court cases denying their status as servi or coloni.31 The procedures in all of these cases seem so simple that if one were to take them as literal descriptions of the cases, one would wonder why the peasants had brought them at all: a man claims that he is not the servus or colonus of a monastery or of a lord. He is unable to provide evidence, but the individual or institution claiming him produces testimony from witnesses to his servile status, and he loses his case. This is quite similar to the case examined by Janet Nelson of some twenty-three named men of St. Denis who in 861 claimed that they were free coloni by birth and were being unjustly forced into inferior service.32 The abbey produced its witnesses and the peasants promptly lost their case. Do such formulaic accounts of the proceedings tell the whole story? Are the plaintiffs or even the witnesses tortured or threatened with torture? It is impossible to say: to do so would be to argue from silence. Certainly some cases in which peasants were forced into servitude were deemed unjust: two formulas from the reign of Louis the Pious provide for the restitution of the freedom of which they had been unjustly deprived.33 The first

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specifically states that the individual had had his liberty taken from him by the count.34 Accusations that such judicial proceedings to determine freedom were settled by force certainly appear. In a placitum held at Turin in 880, for example, one Maurinus and his son Ansevertus claimed that the monastery of Novalesa wrongly held them in servitude even through they were free men. The monastery’s advocate responded by presenting a notice of a previous judgment in which they had been declared serfs of the monastery. The claimants’ response, ultimately rejected for lack of evidence, was that the judgment was invalid because ‘‘all that had been done had been done by force and not by [proper] judgment.’’35 What sort of force might be brought to bear on peasants claiming liberty is impossible to determine. One might nevertheless suspect that one possibility was real or threatened torture or possibly its later analogue, the ordeal. No Carolingian placita indicate that peasants claiming free status were tortured or threatened with torture as part of legal proceedings to adjudicate their cases. By the twelfth century, however, as we shall see, the ordeal had become a common form of proof in such cases. Can one demonstrate that the ordeal, demanded of peasants claiming free status, was the successor of the judicial torture applied to or threatened for those who claimed free status? Certainly not. However it is worth considering the circumstantial evidence connecting the practice of trial by ordeal, either unilateral or bilateral, with the demonstration of servile status from the post-Carolingian period. The evidence from the Liber de Servis of the monastery of Marmoutier is particularly suggestive in this regard. This extraordinary manuscript, which contains charters and documents relating to the monastery’s serfs from the tenth and eleventh centuries, contains a number of cases in which peasants unsuccessfully contested their servile status. In one mid-eleventhcentury case, one Turbatus denied his servile status and was granted a hearing at a placitum before Count Tibald. However, when at the placitum, the monks presented one of his relatives who affirmed that he was a serf and offered to prove it by judicial combat, Turbatus ended his case and acknowledged his unfree status. Similarly, when a claim was presented to the monastery that a tailor and his son had been given to the monastery not as serfs but as colliberti, the monks arrived at a placitum at Vendoˆme with a champion named Teelus who was ready to prove by ordeal the monastery’s case, upon which the claim was dropped.36 A different, but perhaps related form of pre-judgment punishment

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was meted out to one Gandelbert, who denied that he was a serf of the monastery. He was not tortured, but the prior took him to the monastery and imprisoned him until he admitted his servile status.37 A shepherd Otbertus and his wife Plectrude were forced into servitude because Otbertus had burned one of the monastery’s barns and was unable to pay for the damage. When the monks also claimed as a serf their son Vitalis, his mother offered to undergo a trial by hot iron to prove that he had been born before his parents had been reduced to servitude. However, just as the iron had been heated for the ordeal, she withdrew her offer.38 The monks alleged that one Stephan Dogleg (Gambacanis) became a serf of Marmoutier by marrying a serf of the monastery. After his wife’s death he married a free woman and claimed that he was himself free. He prepared to prove his freedom by ordeal by battle. However, when the appointed time for the ordeal arrived, he surrendered his claim and underwent the traditional ritual of recognition of his servitude: he placed four denarii on his head and through them offered himself to Saint Martin and his monks.39 The parallels between these threats of painful or even deadly ordeal or imprisonment without trial used on peasants claiming free status to force them to renounce their claims certainly echo Theodulf’s complaint that peasants claiming free status were chained or tortured in order to coerce them into surrendering their claims. If Robert Bartlett is correct that the judicial torture of the High and later Middle Ages did indeed replace the ordeal, one might argue that at an earlier period the ordeal had replaced judicial torture. But whether or not this was the case, the violence of early medieval justice, not only as punishments of those found guilty, but as means to extract confessions from those accused, must be recognized as an integral if disputed element of early medieval justice.

Chapter 7

The Ambiguity of Treason in AngloNorman-French Law, c. 1150–c. 1250 Stephen D. White

In a celebrated and much-quoted passage on treason in England before the late thirteenth century, F. W. Maitland called it ‘‘a crime which has a vague circumference, and more than one centre.’’ Drawing primarily on a close analysis of the Latin legal texts Glanvill and Bracton’s De legibus, as well as on his reading of late Anglo-Saxon law codes, Maitland usefully highlighted the ambiguity of the concept of treason and identified several disparate and equally elusive ideas that were somehow bound up in it. One of these, which he characterized as ‘‘primarily indicated by the word betray,’’ Maitland took to encompass ‘‘a betraying of the army or of the realm,’’ aiding the king’s enemies, and also flight from battle. Another idea was infidelity to a lord, which he construed to entail perjury because it included ‘‘offences . . . regarded as the vilest breaches of the vassal’s troth’’— that is, the oath of fidelity customarily sworn to kings and to other lords as well. Treason also had, in Maitland’s words, ‘‘a Roman element,’’ namely the crimen laesae maiestatis or le`se-majeste´, which ‘‘the royal lawyers,’’ as he called them, construed as something akin to ‘‘treason against the state.’’ Finally, Maitland discerned yet another idea associated with treason when he wrote that ‘‘in marked contrast to the general drift of our old criminal law, the crime was in this case found, not in a harmful result, but in the endeavour to produce it [through] ‘‘machination, ‘compassing,’ [or] ‘imagining’.’’ In other words, treason was somehow connected, Maitland believed, to plotting, scheming, and treachery. It was, as he noted, ‘‘the crime of Judas,’’ whom Dante placed along with other traitors in the lowest reaches of Hell.1 In 1352, the statute 25 Edward III, stat. 5, c. 2, which was drafted in French, clarified the meaning of treason (treson) by specifying the offenses that fell under it, including the levying of war (guerre) against the king,

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which previous statements about the law of treason had not mentioned.2 Before this statute’s enactment, according to Maitland’s line of reasoning, treason had been such an unstable, ideological, contested, and overtly politicized category of wrongdoing that there could have been no firm consensus even about what offenses the term covered, much less how they were to be defined or proven or who should suffer the ‘‘peculiarly ghastly’’ punishments reserved for traitors, namely mutilation and/or execution and forfeiture of all property to the king.3 In particular, Maitland believed that it was unclear, prior to 1352, whether rebellion against the king was necessarily treason. Those who understood treason as a crime against the state, he implied, surely saw rebellion in this way. But as long as treason could also be understood as ‘‘infidelity,’’ Maitland argued, ‘‘men would not have been brought to admit in perfectly general terms that the subject who levies war against the king is a traitor’’4 because they had not fully abandoned the idea that ‘‘if a lord persistently refuses justice to his man, the tie of fealty is broken, the man may openly defy his lord and, having done so, may make war on him.’’ Besides, if an essential element of treason was not the ‘‘harmful result, but . . . the endeavour to produce it’’ through plotting or other kinds of underhanded behavior, then it would have been difficult to cast an honorable man who justifiably defied the king in the dishonorable role of the traitor. Instead of pursuing Maitland’s argument about the ambiguity of treason during the twelfth and early thirteenth centuries in England, subsequent writers engaged in a sharply polarized debate about whether aristocratic rebellion—that is, ‘‘levying war’’ against the king—was treason by definition before 25 Edward III, stat. 5, c. 2. J. E. A. Jolliffe insisted that it was not, because treason was ‘‘infidelity’’ under feudal law. H. G. Richardson and G. O. Sayles countered that since ‘‘treason’’ was le`se-majeste´, not infidelity, rebels must have been deemed traitors. J. G. Bellamy thought it ‘‘probable that [before the late thirteenth century] the feudal law [protected] those who levied war on the king in his realm.’’ More recently, however, John Gillingham has contended that ‘‘rebellion was always treason’’ in medieval England, but that kings chose ‘‘not to execute aristocratic rebels’’ from the late eleventh to the late thirteenth century because of a postConquest reception of a culture of ‘‘chivalry’’ designed ‘‘to limit the brutality of conflict by treating prisoners . . . of ‘gentle’ birth, in a relatively humane fashion.’’ Matthew Strickland, too, maintains that levying war against the king must have been treason because ‘‘contemporaries . . . repeatedly stress that rebellion was a violation of sworn fealty and homage,’’ while

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kings ‘‘consistently claimed the right to execute or mutilate rebels.’’ Their failure to exercise this right regularly Strickland attributes to political considerations, rather than to cultural inhibitions on treating aristocratic rebels inhumanely or legal constraints on punishing nobles who renounced their fidelity to the king before making war on him.5 Gillingham and Strickland demolish the doctrinaire position that there was once a universally recognized right to levy war against a king who denied justice to his men. But the contention that rebellion must have been legally defined as treason as early as the twelfth century depends on two dubious assumptions: first, that law at this time is neatly distinguishable from politics and political culture; and, second, that kings of England, their lawyers, and other royal partisans unilaterally imposed a very broad construction of treason against the king and totally squelched resistance to it. In this scholarly impasse, the best starting-point for reexamining treason in twelfth- and thirteenth-century England remains Maitland’s nuanced view that it long remained such a vague, politicized, and malleable concept that legitimate grounds could be found for resisting the application of broad interpretations of it, including the totalizing principle that any man of the king’s who makes war on him was necessarily a traitor.6 According to Martin Aurell, nobles in the Angevin Empire did not always view rebellion unfavorably because they saw it as ‘‘the riposte to royal coercion’’ and therefore contested the broad definitions of it that Angevin rulers favored. Similarly, Robert Bartlett notes that a ‘‘tradition of justified aristocratic violence could invest resistance to the king with a kind of acceptability.’’ Apparently such resistance was relatively easy to justify, at least in the Angevin period, when kings themselves, as Natalie Fryde emphasizes, were vulnerable to being denounced as traitors as well as tyrants. Many nobles obviously considered John in particular a legitimate target in conflicts that even royal records, according to Clare Valente, sometimes represented not as rebellions but as ‘‘wars’’ (guerrae) waged by the king’s ‘‘enemies,’’ who claimed to have just grounds for breaking off their ties of fidelity to him in ceremonies such as diffidatio.7 There are other signs of resistance to broad constructions of treason against the king in accounts of the treason trials of Wealtheof and Henry of Essex, which raise doubts about whether these two condemned traitors were really traitors. Similarly, in The History of William Marshall, King John’s two efforts to prosecute William for treason fail partly because the acts of William that John construed as treason could plausibly be interpreted differently and partly because the king’s credentials as a traitor were so

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much stronger than the earl’s.8 Further evidence of treason’s ambiguities and of firm resistance to broad interpretations of it in the Anglo-NormanFrench world of the twelfth and early thirteenth centuries can be found in vernacular literature of this period, which illuminates not only legal ideas about kingship, as Edward Peters amply demonstrated in his classic study of ‘‘the shadow king,’’ but also, as I have argued elsewhere, the law of treason.9 Chansons de geste, romans d’antiquite´, verse and prose romances, and shorter narratives written in several other genres thematized treason and included prominent characters identified as ‘‘traitors.’’10 Some of these texts, both Anglo-Norman and French, also contain trial scenes in which appellants accuse defendants of forms of treason that are virtually identical to ones that lawbooks or the statute of 1352 classified as treason against the king.11 The offenses include conspiring or attempting to kill the king, killing his eldest son and heir, aiding the king’s enemy and levying war against him, harboring the children of his mortal enemy, debauching his eldest unmarried daughter, seeking the love of the king’s wife, and, in cases where the defendant is the king’s wife, sexual infidelity.12 Although the creators of these episodes uniformly expressed a horror of treason, they did not construct ‘‘show trials’’ that dramatized its iniquity and celebrated the awesome power of kings to take horrific vengeance on traitors. On the contrary, twelfth- and early thirteenth-century literary texts produced for the Francophone nobility of England and France almost always characterized appeals of treason pejoratively, by demonstrating in one of two ways that the defendant was accused of treason unjustly. In literary texts that depict an accusation of treason as a particularly shameful way of attacking an enemy and gaining power at court, a traitor makes a false ‘‘appeal’’—to use the term customarily used in both literary and legal texts—against a loyal baron for trying to kill the king, who is thereby duped into threatening to execute the accused as a traitor.13 The defendant ultimately wins an acquittal but only by steadfastly contesting the false accusation, securing support from the king’s loyal counselors, and defeating his vile accuser in battle.14 Other literary trial scenes document a more legally sophisticated form of cultural resistance to treason prosecutions. Here, the appellant’s charge that the defendant betrayed his royal lord provokes a debate, not about whether the accused committed the allegedly treasonous act imputed to him, but about whether that act truly constituted treason. Similar debates that are relevant to the present discussion take place in literary trials where the defendant is accused of betraying a lord who is not a king. In trials of this type, the narrative has already provided

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grounds for the accusation by showing that the defendant did something that brought ‘‘harm’’ to the king or lord. Nevertheless, arguments for the defendant’s acquittal are made on the grounds that his conduct did not meet other criteria for proving treason. These criteria are similar if not identical to the ones used in late thirteenth-century vernacular legal texts that Maitland and other writers on treason largely ignored, namely Britton and The Mirror of Justices, both written in England, and the Coutumes de Beauvaisis of Philippe de Beaumanoir.15 Whereas Glanvill and Bracton’s De legibus discuss treason against the king under the name of le`se-majeste´ and simply specify examples of it, these texts, by contrast, explain the meaning of the French word traisun—the term for treason that must have been used in the Francophone courts of Angevin England and that also appears in 25 Edward III, c. 2. The late thirteenth-century Anglo-Norman lawbook Britton cites the harm (damage) that the traitor did or had others do and accordingly identifies treason against the king with compassing his death and disinheriting him of his kingdom, but makes no mention of levying war against the king. Like other vernacular lawbooks, Britton defines treason by referring to what Maitland called ‘‘the manner’’ of achieving or trying to achieve ‘‘a harmful result.’’ It specifies that the ‘‘harm’’ must have been done or procured ‘‘knowingly’’ (a escient), while Beaumanoir calls it treason ‘‘when you show no sign of hatred and yet you harbor a deadly hatred.’’ Britton also says that treason involves a breach of faith between ‘‘friends,’’ a category in which The Mirror of Justices explicitly includes those allied by ‘‘homage’’ or ‘‘oath.’’ In the late thirteenth century, treason could be identified with ‘‘infidelity’’ to any lord, just as it was in the early twelfth century, when the Leges Henrici Primi used infidelitas as a synonym for proditio and stated that ‘‘Every man owes fidelity to his lord for life and limb and earthly honour and the keeping of his counsel, in matters which are honorable and expedient, saving the fidelity owed to God and the prince of the land.’’ However, since the same text cites circumstances in which a lord could ‘‘forfeit his lordship over [his man],’’ it did not exclude the possibility that a man might wage war on his lord—or former lord—without being judged a traitor.16 These ideas about treason come into play in literary treason trials, which equate treason against a king or other lord with infidelity but show, as Maitland could have predicted, that it was ambiguous and thus open to at least two constructions: a broad one resembling le`se-majeste´ and a narrow one that minimizes the differences between infidelity to a king and other kinds of treason, especially infidelity to a lord, and associates treason

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with underhandedness and plotting. Under the broad interpretation, which appellants, kings, and royal supporters deploy in literary treason trials, the overriding consideration is whether the defendant caused harm to the king, in which case accusers reflexively impute treasonous conduct and a breach of fidelity to the accused and brand him a traitor. However, the authors of trial scenes repeatedly privilege a narrow view of treason, according to which causing harm to a king or other lord counts as treason only if the defendant acted knowingly and underhandedly and breached a relationship of faith, love, and trust that overrode other such relations. Accused of killing Charlemagne’s son Charlot ‘‘knowingly’’ and by treason, the eponymous hero of Huon de Bordeaux (1225–34) acknowledges the homicide but denies treason by swearing that he did not know his victim was Charlot, who was in disguise. In Yvain by Chre´tien de Troyes, when the seneschal of the lady Laudine accuses her maid, Lunete, of betraying her mistress for Yvain by advising her to marry him, Lunete cannot deny that her advice caused harm to Laudine, whom Yvain betrayed after marrying her. But because she gave her advice, not for the purpose of deceiving or harming Laudine, but in the sincere belief that it would benefit her even more than it would Yvain, Lunete’s defense is that ‘‘Never have I done or conceived of treason against my lady.’’ In other literary law cases, the defendant rebuts a charge of betraying his lord by contending for one of the following reasons that when he knowingly and perhaps even underhandedly caused the harm cited by his accuser, he did not owe fidelity—or at least not overriding fidelity—to the king or other lord he was accused of betraying. First, he had never sworn fidelity to him and had no obligation to do so. In a case analyzed below from Thomas de Kent’s Le roman d’Alexandre (c. 1160), a Persian soldier who has tried to kill Alexander contests the king’s accusation of treason by arguing that he did not owe faith to him because he was not one of his people. A second defense to an accusation of treason is that, although the accused had sworn fidelity to the lord he was accused of betraying, it was superseded by the fidelity he owed to another lord. Accordingly, in the noncyclic Prose-Lancelot, when a knight of King Claudas accuses another man of the king called Pharien of betraying the king by harboring the two sons of Claudas’s mortal enemy, the late king Ban, Pharien acknowledges having the boys in his custody but insists that because Ban had been his lord, his obligation to care for Ban’s sons overrode the fidelity he later swore to Claudas on becoming his man. In Raoul de Cambrai Bernier uses a third defense when he denies that he killed Raoul by treason because he killed

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him rightfully (a mon droit), having previously defied him justifiably. Finally, in another case analyzed below, this one from Le roman de The`bes, a judge called Othon denies that Daire le Roux betrayed his lord, King Eteocles of Thebes, by aiding his lord’s enemy, because previously Eteocles had lost all power over his man Daire by striking him.17 By favorably representing the defenses just mentioned, every literary trial scene in which treason is debated rejects the broad view of it in favor of the narrow one, except for Ganelon’s case in the Oxford version of La chanson de Roland, where the defendant is condemned as a traitor and then drawn and quartered. Scholars who have studied this famous episode in isolation from other literary trials have often found reasons for treating its outcome as a momentously important endorsement of royal and even state power.18 But one can see it in a different light after considering two other cases with totally different outcomes, the Persian soldier’s in Le roman d’Alexandre and the trial of Daire from Le roman de The`bes. Initially, the Persian soldier’s attempt on Alexander’s life looks to be a clear-cut case of treason against the king. The soldier, who belongs to the army of Alexander’s enemy Darius, plots what Thomas de Kent calls ‘‘felony’’ and ‘‘high treason.’’ Infiltrating Alexander’s army while disguised as a Greek, he approaches the king from behind, strikes him in the back with a lance, but fails even to wound him.19 The king charges the Persian with striking him shamefully and by treason and says that for this, he will die in torment. Though acknowledging that he struck Alexander and knowingly (par le mien escient) tried to kill him, the soldier insists that he violated no trust by doing so because he was not one of Alexander’s people (ne suy de vostre gent). Moreover, since he decided to kill Alexander only for the purpose of winning the reward that Darius had promised to anyone who did so, he did not act, he says, in the manner of a traitor with secret hatred for his would-be victim.20 At the Persian’s trial, Alexander asks his barons for a judgment on his appeal that the Persian had shamed and almost killed him. After repeating his defense, the Persian undertakes to fight a duel to prove that he does not deserve to be quartered, burned or crucified for attempting to kill the king. The first baron to speak, Antiochus, offers to fight the Persian to prove that he was a traitor because he struck Alexander from behind like a hired thug (cum felon soduiant) and, in the presence of all, had just admitted to compassing the king’s death. A second baron, Tholome´, denies that the manner in which the Persian struck Alexander is evidence of treason. Because the soldier’s purpose was to liberate his own country from the Greeks and take

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vengeance on his enemy Alexander, he could have used any method of killing without being judged a traitor and, in fact, had refrained from using the most odious ones, killing the king in his sleep or poisoning him. To be sure, the Persian tried to do to Alexander what a fidelis swore not to do or try to do to his lord, such as cause him shame, death, or other harm. But he did not owe the king faith and did not even do wrong (mesprision) to him. Tholome´ concludes that Alexander has the power to have him hanged, burned, or thrown to the dogs and lions, but not the right to do so by the barons’ judgment. Mark of Rome counters that the Persian’s impersonation of a Greek soldier made his attack wicked and treasonous. Implicitly identifying treason with le`se-majeste´, Mark also declares that Alexander has the right as well as the power to execute the Persian because the prince’s will has the force of a judgment. The remaining judges all advise Alexander to hang the Persian. But the king suddenly reverses himself by endorsing the arguments made in the Persian’s defense. Praising him for acting boldly, Alexander rewards him with gold and silver before returning him to the Persian king under escort.21 In Daire’s trial, as in the Persian soldier’s, the underlying issues are whether the defendant harmed the king in a manner that was treasonous and whether he owed faith to him. However, by incorporating an intricate account of Daire’s alleged treason into a complex story about the downfall of Thebes, Le roman de The`bes sets the stage for a debate on treason of remarkable legal sophistication. Daire commits his act of alleged treason during a war between his lord Eteocles, king of Thebes and son of Oedipus, and Eteocles’s brother Polynices, who, with support from the Thebans’ enemies the Greeks, is trying to capture Thebes. Polynices has the right to the city under a sworn agreement with his brother to alternate each year as king of Thebes, but Eteocles has broken this accord by ruling the city for more than a year and rejecting Polynices’s rightful claim to it. Among Eteocles’s sureties for the agreement is Daire le Roux, a fidelis of the king’s who commands an important tower near the city for him. Daire is thus caught between two sworn obligations: to uphold the agreement under which Polynices has the right to Thebes and to keep faith with his lord Eteocles, who, however, has perjured himself (and made Daire and the other sureties perjurers in turn) by breaking the agreement with his brother. Daire comes under additional pressure to support Polynices against Eteocles when Polynices captures Daire’s son and agrees to release him only if Daire surrenders the tower he commands to Polynices’s Greek allies. Daire fears the shame he will incur by breaking faith with Eteocles, but his

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wife persuades him to do so. She argues that by surrendering the tower to Polynices, he can secure their son’s release from captivity. Moreover, he can absolve himself of perjury by upholding his oath as a surety to Eteocles’s agreement with Polynices and breaking faith with Eteocles, who has violated the agreement. Daire agrees, but to make sure he has grounds for breaking with his lord, he devises a plan. At a royal council, Daire aims to provoke Eteocles’s anger by acknowledging Polynices’s right to rule Thebes, advising Eteocles to make peace with him and stating that by breaking his previous agreement with his brother, the king has become a perjurer and made perjurers of his sureties, Daire included. The plan works. The king first responds by insulting Daire for trying to liberate his son without paying ransom. Next, he contemptuously gives Daire permission to do his worst to him and consents to whatever action Daire might take against him. Finally, he strikes him. Fleeing to his house, Daire now thinks he will be in the right if he turns over the tower he commands to Eteocles’s enemy. After he allows Polynices’s Greek allies to take the tower, however, Eteocles’s forces subsequently retake it. They capture Daire and deliver him to the king, who charges him with treason and, though he wants him executed immediately, grudgingly allows him a hearing in his court.22 There, Daire contests the king’s accusation of treason by arguing that Eteocles had wronged him by striking him unjustifiably and then had explicitly given him leave to do his worst.23 In the ensuing debate, the judges of Thebes all agree at least superficially on ‘‘the facts’’ of the case, but argue about their meaning. To show that Daire committed a great felony for which he should forfeit his life, Itier maintains that by trying to turn over the tower to Polynices he violated his oath of fidelity to Eteocles. However, Daire’s lone defender, Othon, notes that Daire tried to surrender the tower only after Eteocles gave him leave to do so and told him to do his worst. Sicart contends that Daire could not justify himself by citing the blow he received from Eteocles, because he had intentionally provoked the king. Salin adds that because Daire had shamed the king by calling him a perjurer, he must have been trying to anger the king, not persuade him. However, Othon interprets Daire’s conduct differently, arguing that Eteocles had wronged Daire by striking him for loyally giving him good advice and that Daire was right to call him a perjurer. Yet another judge, Alis, cites Daire’s twin failures, to defy Eteocles before leaving him or to observe the customary forty-day waiting period before making war on him, to show that Daire’s only purpose in advising Eteocles to

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make peace was to provoke his lord and create a pretext for betraying him. Again Othon protests, this time arguing that if Daire had tried to follow the customary procedures just mentioned, Eteocles would have executed him. Bypassing Othon’s point, Creon maintains that Daire could not justify his abandonment of Eteocles or the harm he inflicted on him because prior to taking these actions, he had not protested his lord’s treatment of him or asked for justice. Even if he had received no justice from the king after forty days, Creon continues, he would have been entitled to do no more than leave Eteocles’s service. By seeking vengeance against his lord immediately, Daire therefore committed a great felony and should lose his life and limbs. However, Othon contests this entire line of reasoning on the grounds that a lord who strikes his man loses all rights over him. A blow of this kind, he declares, is unamendable; the only appropriate redress for it is vengeance by the sword. Now Eteocles’s mother Jocasta intervenes and persuades him to make an accord with Daire, who in return is to bear faith to him in the future and give him his beautiful daughter in marriage. The queen, the narrator interjects, wishes to save Daire from death, and anyone blaming her for this would be wrong. Daire admits to committing an act of folly but still denies that he did treason or felony. At the barons’ request, the king returns Daire’s fief and takes hostages to guarantee his fidelity.24 Though not formally acquitted, Daire is obviously not judged a traitor, as Eteocles obviously is near the end of the story, when he murders his brother Polynices. When compared with the other literary treason trials already considered, particularly Daire’s case, Ganelon’s trial in the Oxford version of La chanson de Roland stands out because here, for once, a debate about whether the defendant’s alleged treason was truly treason is resolved by his condemnation and execution as a traitor. But in the light of the preceding analysis, the trial cannot plausibly be read in the conventional way as a legally compelling argument for a royalist or statist ideology that legitimated a broad view of treason as opposed to an archaic ideology of early feudalism or lineage solidarity that might once have justified Ganelon’s treason as legitimate vengeance. As will become evident, there was nothing archaic about the arguments that were made or could have been made in Ganelon’s defense, which were virtually identical to the ones endorsed in other literary trials dating from the mid-twelfth century, when the Oxford Roland was probably composed, or later. Moreover, the creator of Ganelon’s trial did not justify the defendant’s condemnation as a traitor by staging a full-scale debate on treason that conclusively rejected the narrow view of treason and validated the broad one. Instead, he legitimated this outcome by means of

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an idiosyncratic rhetorical strategy of inverting and subverting the script followed in other literary treason trials such as Daire’s.25 At his court in Aix, Charlemagne accuses Ganelon of taking from him 20,000 Franks who were in the rearguard of his army, including his nephew Roland, Oliver, and the other peers of France, whom Ganelon betrayed for money.26 The preceding narrative has already provided grounds for this accusation by describing Ganelon’s pact with the Saracen king Marsile to procure Roland’s death; the gifts he receives in return; his fulfillment of his part of the bargain by engineering Roland’s appointment to lead 20,000 Franks (including the other peers) who make up the rearguard of Charlemagne’s army; and the execution of the plot by Marsile, whose army ambushes and massacres the entire rearguard.27 Nevertheless, an early scene in the story also corroborates the defense made at the trial by Ganelon, who acknowledges causing the harm cited by his accuser but argues that it was not treason against Roland but legitimate vengeance, which he sought after Roland had condemned him to certain death by nominating him to carry a message from Charlemagne to Marsile.28 Implicitly invoking the principle that treason must involve both a breach of fidelity and underhanded behavior, Ganelon argues that he could not have betrayed Roland because he openly challenged him, along with the other peers, in the presence of Charlemagne and all the Franks. Since he thereby announced both his hatred of Roland and the other peers and his intention of acting on it by treating them as enemies, not friends, the harm he caused them involved no breach of trust, nor did he act out of secret hatred. He simply took vengeance on Roland, as he said he would.29 This defense carries weight with almost all of the king’s barons, who acknowledge that Ganelon is no traitor by judging him capable, if acquitted, of serving Charlemagne ‘‘in faith and love,’’ just as he had done previously.30 Up to this point, Ganelon’s trial bears a curious resemblance to Daire’s. With both parties citing events already narrated, the appellant assumes the defendant’s treason in referring to the harm he caused, while the defendant acknowledges the harm but denies the treason by showing that his conduct did not meet customary criteria for proving it. A further point of similarity between Ganelon’s trial and Daire’s is evident when Charlemagne denounces his barons as traitors for favoring Ganelon’s acquittal, just as Eteocles, at several points, condemns Othon for defending Daire. However, the Oxford Roland accords Charlemagne’s denunciation rhetorical force that Le roman de The`bes denies to Eteocles’s attacks on Othon. Why? First, because Roland, in contrast to the story of Thebes, has already

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marked the defendant as the traitor in the story, his treason is already notorious and should be imputed to his duplicitous defense that his treason was really ‘‘vengeance.’’ The story has also shown that the harm resulting from Ganelon’s ‘‘vengeance,’’ unlike Daire’s, is totally incommensurable with the harm he claimed to be avenging. By engineering Roland’s appointment as leader of Charlemagne’s rearguard, Ganelon seemingly achieves perfectly balanced retaliation for what Roland did to him, since each has now attempted to send the other to his death. However, it is unthinkable to see the harm resulting from Ganelon’s pact with Marsile, namely, the ambush and massacre of 20,000 Franks, as legitimate vengeance for Roland’s wrong to Ganelon. Finally, by showing that Ganelon achieved his vengeance, not by aiding mere enemies of his lord, as Daire arguably did, but rather by conspiring with God’s enemies against God’s chosen people, the Franks, the poem portrays him as a Judas-like figure incapable of love and fidelity to any Christian or to God. For all these reasons, Ganelon’s defense against Charlemagne’s accusation must be read as sheer sophistry. The same goes for the defense that could have been made to the accusation of treason against Ganelon that is later formulated by Thierry, the lone dissenter against the barons’ judgment to acquit the defendant. When Thierry charges Ganelon, not with betraying Roland, but with committing treason against Charlemagne and with perjury, too, for violating his oath of fidelity to the emperor, the appeal is legally vulnerable to the following defense. Since the preceding narrative provides ample grounds for arguing that Charlemagne wronged and betrayed Ganelon, just as Roland did, by sending him to Marsile’s camp with no indication that he would avenge him, Thierry’s contention that Ganelon violated his oath of fidelity to Charlemagne is open to the defense that by wronging Ganelon the emperor lost all power over him and all claim on his fidelity. However, the entire story is constructed so as to make this obvious legal defense unthinkable, as one can see from the fact that modern scholars hardly ever think of it. Because the poem has already cast Charlemagne in the role of God’s instrument in wreaking vengeance on all infidels and traitors, it has left no rhetorical or moral space for the mundane legal argument that Ganelon the traitor, whose treason led to the deaths of thousands of Christians and who later boasted of it, had no obligation to bear faith to the Christian emperor of the Franks, who was really a traitor. The best that Ganelon’s champion Pinabel can do in response to Thierry’s accusation is to put the lie to it. When Thierry defeats Pinabel, his victory simply con-

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firms what the story has shown all along, while Ganelon’s subsequent death by drawing and quartering must reveal the truth of his crime. Though retaining the main outlines of the ordinary literary treason trial, which shows that a defendant should be acquitted of a plausible but ultimately unfounded accusation of treason, Ganelon’s trial inverts the script so as to reach a different outcome, the defendant’s condemnation as a traitor. Instead of showing in advance of the trial that the appellant is a traitor (as Eteocles obviously is) and the defendant is honorable or at least relatively honorable (as Daire is), the author of Roland repeatedly identifies the defendant Ganelon as a traitor and felon who will commit treason and treats both appellants, Charlemagne and Thierry, as men of honor who have God on their side. Instead of casting the one dissenter from the judgment of the king’s barons in the role of the defender of the accused, Roland makes Thierry the character who argues most persuasively that the defendant committed treason against the king. Particularly important for the present argument is the poet’s demonstration that when Ganelon contests the accusation of treason on grounds very similar to the ones that defendants and/or their supporters use in other literary treason trials such as Daire’s to show that they did not commit treason, he does not ultimately prevail, as do the defendants in other literary treason trials. When Charlemagne’s barons decide, with only Thierry dissenting, that Ganelon should go free and ground this award on the implicit judgment that he is not a traitor (if he were, he could not serve Charlemagne in faith and love), the author presents in a favorable light the emperor’s charge that they have betrayed him, whereas similar charges by kings such as Eteocles in Daire’s case are ordinarily presented as signs of a king’s treacherous, tyrannical nature. Finally, the character who presents the most ingenious legal argument in the case, Thierry, argues not for the defendant’s acquittal but for condemning him as a traitor, while the person who takes up the defendant’s cause makes no counter-argument at all beyond calling Thierry a liar and is soon shown to be a liar himself by God’s judgment.31 Nevertheless, because the author of the Oxford Roland, unlike the creator of Daire’s trial, can justify the outcome of Ganelon’s trial only by rhetorical means and not by force of compelling legal argument, the trial is best read, not as a powerful statement of a newly ascendant legal ideology, but as a brilliantly idiosyncratic exercise in the cultural politics of treason at a time when other poets represented prosecutions for betraying kings with deep suspicion if not outright disfavor. As an intervention in twelfthcentury debates about the meanings of treason, the Oxford Roland appears

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to have been a dismal failure, at least among producers of French epics and romances, who never emulated it. Whatever the Oxford Roland or lost versions of the poem may have done to establish Ganelon as the archetypal traitor in French literature, it failed to resolve the ambiguities of treason in favor of the broad interpretation because it did not subvert the practice of creating trial scenes that portrayed appeals of treason against the king unfavorably, represented alleged traitors as honorable or at least relatively honorable men, and sometimes depicted kings as well as appellants as traitors. Although the poem’s purpose in articulating or almost articulating these arguments against condemning Ganelon as a traitor is to dramatize their rejection by God, it still documents the possibility of resistance to a broad view of treason as a violation of the traitor’s oath of fidelity without reference to questions about the traitor’s motives or his treatment by his lord. The poem therefore confirms, rather than undercuts, Maitland’s insight about the ambiguity of treason during the twelfth and early thirteenth centuries because it shows that treason was open to different, politically interested interpretations, one of them privileging the harm that Ganelon did to Charlemagne and the other organized around the idea that only harm that is committed in a certain manner and that constitutes a breach of faith is treason.

Chapter 8

Illicit Religion: The Case of Friar Matthew Grabow, O.P. John Van Engen

Medieval religion acted inherently as a monopoly. For contemporaries this seemed broadly self-evident, a part of the cultural landscape, the Christian church claiming truth in matters divine and human, the Roman church authenticity in upholding it. We today may find those who dissented more interesting, and so seek out evidence of resistance on the micro level even while conceding the macro. But medieval Christendom was defined only in part by notions of center and periphery. This was a socioreligious complex rife with internal rivalries, multilayered and multiregional. That sprang from a fundamental reality. Since the Christian religion laid claim to all, even indirectly to Jews, all had a stake in its definition, even if all were not equally positioned to compete for its rights and privileges. At nearly every social level, then, what counted as licit or illicit religion counted enormously, and became contested ever more selfconsciously from the twelfth century onward, be it a university teaching or a devout practice. Equally contested, or even more, were monopolistic claims to represent or regulate religion, whether by a bishop, a guild of masters, a religious order, or a pious society. This chapter explores one such contestation at the turn of the fifteenth century. The Modern-Day Devout—active in the Low Countries from the 1380s, made up of women and men, laypeople and secular clerics, canons and canonesses—strove to emulate anew the early Christian community of Jerusalem, especially in its community of goods. They established communal households independent of the formal poverty professed in corporate religious orders.1 They met resistance from local churchmen and aldermen and an inquisitor. One critic, a Dominican friar, deployed monopolistic claims to declare their religion illicit, only to have his own stance finally declared illicit. Those who formally separated from society by taking vows had

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claimed for centuries to represent religion in its perfection; hence the professed were said to enter ‘‘religion’’ and be ‘‘the religious,’’ a wordplay retained in most Continental languages. In a society, however, with nearly all christened at birth and so obliged by religious duty, church lawyers came to see things more complexly, suggesting a layered definition, here as it appears in Antonino of Florence in the mid-fifteenth century, going back at least to Johannes Andreae in the early fourteenth. Religion referred, they said, to all who offered up the worship owed the true God, thus all the christened (totam christianitatem); but more especially those who acted upon it with deeds, all good Christians (uniuersitatem bonorum christianorum); then even more specially the clerical estate, persons so dedicated; and strictly (strictissimo) those who submitted by vow to a superior and dedicated themselves wholly to God. They inhabited the estate of religion (status religionis).2 These categories corresponded to widespread social and cultural perceptions, namely, of all the baptized, the specially virtuous, clerics, and the professed, the first two subject to civil law, the last two to ecclesiastical. But already in the thirteenth century Cardinal Hostiensis recognized that some laypeople lived more religiously (arctiorem et sanctiorem) than others, meaning not just more virtuously but in a more religion-like form—thus widows or hospitalers or recluses, all present in Italian towns. These too, he opined, might be called ‘‘religious’’ in an extended sense (largo modo dicitur religiosus).3 In northern Europe ‘‘beguines’’ (meaning in actuality religious women of varying persuasions and practices) tested this notion, their entire estate banned c. 1317 in Cum de quibusdam, along with any who ‘‘set up conventicles’’ (Ad nostrum), only to have the ‘‘worthy’’ among them given a reprieve by Ratio recta in 1318 in the face of large-scale protests. Aided by these confusions in papal law and protected by local patrons, beguines, despite narrative commonplaces to the contrary, persisted throughout the fourteenth century in hundreds and thousands, 636 houses (!) in Reichstein’s Germany and more than 200 in Simon’s southern Low Countries (‘‘Belgium’’).4 Two generations later, between the 1360s and 1410s, a cadre of Dominican inquisitors in the German Empire pursued anew groups they reckoned long since banned, now including women seeking cover as Franciscan tertiaries.5 Allied with bishops, parish rectors, and town aldermen, these friar-inquisitors sometimes gained the upper hand,6 in part a result of mounting discontent with ‘‘able-bodied beggars,’’ meaning healthy women (and a few men) who lived off alms. A new burgher outlook may also have been at work here, impatient with any not laboring to support themselves. In any

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case, beguines in several cities, most notably Basel, were placed under stricter bans.7 At the other end of the Rhine, however, and at the same time, women and men gathered in astonishing numbers to form new religious households, what we call the ‘‘Devotio Moderna.’’ By 1410 towns of any size in the county of Holland, the duchy of Guelders, and the Sticht and Oversticht (territories subject temporally to the bishop of Utrecht) had at least one house, some several. Here Dominican friars were losing ground. One of their men, Eylard of Schoeneveld, proceeding against the Devout in the later 1390s, was blocked by an alliance of Devout supporters, university jurists, and eventually the bishop of Utrecht.8 Friar Matthew Grabow appeared on the scene in the immediate aftermath of his fellow Dominicans’ advances in Basel and failures in Utrecht. From the convent of Wismar in Saxony, he took up the post of lector (principal teacher) at the Dominican house in Groningen around 1410.9 Aware of his confreres in the upper Rhine, also in possession of materials generated by their main disputant, Friar John Mulberg, he must have been shocked by what he found in the Low Countries. In time he penned a tract to prove these multiplying Devout and tertiary women illicit, as falsely aping the lifestyle of the professed; laypeople, he argued, could not adopt true poverty apart from vows. A legal confrontation followed in the same years that the Lollard and Hussite fights boiled over. The Devout case was eventually appealed to the Council of Constance, where it drew in Europeanwide luminaries such as Jean Gerson and Pierre d’Ailly, and later the Dominican Johannes Nyder. In the end Grabow was himself found in the wrong. While the broad lines of this story are known, new documents have emerged,10 and the story is newly reconstructed here, revealing for fifteenthcentury debates about what constituted licit religion. The town of Groningen, key politically and commercially to the far north of the Low Countries, was subject temporally to the bishop of Utrecht. Grabow arrived to find Devout households expanding across the diocese, including the ‘‘Olde Convent,’’ one of three former beguine houses in the city, more or less across the street from his convent.11 It had come under Devout influence early and then moved to tertiary status about 1399.12 Its women obtained a legal advisory from a jurist in Cologne (Gerard Radink) supporting a right to choose their own ‘‘visitor,’’ presumably to ally with Devout priests and keep Franciscans at bay.13 In Groningen Grabow proceeded more or less as Mulberg had in Basel, with public arguments, aware that an inquisitorial investigation could not easily be reopened, yet incensed by what he referred to as the Devout’s ‘‘bad and

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enormous doings.’’ What he saw was converts gathering in communal households, some as tertiaries, some apart from any vows, forming ‘‘conventicles,’’ assuming a kind of habit, choosing superiors, drawing people to them in a ‘‘pretense of piety,’’ building large houses with lay gifts, entering them with self-made rites14 —and, though he does not say it, the local bishop passive or approving and a friar-inquisitor blocked. A trained scholastic and teacher by trade, Friar Matthew wrote a think piece referred to as a little book (Libellus). According to its incipit he meant to query the issue in the manner of a schoolman (tantum scolastice inquirendo procedere), a dense disputation, now gone, that ended with ‘‘through this is evident the response to the tenth [proposition or objection].’’15 Such tracts were fast becoming the ordinary way for educated men publicly to pursue contested issues and policies, as Hobbins has argued.16 With it Friar Matthew may have hoped to rally others throughout the diocese to his cause. The Devout saw it as a tough-minded attack and supplied a title, a ‘‘tract against the brothers and sisters of the third order,’’ a rubric Friar Matthew indignantly called ‘‘invented.’’17 Friar Matthew thought hard about these communities, in his own words, and put forward seven principal ‘‘conclusions.’’18 What survive are twenty-four ‘‘propositions’’ or ‘‘articles’’ excerpted by his Devout adversaries, seventeen subsequently defended by Grabow as more or less his, seven discounted as their doing.19 The excerpting, and especially their ordering, he complained, destroyed the inner logic of his case.20 Much later he composed an apologia in which he reconfigured the seventeen sentences into a pre´cis of his ‘‘seven principal conclusions,’’ our only access to the original tract on his terms.21 Where Friar Eylard, and Mulberg too, had gone after these groups legally as in violation of anti-beguine legislation, Grabow attacked them theologically. For him it all turned on socioreligious estates. He rigorously deduced from vows the legitimacy of religion as an estate, building on his fellow Dominican Thomas Aquinas. The fundamental point, Grabow asserted,22 was (⳱ their ‘‘article’’ no. 15) that no one could licitly and meritoriously, indeed truly, fulfill the counsels of obedience, poverty, and chastity outside professed religion. These were so bound together by the Saviour, his concluding point (⳱ no. 16), that one (say, chastity or poverty) could not truly exist apart from the others. With this he intended to destroy any pretense to ‘‘religion’’ on the part of beguines, tertiaries or the Devout. Accordingly, while an individual might laudably give away goods or abstain from sexual intercourse as a ‘‘particular vow,’’ only sworn religious made a total offering, a true sacrifice of themselves in three com-

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prehensive vows—and only such a total offering constituted true religion. Grabow may have had tertiaries specially in mind here, for they took a particular vow of chastity.23 He constructed his case on arguments and texts taken from Thomas’s quaestio in the Summa on ‘‘what pertains to the estate of religion,’’ a pithy defense of mendicants written under fire, to face down the secular clergy’s attempt in the mid-thirteenth century to shut down friars.24 With the principles of ‘‘religion’’ and ‘‘religious estates’’ in place, Friar Matthew went on the attack. For a layperson to act in such ways would constitute no less than sin, indeed a mortal sin, even a form of murder, for it would cut the person off from carrying out the tasks essential to his or her estate, namely, bearing children and caring for material needs. It made a ‘‘lay’’ person (secularis) like a ‘‘religious,’’ thus inherently contradictory. Like Mulberg at Basel, Grabow also turned on the able-bodied poor, another ‘‘principal conclusion.’’ It was simply heretical to cast off all for Christ and yet stay in the world. The other of his three main conclusions may be surmised. One struck at the heart of Devout households: resigning all goods as a layperson was wrong, even a mortal sin and heretical, because inimical to the lay estate. That resignation was the key formal act in joining a communal household. But property, he asserted, was ‘‘essentially’’ attached to the lay estate (⳱ no. 1), an article the Devout listed first; this marker could not willfully be cast off. Wherefore, a drastic claim (⳱ nos. 5, 6), the pope could not dispense laypeople from owning property, for it would be comparable to dispensing them from sustaining life, thus licensing murder. This unusual point may have been aimed obliquely at recent papal recognition of ‘‘tertiaries living a common life’’ in the Chapter of Utrecht, documents from 1399, 1401, 1402, and 1414.25 The seven articles not acknowledged by Grabow turned mostly on communal life, which he declared sinful and even heretical outside sworn religion; these were probably discontented asides in his original tract. Friar Matthew completed this little tract about 1414/15 and later claimed to have lent it to others for reading and discussion, whereupon someone swiped it (furtiue rapuit) from the room of a learned man. The Devout tell a different story, in fact two (both written more than a generation after the events). Johan Busch, the major Devout chronicler and a reasonably well-informed storyteller, has Grabow show it to the parish rector in Deventer—a fact to which Grabow himself may allude26 —in hopes of bringing him onto his side and getting him to preach publicly against the Devout. But this rector handed it on for reading to Godfrey, head of the

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men’s house there (1410–50), who that same night had it unbound, distributed in pieces for copying, copied, rebound, and returned, their copy then sent on to the prior of canons at Frenswegen in Bentheim, part of the regular branch of the movement.27 An in-house chronicle at Zwolle describes Grabow as a friar of wandering life who publicly preached and wrote against their estate. Some Devout and their partisans had secured a copy through mediaries (per interpositas personas), then handed it off to Dirk (rector of the men’s house, 1410–57), who had a copy made in one night (et cetera, as above).28 However the tract came to circulate in Devout hands— Grabow alludes to it as well—this pirating of the text presumed their skill as professional copyists. It also set the scene for their dragging Friar Matthew into local court, a strategy they had employed successfully fifteen years earlier against Friar Eylard. Prior Henry Loder of Frenswegen, a product of the Devout movement but now with the standing of a canon regular, read the tractate as ‘‘blasphemy’’ against their estate. He gathered witnesses and a notary public to confront Friar Matthew in his convent in Groningen, first of all on authorship (suggesting it had circulated as a disputed question without title or author), and then cited him to episcopal court at Utrecht, pressing for a judicial sentence of heresy.29 Grabow noted only that he was pulled into the bishop’s court for heresy. Loder and Grabow appeared together, shouting charge and countercharge. Friar Matthew, himself not of those parts, as he put it later, found the climate hostile, the bishop causing him trouble, most people siding with the Devout and decrying him, a friar and a foreigner. So he resolved to appeal to a higher level, to pope and council—merely to escape charges, Busch sniped forty years later. Grabow described the move as submitting his ‘‘conclusions’’ elsewhere for more balanced judgment.30 After the flight of Pope John XXIII on 20 March 1415, and his deposition on 29 May, however, there was no pope (or rather, two leftover popes of the Roman and Avignon obediences). The council assembled at Constance (1414–18) was effectively running the church, Jean Gerson, master and chancellor from the University of Paris their intellectual leader. Grabow had lost at the diocesan level (in his mind, as an ‘‘outsider’’) and would ultimately lose at the conciliar/papal level as well. But that was not at all clear to either party in 1415/16. A general council of the church with a fractured or vacant papacy represented an entirely different level of decision making. Bishop Frederick of Utrecht (1393–1423) had declined to attend the council, citing age. Grabow pressed his case at Constance as one petitioning (sollicitator) for a hearing and action.31 In the spirit of a long

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line of Dominican inquisitors, his sollicitatio called repeatedly on council fathers to banish utterly beguines and beghards, long since condemned by the church, especially those now hiding as third-order Franciscans. He paraphrased papal laws from Cum de quibusdam and Sancta Romana to Sedis apostolicae (1395) and echoed Mulberg on goods given to the able-bodied instead of the honest poor. He charged the Devout with deluding simple people, proffering an appearance of holiness, fogging things over with claims that their religion, namely tertiaries, was a recognized estate approved by fathers and popes. So long as this rule and their conventicles stood, ‘‘infinite heresies’’ spreading among the ‘‘simple’’ would not cease. Council fathers, he said, must insist on action from local bishops—an indirect allusion to his frustrations in Utrecht. Word of this sollicitatio reached the Devout roughly at the end of May in 1416. So he must have acted in early 1416, if not late 1415, given time for news of all this to reach back to Utrecht. The Devout learned, by rumor and eyewitness report, that the council was to air charges against ‘‘people living together outside religion.’’ They also grasped the threat that it attacked an entire estate, not just individuals.32 They assembled seven priors from the regular branch of their movement to attest formally to their own uprightness, a circular stratagem first deployed in 1395–96. This testimonial they drew up focused on the legitimacy of communal life. They spoke at length (five paragraphs) about men’s households and briefly (one paragraph) about women’s, likely the real object of Grabow’s indignation. They noted that the Devout way of life had been found acceptable by learned masters of law (advisories procured by the Devout to defend themselves against Friar Eylard in 1397/98), and that the Modern-Day Devout, rather than fostering heresy, had renewed religious life in their region. They begged the reformers and luminaries gathered in council not to cut off healthy members of the church when so many diseased patently existed all about—an appeal that, for all its cleverness, betrayed their fear, even panic, that the council might shut down the Devout as an illicit estate. This document was then sealed by all seven priors, probably at Windesheim. Three days later Bishop Frederick agreed to ratify the document with his seal, responding to their petition and affirming that he had heard of no heresy among these ‘‘devout people dwelling in gatherings.’’ Grabow’s petition meanwhile was referred to the commission on matters of faith, and it was there that the Devout had to respond. We possess two texts that appear to have addressed Grabow’s sollicitatio, whether in

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committee or full council. One may have come from Master John of Galecop, a Paris-trained master of arts and theology sent by Bishop Frederick to represent him at council in 1417, later an important figure in the tertiary movement.33 This person, himself not a canon or prior or Devout, was intimately familiar with the Low Countries and Bishop Frederick and understood Grabow’s attack as aimed at an entire ‘‘estate.’’ He undertook to describe for the council ‘‘many and large congregations’’ living holy lives without vows in the Low Countries, so many that housing could hardly be found, and pleaded rhetorically for sense and good judgment in the face of this most iniquitous petitioner.34 A second person spoke against Grabow, first offering a bit of gossip, that his petition had arisen at the bidding of no prelates or priests but of ‘‘private individuals’’ (perhaps hostile aldermen) with ‘‘hopes’’ (presumably of turning the local tide against the Devout).35 He noted that ‘‘good and bad might be found in all estates’’ and called the sollicitatio itself poisonous and wildly extreme. A Parisian master named William of Lochem, later pastor of the main parish in Deventer and a friend to the Devout, served as the bishop’s administrative official and may have been responsible for this intervention. The matter was referred to the committee on faith, along with still more supporting materials, and then things stalled out, in the end for nearly two years. Grabow complained that even though he had leveled charges at no specific person he was required to stay in Constance should they wish him to appear in person. Reduced to ‘‘extreme poverty,’’ never called upon, he finally left, thinking the council itself would never end. In November 1417 Martin V was elected and enthroned, ending the schism, and Grabow petitioned to have his case entrusted to a cardinal for action and decision, the pope assigning it to the cardinal of Verona, Angelus Barbadicus. Someone from the Devout side, possibly Master William, likewise now petitioned for a decision. As he presented the story, Friar Matthew had already fled twice, once from Bishop Frederick when turning to the council, again when he left the council in secret. This petitioner treated the entire matter now as a case against the friar (reversing the original situation and the fears it had engendered), the friar himself in need of punishment—this too then referred to the same cardinal and commission.36 In sum, Grabow had petitioned the council to banish the beguine-Devout-tertiary estate as illicit and fomenting heresy; the Devout and their partisans now charged that his Libellus and its conclusions were theologically illicit. Master William, in Busch’s telling, sought judgment against Friar Matthew for ‘‘heresy.’’37 The official managing the commission for the cardinal, a Master Olaf

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Jacobi, had at his disposal various reports, texts, and assertions (inquisitiones, positiones, et articulos facto realiter et in scriptis). From the Devout side, Evert Swane (the fourth named in their delegation) presented testimonials, privileges, and juridical opinions that the Devout had mustered over the past twenty years, with a demand now that Friar Matthew be made to speak to them.38 The twenty-four ‘‘articles’’ excerpted from the Libellus were likewise in play, whether drawn up initially for the episcopal court in Utrecht, or as part of a Devout dossier, or after November 1417. Grabow was asked to respond under oath to these ‘‘positions and articles,’’ the sentences excerpted from his ‘‘little book.’’39 He did so between December 1417 and March 1418, summarizing his original Libellus by way of an expositio of those seventeen articles he admitted as his own (presented above).40 Master Olaf then asked others for opinions on these articles and the expositio, all examined as a ‘‘matter of faith,’’ Grabow’s Libellus included, though the consultants seem to have had little access to it. He also asked how they should proceed, perhaps reflecting all the charges and countercharges that had gone on for two years. In the end thirteen masters of theology or law wrote advisories, primarily on the twenty-four excerpted articles. Jean Gerson’s opinion, originally written in his own hand at Constance, was dated 3 April 1418. By then he had already seen d’Ailly’s and concurred with it41—thus placing in March or earlier Master Olaf’s injunction and Grabow’s expositio. D’Ailly, a former chancellor at the university of Paris, was striking in his advice on procedure. The cardinal should convoke all masters of theology present at council to hold a free and open discussion, to learn from one another and determine what here conformed to Scripture, this matter to be settled not in the dark and by individuals but in the light and by all. That was how he handled ‘‘matters of faith’’ assigned to him at council, he says42 —a striking instance of free university debate appropriated as the model for conciliar debate on issues of faith. An unknown scribe at Deventer noted later that the matter was discussed in full session with arguments heard on both sides (a claim we cannot verify).43 D’Ailly himself reacted briefly and negatively to Grabow, finding it scandalous and perverse to say that laypeople could not live rightly without ownership—the article the Devout had cunningly put first in their list of excerpts. In the cardinal’s opinion the book itself should be burnt, with the fate of its author left to jurists44 —a harsher side of university theologians! Gerson’s proved the tone-setting opinion. He argued that the only ‘‘religion’’ properly speaking was that which Christ had observed, the religio christiana. This Christian religion (the implied contrast here was with ‘‘Ben-

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edictine’’ or ‘‘Franciscan’’ or ‘‘Dominican’’ religion) did not require the counsels of perfection (otherwise these would have been given as commands). Moreover, this religion could be observed perfectly apart from vows, as the apostles and disciples did in the early church, many of whom were married or had property; in short, it required no ‘‘added-on’’ or ‘‘made-up’’ religion (religiones facticias). Gerson further held that ‘‘madeup religions’’ were improperly and arrogantly called an ‘‘estate of perfection,’’ since they were, following Thomas himself, only ‘‘ways’’ or ‘‘instruments’’ toward perfection. Indeed popes, cardinals, and prelates could also ‘‘perfectly’’ observe this ‘‘Christian religion’’ apart from any vows. Gerson amplified on Thomas, who had tactfully placed prelates as well in an ‘‘estate of perfection.’’ But he penned in effect a lengthy diatribe against Grabow and broadly defended a religion more foundational than orders.45 A secular priest, the writer of devotional treatises in French for women, he repudiated the monopoly claim on religion of the professed, particularly of mendicants. This redefinition, ironically, was something Wyclif had argued for as well, and in much the same way.46 Gerson and Wyclif each made the religion exemplified by Christ and the Jerusalem community foundational and that of orders secondary, the first thus open to all, though bearing tones associated with the second. Gerson’s move, and Wyclif’s too, represented in part the revenge or return of the secular clergy, on behalf of the whole Christian people, over against the centuries-old overweening claims of the professed, especially mendicants. Eleven other masters were consulted for advice, their names and opinions not preserved as such. The deliberations, together with the advisories, turned decidedly against Grabow, finding his propositions heretical or brazen.47 The advocate for the Devout thereupon petitioned the cardinal to declare the tractate ‘‘in error’’ as well as ‘‘scandalous’’ and to be burned, and Friar Matthew himself imprisoned until he returned to the faith and his senses, also banned from any preaching in the province of Cologne and diocese of Utrecht.48 If this were accepted, the tables would be utterly turned: from banning the Devout way of life to banning Friar Matthew and his book. In August the cardinal died, and the pope then referred the matter first to one and then another cardinal, the matter going into limbo for another nine months. By then the papal court had moved to Florence, where the matter was definitively settled on 26 May 1419. Both Master Olaf, advocate of the commission, and Friar Matthew appeared before Cardinal Anthonius of Acquileia, who referred to Grabow, interestingly, as someone of good reputation but uncommon stubbornness, unwilling to take advice.

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The cardinal claims to have reviewed all the material generated by this case, a ‘‘large mass’’ of legal, theological, and ecclesiastical opinion.49 Cardinal Anthonius found for Master Olaf, the commission’s advocate, and against Friar Matthew. He declared the book contrary to Scripture and good practice, quite particularly the seventeen conclusions, the core arguments from his ‘‘little book’’ originally drafted in Groningen. The cardinal pronounced as his own, and now the final judgment, that recommended by the advocate for the Devout, namely, the burning of the book and incarceration of the friar. A subsequent report, found in Devout materials, claims that Grabow died in prison in Rome two years later, never released, never relenting. His passionate rejection of tertiaries and communal Devout households cost him his liberty and in a sense his life. For the Devout, what began as a threat of closure ended in affirmation, or so they chose to remember it. Its key documents were copied out for them by a notary public from the diocese of Mu¨nster present at the final proceedings.50 They kept copies of the impeached articles and Gerson’s advisory as well, and these reputedly were to be found in every household.51 More than a generation later an apologist, also from Deventer, cited this controversy as decisive for their movement.52 For the Modern-Day Devout the council’s ruling against Grabow was taken as public authorization. Transmission of this material outside their communities, however, was virtually nonexistent. For the theologians and jurists who dealt with this matter at Constance, it turned primarily on a Dominican friar whose opinions they judged erroneous and extreme, only secondarily on the Modern-Day Devout or tertiaries, about whom some may have had their own worries. Grabow, though standing in a long line of Dominican critics of beguines and tertiaries, was judged to have gone too far with his theological rationale for the wholesale elimination of their socioreligious estate. To understand how it went too far we need to recognize first that the understanding of religion—medieval society’s first estate, those privileged here and hereafter by vowing the counsels of perfection—underwent steady rethinking in the later Middle Ages. Friar Matthew Grabow’s views touched a raw nerve in the 1410s–20s. Observants, Lollards, Hussites, and anti-mendicants—not to say the Devout—all vied to say what religion was or was not. Gerson returned to it explicitly five years later in a work called De perfectione cordis. In Dominican ranks, Johan Nyder, influential at the Council of Basel, himself active in towns with large nonprofessed groups (including Basel), fretted about the positions taken by his confreres John Mulberg and Matthew Grabow. He sought to think through for himself, as he put it in

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the title of one work, ‘‘the practices of laypeople living as religious’’ (De secularium religionibus).53 He tackled first, about 1433, the issues raised by Mulberg, namely, whether there was a ‘‘perfect poverty observed by laypeople’’ (De paupertate perfecta secularium). Nyder tried to find a way between, as he put it, ‘‘religious persecutors’’ of poverty on the one hand and able-bodied beggars on the other, those people who abused the notion itself and their ‘‘republics’’ (towns).54 He concluded this unpublished tract by reviewing—scholars have not yet noted this—the Grabow case in his last two books (19, 20), offering a summary of the thirteen advisories delivered at Constance. Nyder concurred in the condemnation of Grabow (his confrere), presenting first (19) the ‘‘general principles’’ emerging from the controversy, then (20), brief summaries of objections made to each of the articles excerpted from the original Libellus. Nyder looked back on the affair as very troubled (notabilis difficultas) but insisted, against Grabow, that a person could in fact observe or even vow one or all three counsels while remaining in the world.55 Moreover, we learn, of the other eleven masters offering opinions, some were mendicants, like Nyder himself. So the response had not divided along the lines of rivalries between orders (as often happened). The theologians and lawyers at Constance, as summarized by Nyder, reduced the distinctions to two, a religion that embraced everyone in the Christian church, perfect in itself as ‘‘Christian religion,’’ and a religion by which persons bound themselves to the estate of perfection through vows. Grabow, in trying to avoid one problem, ‘‘the invention of new religions and a pullulation of new sects,’’ had fallen into another, denying that the counsels of perfection could be vowed or kept in any way outside professed orders. As for the ‘‘great fuss’’ over practicing poverty, the early church in Acts 4:32 spoke directly and definitively to this. For d’Ailly, a secular priest, the Jerusalem community was made up of people unbound by vows keeping a common life. Indeed, the consultants repeatedly cited the primitive church to refute Grabow, something medieval theologians and lawyers generally did not spend a great deal of time thinking about. But the Devout had cited it repeatedly as their point of departure, and this entered the consultants’ thinking. Beyond Christ they noted Alexias, an unusual choice but one the Devout had also cited in their apologetic works. In sum, the professed could not claim absolute ownership of the Jerusalem paradigm or indeed a community of goods. The Devout in effect forced a broad rethinking of what was entailed by the notion of religion, as Wyclif had tried in his way to do a generation earlier.

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In general, though, these responses tell us more about the responders, or their reaction to Grabow, than about the Devout. To say that property was ‘‘essentially attached’’ to the lay estate was, in the minds of the council’s theologians and lawyers, to risk Wycliffite heresy. To make property an essential marker of the lay estate could provide a ‘‘subversive’’ opening for disendowment, the church too, they said, being ‘‘divinely tied to property.’’ To say that it was a deadly sin for a layperson not to own property, or to give it all up, was, if not patent nonsense, to fly in the face of the Jerusalem community. To hold that persons could not empty themselves of this supposed essential attribute (laypeople ⳱ property) without committing deadly sin was to contradict Christ, who emptied himself of his godhead to become man. Many—Christ’s injunction to the rich young man, the Jerusalem community, Alexias, Francis—had sworn off all goods without making a formal profession of religion. And to say that the pope could not dispense from lay ownership was to contradict Peter’s condemnation of Ananias and Saphira. Finally, to call it tantamount to murder for a layperson voluntarily to give up his or her subsistence failed to recognize that people lived decently, often in community, from the work of their hands, also that Christ did not say ‘‘sit in a religious cloister’’ but go out into the world (Matt. 28). As for the whole series of propositions to the effect that the counsels of perfection could be kept only under vow, this went against Christ’s own practice. It confused the second definition of religion (the professed) with the first (all those following the way of Christ), the latter including his mother and the apostles. These were strong assertions, directed against Grabow’s claims, in effect elicited by the Devout. At issue were groups of ‘‘laypeople living as religious’’ and the resistance they met from privileged professed who made monopolistic claims to religion and the estate of the perfect. It does not go too far, in my judgment, to say that the Grabow affair drove Nyder, himself an Observant Dominican, to start thinking about the issues, which then yielded a second (also unpublished) work, reviewing eight distinct groups beginning with the Devout and tertiaries.56 The basic issue unsettled people, and not just friars: what were they to make of beguines, tertiaries, Devout, recluses, hermits, secular canonesses, and all the rest? Were they lay or clergy? Secular or religious? Under civil or ecclesiastical law? Licit or illicit? Grabow, representing the fervor of a Dominican inquisitorial corps suspicious of all nonprofessed groups claiming religion, tried to formulate the objection theologically where earlier confreres had mostly presented themselves as simply enforcing papal legislation. In stubbornly defending an utterly exclusive claim for

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religion and the counsels of perfection, along with an equally extreme definition of the lay estate as necessarily propertied and properly married, he in a sense pushed the socioreligious system to its definitional breaking point. In a world that aligned privilege and social estate with degrees of religious perfection, Grabow’s defense potentially threatened the received social order just as disconcertingly as households of beguines or tertiaries or indeed Lollards claiming true religion. His stance provoked a severe reaction from Gerson and d’Ailly, partly driven by secular resentment of the professed and their privileged claims, but negative reactions as well from eleven other university masters, and then Nyder a decade later. Its extremity in a sense provoked clarity, or new attempts at clarity. They looked for ways (Nyder by way of canon law) to include and even sanction ‘‘laypeople living as religious,’’ to see them as embodying licit, not illicit, forms of religion, as Gerson and Wyclif in their different ways both argued. Such ‘‘people in the world living as religious,’’ the Devout argued, not necessarily followers of Dominic, lived what Christ and the Jerusalem community instituted; they too, not the formally professed, embodied what Alexias and Marie d’Oignies and Francis represented. Most of the consultants, and Nyder’s own tract, did not go that far. But on one point they agreed: Friar Matthew Grabow’s vision of religion was illicit—even if it represented in fact only an extreme theological rendering of religious attitudes and social outlooks that had largely dominated medieval life.

Chapter 9

Marriage, Concubinage, and the Law Ruth Mazo Karras

It took modern American society from the late 1960s to the turn of the millennium to come up with a term for the person with whom one lives outside marriage, finally settling on ‘‘partner.’’ Medieval society, on the other hand, did have a term: the woman in such a relationship was a concubina, the man a concubinarius. Medieval society acknowledged these people’s existence and had a known category into which to fit them, even if it did not encourage such unions. Unlike the corresponding relationship in the late twentieth century, the union had a legal status, albeit a complex one. Also unlike the comparable modern relationship, the medieval one was inherently imbalanced in terms of gender. Often the two parties were of different social classes, the man higher; even when they were of the same class, the relationship marked the woman much more than it did the man. Concubinage was a legally recognized status in Roman law. Over the course of the Middle Ages the term underwent a number of semantic shifts, but the technical definition from Roman law never entirely disappeared and was revived by jurists in the later Middle Ages. The status of the concubine can thus serve as a case study of how the application of Roman law interacted in complex ways with medieval social structures that had changed a good deal since antiquity. The concubine of Roman law was a woman attached to an unmarried man by a bond that was less than that of marriage, yet not just a casual union.1 A variety of literary and other texts from the Republic differentiated the concubine from the prostitute or loose woman. As the jurist Paulus (fl. c. 210 c.e.), excerpted in the Digest, explained, a woman who ‘‘lived with a man although she was not a wife’’ was once called a pellex but was now (in Paulus’s time) called amica or ‘‘a bit more honorably’’ concubina; he cited Granius Flaccus (mid-first century b.c.e.) stating that in the common parlance of his time pellex meant a woman who had sexual relations with a

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married man but formerly was used for a woman ‘‘who is in a man’s home in place of a wife, without marriage,’’ following Greek usage.2 Aelius Marcianus (early third century c.e.) recognized concubinage as a legal institution in his discussion of the Lex Iulia de adulteriis coercendis of 18 c.e.: ‘‘Nor does he commit adultery by concubinage, for since concubinage takes its name from the laws, it is not punished by laws.’’3 Modestinus (fl. c. 250) similarly excluded concubinage from the category of stuprum punishable under that law: ‘‘He commits stuprum who keeps a free woman for intercourse but not in marriage, except a concubine.’’4 A man who took a concubine might be legally unable to marry her because marriages between people of different social classes were forbidden under the Lex Julia et Papia Poppaea (9 c.e.); or he might simply not wish to. Where a marriage between the parties would have been licit, the distinction between wife and concubine was basically one of the man’s intent and the way they lived their lives together.5 If marital intent were lacking, the woman was a concubine and received few of the rights of a wife, although she might be subject to punishment for adultery if she were unfaithful.6 In Rome the concubine could be either freeborn or freed, although it was expected that the concubine of a free man would often be a freedwoman, whom a senator or the son of a senator could not legally marry, and whom other elite free men might hesitate to marry as well.7 If a man wanted to have a respectable freeborn woman as a concubine, the relationship had to be stated before witnesses; in other words, a freedwoman partner might be assumed to be a concubine, but a freewoman was assumed to be either a wife or a whore unless formally noted otherwise.8 Roman soldiers, before the year 197, were also not permitted to marry, but the women with whom they formed partnerships were not often called concubinae. Sara Elise Phang argues that these unions, although not valid conubium, differed from concubinage because marital intent was present: people understood them as marriages, and children, albeit illegitimate, were an important part of the union.9 Roman law was quite clear that the concubine was in place of a wife and that the extramarital partner of a married man did not rise to the status of a concubine. This distinction, however, was lost in the early Middle Ages. It is by no means clear what constituted formal marriage among the preChristian ‘‘barbarian’’ peoples, but it is clear that the newly Christian Franks did not necessarily practice monogamy. Gregory of Tours, for example, refers to kings who had uxores and concubinae, but there could be more than one uxor at a time, or an uxor and a concubina at the same time.10

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Gregory’s distinction is not that a man can have either a concubine or a wife, nor that a man can have only one wife but more than one concubine; the distinction is between free women, who could be wives, and unfree women, who were concubines.11 Over the course of the early Middle Ages the church came up with different rules to determine who could be considered a wife and who a concubine. The distinction had to do primarily with the payment of a dos; the notion of the formation of marriage by words of consent between the parties alone was a later (twelfth-century) development. The term ‘‘concubine’’ thus came to mean any woman who had not been married with appropriate publicity, including a dowry; the term did not have the same specificity as in ancient Rome. The Council of Mainz in 852 declared that a concubine with no contract of betrothal was not a wife: ‘‘If anyone has a concubine who was not legitimately betrothed, and afterwards marries a girl betrothed according to the rite, having put aside the concubine, let him have her whom he legitimately betrothed’’12 —the Annales Bertiniani, for example, called Charles the Bald’s second wife Richildis a concubine until he held a betrothal ceremony and paid a dos. In this case it is clear that he did intend her to be his wife, and she was considered a concubine not because of his intent but because there had been no official ceremony.13 Hincmar of Reims, in the famous divorce case of Lothar and his queen Teutberga, called Lothar’s previous partner Waldrada a concubine—not a good indication of Lothar’s intent, marital or otherwise, but an indication that the term no longer referred to slaves or women of low status (Waldrada was from a noble family).14 In the high to late Middle Ages the term ‘‘concubine’’ developed two basic strands of meaning. It could be used for any woman who was not a wife who lived in domestic partnership with a man, or even who was ‘‘kept’’ by a man with whom she did not live. The partners of priests, notably, fell into this category. In this sense the term was used fairly loosely, in a variety of textual genres. For example, the exempla of Jacques de Vitry, in the thirteenth century, refer to priests’ concubines.15 A chronicler could use the term to refer to the fourteenth-century English magnate John of Gaunt’s partner Katherine Swynford, with whom he had several children during his second wife’s lifetime (and whom he married after his wife’s death); it appears in this sense, as the partner of a married man, in fifteenth-century French letters of remission.16 The partner of a priest could be called a concubine not only in common parlance but also in a legal context, for example, in the records of church courts that punished these relationships.17

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Other terms could also be used with the same meanings: for example, a woman in a relationship with a priest could be called a meretrix (whore or prostitute), or focaria (hearth-mate).18 But ‘‘concubine’’ could also be used in a more specific and technical sense. Some jurisdictions recognized concubinage as an official status, giving the concubine and her children some subset of the rights of a wife and legitimate children. Canon law also gave concubines some rights, Gratian holding that concubinage involves conjugal intent (maritalis affectio) but no legal instruments.19 Subsequent canonists followed him in treating concubinage as an inferior form of marriage, one that needed to be remedied by regularizing the union. The consensual theory of marriage meant that if marital intent existed, then the union was a marriage, even if it was called concubinage under the civil law because it involved parties of differing status. Yet, as James Brundage points out, ‘‘At the same time, however, the canonists also continued to use the term concubinage in the sense of a temporary, non-marital union. The canonists’ ambivalent terminology in dealing with concubinage was rooted in their even more fundamental ambivalence about the morality of sexual relations.’’20 Since a priest and his partner could not legally marry, it was not possible for them to have marital intent, and thus not possible for her to be a concubine in the stricter sense. We cannot assume that every time someone used the term, even within a legal context, it referred to a specific legal status, nor can we assume that every time it meant to call into question the woman’s sexual honor. Often, however, particularly in Italian towns, the term would have carried both sets of connotations. There were a variety of reasons why medieval people would have formed long-term domestic partnerships that might have been labeled as concubinage in the looser sense. One or both partners may have been married to someone else. Particularly among the aristocracy, men who married for reasons of politics and property often had other relationships, without leaving their wives; these, of course, tended to be with women of lower social status. Sometimes these relationships were for political reasons as well, for example to ensure the loyalty of the subordinate whose female relative was involved; at other times they were matters of personal preference.21 However, many of the unions between partners who could not legally marry must have been between people of similar social standing. In a legal system in which marriage was indissoluble and even the worst of marital abuses led only to a legal separation and not to the dissolution of the marriage,22 there would have been a number of people who were legally married

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to someone with whom they no longer lived. If these people formed subsequent unions it would technically have been adultery, although they might remarry elsewhere without anyone knowing. It could as easily be the woman as the man who was in a dysfunctional marriage, although it may be that the woman would come in for more opprobrium than the man for leaving it. Nor could people of different religions legally marry, although we do not know how many people were in this situation. The evidentiary situation is a bit better for priests living in domestic partnerships. It is not often possible to know whether the numerous fornicating priests in ecclesiastical records represent casual encounters or quasimarriages.23 However, an examination by Ludwig Schmugge of 37,916 dispensations from church rules against the ordination of bastards turned up a number of siblings who were children of a priest by the same woman, indicating an ongoing relationship.24 Frequent denunciations, from the pulpit and elsewhere, of priests’ concubines indicate that these unions were quite common.25 A stable relationship with a priest with a steady income might well have been appealing to a woman. Although defamation cases record the use of ‘‘priest’s whore’’ as a term for such women, these partnerships were common enough to indicate that they must have been widely if not universally accepted. Another set of nonmarital unions involved people who could legally have married but chose not to. These situations often involved men who married late in life (in Italian towns, for example, men tended to marry in their thirties) and prior to marriage formed a relationship with a woman they did not intend to marry. A widower might decide he had enough legitimate children already and choose to form a looser union rather than remarry.26 The Florentine merchant Gregorio Dati had a son with a Tartar slave, a year and a half after the death of his first wife and a year and a half before he married his second.27 The unions of this sort that have left a trace in the sources tend to be those involving elite men and women of lower standing. However, there may also have been a great many long-term relationships between partners of roughly comparable standing (low in both cases), who chose not to marry because they preferred flexibility or because they could not afford the obligations that went with the commitment.28 For the most part these unions seem not to have been experimental marriages.29 Because they were not based on a legal contract, however, these appear in court records only when one party was claiming that the union was actually a marriage. If both parties were content with a less formalized relationship,

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it might never appear in our sources, unless the partners were disciplined by the church courts for it. When these unions do find their way into the sources, we can sometimes see how jurists thought about these unions and how they reconciled the rules inherited from Roman law with the changed circumstances of a gender system constructed quite differently under Christian influence. Consilia written by eminent civil lawyers, which included references to Roman law, other jurists, and occasionally canon law, provide a way into elite understandings of the position of the concubine. Some of the consilia were written for hypothetical cases (often marked by stereotypical names used in them; Titius was their equivalent of our John Doe). Some are on abstract points of the law and not related to specific cases. Many if not most, however, seem to have been written in response to actual cases. Jurists were asked to consult, usually by a judge, sometimes by one of the parties to a case (a consilium does not normally state who retained the author). The consilia were consultative opinions, originally not binding, although there was a tendency for them to become so;30 still, even if binding in a particular case, they were later cited as authoritative but not as precedential. Civil law did not rely on precedent as English common law did; rather, the opinions of legal authors counted to give a certain weight of consistency and historical tradition. Each medieval jurisdiction had its own law (ius proprium), but civil law and its traditions were crucially important to the legal system throughout much of southern Europe and the Germanspeaking regions, and very influential elsewhere.31 The ius commune, the set of legal traditions common to much of Europe, included both canon and civil law. Marriage was within the realm of the canon law, but many aspects of inheritance were in the realm of civil law. Civilians were not reticent about commenting on issues of canon law when they came up on the course of a case. I begin with the following question posed in a consilium of the French jurist Gui Pape (Guido Papa, c. 1402–87): Dom. John Comberius, a priest, left Antonia, his ancilla and concubine, 100 florins, and many other bequests. He left Hugh, the son of the said Antonia, his son, food and clothing until the twenty-fifth year of his age. Master Hugh Comberius, the brother and heir of the said Dom. John Comberius, claims that the said Antonia was the concubine of the said testator and thus the legacy made to her is not valid. And further, with regard to the son of the said Antonia, the said heir claims that this son is a spurious son of the said Dom. John, the testator; in response, it is said that even if the said Antonia was the concubine of the said Dom. John, the testator,

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still, three years before his death, he was the compater [fellow godparent] of the said Antonia his concubine, since he held at the sacred font the said Hugh, son of the said Antonia. Now it is asked whether the legacies made to the said Antonia and her son are valid and should be given effect.32

There are a number of interesting features of this case. It is quite typical of the kinds of cases involving quasimarital unions that are likely to find their way into the legal records, because it involves the status of the offspring of the union. In civil law jurisdictions, a distinction was made between two sorts of illegitimate children, the natural and the spurious. Natural children were born to parents who could have been married to each other, while spurii were born from incestuous, adulterous, or other forbidden relationships. Spurii could not be legitimated and therefore did not have even the possibility of inheritance from the father.33 In practice, of course, many clerics and other fathers of spurii did give legacies or inter vivos gifts to their children; if the heirs challenged the bequest, however, the matter might be complicated. The case of Hugh Comberius, son of the concubine Antonia, depends on whether he was a filius spurius; in theory, as his parents could not marry because of to his father’s clerical orders, it would seem that he would have been. Hugh’s mother Antonia was termed a concubine; as discussed above, in its looser sense this was a common term for the partner of a priest, but a priest could not have a concubine in the stricter sense. The civilian jurists commonly accepted this stricter meaning: ‘‘Concubinage is correctly said to be that which exists between an unmarried man and an unmarried woman; for since concubinage takes its name by law . . . that cannot be called concubinage which is prohibited and punished by law.’’34 Yet the term could also be used by the civilians for couples who could not marry, referring to the concubine of a married man or of a priest.35 The statement of the facts of the case also called Antonia an ancilla. It is not clear exactly what Gui Pape meant by this term. In Italy, where he had studied law at Pavia and Turin, it would have meant ‘‘slave’’ at the time.36 However, he more likely wrote this consilium when he was living in the Dauphine´ from 1430 to 1487, and there, where slavery was not as common, it more likely meant ‘‘servant.’’37 It is not clear from the consilium where the parties were located; no particular jurisdiction is mentioned for the legal points involved. But her personal status as enslaved or free does not come up at all in the consilium. According to some of the other jurists Gui might have cited, her status

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should have mattered. A servant and more especially a slave, even if she did live in the home and had a sexual relationship with the master, was not legally considered a concubine in Florence.38 Had Antonia been a slave, her sons could have been considered spurious for that reason. Classical Roman law held that the children of a slave woman are slaves. Yet Sally McKee has recently shown that in practice, first in Crete and by the beginning of the fifteenth century in most of Italy, the children of slave women who were acknowledged by their free fathers were frequently legitimated (implying that a prior step of manumission was not necessary, that they were already free).39 It was not only slave status, though, that could put a stain on the status of Hugh, son of John Comberius: even had his mother been a free servant, the law might have had a problem with legitimating him. The jurist Angelo degli Ubaldi (1323–1400), who spent most of his career in Perugia but the last several decades of his life in Florence, wrote that the children of servants were not blood relatives: There are two types of natural children, whom we call bastards. Some are conceived from serving maids [fantolastris] who daily run about and live in different places . . . those conceived in such a way cannot point to a father, and consequently neither a paternal grandfather nor a paternal grandmother. Hence laws and statutes that speak of children or grandchildren do not include such natural children . . . and such natural children are not said to be of the household, nor of the blood, nor of the agnatic patrimony.40

Bartolo de Sassoferrato (1314–57) held that anyone acknowledged as a son should be considered legitimate unless the father specifically calls him ‘‘natural,’’ except the child of a servant: ‘‘for example if some noble or other honorable citizen should join with a woman who served him or another, by those words [naming him in a will] the son cannot say he is legitimate; because marriage cannot take place with that woman, at least honorably.’’41 Franciscus Curtius the younger (d. 1533) followed Bartolo’s argument, adding that those children who can be legitimated by subsequent matrimony ‘‘are born of a concubine, kept in the manner of a concubine with marital affection, and with whom matrimony could be contracted according to good civic customs, such that such a man contracting matrimony would not contract it with a woman who is unseemly and of bad reputation and of low condition.’’42 Thus the category of those with whom legal marriage could take place, those women who could be considered concubines in the narrower sense and who could give birth to ‘‘natural’’ children, is narrowed

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even more than required by the canon law strictures on incest and indissolubility of marriage. Other jurists, however, disagreed: Francesco Accolti (Franciscus de Aretio, 1416/17–1488) wrote that a female slave or servant (ancilla sive serva or ancilla vel sclava) could legally be her master’s concubine, as long as she was called by that term and lived in his home. Her children would then not be considered spurious.43 Benedictus Capra (Benedictus de Benedictis of Perugia, 1390s–1470) argued that a woman could be a concubine who could not be a wife. A certain Renodellus had instituted as his heir a woman, Jacobutia, whom he ‘‘held as his concubine, keeping her as a wife at table and in his bed. But indeed she was such that marriage could not be appropriately [digne] contracted with her by Renodellus.’’ Benedictus referred throughout the consilium to ‘‘a concubine such that matrimony could not be contracted with her.’’44 It is possible that the marriage could not be contracted because there was some canonical impediment, but the digne seem to imply that it was a question of social status. It is clear in this case, though, that the writer continued to call her a concubine even though she (like Antonia) was not a woman who could have been a wife. Of course, although in the classical Roman law, status was a barrier to some marriages, canon law held that inequality of status did not matter to the validity of a marriage, and the civil lawyers generally accepted this.45 In cases that did not turn on the question of whether a given woman could be considered a concubine, jurists tended to assume that a concubine would be free and thus that her children would be ‘‘natural’’ and capable of being legitimated. Bartolo wrote that ‘‘according to natural law all coitus is equal’’ and that the distinction between the wife and the concubine was one of ‘‘dignitas.’’46 While marriage was legally established and adultery, incest, and so forth were expressly forbidden, ‘‘there is a certain kind of union [coniunctio] that is neither approved nor disapproved by the law, that is concubinage. This remains under natural law, and therefore the children born from it are called natural.’’ These children could be legitimated by the subsequent marriage of the parents.47 The question of the status of the children of a cleric’s concubine, such as Antonia’s son Hugh, however, was a bit different. Bartolo went on to discuss whether the children of a cleric in minor orders were considered natural. Some previous authors had denied this, on the grounds that the relationship was illicit; others had held that clerical concubinage was a crime under canon law but not civil law, and therefore the children were natural. Bartolus agreed that the children were natural, and if the cleric

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were unbeneficed and later married the concubine, the children would be legitimated.48 This required, however, that marriage had been a possibility at the time that the children were conceived, so it applied only to clerics in minor orders. A priest by this time period could never marry, so he could never legitimate his children by subsequent matrimony. Of course, John Comberius was not attempting to legitimate his son by marrying Antonia, nor did he try to legitimate him by will or institute him as heir; he only left him a legacy. This was not permissible with a spurious son. Strangely, however, Gui never considers in this discussion whether Hugh should be considered a natural son. Rather, he points out that this legacy was only alimentary, that is, sufficient to feed him. This was permissible under civil law, even required under canon law, even if the child is admitted to be spurious.49 As far as a legacy to a concubine is concerned, Gui cites authorities to the effect that gifts may not be made to a concubine, but says that they do not apply in this case: ‘‘I believe, on the contrary, that the legacy made to the said Antonia is valid in the case under consideration, especially because at the time of the death of the said testator and for three years before, she had ceased being his concubine because of the said co-godparenthood. It is the situation at the time of the death and the legacy that must be investigated. For even if she was a concubine, she can cease being a concubine, as we see in the case of a concubine with whom one contracts matrimony: because as a result of matrimony the children previously born are legitimated, and the mother ceases to be a concubine.’’50 The basic canon law textbook, the Decretum, makes it quite clear that a man who stands as godparent to his own child must cease sexual relations with the mother, even if she is his wife, because it would then be incest under canon law.51 Gui here assumes that after the baptism of their son John and Antonia did cease relations accordingly. If this was in fact the case, it could mean that they knew and respected the provisions of canon law on this subject and that the godparenthood was intentional. Church authorities might have ordered them to cease relations after the godparenthood; concubinage was often tolerated, but the godparenthood could have gone too far. However, John apparently referred to her in his testament as his concubine (although the consilium does not contain the actual text of the will), so it seems that he still considered her as such. Gui’s argument here is that the relationship has become irrelevant. Antonia was no longer a concubine at the time of John’s death, so rules against leaving a legacy to a concubine do not apply, and she may be given

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a legacy like anyone else. In fact, juridical authorities disagreed on whether a priest could leave a legacy to his concubine.52 It is a bit strange that Gui turns to the argument that she was no longer his concubine, rather than citing authorities to the point that she could be given a legacy anyway, an argument he does not make. But after arguing that Antonia was no longer John’s concubine, and that even if Hugh was a spurious son it was still legal, even required, for John to provide for his basic support, Gui then argues that Hugh was not John’s son anyway. This too is a very strange argument for him to make. The facts of the case as stipulated at the beginning say that he was his son, and Gui is not suggesting that Antonia was unfaithful to him. The presumption of paternity for a married woman’s child applied to a concubine as well: ‘‘A child born in a man’s home is presumed to be his child; thus a child born of a concubine in the home of the concubinarius is presumed to be his child.’’53 However, Gui now says that Antonia and John had been together only for the three years preceding John’s death (precisely the time since which, he just said, she has ceased to be his concubine!) and Hugh is ten and a half years old. The implicit point here is that a legacy to an unrelated person was licit. Since there was no claim that John was attempting to legitimize the boy, there was no advantage to treating him as a son. This case indicates that the law could be flexible. The fact that ‘‘priest’s concubine’’ was not a legally recognized or respected relationship did not stand in the way of a priest providing for his loved ones. (Interestingly, given that the dissipation of the goods of the church is a reason often given for the prohibition of clerical marriage, it is not the church but the testator’s brother and universal heir who contested the legacies, and one assumes therefore that it was family rather than church property at issue.) Gui seems to be trying out a number of twists on the facts of the case— either Antonia is not a concubine or else her son is not John’s—in order to allow the legacies. It is tempting to speculate about whether a servant with a relatively small legacy was able to get an eminent jurist involved in the case on her side, or whether Gui was consulted by someone other than one of the parties. Besides indicating the law’s adaptation to the facts, the case also demonstrates the way that Roman law was and was not applied to the medieval situation. When Gui considers the position that a man may not leave a legacy to his concubine, he cites not a ruling about a priest’s concubine but one about a miles—in medieval Latin a knight, but in classical Latin a soldier. Some jurists, however, considered whether a miles could make a gift

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to his concubine and concluded that the medieval knight was sufficiently different from a Roman soldier that Roman law did not apply: ‘‘Laws speaking of milites do not refer to the milites of our times . . . they are not Roman milites and therefore do not accord with the name milites either in the privileges or the obligations, notwithstanding that they are commonly called milites.’’54 Philip Decius (1454–1536), however, extended the provision to priests: ‘‘a fortiori this applies to a priest, who is called a knight [miles] of God.’’55 But the jurists do not exhibit the same level of awareness of the way the concubine of the later Middle Ages differed from the Roman concubine. They could apply the body of law on concubinage without really considering the issues of the different functions of concubinage in the two cultures. In ancient Rome, unions between people of certain social levels were not marriage (iustae nuptiae) but concubinage (although other relationships, such as those between soldiers and women they treated as wives, were iniustiae nuptiae rather than concubinage). The medieval law of marriage had no prohibitions on marriage by social status, and therefore it was possible to say that natural children were born of parents who could have been married, and a concubine (in the stricter sense) was a woman who could have been a wife but had not been officially married. The jurists were well aware of the technical Roman law meaning of the term, and could apply it, but at the same time (in the same paragraph if not in the same sentence) could use it in the much more general sense of any female domestic partner who was not a wife. At the same time, however, the choice of a concubine instead of a wife carried moral consequences in medieval culture that it did not in Roman; Roman soldiers’ marriages were not legally recognized but were perfectly respectable, not considered sinful and punishable like unions involving priests. The deployment of particular terms did not take place in a vacuum. In Antonia’s case, whether or not she was a concubine had consequences for whether she could receive a legacy, and whether her son could do so. Being considered a concubine seems to have been working to Antonia’s detriment, so Gui Pape argues that she was not one. In other cases, though, it could work in favor of a woman and her children. If she were a concubine, her children were capable of being legitimated (by the subsequent marriage of the parents or by a legal act on the part of the father), and therefore of inheriting. If she were not—if she were just a meretrix—the children were spurious and could not, at least in theory, be legitimated and claim an inheritance: a son whose mother was a meretrix ‘‘cannot be simply said to be

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‘natural,’ because the only one who can be such is one who is born of a single man, and a single woman kept as a concubine . . . and even if the coitus out of which he was born is not punishable [under civil law] it is still illicit and shameful [improbatus], since only matrimony and concubinage are seen to be licit, or at least not shameful under civil law.’’56 Being considered a concubine did not automatically confer economic benefits such as the legitimation of a woman’s children and an inheritance for them; it only opened up the possibility. If the father did not choose to legitimate the children, they had few rights. A concubine had no dowry to fall back on if she were widowed or abandoned. Nevertheless she was not the equivalent of a prostitute. The fact that the domestic partner of a priest was called by the same term could accord her some measure of respect under the law, even though her partner was not exactly a ‘‘single man’’ (solutus). Roman law did not take into account the ineligibility of priests for marriage, and there was thus potential for slippage between the civil law concubine and the clerical concubine. Given that potential, it is curious that Gui Pape chose the strategy of arguing that Antonia was not in fact a concubine. But this strategy exhibits something else about the status of priests’ concubines. Although preachers fulminated against them, although they had no official legal rights, nevertheless the relationship was a socially accepted one. The law could be stretched when a priest wanted to support his partner and their child because society accepted these partnerships as normal, if not desirable. ‘‘Priest’s whore’’ might be a common insult for one woman to throw at another in late medieval towns,57 but people nevertheless recognized that in practical terms these partnerships existed, and the law reacted accordingly.

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PA R T I I I

Cases and Trials

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Chapter 10

Crusaders’ Rights Revisited: The Use and Abuse of Crusader Privileges in Early Thirteenth-Century France Jessalynn Bird

Although the legal and spiritual privileges theoretically accorded to crucesignati have long been mapped out, their practical implementation in the late twelfth and early thirteenth centuries remains far less explored.1 Enforcing the privileges claimed by individual crusaders required the collaboration and interaction of multiple ecclesiastical and secular authorities during a period marked by crucial developments in governmental apparatuses, law, and church-state relations. Often presented as an exceptional and urgent project that ought to have enabled secular and ecclesiastical authorities to put aside traditional rivalries and long-simmering conflicts to cooperate in defending Christendom, the organization of the crusade tested the effectiveness of governance and the parameters and conditions of church-state relations, creating precedents and habit patterns that influenced quotidian interactions in crucial matters such as taxation, keeping the peace, and law enforcement. Christopher Tyerman has argued that in this period royal governments in England and France collaborated with local ecclesiastics in defining and enforcing privileges often vaguely outlined in crusade bulls. Despite occasional tensions, these authorities typically respected each other’s prerogatives. Provided that individuals did not attempt to (ab)use crusader privileges for political, legal, or financial advantage, their rights were generally upheld, although in certain instances personal or political interests dictated otherwise. However, he also unearthed haunting evidence of the difficulties royal and ecclesiastical judges faced in guaranteeing English crusaders’ rights during the close of King John’s reign and the minority of Henry III (1216–27), despite unusual secular-ecclesiastical cooperation at

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the highest levels; both kings had become papal vassals and had taken the crusader’s cross seeking papal protection against rebellious barons supported by Louis VIII of France and some prelates. Individuals from both sides of the conflict soon sought the coveted privileges granted to crucesignati, complicating and facilitating the labors of papal legates granted carte blanche authority to promote the Fifth Crusade (1216–21) and the crusade of Frederick II, create peace, and restore the authority of papal, royal and prelatial governance after a long interdict and civil war.2 The enforcement of crusaders’ rights would prove even more problematic in France. Philip Augustus had not taken the cross and tenaciously opposed any extension of prelatial or papal authority at the expense of royal or baronial prerogatives. In this climate, Paris-educated reformers and their colleagues in the episcopate, diocesan clergy, and monastic orders were appointed as crusade preachers, legates, and judge delegates and became responsible for defining the amorphous rights granted to crusaders in papal letters. Faced with reconciling and implementing the often contradictory demands of the papacy and Philip Augustus, they also engaged in delicate negotiations with the local authorities ultimately entrusted with enforcing crusader privileges. Many used their legal expertise and personal networks to navigate potentially conflicting jurisdictions and legal systems, balancing promoting reform and protecting individual crusaders’ rights with organizing a viable crusade, keeping the peace, and preventing abuses. Yet the crucial function these men played in defining crusaders’ privileges has received relatively little attention compared to that lavished on legal treatises, popes, kings, and certain papal legates. Masters educated in Paris and other centers of higher learning were employed as judges, assessors, and arbiters by papal, secular, and episcopal administrations anxious to expand the influence of their courts and thereby their authority and revenues.3 Delegated judges’ consultation of previous compositions and decretals, their queries to Rome, and their decisions on individual cases not only immediately affected the implementation of crusader rights in France and other regions but generated important legal precedents and material. One of the most influential was Robert Courson, a Paris master appointed protector for crucesignati (c. 1208 ff) and papal legate for the crusade (1213–15).4 Trained in canon law and previously involved in key cases regarding the respective jurisdictions of feudal, royal, and episcopal courts over persons of ambiguous status (including clerics, widows and orphans, heretics, and usurers), Robert and his colleagues would be faced with interpreting and

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enforcing the rights promised to crusaders in Quia maior (1213) and Ad liberandam (1215) in France. Prior to Robert’s appointment, Philip Augustus and Henry II of England had utilized preparations for the royally led Third Crusade (1188–91) to increase their jurisdiction. However, the privileges hypothetically granted to crusaders in Quia maior (including freedom from taxation, protection of person and possessions, and the right to interest-free loans) threatened to erode feudal and royal prerogatives. Although secular authorities were urged to help enforce these privileges and often did so, Philip Augustus clearly feared that Innocent III’s mandate to give the cross and its attendant privileges to all who desired them would mean that masses would attempt to escape the military and financial obligations due to himself, his vassals, and his Jews during a crucial period in his struggle against John of England. John’s alliance with certain disaffected noblemen in France and Otto of Brunswick, one of two claimants for the German emperorship, led Philip to back the papally approved Frederick II; the two axes’ chronic conflict would culminate at the battle of Bouvines (1214).5 Philip’s concerns were exacerbated by Robert Courson’s attempts to broker a truce between Philip and John to enable the departure of many of France’s most powerful noblemen, whom Robert had recruited for the crusade. Moreover, Robert, Innocent III, some bishops, and other reformers preaching the crusade soon seized upon Quia maior’s grant of immunity from interest on loans to those who had taken the crusade vow (crucesignati) to wage a much wider-ranging campaign against all interest taking by Christian and Jewish moneylenders. They urged secular rulers to collaborate with local prelates in using ecclesiastical excommunication, the threat of violence, and a ban on business dealings to force all usurers to restitute extorted interest and to arrange for crucesignati unable to immediately repay their debts to defer doing so. These demands conflicted with Philip’s prior ordinances for the Third Crusade. To prevent widespread defaulting on debts owed to the Jews and townsmen he taxed to fund his own crusade participation, Philip had required crucesignati to arrange for the repayment of the principal owed and interest accumulated on debts contracted before they had taken the cross by setting aside lands and revenues from which their creditors would be repaid in three installments. Lords with jurisdiction over the debtors and/or creditors concerned were to enforce the statute’s provisions; local prelates might excommunicate secular authorities who refused to implement it only after due warning. The episcopal tribunals organized by some reformers to prosecute Christian usurers directly

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challenged Philip’s earlier mandates, while their general assault upon interest taking endangered a prime source of tax revenue.6 Philip and many of his vassals, including Blanche of Champagne and the crucesignatus Odo III, duke of Burgundy, were concerned that Quia maior’s provisions would enable ecclesiastical intrusion into areas they considered reserved to secular courts: taxation, military service, moneylending, contracts, and lawsuits regarding land and feudal obligations.7 Some local churches had also been angered by Robert’s forceful reforms, and although Innocent III defended Robert’s actions, he advised him to respect honest customs and reserve revolutionary changes for a planned ecumenical council. Robert therefore agreed to a composition limiting his powers over the French episcopate and to the joint royal and legatine appointment of two royalist prelates commissioned to resolve issues pertaining to crusaders’ rights. After investigating how the church customarily defended crusaders, Peter, bishop of Paris, and Gue´rin, bishop of Senlis, drafted a composition in 1214 meant to ensure cooperation between secular and ecclesiastical authorities until the Fourth Lateran Council (1215) should meet. Copies were forwarded to the French episcopate now entrusted with defending crusaders; unclear cases were to be referred to Gue´rin and Peter rather than Robert.8 Gue´rin and Peter had worked with Robert and other masters on cases involving multiple jurisdictions, including the trial of the Amalricians (1210), where judges balanced respect for the hard-won right of clerics to be tried in church rather than secular courts with the ability to surrender convicted heretics to secular courts for capital punishment.9 The definition of crusaders’ rights presented similar possibilities for jurisdictional collaboration or competition. Although Ad liberandam would renew Quia maior’s promise of exemption from taxes and tolls from the moment individuals took the cross until their return from the crusade, Gue´rin and Peter quickly limited the tax-exempt status of French crucesignati to one year and decreed all liable for military service, probably at Philip’s insistence. Philip clearly also feared crucesignati exploiting their temporary quasi-clerical status to avoid answering to secular courts. Aware of previous compositions regarding the prosecution of usurers, criminous clerks, and heretics, as well as the recent division of cases between ecclesiastical and secular courts in Normandy, the committee ruled that church courts were not to defend crucesignati arrested by royal officials and found guilty of a crime meriting death or mutilation. In cases involving lesser crimes, crucesignati were to answer to church courts, although the guilty must make amends according to local

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customary law, and if convicted of a serious crime, were to be surrendered to secular courts for sentencing. Crucesignati involved in civil lawsuits concerning debts, mobile property, or bodily injury could choose either secular or church courts. Cases involving feudal dues, rents, and fees were reserved to secular courts, although crucesignati could appeal to their local bishop. These compromises influenced the legal treatment of crucesignati throughout the thirteenth century.10 Many of the composition’s provisions were consistent with Robert’s prior rulings, and he quickly approved it to further the enforcement of crusaders’ rights. However, he and other recruiters’ hopes that Quia maior’s more extensive protections would be reconfirmed at the Fourth Lateran Council would be disappointed, despite the council’s pledge to appoint legates to aid crusader contingents by arranging for their orderly departure, protecting them from taxation and imprisonment, dispensing the unfit from their vows, and offering spiritual guidance. When Robert’s legation ended in 1215, Philip Augustus and some magnates appear to have demanded the extension of the 1214 composition, which curtailed crusaders’ rights and made an episcopate with limited powers and divided loyalties, rather than a papal legate, responsible for crusade preparations in France.11 Robert’s colleagues James of Vitry and Gervase of Pre´montre´ quickly decried the ensuing abuse of lesser crucesignati’s rights by the very secular and ecclesiastical magnates who had promised them money, counsel, and leadership. They grimly prophesied that crusade preachers’ inability to enforce the spectacular privileges they offered would undermine recruiting. In many regions, crusade funds had been entrusted to magnates instructed to subsidize local crusaders. Warned by some Paris-trained recruiters that if they did not adhere to the departure date of the spring of 1217 announced at Lateran IV, they would forfeit the privileges attached to their vow while retaining the onus of fulfilling it, many humble crusaders protested that most French magnates were not planning to leave until a year later, thereby depriving them of funding and leadership. Some were being taxed; bishops were excommunicating and fining others for not departing by the original deadline.12 Gervase urged Honorius III to appoint another legate to coordinate the crusade effort in France or at least to commission special ordinatores to collaborate with the episcopate in collecting and distributing crusade monies to local crucesignati, defending their rights, and other crusade preparations. A definite departure date ought to be publicized and enforced by the French episcopate, the year’s delay previously requested by Odo of Bur-

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gundy, Walter of Avesnes, Herve´ of Nevers, and other magnates formally confirmed. Some of the men Gervase nominated as ordinatores became involved in protecting crusaders’ privileges and the collection and distribution of crusade funds, yet jurisdictional conflicts continued to hamper crusade preparations. Although Honorius urged adherence to the original departure date and appointed Simon, archbishop of Tyre, as papal nuncio for France, Gervase portrayed Simon as an outsider bereft of a support base, hesitant to depart from or enforce Ad liberandam’s mandates and deadlines, with the result that the main French crusading contingent departed only in 1218.13 Despite these circumstances, certain high-ranking crusaders possessing the resources to appeal and ties to Robert Courson or other judges delegate were able to exploit their privileges relatively effectively, among them Herve´ of Nevers and Walter of Avesnes. Excommunicated for failing to fulfill a crusade vow, Walter appealed to Rome in 1211. His case was referred to Robert, then one of two papal appointees handling all cases involving French crucesignati, together with specific instructions that, previous negotiations notwithstanding, Robert and his fellow judges were to allow at most the delay of Walter’s vow. Walter pled that the depredations of his brother Burchard, a cleric, meant that his lands would suffer irreparable damage if he departed on crusade. In return for sending what aid he could to the Holy Land, Walter was granted papal protection, permission to delay his departure until Burchard’s molestations ceased, and financial subsidy. Although his case concerned matters traditionally reserved to feudal law (immobile property and, more debatably, a criminally violent cleric), Walter used his crucesignatus state to appeal to ecclesiastical courts. Scion of a crusading family and a potentially substantial contributor to the crusade, he probably hoped that, given his brother’s clerical status, papal judges delegate would prove more effective than secular courts, although their rulings and papal grants of protection were ultimately enforced by local ecclesiastics via often disregarded ecclesiastical sanctions. The diversion of Burchard’s ambitions via his marriage to Margaret of Flanders may have ultimately freed Walter to fulfill his vow. However, Walter still considered obtaining another personalized papal letter of protection worthwhile before departing as one leader of the main French crusade contingent. Its implementation was entrusted to diocesan officials from Noyon either already acting as crusade ordinatores or nominated by Robert Courson, formerly a canon at Noyon.14 As part of broader peacemaking initiatives intended to enable participation in the Albigensian and Fifth Crusades, Robert also brokered a truce

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between Philip Augustus and John of England in 1214. During negotiations, John requested that as legate for the crusade and defensor crucesignatorum, Robert prevent Philip from punishing John’s former ally, the crucesignatus Herve´ of Nevers.15 Robert knew Herve´ and his father-in-law, Peter Courtenay, count of Namur, Auxerre, and Tonnerre, from their involvement in previous anti-heresy campaigns and the Albigensian crusade. Robert’s associate, Fulk of Neuilly, and other reformers had exploited popular resentment of moneylenders caused by famine and preparations for the Fourth Crusade to persuade some noblemen, probably including Peter and Herve´, to temporarily expel Jews from their lands. Yet despite papal, episcopal, and popular pressure for secular rulers to aid ecclesiastical prosecution of Christian and Jewish moneylenders, Philip Augustus, Odo of Burgundy, the crucesignatus Thibaud of Champagne, and others stubbornly sheltered usurers for fear of forfeiting crucial income. Herve´’s and Peter’s support also faltered when Bishop Hugh of Auxerre cracked down on ‘‘excessive’’ usury in his diocese. Hugh’s chronically competitive relations with local secular authorities meant that Innocent III soon complained that the very lords who had pledged to enforce Hugh’s anti-usury statutes were threatening those implementing them with fines and imprisonment to preserve their revenues. Although fostering Jews and usurers was one charge leveled against Raymond of Toulouse, Herve´ and Peter proved loth to permit Hugh to expand his jurisdiction literally at their expense; their participation in the Albigensian and eastern crusades was aided by taxes exacted from these groups.16 The very noblemen who resisted clerical meddling in contract law nonetheless respected ecclesiastical courts’ jurisdiction and competence in marriage suits. Herve´ and Peter requested Robert as judge for a case concerning the legitimacy of Herve´’s union to Peter’s daughter Mathilda, heiress to the county of Nevers. Herve´’s overlord and rival, Odo of Burgundy, had initiated the suit in 1206 by swearing that the couple had concealed their relationship within the forbidden degrees.17 Robert simultaneously judged a long-festering dispute over the counts of Nevers’s claim to extensive procurations from the monastery of Ve´zelay. As legate for the crusade, Robert rewarded Herve´’s compliance and plans to take the cross for the Holy Land with a papal dispensation for his marriage; the cessation of Herve´’s depredations simultaneously earned Robert Ve´zelay’s gratitude and facilitated local crusade participation.18 Robert’s colleague Oliver of Paderborn soon appealed to Peter’s indebtedness, urging him and his wife to take the cross and support the judges he had instituted for crusaders in Namur.19

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Because Robert and other Paris-trained reformers had long sought to reduce the complexity of marriage laws and prevent the use of prohibited degrees of relation to obtain divorces, Robert may have offered Herve´ a quid pro quo. If Herve´ followed his comital predecessors in combining the face-saving expiation implied in the prestigious crusade vow with temporarily mitigating procurations exacted from Ve´zelay, he would be recompensed with crusader privileges and a dispensation enabling him to retain Nevers.20 Robert’s precedent would be followed by Cardinal Romanus, legate for the Albigensian Crusade, and James of Vitry, who, while cardinal of Tusculanum, granted William of Dampierre a similar dispensation for aiding the Holy Land and supporting Gregory IX against Frederick II. In both instances, papal letters stressed that the offer was open to others. Yet judges associated with Robert and James had blocked William’s projected marriage to Henry of Champagne’s daughter, Alice of Cyprus, on grounds of consanguinity, largely to prevent their claim to Champagne and endangering Frederick II’s crusade.21 In contrast, Frederick II was dispensed from consanguinity with the king of Jerusalem’s daughter, in the hope that their union would move him to fulfill his crusade vow. Pioneered in the early thirteenth century by Paris reformers and their associates, these dispensations would become a common reward for crusade participation; depending on an individual’s usefulness to the crusade, an illicit marriage could be made licit, or vice versa.22 The crusade also provided a means of exculpation for behavior declared illicit because it threatened the peace crucial to crusade organization. Herve´, Odo, and many others benefited from Gervase of Pre´montre´’s proposal that those excommunicated for aiding Louis VIII’s invasion of the crucesignatus Henry III’s lands be absolved in return for reparations and participation in the Holy Land or Albigensian Crusade.23 Herve´ was also permitted to free eight retainers from their crusade vows to guard his possessions and was granted crusade monies to subsidize crusaders accompanying him. However, the prelates and diocesan clergy responsible for collecting and forwarding these funds resented money derived in part from taxes on ecclesiastics being granted to a nobleman notorious for troubled relations with local churches, and they stonewalled despite papal pressure.24 Herve´ and other magnates obtained these privileges because Robert and Rome considered them potential leaders of the French crusade contingent. Grateful for Robert’s zealous defense of crusaders’ rights despite the unique limitations he faced, Herve´, Walter, and other noble crucesignati requested his reappointment as legate. Due to the compositions discussed

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above and the prior selection of Cardinal Pelagius as legate for the entire crusading army, Honorius specified that Robert would accompany the French as a spiritual rector only. However, Herve´ and other magnates were permitted to delay their departure and sailed with Robert from Genoa, where James of Vitry had mustered money, ships, and men in preparation for their arrival.25 Like many other crusaders, Herve´ and Peter Courtenay also sought to resolve or stave off legal disputes prior to their departure and appointed procurators to guard their interests. Robert helped them to obtain charters confirming their rights to various properties and to resolve a conflict with Bishop William of Auxerre over several castra. Despite these precautions, Peter’s presumed death reopened the affair. Herve´’s daughter Agnes soon invoked her widowed state to plead feudal matters in church courts and complained to Rome that William and Peter’s son Philip had injured her rights over these castra and other properties.26 Ironically, Herve´ proved completely undeterred by the privileges claimed by other crucesignati. Rumors of his father-in-law Peter’s capture and purported decease while Latin emperor of Constantinople led Herve´ to hastily depart the crusader camp. Aware that the protection accorded to Peter’s lands would lapse with confirmation of his demise, Herve´ violently appropriated Auxerre and Tonnerre in the absence of their appointed guardians, leading Honorius to demand that he respect Peter’s crusader privileges, forfeit the seized lands, and pay reparations on pain of excommunication and interdict imposed by several judges delegate. Cognizant that Herve´ might ignore these penalties, Honorius also urged Peter’s cousin Philip Augustus to intervene. The threat of combined ecclesiastical and royal sanctions eventually led Herve´ and Mathilda to appeal to Rome. They pled that they had gone to Auxerre, which belonged to them by hereditary right, only after hearing of Peter’s death, and had entered into litigation with Peter’s son, Philip of Namur. They justified their seizure of Auxerre by Philip’s refusal to adhere to due legal process and pledged to accept the ruling of Honorius’s judges.27 Philip’s legal advisors countered by invoking crusader privileges outlined in papal bulls and the ordinances of 1188 and 1214. Innocent III and Frederick II had taken the crucesignatus Peter and his lands under protection until his return or certain decease. After spreading false rumors of Peter’s death, Herve´ had appropriated and despoiled lands that Philip had held from Peter in peace. Robbed of his just rights, Philip was now unable to pay the debts his father had incurred before departing for Constantino-

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ple. Yielding to Philip’s insistence that Peter was alive and merited protection, Honorius finally commissioned the bishop of Auxerre and three additional judges to force the widowed Mathilda to return the seized lands and purloined revenues.28 Clearly, crusaders’ families remained vulnerable unless the amorphous privileges granted to crucesignati were defined by appeals to Rome and the rulings of judges delegate and were enforced by local authorities. However, the claims of a crucesignatus and imprisoned Latin emperor and his relations believed essential for retaining Latin Romania ultimately won out over those of an unruly returned crusader who had clashed with many of the authorities commissioned to settle the case. Herve´ more successfully exploited Alice, the widow of Odo of Burgundy, who had died with his crusading vow unfulfilled despite being assigned crusade funds. Herve´ claimed that he and Odo had agreed that whoever died first would pay the survivor a set sum for their crusade journey. Returned from the crusade, he had found no justice from the feudal court of his overlord’s widow and so appealed to Rome according to the 1214 composition’s provisions. Honorius appointed several judges to weigh the claim and fix a deadline for payment.29 The protection accorded to Odo’s family had lapsed with his death, and while Alice’s widowed status put her under the purview of church courts, it left her vulnerable to the papacy’s tendency to favor a crusader who had actually kept his vow, perhaps in recompense for the difficulties he had faced in obtaining the funds originally granted to him. Similar issues would dominate the crucesignatus Erard of Brienne’s struggle with Blanche of Champagne. Like Odo and Philip Augustus, Blanche resisted ecclesiastics’ intrusion, in the name of the crusade, into matters traditionally pertaining to feudal law. Her crucesignatus husband, Thibaud III, had associated with reformers involved in the Fourth Crusade and campaigns against usury and heresy, yet had vigorously protected and taxed Jewish usurers in Champagne, partly to fund his planned crusade participation. Reliant upon Philip Augustus and the papacy to protect her son’s inheritance, Blanche reluctantly joined Philip in partly bowing to papal concern regarding usury and indebted crusaders by capping the interest paid on loans owed to their Jews in 1206.30 Yet when the reformer Peter Corbeil, archbishop of Sens, pressured her to implement Lateran IV’s appeals for authorities to rein in ‘‘excessive’’ usury and compel Jews to completely remit interest to crusaders, Blanche resisted further encroachment on her jurisdiction and revenues. She obtained a team of papal judges dele-

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gate to prevent local prelates from injuring her interests by exceeding the council’s mandates.31 Prior to the composition of 1214, Innocent III had also demonstrated concern for balancing crusaders’ rights with those of their lords and creditors, despite the protests of local ecclesiastics faced with interpreting illdefined crusader privileges. In Lille, one merchant took the crusader’s cross and invoked its privileges after his creditors sued him. Because the ordinance of 1188 specified that immunity from lawsuits did not apply to cases initiated before a crusade vow, the town’s justiciar followed local customary law by surrendering the merchant to his creditors to be imprisoned until he paid. In contrast, the Paris-educated Alberic, archbishop of Reims, adhered to Quia maior’s more generous provisions regarding debt exemption; he excommunicated the countess of Flanders and interdicted her lands until she freed the merchant. Her appeal that she was not under the archbishop’s jurisdiction led Innocent to instruct his judges to annul Alberic’s sentences unless the case had been referred to him. Otherwise, they were to settle the case, ensuring that justice was upheld and crusader immunity was neither diminished nor used to harm another.32 This principle would ensure that while some crucesignati earned marriage dispensations and other privileges by demonstrating their usefulness to the crusade, the obverse would prove true for Erard and other claimants to the county of Champagne. For despite Blanche’s intransigence in protecting her prerogatives, in matters traditionally devolving to church courts, she routinely solicited and accepted the jurisdiction of ecclesiastical judges delegate, including Robert Courson and many of his collaborators: the abbots of Saint Victor, Saint Genevie`ve, Saint Jean-des-Vignes, and Valsecret, members of the University of Paris, the archbishops of Sens and Reims, and the bishops of Paris, Auxerre, and Troyes, among others.33 For these judges, Erard’s claim to Champagne would pose the question of whether an individual crusader’s privileges should be preserved to the detriment of the peace of the realm, the rights of a deceased crucesignatus’s widow and orphan and the crusade project itself. Aware that the immunity accorded to her crucesignatus husband’s household and possessions had expired with him in 1199, Blanche had mustered pledges of support from neighboring magnates and Philip Augustus and confirmation of her and her son Thibaud IV’s right, as persones miserabiles, to papal and ecclesiastical protection and trial in church courts. For Thibaud IV’s succession hinged on an oral agreement between Henry II of Champagne and his vassals to recognize his brother Thibaud III as count,

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should Henry fail to return from the Holy Land. Cognizant that Henry’s daughters by Isabella of Jerusalem possessed hypothetical rights, Blanche persuaded Philip to temporarily bar challenges to Thibaud’s inheritance in royal courts, based on the customary legal precedent that no minor be forced to respond to suits regarding possessions held unchallenged at his father’s death.34 Yet the crucesignatus Erard soon declared his intention to marry Henry II’s daughter Philippa and pursue her claim to Champagne. Declaring him a rebellious vassal for supposedly refusing to answer her representatives and abandon his scheme, Blanche seized Erard’s fiefs on the pretext that he was indebted to her Jews. Refusing to acknowledge his debts, Erard appealed to the current anti-usury campaign: Blanche’s action was illicit, ‘‘intuiti usurarum,’’ and violated crusaders’ right to protection. Blanche and Philip Augustus in turn exploited the reservation of crusaders charged with serious crimes to secular courts in the 1214 composition and earlier decretals to obviate Erard’s theoretical immunity from arrest and right to trial in church courts. Their agents used charges of manslaughter and treason to obtain his incarceration at Marseilles and, upon his return, in Genoa and Puy. Although Erard probably invoked crusader privileges to procure his release in Marseilles and Puy, the individual theoretically meant to guarantee those rights, Innocent III, supported Erard’s imprisonment in Genoa. He warned authorities there of the penalties awaiting those who aided the church’s enemies, reinforcing its citizens’ fears of sabotaging the crusade in which they had heavily invested.35 The abbot of Saint Vincent in Metz and the archbishop of Trier similarly utilized trumped-up charges of forgery to seize, excommunicate, and jail a poor crucesignatus subdeacon. Released only after promising not to sue, he fled to Rome and appealed. Three archdeacons from Chaˆlons working as crusade ordinatores were commissioned to oversee an inquest, and the abbot was eventually summoned to Rome for sentencing.36 Clearly, unless they possessed the resources to lodge appeals, crusaders’ theoretical right to protection of person and possessions depended almost purely on the pleasure and effectiveness of the local secular and ecclesiastical authorities ultimately charged with defining and enforcing crusader privileges.37 In Erard’s case, papal, royal, and legatine commitment to maintaining peace (and Blanche) in Champagne meant that his appeals to the rights promised to crucesignati were quashed. For when some local ecclesiastics challenged Blanche’s seizure of Erard’s lands in 1213, she claimed that individuals holding fiefs from her were

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abusing the protection granted to crusaders to infringe upon her rights. Her complaint was forwarded to Robert Courson, then legate for the crusade. After soliciting Innocent’s advice, he was instructed to act as he saw fit and ruled that unless Blanche had denied them justice, crucesignati who attacked her or her vassals automatically incurred excommunication and could not invoke their status to appeal to church courts in cases involving feudal rights and lands. This decision directly impacted Erard’s appeals, and both it and Erard’s first arrest influenced similar restrictions imposed on French crusaders in the composition of 1214.38 It may also have emboldened Blanche to peremptorily imprison the crucesignatus Hugh of Champlitte and to appeal to Rome when Peter Corbeil, archbishop of Sens, excommunicated her for violating crusader immunity. Several judges were soon appointed to absolve her, provided that she put forth a legitimate plea or swore that she was not complicit in Hugh’s maltreatment.39 Blanche also sought to forestall Erard’s claim by challenging the legitimacy of his proposed marriage. At her request, Robert Courson oversaw an inquest that established Erard’s relation to Philippa within the prohibited degrees and declared their marriage illicit. Acting on Robert’s findings, Innocent III wrote prelates in the Holy Land and France forbidding the union. When the couple clandestinely married in defiance of the prohibition, Blanche persuaded Robert to hold another inquest to undermine Philippa’s claim to Champagne by having her parents’ marriage declared invalid and by rectifying the lack of a written act confirming Henry II’s cession of Champagne. Based on the testimony of surviving witnesses, Robert confirmed the transmission of Champagne to Thibaud III and declared the union and offspring of Henry II and Isabella illegitimate. Blanche then used this inquest’s findings to confirm the feudal matter of Thibaud III’s succession in royal courts. In a rare instance of secular-ecclesiastical cooperation, Philip Augustus seconded Robert, Innocent III, and Honorius III in commanding all French prelates to wield excommunication to prevent or punish Erard and anyone else attacking Blanche or Thibaud, stressing their status as persones miserabiles devoted to the papacy and the danger violence represented to peace and the crusade.40 Erard’s proposed alliance with the duke of Lorraine threatened to hinder the resolution of the struggle of Philip and Frederick II against John of England and Otto of Brunswick and therefore crusade participation throughout Europe. Initially, Erard simply urged Philip to accept his homage for Champagne and lodged two suits against Blanche in ecclesiastical courts regarding Philippa’s claim to Champagne and Blanche’s seizure of

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his fiefs. However, the joint papal and royal proclamation of Thibaud IV’s legal immunity soon led Erard to ravage Champagne on the pretext of seeking restitution for damages. His recourse to force meant that two royal assemblies composed of Philip’s foremost ecclesiastical and secular vassals (including Gue´rin of Senlis and Peter of Paris) scrupulously applied the 1214 composition’s tenet that feudal matters involving crucesignati be tried in feudal courts. Thibaud’s immunity was confirmed; Erard was barred from pursuing his case in any court until he made restitution.41 The effectiveness of the threatened ecclesiastical sanctions depended upon their thorough publication and enforcement by prelates with jurisdiction over Erard and his allies. Some, including Gue´rin and Arnaud Amaury, abbot of Cıˆteaux and legate for the Albigensian Crusade, publicized papal mandates with Robert Courson’s support. Innocent and Honorius nonetheless felt compelled to commission judges to ensure that prelates followed canonical procedure in warning Erard and his supporters to present proof of reparations on pain of excommunication and interdict. Many prelates ignored or actively resisted publishing the judges’ mandate and sentences, particularly the bishops of Langres, Auxerre, and Troyes, who had clashed with Blanche or were related to Erard or his partisans.42 Odo of Burgundy soon warned Honorius that as a direct result, some were beginning to believe that they owed Erard support as count of Champagne. The crusade participation of himself and other nobles obligated to defend Thibaud would be indefinitely delayed or cut short, the resources mustered for the Holy Land squandered on internecine war. Desperate to secure the departure of crusaders planned for the spring of 1217, Honorius urged Gue´rin and other judges to remind prelates that they had sworn to enforce the universal four-year truce declared for the crusade at Lateran IV. They must excommunicate Erard and his supporters and persuade Philip Augustus to intervene with physical force if necessary, a surprising suggestion considering that Philip had opposed past attempts to use the crusade’s overwhelming moral mandate to enforce peace as ecclesiastical meddling in feudal matters. Honorius’s appointment of judges empowered to suspend all incompliant prelates finally persuaded the bishops of Trier and Metz to bring Erard’s most powerful ally, the duke of Lorraine, to heel, forcing Erard to accept a temporary truce.43 Blanche’s use of this truce to ally with the crucesignati Odo and Frederick II in the military neutralization of Erard’s remaining supporters produced the long-sought four-year truce, which enabled the departure of the French crusading contingent in 1218. Mediated by Odo and witnessed by

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Herve´, the truce required Blanche to obtain absolution for the excommunicate Erard and his allies in a timely fashion, pay him an annuity, return his fiefs, and refrain from using the debts he purportedly owed her Jews to distrain them. Blanche’s insistence that Erard and Philippa be absolved only after paying reparations was initially accepted by Honorius and his judges, who were empowered to use the pending question of Philippa’s legitimacy to pressure Erard to comply. However, they were deprived of their main bargaining chip when local ecclesiastics ceased treating Erard and his supporters as excommunicate, leading some judges to waive restitution as a precondition for absolution.44 Erard also appealed directly to Rome for absolution, arguing that the pope had acted on inaccurate information when excommunicating him for ravaging Champagne and disregarding his judges’ citations. Blanche’s attempts to arrest Erard, a returned pilgrim, and her attacks had led him and his allies to defend themselves and to reclaim their unjustly seized possessions. Proper procedure had been violated in the judges’ citations and his second excommunication. Erard’s tenacity and the uneven local enforcement of ecclesiastical sanctions meant that he and Philippa escaped reparations by formally renouncing their claims in 1221 in return for a generous financial settlement and freedom from all debts and excommunication. Contemporaries regarded such settlements as preferable to potentially unenforceable sentences imposed by judges. Swiftly confirmed by both parties’ feudal and ecclesiastical superiors, the composition’s terms were to be enforced on pain of excommunication by the bishop of Langres.45 Herve´’s bid to exploit Blanche’s tenuous position by refusing to definitively pronounce against Erard’s claims and attempting to reclaim three castles was likewise checked by a successful appeal to his ecclesiastical and feudal superiors. As head of an inquest investigating Herve´’s rights, Odo of Burgundy refused to rule until Herve´ swore to aid Blanche; Herve´’s compliance was rewarded with cash useful for his imminent crusade journey.46 Although Herve´ and others excommunicated for breaking the peace in England had won absolution by taking crusade vows, Honorius’s judges withheld the facilitated absolution often granted to potentially useful crucesignati from Erard and his followers, even though some, including Milo of Saint Florentine, appear have taken the cross seeking to win temporary immunity or an honorable exit from the conflict. Immediately upon his return from the crusade, Milo was ordered to fulfill the prescriptions for absolution imposed by papal judges on Erard’s excommunicate allies. He was finally absolved only because he had committed no further injury

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against Blanche or Thibaud after taking his vow; the judges and local prelates were clearly determined to make an example of Erard’s supporters to prevent future breaches of the peace.47 In many regions, individuals appointed as crusade preachers, ordinatores, judge delegates, prelates, and legates crucially influenced the interpretation and implementation of rights theoretically granted to crusaders in papal letters and legal treatises. Particularly in France, the most successful in utilizing their rights as crusaders continued to be magnates with access to expert legal advice and funds, as well as having the perseverance needed to negotiate the competing jurisdictions of ecclesiastical and secular courts and appeals to Rome. The intensely personal nature of medieval governance and law meant that those with previous ties to those deputed to protect crusader rights also fared better than the average crusader. The conjoined nature of canon law and theology in this period ensured that the confessional or pastoral forum often influenced individual crucesignati’s fates in the legal forum: past relations and scrutiny of an individual’s sincerity proved crucial for judging whether crusader rights were being abused or properly used to facilitate a potentially useful contribution to the crusading cause. Moreover, the papacy’s and ecclesiastics’ negotiations with secular rulers on the subject of crusader privileges proved to be shaped as much by larger political or pastoral goals as by strict adherence to legal principles. The interpretation and enforcement of crusading privileges meant to enable or reward individuals’ participation were often delimited by the competing claims of mustering viable contingents, maintaining the peace, and promoting reform projects deemed essential for the crusades’ success. For the effective implementation of crusaders’ privileges required the complex collaboration of secular and ecclesiastical authorities on multiple levels and tested the limits of cooperation between various authorities and legal systems: royal, prelatial, papal, and noble. In the late twelfth and early thirteenth centuries, the expansion and competition of various secular and ecclesiastical courts meant that collaboration would prove highly conditional and intensely informed by previous joint action in the prosecution of groups with ill-defined rights and by the prior histories of local and central authorities seeking to extend jurisdictions at each other’s expense.

Chapter 11

Learned Opinion and Royal Justice: The Role of Paris Masters of Theology During the Reign of Philip the Fair William J. Courtenay

In March 1308, masters of theology at the University of Paris responded to a series of questions posed by the king, Philip the Fair, regarding the nature and extent of royal judicial authority over the Templars. At first glance it seems strange that the king consulted theologians on such a matter rather than doctors of canon law, who would seem to be the appropriate body to address questions concerning secular power over ecclesiastical persons and orders. That question has rarely been posed, probably because historians have assumed that the theologians at Paris in the course of the thirteenth century had attained the status of a recognized authoritative body on matters of church doctrine and theology, and presumably, by extension, other spiritual matters. Yet, instead of being an unremarkable, business-as-usual procedure, Philip’s actions mark a crucial step in the transformation of the relationship of university and monarchy during his reign, with important ramifications for the judicial role of the faculty of theology at Paris. First, we need to review the relationship of monarch and university before the reign of Philip the Fair. Throughout the thirteenth century the University of Paris and its various faculties had two major protectors and supporters: the king of France and the pope. The transformation around 1200 of relatively independent teachers of philosophy and theology and their students into a corporate institutional structure known as the studium of masters and scholars, or the University of Paris, was the result, internally, of the adoption by teachers, or masters, of an organizational structure borrowed from guilds, and, on the other side, externally, of the protective response of public authority, both secular and ecclesiastical, on behalf of that

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emerging institution. The latter resulted in documented privileges, not the least of which was the protection of scholars accorded by Philip Augustus in 1200 in the aftermath of rioting between students and townsmen and the beating and imprisonment of scholars by the provost of Paris.1 The royal privilege acknowledged the limits of secular authority over ecclesiastical persons—precisely the issue of criminous clerks that lay at the heart of the conflict of Henry II and Thomas Becket a half century earlier, and which was again being posed by Philip the Fair in the Templar affair. Yet throughout the thirteenth century, although there were moments when representatives of royal authority ignored or even encouraged harsh treatment of disruptive scholars, the overriding attitude of the monarchy, especially under Philip Augustus and Louis IX, sponsored the protection and flourishing of the university and its members.2 In addition to the economic benefit and enhanced reputation that the university brought to Paris as the largest and most prestigious center of learning in Europe, it was an institution that increasingly provided personnel for royal administration and related branches of government. Similarly, the papacy extended privileges and protection to university scholars, even before the crucial pontificate of Innocent III, who had studied at Paris. The earliest statutes of the university were formulated and promulgated in 1215 through the authority of the papal legate, Robert of Courson, who had previously been a regent master of theology at Paris for a number of years.3 The most important single document for the University of Paris, sometimes referred to as its constitutional charter, was the papal bull Parens scientiarum of 1231, which helped end the strike and put the university on a new footing.4 Throughout the first half of the thirteenth century the papacy showered privileges on Parisian scholars as a community, in part because of the belief that universities, particularly the University of Paris, were a major resource for church reform and for improving the educational training of the clergy. And inasmuch as a major concern in the 1150 to 1250 period was the growth of heterodox movements and problems of heresy, the faculty of theology at Paris and the training of theologians, both mendicants and seculars, were considered a crucial counterforce. At no point in the thirteenth century did a king or pope ask the University of Paris for anything in return, other than to provide the learned personnel who were the expected outcome of higher education and the trained theologians to combat heresy, and to show the deferential respect that was due to higher secular and ecclesiastical authority. The bishop of Paris in the thirteenth century occasionally sought help from masters of

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theology in order to identify false belief, such as occurred in the middle years of the century and in the response of theologians in evaluating suspect articles in 1270 and 1277.5 Since the bishop, as ordinary, was primarily responsible for rooting out heresy within his diocese, often acting through his chancellor, it was natural for the bishop of Paris to seek learned help from masters of theology at Paris, just as he and other bishops from time to time sought help from mendicant theologians. Generally, the papacy played a supporting role to episcopal authority in such cases, offering advice and expecting to be consulted in serious matters. And since these were matters that clearly fell within the purview of the church, French monarchs did not become directly involved unless instances of false belief erupted into social conflict, such as occurred with the Albigensians in southern France, or at the request of a pope. As a body of learned masters who acted or were consulted frequently throughout the thirteenth century on matters of orthodoxy, Parisian doctors of theology, on the basis of long years of study and teaching, gradually came to think of themselves as persons best suited for the interpretation of Scripture and doctrine.6 As long as they exercised that authority in support of, or alongside, papal authority, their knowledge was accorded high status, albeit advisory. When, however, Paris theologians attempted to instruct the papal curia on scriptural interpretation or matters of policy, as did William of St-Amour or Henry of Ghent, they were rapidly informed of their proper place in the hierarchical ecclesiastical order. The famous confrontation of Henry of Ghent and the papal legate, Benedict cardinal Caetani, over mendicant privileges is particularly instructive. Henry firmly believed that trained theologians, particularly secular theologians such as himself, were in a position to inform the papacy and reform its policies on certain issues. The words of Benedict—the future Boniface VIII—were a ringing confirmation of the superiority of papal authority in such matters. ‘‘You sit in your professorial chairs and think that Christ is ruled by your reasonings. . . . Not so, my brethren, not so! The world is committed to us, and we have to think of what is expedient for the world, not of what is expedient or agreeable to you . . . I tell you, before the Roman curia would take this privilege from the friars, it would rather put the University of Paris in total disarray.’’7 The confrontation resulted in Henry’s suspension from teaching. Yet Paris masters of theology continued to see themselves—and to be seen by others—as an authoritative body of expert, learned opinion in matters of doctrine and belief. It is against this background that one should view the actions of Philip

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the Fair, which initiated a radically new chapter in the relationship of king and university. To understand the context and implications of Philip’s appeal to Parisian masters of theology and their response to his questions in 1308, two earlier episodes need to be examined. The first is the purported action of masters of theology in making a determination in 1297 regarding the legitimacy of Celestine V’s resignation and thus the validity of Boniface’s election as pope. The second is in 1303 when Philip sought the support of the university and the mendicant houses of study at Paris in his call for a council to depose Boniface.8 The principal evidence for a collective determination of masters of theology on the issue of papal resignation comes from the posthumous process against Boniface in April 1311.9 According to testimony that emerged from those proceedings, various masters and doctors of theology had determined that Celestine V could not legally resign the papal office and that the election of Boniface was therefore invalid.10 The document of 1311 also reported that the bishop of Bayeux referred to a determination of doctors against the legitimacy of Boniface’s accession to the papal throne.11 The sequence of events to be inferred from statements in these proceedings is that Parisian masters, acting on their own authority, debated and made a determination in this matter against the legitimacy of Boniface; that they issued a sealed document with that determination and presented their opinion to the king; that this determination helped move Philip to the action of publicizing their conclusion; and that hearing of this Parisian determination, Boniface took action against the two Colonna cardinals who opposed him. On closer examination, the situation looks different. Apart from the fact that most of this ‘‘evidence’’ comes several years after the purported events and comes from one of Boniface’s strongest opponents within the papal curia, there are factual errors. Two of the three doctors of theology mentioned by Petrus Colonna as having taken part in this determination— one a Franciscan and the other a Dominican—were never licensed or reigned in theology at Paris, so far as we know.12 Had such a determination taken place, one or more of the letters written by the Colonna cardinals in May and June 1297 would have mentioned it in their campaign against Boniface.13 Instead, their third surviving letter denouncing Boniface was written to the chancellor, masters, and scholars at Paris on 15 June 1297, attempting to move them to action in a matter on which they had not as yet taken any position.14 The question whether a pope could resign was debated by theologians, but not as a collective determination. The issue arose soon after the election

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of Boniface in December 1294, well before Boniface’s bull Clericis laicos in 1296 forbidding royal taxation of the clergy without papal approval. Moreover, several of the theologians who commented on this issue had not been active at Paris for several years. For example, the disputation of Peter of John Olivi on the question of resignation was written in the summer of 1295 in southern France, while that of Giles of Rome, already archbishop of Bourges, was composed at Rome in 1297.15 At least two regent masters at Paris chose this question for a quodlibetal disputation during the academic year 1296–97,16 perhaps at the suggestion of royal officials, but there is no mention before 1311 that masters in theology at Paris debated this issue and arrived at a collective judgment that invalidated Boniface’s election, as later alleged. The latter stated that the king had notified the two Colonna cardinals—the main opponents of Boniface within the curia—that such a determination by Parisian masters had taken place, and that news of that determination played a role in Boniface’s opposition to the two cardinals.17 The position taken by individual theologians who disputed the issue acknowledged the legitimacy of Celestine’s resignation and the validity of Boniface’s election. Such was the conclusion of Peter of John Olivi, despite the fact that some Spiritual Franciscans joined the Colonna cardinals at Lunghezza outside Rome in May 1297 in their attempt to depose Boniface.18 Such was also the conclusion of Giles of Rome, former tutor of Philip before his accession to the throne and someone who had benefited from that association in the early years of Philip’s reign.19 Godfrey of Fontaines’s quodlibetal disputation on the subject during 1296–97 is reflective of the opinion of Parisian theologians. Even though the pope has no superior from whom he could seek a license to resign his office, if he did so with the approval of a general council or, as Celestine had done, with the consent of the College of Cardinals, the abdication was valid according to canon law.20 Godfrey did maintain, however, that the resignation had to be ‘‘for a legitimate cause,’’ which left open one aspect of the question of the validity of Celestine’s resignation.21 If Philip and his advisers sought confirmation from Parisian theologians of the view that Celestine could not legally have resigned the papal office, no such determination was ever made. In fact it is likely that neither the royal council nor the Colonna cardinals looked to the faculty of theology at Paris as the appropriate authoritative body to be approached in this matter. The Colonna cardinals had addressed their third letter to the chancellor, masters, and scholars at Paris, that is, to the university as a whole, not regent masters in one faculty. Similarly, the language of the 1311 process,

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regardless of the erroneous conclusion theologians had reached at a collective determination in 1297, refers simply to Parisian masters and some theologians, not to masters in the faculty of theology. Those attempting to enlist an authoritative voice at the University of Paris during the crisis of 1296–97 appealed to the university community as a whole, within which the opinion of theologians carried significant weight. No matter what theological masters may have thought of themselves, the political value of the University of Paris for purposes of propaganda was the entire institution, not one of its constituent parts. As we shall see in the case of 1303 and the early stages of the Templar crisis, the support of masters and officers in the faculty of arts was as important if not more important than that of masters in the faculty of theology. The next stage in the relationship of the French monarch with the University of Paris occurred during the second stage in the renewed conflict with Boniface VIII in 1303.22 Philip was not initially successful in mobilizing ecclesiastical and baronial support behind his attempt to call a council to try Boniface for heresy and depose him. His first royal council on the matter in March 1303 was poorly attended, and thus the second attempt was more carefully orchestrated. With the support of royal administrators and ecclesiastics favorable to his position, Philip first allowed the staging of mass gatherings in Paris at which chosen speakers, such as Guillaume de Nogaret, Guillaume de Plaisians, and Renaud d’Aubigny, harangued the crowds against the pope and in favor of a call for a council. Philip’s second move was to require university authorities—we are unsure which ones, but the most likely persons would have been the rector and prominent masters from the various faculties—to support his call for a council against Boniface. Although historians have often stated that the university as a whole supported the king against Boniface, the surviving original document reveals a different picture. The king and his advisers settled for what they could get, namely that the university leadership would allow a document, prepared by the royal chancery, to be issued in the name of the university but would not attach any personal names or seals to it, thus supporting the king but ensuring individual deniability.23 Philip’s next step was to send his officials and soldiers to the three major mendicant convents, the Dominicans, Franciscans, and Augustinian Hermits, to ask each member of those communities to sign a yes or no list for his call for a council against Boniface, with the warning that those who voted no would have to leave France within the week. It was this event in June 1303 that ended John Duns Sco-

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tus’s first year as sententiarius, since his name on the negative list forced his return to England. With the king’s claim, however fraudulent, that he had the full support of the University of Paris and the Dominican, Franciscan, and Augustinian convents at Paris, he called on the support of bishops, religious convents, princes, barons, and town leaders across France to fall into line behind royal policy. In the end it worked. The important point of the events just described is that not until 1303 had a king successfully asked the University of Paris to issue a document in support of royal policy. Whatever the merits of the claim that Parisian masters had made a determination in 1297 that coincided with the views of the king, this document of 1303 was the first time that royal privileges and protection of scholars had an effective quid pro quo. Philip sought to use the reputation of the university as a whole to help marshal support for his policy. Although he could not get any individuals at the university to sign any document personally, he managed to get names under threat of exile from members of the mendicant orders, to discard the negative votes, and to distribute the favorable signed document from each convent as if it represented the entire community. When it came to his move against the Templars in 1307—a case in which ecclesiastical opinion and judgment rather than wide popular support was at issue—Philip first attempted to enlist ecclesiastical authorities in support of royal action already taken, namely, the arrest of the Templars and the seizing of their property, which he had effectively done in the early hours of 13 October 1307.24 Describing his actions as necessary for a Christian king to defend the faith against an immediate danger of heresy and immorality, and insisting that he was holding the Templars and their property on behalf of the church, pending ecclesiastical judgment, Philip appears to have expected—or certainly hoped—that the pope would accept the evidence collected against the Templars, denounce them as heretics and evildoers, and remove their ecclesiastical immunity from secular punishment. To help Clement V acknowledge the wisdom of royal action, Philip, acting with or through the Dominican inquisitor Guillaume de Paris, who was also Philip’s confessor, launched a campaign to shape opinion in favor of royal action, albeit ex post facto. The day after the arrests, Nogaret presented the case against the Templars in the cathedral chapter at Notre Dame; on the next day, a Sunday, various royal officials and several Dominicans did the same with crowds in Paris.25 Less than two weeks later Guillaume de Paris staged two public confessions at the Templar convent in

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Paris. The first was on 25 October, at which the grand master, Jacques de Molay, confessed on behalf of himself and other Templars; at a second, larger gathering on the following day other Templars confessed to the sins of the order. Both documents portray the audience, those in attendance, as composed essentially of ‘‘religious and secular masters, bachelors and scholars of the University of Paris.’’26 Surprisingly little attention has been devoted to the identification of the names of those listed as attending these two gatherings, although the names were an important element from the standpoint of royal propaganda, just as it had been with the documents in 1303 and documents from the posthumous trial of Boniface in 1311. Except for Heinrich Finke, who included editions of the proceedings of the two confessions at the Temple in Paris in his 1907 study of the Templar affair, subsequent historians have been content to repeat the claim of both documents that those attending were primarily members of the university. The purpose of two ‘‘show trials’’ for the Templar confessions on successive days rather than just one has been described simply as an increase in the size of the audience and in the number of Templars confessing. What has not been noticed is that none of those attending the first meeting were there in their capacity as members of the university, although several of them were masters, some even regent masters. The nineteen names, not counting Guillaume de Paris at whose request the others had assembled, are grouped by category, starting with the abbot of St-Germaindes-Pre´s and members of the cathedral chapter at Paris, then leading members of the mendicant and religious orders resident at convents in Paris, some of whom were also masters of theology, and finally four others to whom the title ‘‘magister’’ is applied.27 As a persuasive piece of propaganda, however, the document fell short of its aim. Only one Templar, albeit the grand master, confessed publicly. Moreover, those in attendance were not precisely disinterested observers. Those from the cathedral chapter, specifically the archdeacon, chancellor, succentor, penitentiarius, and one other canon, had attained their positions partially or largely through royal support, and Philip’s pressure on the mendicant convents in 1303 was still fresh in the minds of convent leaders in 1307. Finally, the four ‘‘masters’’ mentioned at the end of the list were royal clerks or closely connected to the royal court.28 Thus, in addition to staging more confessions of Templars before a larger audience, one major purpose of the second meeting was to have the University of Paris more visibly involved. This was done in two ways. The

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first was to insist, or at least claim, that the officers of the faculty of arts were present, namely the rector and the procurators of the four nations. The second was to restructure the listing of names so that they appeared primarily as masters and bachelors from the university, not as members of the cathedral chapter or various convents. Little effort seems to have been made to increase attendance by bishops or abbots. No bishops are noted as present at either gathering, and only one abbot attended the first gathering but apparently not the second. The abbots of Ste-Genevie`ve, St-Magloire, and St-Denis appear not to have attended, nor are the deans of any of the collegiate churches of Paris mentioned. For whatever reason, the important constituencies in the eyes of the royal advisors and the inquisitor were the leadership of the cathedral chapter, the religious convents, and the university. With the exception of a few persons who may have felt they did not need to hear the confessions a second time, the first audience returned, now doubled through the addition of masters and bachelors who clearly represented the university. To the masters of theology who belonged to the cathedral chapter and mendicant houses, a few additional theologians were persuaded to attend as well as several bachelors of theology, the rector of the university, and the procurators of the four nations of the faculty of arts.29 Although the claim was made that all faculties were represented, no members of the faculty of medicine were listed, and the only masters of canon law present were there in their capacity as members of the cathedral chapter, not the university. What is of additional interest is that the categories of those attending were rearranged in the record of this second gathering at the convent of the Templars. The first group mentioned is composed of nine persons identified as masters of theology, several of whom appeared in the notarized report of the first meeting as either members of the cathedral chapter (e.g., chancellor Simon) or members of religious orders (the Franciscan Alexander of Alessandria, the Augustinian Hermit Henry of Friemar, the Dominicans Romeus de Brugaria and Herveus Natalis [Ne´delec], the Carmelite Gerard of Bologna, and Laurence of Vallis Scolarium). To these were now added two other theologians who belonged to the cathedral chapter, John of Ghent and William Alexandri. Suddenly theologians are singled out as a group and placed at the top of the list. Attendees in their capacity as members of the cathedral chapter and the religious orders are listed next as the second and third groups, respectively. The fourth group is composed of bachelors of theology, almost all of whom belong to the religious orders.

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Then come three Dominicans, one of whom is at the biblical, or beginning bachelor, stage, including Durand of St. Pourc¸ain. Finally come the names of the rector of the university, the proctors of the four nations of the faculty of arts, and then a few others, several of whom were royal clerks. We need to look more closely at the university-connected persons who are known to have attended, recognizing that the document only states that they were present and heard the confession of the grand master of the order, Jacques de Molay, and other leading Templars; it does not say that they believed the confessions to be true or that the king had acted rightly in this matter. Some university masters may have attended out of curiosity, but the official status of those listed for the university and convents, which included the prior of each religious house of studies as well as several masters and bachelors of theology, along with the rector and procurators of the faculty of arts, suggests that they were required or strongly encouraged to attend at the request of the inquisitor.30 The only known canon lawyers among those attending were Hugh de Besanc¸on, in his capacity as a canon of the cathedral chapter, and Gerardus de Collauduno, also a canon at Notre-Dame, in his capacity as archdeacon de Josayo for the Paris diocese. In contrast to the first document, not only was this report on the second meeting notarized, but a core group of members of the cathedral chapter and heads of the religious convents attested to the authenticity of the record in a closing paragraph and attached their seals to the document.31 No members of the University, except for the theologians signing in their capacity as members of the cathedral chapter or the convents, are part of this final group. The notarized reports of the Templar confessions failed to have the desired effect on the pope. Thanking the king for his help in the matter (Clement was actually furious over the arrests and imprisonment, not to mention harsh inquisitorial methods, of persons with ecclesiastical immunity), the pope insisted that the king turn over the Templars to the church, as he had claimed he wished to do, and allow them to be questioned and judged by ecclesiastical authority. Philip initially and repeatedly said he was only holding the Templars on behalf of the church, but that their guilt had already been established through their confessions, which should be sufficient for the pope and the papal curia. The pope continued to insist on papal access to the Templars, and in December 1307 Philip allowed Clement to send two cardinals from Poitiers (where the curia was in residence) to Paris to question the leading Templars while they remained in royal custody. The result was that the Templars revoked their confessions and

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claimed innocence and papal adjudication. Clement suspended the authority of the papal inquisitor and demanded that the Templars be turned over to his court. At this juncture Philip attempted to circumvent ecclesiastical jurisdiction by obtaining a theological opinion (the equivalent of a legal consilium) that would allow him to conclude the Templar affair unilaterally. Philip did so by seeking a response from the masters of theology as a collective body. Although the matter, as stated earlier, might be thought more appropriate for deliberation by doctors of canon law, several reasons come to mind as to why Philip sought instead the opinion of doctors of theology. First, their reputation as an authoritative body on matters of doctrine and the church was greater than that of the faculty of canon law at Paris. Second, Philip may have thought he was more likely to get a favorable answer from the theologians, especially when the Templars were portrayed as idolaters and sodomites, than from canonists, who might be more protective of ecclesiastical immunity from secular control. Third, a favorable opinion from the theologians, given their history as advisors to the bishop of Paris and others on matters of orthodoxy, might help persuade the pope to support the royal position. Philip asked the masters of theology for their opinion on a series of seven questions. Their response in late March 1308 begins with an apology for the long delay in answering the king, which they claim had nothing to do with reluctance to become involved but rather was caused by the absence of certain masters from Paris, which slowed deliberations. Philip must have been advised, perhaps by masters in the faculty of theology, that theologians in such matters were used to responding to a series of separate articles, not just the question of whether the king could act unilaterally against ecclesiastical persons on grounds of suspected heresy. The list of seven questions survives in two copies, in addition to their repetition in the response of the theological masters.32 Briefly, the questions posed were 1. Whether a secular prince is able to seize, examine, and punish heretics. 2. Whether the Templars, because they are knights, can be considered nonreligious and nonexempt. 3. Whether, on the basis of suspicions obtained through the confessions of some, the entire order can be suppressed.

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William J. Courtenay 4. What is to be done with those who have not confessed or been convicted? 5. What is to be done with the additional thirty or forty arrested? 6, 7. What should be done with the possessions of the Templars?

The response of the theologians did not precisely give the king what he wanted. Although the first question spoke about heretics, not about those only suspected of heresy, it centered attention on the responsibility of secular authority to defend the faith. The theologians responded that such matters should be judged by church authorities, and that only in the case of compelling danger and the inability of church authorities to act immediately could secular authority act in order to turn the matter over to ecclesiastical authority as soon as possible. The response to the second question similarly did not support the royal position. The status of knighthood, especially for purposes of the defense of the faith in the Holy Land, did not negate the Templars’ status as exempt religious. Third, one cannot suppress an entire order on the basis of the confessions of a few. In answer to the fourth and fifth questions, those arrested should be turned over to the church. The theologians gave a combined answer to the sixth and seventh questions, which concerned the crucial matter of the goods of the Templars. The possessions of the Templars were not theirs per se but were for the defense of the faith; consequently, they belonged to the church for that purpose. The theologians who responded have sometimes been described as the regent masters of the faculty of theology. In fact, the group is a mixture of regent and nonregent masters, and some of the most prominent regent masters at this time are not among the names of those that appear with their seals on the bottom of the document. Fourteen masters affixed their seals to the response, although there were probably some twenty-five or thirty doctors of theology in Paris at the time. Of those who signed, several are known to have attended one or both gatherings in October when the leading Templars confessed. These were the Dominicans Romeus de Brugaria and Herveus Natalis, the Franciscan Alexander of Alessandria, the Augustinian Hermit Henry of Friemar, the Carmelite prior general Gerard of Bologna, Gerard of St. Victor, Laurence of Vallis Scolarium, and the secular theologian and canon of Notre Dame, William Alexandri. The other six, who are not known to have attended the confessions of the Templars, were the Augustinian Hermit Alexander of Sant’Elpidio,33 the Cluniac master Gautier de Gamaches, the Cistercian Jacques de The´rines, the regular canon

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Jean de Mont-St-Eloi, and the secular masters Radulphus de Hotot and Pierre de Saint Omer, this last being also a canon at Notre Dame.34 Missing in the document are the chancellor, Simon de Guiberville, John of Ghent, and several other secular theologians, most notably Jean de Pouilly.35 We have no way of knowing why these last individuals did not sign the response to the king. For some, they may have thought it compromised ecclesiastical jurisdiction and eroded ecclesiastical immunity to too great an extent and that the Templars should not be judged or prejudged in any way by secular authority. Others may have thought that the king acted fully within his rights and that the response of the theologians did not go far enough in support of royal action. The latter seems more plausible in that those who signed the response belonged almost entirely to religious orders. There were only three secular theologians among the fourteen masters. But if the seculars wanted to give the king the jurisdictional freedom he was seeking, why was there no minority report? There is not room here to address the complex role of Jean de Pouilly or to include an edition of his quodlibetal question on the right of the pope to investigate the secrets of a religious order, specifically the Templars. A few points in Pouilly’s treatment are worth noting and may hold the key as to why his name and seal do not appear on the document. Pouilly’s question on whether the secrets of a religious should be revealed to the pope occurs in a quodlibetal question disputed in December 1307 or, at the latest, March 1308.36 His main conclusion is that the pope, in order to rule the church effectively, must have direct knowledge of the secrets of those in religious orders.37 On the surface this would seem to support the position of Clement V that he should have access to the imprisoned Templars so that he might question them himself, an access Philip was reluctant to grant until late December, when he allowed two cardinals to question a few Templars at Paris, under supervision, which resulted in the Templars revoking their confessions. The concluding part of Pouilly’s question reveals his approval of Philip’s actions in arresting the Templars, whose apostasy and immorality were thus brought to light.38 And although it is the proper role of the pope to inquire into these matters, rules and practices within an order can change frequently and might differ from place to place, so that one person, even the pope, is not able to do a complete investigation; otherwise he would not be doing anything else, and the administration of the church would suffer.39 Pouilly does not intend, however, for such an investigation to be left to the monarch by default; it be-

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longs to the church. In his view the task is most appropriate for bishops, who share authority with the pope in such matters.40 In light of Pouilly’s quodlibetal question, he would have given an affirmative answer to the first question posed by Philip, namely the correctness of the king’s action in the arrest of the Templars. And his answer to the second question, namely whether the Templars as knights could be considered not to be religious or exempt, would have been partially affirmative. Pouilly was opposed to exemption and thought that all religious and religious orders in a diocese should be under the authority of the bishop of that diocese. He did, however, consider the Templars and those in other orders to be clerics, and therefore under the authority of the church. The issue of exemption may have been the principal reason that led several secular masters, including Pouilly, not to join their fellow theologians, most of whom were in religious orders, in their response to the king. The reign of Philip the Fair marks a turning point in the relationship of king and university, and especially that of king and masters of theology. Before Philip, the king of France did not call upon members of the University of Paris or of its faculties to help implement royal policy. Nor were masters of theology asked by the king to prepare a learned opinion on a matter of church doctrine or law, or to judge persons outside the university community. All the cases in the thirteenth century, including 1270 and 1277, concerned persons and positions that arose within the faculties of the university, and even the case of the disciples of Amaury de Be`ne at the beginning of the thirteenth century included persons connected with the university. A new and very different chapter thus begins with Philip the Fair, one that set an important precedent. Although the sons of Philip did not make use of this change, it can be seen as the precedent for Philip VI’s summoning Parisian masters of theology to a council late in 1333 to deliberate on the doctrine of the Beatific Vision, which the tentative pronouncements of John XXII had made a crucial issue of theological debate. Whether or not the theologians’ response to Philip in January 1334 coincided with Philip’s own views, Paris theologians were working at the mandate of the king, not under the authority of the pope, the bishop of Paris, or the archbishop of Sens. And just as the documents in the Templar affair of 1307 describe the actions of Philip the Fair as the means by which hidden evils and heretical practices were brought to light, so too Philip VI’s council in 1333 cast him in the role of the most Christian king acting on behalf of church and realm to defend the faith. It is difficult to imagine that Philip VI would have had the courage to assume

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that role—to be the authority under which theologians advised on points of doctrine just as popes had used theologians on papal commissions or church councils—without the precedents set by his uncle, Philip the Fair. Together these royal initiatives in the opening decades of the fourteenth century not only mark an important transformation in the relationship of king and masters of theology but were the means by which the authority of Parisian theologians entered upon a new stage of importance in European history.

Chapter 12

Coin and Punishment in Medieval Venice Alan M. Stahl

On 3 November 1395, a Venetian mint worker named Giovanni Plaxentio, who went by the nickname Mazorana, was brought before doge Antonio Venier and confessed to making Venetian torneselli of pure copper in his home.1 Though it may seem inconceivable to anyone who has visited the crowded island city, Mazorana had set up his own mint in his home, where he and two associates beat out ingots of copper with hammers, cut them into circular blanks, and stamped them with dies he stole from the mint. By the time the Signori di Notte (Officers of the Night Watch) entered his home and caught him with an ingot of copper and a leather bag filled with unstruck blanks, he had manufactured between 10,000 and 13,000 of the coins, most of which he sold to Greeks to take to their homeland, where the colonial coinage circulated. His confession was elicited after extensive torture and with the testimony of the copper merchant who had sold him the bullion. In January, Mazorana was brought before the Giudici di Proprio (Judges of Property), who condemned him to death by fire and supervised the carrying out of the sentence. One of his accomplices suffered the loss of his left eye and right hand. Two decades later, the two noble masters of the silver mint, Fantino Morosini and Daniele da Canal, were charged with violating the honor of the state by allowing silver coins to be struck in the mint below the prescribed standard of .952 fineness.2 They were indicted by the Avogadori di Comun (State Attorneys) and sentenced by their noble peers in the Senate to a perpetual loss of mint and related offices and a fine of 100 lire di moneta (about 20 ducats).3 Though their crime created a serious threat to the stability and reputation of Venetian coinage, their punishment was extremely mild, especially in comparison to that meted out to Mazorana and his accomplices. One aspect in the leniency in the treatment of Morosini and da Canal might seem to have been their noble status, but at least when

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it came to more violent crimes, nobles were generally subject to the same levels of prosecution and punishment as non-nobles, or even more rigorous ones.4 In an age when most transactions were covered with physical payments of coins of precious metal, the reputation of the issues of Venice’s mint was vital to its prosperity.5 While the integrity of the Venetian coinage could suffer from a change in the standards of the coins as they left the mint, either through planned debasement or cheating by mint employees, the state preferred to cast the blame for such problems on activity outside its mint. A case in point is the Venetian tornesello, a purposely overvalued coin produced in enormous quantities for payments in Venice’s overseas colonies but prohibited from circulation at home. As these coins sank on the money market to their true intrinsic value, the Venetian authorities blamed the decline on the influx of imitations made in Greece and lands under Turkish rule.6 In fact, the number of such imitations seems to have been relatively modest, and the responsibility for the coin’s fall can be traced to the great quantities put into production to benefit the state coffers. Within Venice, the state made a distinction in criminal prosecutions between those threats to the coinage that could be charged to outsiders and those that arose out of the actions of its own officials and employees. There were many prosecutions of counterfeiters and others who threatened the soundness of the Venetian monetary circulation, and some of these resulted in public, theatrical punishments. Crimes by mint officials and employees, in contrast, were less frequent, were subject to endless appeals and arguments of jurisdiction, and often resulted in fines, deprivation of office, or other minor and nonpublic penalties.

Crimes Against the Coinage in Circulation Three classes of acts by individuals outside the mint could disturb the value of the circulating coinage and threaten its reputation. Counterfeiting was the most serious, as counterfeit coins could be of significantly lower alloy than the products of the mint, and few individuals had the equipment or expertise to distinguish true Venetian coins from their imitations.7 Clipping, the shearing of metal off the edge of coins, and culling, the removal of high weight coins from circulation, lowered the intrinsic value of the circulating coinage and the units of account on which they were based; sig-

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nificant outbreaks of these activities could lead to the necessity of weighing all coins in circulation and ultimately to the lowering of mint standards to produce coins that would be competitive in circulating.8 The Venetian state countered these activities with visible actions, but often on an ad hoc basis owing to its lack of a systematic code of criminal statutes. Counterfeiting Medieval Venice had no codified criminal law; the closest document to a penal code was the promise that each doge made on entering office.9 The chapter on coinage of the promise made by Andrea Dandolo in 1343 is typical: ‘‘[we must] restore [recuperare] and hold in its highest form our greater and lesser coinage of gold and silver as it now is . . . and if anyone shall have falsified [falsaverit] this coinage, we shall be vigilant that he is brought to justice and condemned by our justices in this way: that if anyone shall be found to have falsified this coinage in Venice, he shall be burnt.’’10 Counterfeiting is the only crime against the coinage mentioned in the promise. Though what the Mint Masters Morosini and da Canal were charged with might also have been interpreted as falsification, it was counterfeiting that the doge had sworn to control, and it was the outsider Mazorana whose fate followed exactly what the doge had promised. The policy of burning counterfeiters was, in fact, a relatively recent one in the fourteenth century, and Mazorana is the only man documented in the records of medieval Venice as having suffered that fate. Doges of the early thirteenth century had promised to ‘‘recover’’ the coinage, but no specific penalty for counterfeiters had been prescribed.11 The punishment of burning for counterfeiters within Venice and of Venetians counterfeiting abroad was added in the promise of Giacomo Contarini of 1275.12 However, this punishment does not appear to have been put into practice for several decades. The actual treatment of counterfeiting in the thirteenth century is illustrated by four cases from within the period of 1276 to 1279, remarkably consistent in procedure and outcome though apparently in response to unrelated crimes.13 The men were foreigners: two from Bologna, one from Reggio, and one from Germany. All were accused of manufacturing false Venetian coins within the city of Venice: in three cases grossi (the large silver coins that were the basis of long-distance trade in the period before the introduction of the gold ducat in 1285) and in one case piccoli (small coins of base silver alloy used for local circulation). In each case the sentence was

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the same: loss of the right hand and, three days later, banishment from Venice and its district. The counterfeiters of grossi were tried in the Council of Forty, while the one who made false piccoli was tried by the Giudici di Proprio. The different venues for the trials reflect a conflict over jurisdiction typical of medieval Venetian magistracies and courts. In 1314, the Maggior Consiglio (the Great Council, comprising the entire adult male nobility) defended the right of the Giudici di Proprio to try cases of counterfeiting other than for grossi, as existing legislation spoke only to the case of false grossi and they had jurisdiction over cases not specifically covered by statute.14 In 1323, the Council of Forty confirmed the right of the Signori di Notte to arrest and torture all suspected counterfeiters and arrogated to itself jurisdiction over all such cases.15 In this period, the Forty not only acted as the court for the most important criminal cases but also was the main body charged with legislation and oversight of the mint and other monetary issues.16 By this time, however, the main target of counterfeiters in Venice was not Venetian grossi, which had become rare in local circulation, but grossi of Verona and the Tyrol (called grossi of 20 and 22 pennies respectively), which were imported for use within Venice.17 In 1314 and 1322, foreigners were prosecuted for counterfeiting these foreign coins in Venice; those apprehended in 1314 were given the traditional punishment of loss of the right hand and exile, while the one prosecuted in 1322 lost both eyes as well as his right hand before banishment.18 In 1325, the Forty specifically gave the Signori di Notte the right to arrest counterfeiters of the imported grossi and implicitly claimed the right to try such cases.19 Not all counterfeiters worked within Venice; some made their false coins outside the crowded city and brought them to Venetian markets to pass them. In 1290, a man of Treviso who tried to pass false Venetian grossi made elsewhere suffered the usual fate of those who worked within the city, the loss of his right hand and exile.20 By the 1320s, Venice was being flooded with foreign grossi, authentic ones of Verona and the Tyrol, but also with the products of illicit mints established in the regions of Ravenna and Ferrara. In 1324, a Venetian mint employee who made the dies for the operation near Ravenna, and in whose house such dies and other minting implements were found, was prosecuted by the Avogadori di Comun and sentenced by the Forty to six months in jail, after which time he would be banned from further employment within the Venetian mint without specific ducal permission and any further work in a foreign mint under threat of exile.21 His colleagues in the Venetian end of this operation were sen-

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tenced either to banishment or to small fines. The next year, a Ferrarese man living in Venice was convicted of participating in a forgery mint in his home region; he was sentenced to a year in jail.22 In many cases, the most external counterfeiters could be charged with was passing false coins within Venice. Lacking direct evidence of their participation in the manufacture, or even the ability to prove their knowledge of the falseness of the pieces, the Venetian government could at most levy modest fines. In 1326, a Milanese and a Venetian were prosecuted by the Avogadori de Comun for having made and sold false foreign coins (though it is not specified where); they were sentenced to jail terms of one year and three months, respectively.23 The three Venetian moneychangers (whose livelihood depended to a great extent on their ability to distinguish genuine from false coins) who were convicted of knowingly buying these false coins were given fines ranging from 50 to 100 lire di moneta. Changes within the Venetian and neighboring coinages in the years following the Black Death resulted in another flood of false foreign denominations. A series of acts by the Forty in 1354 reviewed the standards of authentic issues of Verona, Padua and Aquileia and prescribed punishment for those who tried to spend inferior imitations of these; in such cases the penalty was the loss of the false coins plus a proportional fine.24 The locus of this counterfeiting seems to have remained centered on the region of Ferrara, as evidenced by the prosecution of a Venetian noble for minting false coins of Aquileia there and of his accomplice for trying to pass the coins in Venice and Friuli; both men were sentenced to a fine of 200 lire di moneta.25 Once capital punishment was applied for counterfeiting Venetian coins, the incidence of the crime appears to have declined; besides that of Mazorano and his accomplices, only three trials are documented for the century following the mass prosecutions of the mid-1320s. Two of these resulted in public capital punishment, though not by fire. A blacksmith at the mint was charged in 1329 with counterfeiting as well as thefts from the mint and other, unspecified, crimes; he was sentenced to be hanged between the two columns at the edge of the Piazzetta of San Marco and his body left there until the following evening as a warning to others.26 A Paduan who tried to spend 240 ducats of gilt copper in Venice in 1364 was sentenced to be paraded through the commercial districts with a crown on his head displaying the false coins before he was executed between the two columns.27 A special case of counterfeiting was occasioned by the rebellion among Venetians in Crete in 1363, which resulted in the production there

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of soldini imitating those of the Venetian mint; the goldsmith who made those dies was brought to Venice and condemned by the Council of Ten to serve three years in jail there.28 Clipping With the apparent decline in counterfeiting in the fourteenth century, the focus of legislation and prosecution relating to Venetian coinage shifted to control of the clipping of coins, the physical removal of metal from their edges. Though not subject to the kind of public execution meted out for counterfeiters, clippers were often sentenced to a disfigurement in the same conspicuous venue—the space on the Piazzetta of San Marco between the two columns topped by statues of the city’s protective saints. In July 1321, a Milanese resident of Venice was arrested by the Signori di Notte and charged with clipping Venetian grossi.29 In the absence of legislation imposing a specific penalty for such acts, he was sentenced to the punishment previously meted out to counterfeiters: loss of his right hand and right eye, and banishment. Later that year, the Maggior Consiglio set up an office specifically to check for clipped grossi, with the declared intent that the coins could then circulate by count rather than having to be weighed in each transaction.30 The Officials of Clipped Grossi were to visit the tables and homes of money changers at least once a week to check that the coins they were offering were of full weight. They were to confiscate and cut all underweight coins in half, and could keep half of those they took, with the remainder going to the state. As no subsequent prosecutions are recorded for clipping Venetian grossi, this administrative and pecuniary response to the problem seems to have been deemed successful. In typical Venetian fashion, the Office of Clipped Grossi went on to accrue additional areas of responsibility and to compete for jurisdiction with other governmental agencies.31 By 1330, the foreign coins that had flooded the Venetian market and led to the rash of counterfeiting were themselves debased by their issuers.32 This led to the wholesale clipping within Venice of circulating specimens to bring them down to the weight of the new issues. The Council of Forty thereupon extended the right of the Signori di Notte to arrest and torture individuals suspected of cutting metal off of circulating foreign coins and claimed jurisdiction for themselves for the trials of this crime.33 In the next two years, nineteen individuals were prosecuted for clipping Veronese and Tyrolean grossi within Venice and sentenced to prison terms ranging up to

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three years, fines up to 200 lire di moneta, and in some cases banishment. Among these were a male noble sentenced to 200 lire di grossi and a threeyear prohibition from office holding and a noble woman who was convicted of doing the actual clipping of the coins he provided to her and was sentenced to three years in the women’s prison.34 The clipping of Venetian coins was dealt with more harshly than that of foreign coins. The post-plague monetary changes in Venice, like those on the mainland, brought about an uncertainty about the standards of the coinage that seems to have encouraged clippers.35 In 1357, the Council of Forty noted that while there were statutes on the books against the clipping of foreign coins, they could find no legislation that provided penalties for clipping Venetian coins.36 It decreed that henceforth any man convicted of clipping Venetian ducats, grossi, mezzanini, or soldini within Venice or outside should have his right hand cut off and be banished; if the culprit was a woman she should lose her nose rather than her hand. Jurisdiction for the investigation and the right to torture suspects was given to the Signori di Notte, and the Avogadori di Comun were charged with indicting suspects for trial by the Forty. Those found guilty by the Forty would suffer the prescribed corporal punishments and be fined one hundred lire di moneta, to be shared by their accuser and the Signori di Notte. Two years later, the Forty declared that the penalties they had prescribed were insufficient for a ‘‘sin abominable to God and the world and in great contempt of the doge’’ (tale peccatum sit abominabile deo et mundo et in magnum contemnum dominii).37 They added the gouging of both eyes to the amputation of the right hand and raised the fine to one thousand lire di moneta. In the case of women, corporal punishment was eschewed and the punishment set at a life sentence in prison. Once on the books, this corporal punishment for clipping Venetian coins seems to have been enforced consistently. In September 1361, a Venetian was accused of changing gold ducats for silver soldini, clipping silver off the edges of the coins and trying to use the underweight coins to buy more ducats; he was sentenced by the Forty to lose both eyes and his right hand, and be banished.38 Two months later, three Milanese were accused of clipping Venetian coins within the city and suffered the same fate.39 A case from 1366 shows the scale of this practice and the very real threat it could pose to the Venetian coinage. Giovanni de Mercadeli was charged with having given a banker 14,000 gold ducats in exchange for new soldini, fresh from the mint—which would have been more than 100,000 of the small silver coins.40 He took the soldini to Padua, where he clipped

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their edges. He was caught trying to use the clipped coins in Venice and was found to have in his possession about 19 kilograms of clipped soldini, two and a half kilograms of silver ingots made from the melted clippings, and 230 clipped gold ducats. He suffered the loss of both eyes and his right hand, the confiscation of all of the clipped money and bullion, and a sojourn in jail until April, when a nobleman paid his fine of one thousand lire di moneta, at which time he went into exile. In April 1392 another Venetian, Stefano Ferro, was charged with clipping soldini.41 His trial was delayed because a majority of the Forty abstained from approving the indictment on the first ballot in view of his claim that he was a cleric and had been put into orders while still a boy. On the second round, the indictment passed 21 to 20, and Stefano was led to the spot between the two columns where his eyes and right hand were removed, then taken to the steps of the Rialto bridge, and finally thrown into the prison adjoining the Doge’s Palace, where he languished for seven months until his fine was paid and he could go into exile. A case from the end of the fourteenth century shows how rigorously the statute against the clipping of Venetian coins was carried out, even against members of its nobility. In 1392, a Jewish merchant in Alexandria appeared before the Venetian consul there with the complaint that a Venetian nobleman named Leonardo Gradenigo had paid a Muslim merchant with one hundred clipped ducats.42 The consul seized Gradenigo’s strongbox and found 295 clipped ducats in it. Gradenigo fled from Alexandria and was tried in absentia in Venice the following year. After two ballots in which the abstentions outweighed those who thought him guilty, Gradenigo was convicted and received the sentence that upon return to Venice he would lose his eyes and right hand and then be banished. Fifteen years later, his wife appealed to the Avogadori di Comun that Gradenigo had been an inexperienced youth at the time of the clipping incident and had spent the intervening years wandering through distant lands.43 The case was brought before the Maggior Consiglio, which in a vote of 300 to 60 gave the doge the power to grant clemency in the case. This grant was, however, apparently not issued, as a note at the bottom of the record of the original 1392 indictment dated 1413 states that Gradenigo was caught in Venice in that year and the original sentence was carried out. Culling Counterfeiting and clipping were not the only serious threats to the circulating coinage of Venice; culling posed a problem that was not only wide-

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spread but was much more difficult to prosecute. As medieval coins were handmade, their weight varied from piece to piece, sometimes significantly. For the most part, within the city Venetian coins were circulated by count rather than being weighed for each transaction. An individual who did weigh all the coins he or she received could spend only the light ones locally and save the heavy ones for melting or use abroad, where they would be weighed in transaction. As the Senate loosened the standards regulating the range of weights at which the mint could issue silver coins in the later fourteenth century, culling became an ever more acute problem, leading to the lowering of the official mint weight of coins in 1391 and again in 1394.44 Unlike counterfeit or clipped coins, the lightweight culled ones were genuine and unaltered products of the mint, so not admissible as evidence of a crime. The only prosecutions for the crime of culling documented for medieval Venice represent a very specific instance of this crime, the substitution of lightweight ducats in a sealed purse. The gold ducat of Venice was struck to very narrow weight specifications, so there was little variation in the intrinsic value of the pieces as they left the mint. However, even a small weight variation in a coin of pure gold could seriously affect its value, so a system was set up by which ducats could be weighed by the Officials of Clipped Grossi, who would then seal them in a bag attesting to their full weight.45 In 1360, a noble Official of Clipped Grossi and his non-noble assistant were charged with substituting underweight ducats for good ones in the process of sealing them; the noble was banned from that office in perpetuity, while the assistant was imprisoned for six months in addition to being deprived of his position.46 That same year another noble was accused of having brought good ducats to the officials to be weighed and then squeezing an additional 20 lightweight ducats through the mouth of his purse without breaking the seal.47 He was tried by the Forty, deprived of a recently bestowed office, and fined 40 lire di moneta. In 1373, the nobleman Bertuccio da Pesaro had 30 good ducats sealed by the officials but then, without breaking the seal, inserted 80 underweight ducats (and a false one of gilt silver) into the bag and brought the coins to the Salt Office, which dealt extensively with state bonds.48 He was fined 100 lire di moneta and deprived for two years from the holding of any state office. Three years later, a resident of Grado sneaked 13 underweight ducats into a bag of 20 ducats that had been weighed and sealed by Venetian officials; he was sentenced to one month in jail and fined 13 ducats. The low penalties exacted for these of-

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fenses reflect the fact that no statute had been passed that treated culling as a crime as serious as counterfeiting or clipping.

Crimes Within the Mint There were many opportunities for mint officials and employees to profit illicitly from their access to the precious metal that passed through the facility and to the dies that could transform bullion into a coin that would be accepted as having the prescribed standards of metallic content. The mint’s regulations, reiterated in a series of manuals or capitularies, contain many carefully worded stipulations designed to reduce the opportunities for such ill-gotten gains. However, the record of medieval Venice is relatively sparse in the prosecution of mint employees for actions other than embezzlement, which attacked the profit the state derived from the mint but had no effect on the actual coins it produced. Embezzlement The Mint Masters, nobles elected for one- or two-year terms, were responsible for the standards of the coins and the revenues the state derived from their minting. They were also the greatest potential threat to the sound and legal operation of the mint. In the course of the later Middle Ages, twenty Mint Masters were prosecuted for violating the rules that governed their office, as laid out in their manuals, or capitularies.49 Some of these charges involved technical infractions such as the late submission of accounts, but many were more substantive in nature. The most common was embezzlement, or, as it was called, ‘‘putting one’s hand in the purse of the commune.’’ The profit from the mint could be a substantial source of revenue for the state; it is estimated that in 1334, the seignorage from the minting of the soldino denomination alone amounted to 165,000 lire di monete, equivalent to about 7.5 percent of the outstanding debt of the republic.50 The damage inflicted on state finances by a Mint Master who withheld part of this profit could be significant. Before the middle of the fourteenth century, there was no clear legislation that prescribed penalties for embezzlement by Venetian state officials. The problems caused by the lack of such a statute are illustrated by the case of Mint Master Filippo Venier, charged in 1349 with having suborned a new mint scribe to record the disbursal to a moneychanger of over 213 ducats

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that Venier had himself pocketed.51 The most the Council of Forty could require of him was a fine of 200 lire di moneta (62.5 ducats) and a five-year ban from holding office. In 1359, the Senate cited the need for consistent rules in such cases and passed legislation to cover the case of any officials, rectors, or ambassadors of Venice who put their hands in the goods of the community.52 According to this act, the Avogadori di Comun had the authority to prosecute any official who took an amount greater than 50 lire a grossi from the state coffers or received more than 100 lire a grossi in contravention of his capitulary.53 Within three days of conviction he was required to repay the total amount taken, plus a penalty of half that amount to be split evenly among the Avogadori, the state treasury, and the accuser if there was one. If the amount taken was under the specified amounts, the penalty was one-third of the amount taken. Among the cases of the prosecution of a Mint Master that invoked this legislation, that of Filippo Barbarigo stands out as the most noteworthy in terms of its extent, as well as the information it offers on the procedures and jurisdictions involved in the oversight of ‘‘white-collar’’ crime in medieval Venice. Barbarigo was a member of one of the elite families within the nobility, which was in the top half of the nobility in the assessments for forced war loans in the Estimo of 1379 and would produce two doges in the following century.54 He was Master of the silver mint from at least 1368. Barbarigo came under scrutiny in May 1385, when two special auditors were authorized to inspect the accounts of the mint, along with those of other offices, in an attempt to restore the state’s finances in the wake of the devastating War of Chioggia against Genoa.55 When they discovered that Barbarigo, along with the mint’s scribe, had been using the mint’s capital for personal speculation in the money market, the auditors got the Senate to decree that all of their profit should go to the fisc.56 The Avogadori di Comun objected that such a confiscation was not provided for in the capitulary of the Mint Masters and so constituted an illegal emendation of the rules of that office; the Minor Consiglio (Lesser Council) accepted this ruling and reversed the judgment.57 At this point, the Avogadori di Comun took over the prosecution of Barbarigo. His crime was to be publicly announced in the next Sunday meeting of the Maggior Consiglio and he was sentenced to be perpetually banned from election to any further state office. If he did not repay his illicit gains within three days, he was subject to an additional fine of twenty-five percent of the total owed. On 13 June 1385, the Avogadori lodged another charge against Barbar-

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igo.58 He was accused of having taken about 450 ducats from mint profits in the period since 1379. The prosecutors ordered him to pay back that sum, plus half again as much in penalty, within three days. Moreover, they noted that he had not filed his accounts for the eleven years of his tenure before 1379 (despite strict regulations in the capitulary for the regular filing and auditing of such accounts) and imposed an arbitrary figure of 700 ducats plus half again as much as penalty for that period. When Barbarigo failed to pay the 1,150 ducats within the three days, the Council of Forty instructed the Avogadori to proclaim on the stairs of the Rialto market that he had one week to appear before being tried in absentia.59 On 17 July, the case was brought before the Senate, which voted 51 aye, 2 nay, and 44 abstaining to levy the prescribed penalties against him.60 A marginal note in the registers of the Avogadori records that on 19 July the entire amount of the capital plus an equal amount as penalty was seized from Barbarigo’s possessions. Barbarigo’s troubles were far from over. Barely a week after the Avogadori had seized over 2,300 ducats worth of assets, the Forty met and passed two further judgments against him.61 The first concerned a dispute with his brother Maffeo, in which Filippo was charged with perjury before the appeals court; he was given a week to respond before being tried in absentia.62 In the second action that day, the Forty noted new charges brought against Barbarigo for the handling of untaxed silver bullion and again authorized the Avogadori to proclaim these charges against him on the steps of the Rialto. Three days later, in order to be able to gain access to more of Barbarigo’s assets, the Senate gave the captain of a ship in which Barbarigo had a partnership control over disposing of his shares.63 On 8 August 1385, the Avogadori brought the new charges before the Senate, accusing Barbarigo of having failed to respond to the charges of having stolen the proceeds of silver worth about 1,066 ducats and asking the Senate to apply the appropriate penalties for officials who had put their hand in the goods of the commune.64 This time, the Senate balked at moving against Barbarigo. In two votes that day and two more a week later, the abstentions outnumbered those in favor of the prosecution.65 Only on a third day of voting, when the attendance was much smaller than before, did the Senate decide to prosecute Barbarigo and hold him responsible for paying double the amount taken and ban him perpetually from all offices.66 Marginal annotations in the Avogadori registers record the confiscation of Barbarigo’s assets for this second conviction. On 23 August, just two days after the Senate finally charged him, the Estraordinarii (navigation officials) handed over Barbarigo’s share of the freight charges of two ships in

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which he had investments, for a total of about 625 ducats. On 7 September about 442 ducats worth of his profit from one of these ships was accounted as the balance of the capital he owed of the original 1,066 ducats, and the remaining 381 ducats from the same source were credited to his fine. Later that month his share of the profits of the second ship totaling about 364 ducats was taken, leaving an outstanding debt of 321 ducats. On 2 March 1387, Barbarigo, who had apparently been absent throughout all the earlier proceedings, appeared before the doge and his council and, in order to be able to pay his outstanding fines, got their permission to liquidate certain bonds that he had at the Salt Chamber.67 Rather than turn the proceeds over to the Avogadori, however, he reinvested the money in other state bonds and then petitioned for a special grant to be able to cash in and keep those bonds in view of the fact that the Avogadori had taken all that he had in the world and had left him in poverty.68 Over the objections of the Avogadori, this plea was granted by the Maggior Consiglio and the Council of Forty. The case of Filippo Barbarigo illustrates several aspects of the prosecution of the law in medieval Venice. On the one hand, the charges and penalties against him were carried out in strict accordance with the 1359 statutes; in the case where the wrong officials had proffered charges, the prosecution was overruled by the Minor Consiglio, acting as a court of appeals to determine jurisdiction. The Avogadori di Comun were tireless in pursuing his assets to satisfy his fines; the fact that the three men in this office personally received a share of these large sums certainly contributed to their zeal. On the other hand, perhaps because of his noble status, Barbarigo benefited from the sympathy of his peers: the Senate all but refused to indict him on charges that seem to have constituted a strong prima facie case, and in the end he received clemency to allow him to keep the portion of his assets he had sheltered by means of patently unscrupulous manipulations.

Other Crimes Within the Mint While there were many prosecutions against Mint Masters for embezzling from the profits of minting, there are very few records of prosecutions of them or of mint employees for actions that would have the effect of harming the circulating coinage. There were certainly provisions to guard against such an eventuality. In the case of the gold coinage, a complex system of assays of the product of one official by his colleagues was progressively

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made more rigorous, to the point of one stature that required that gold be refined to a purity of more than 24 (!) carats before being coined.69 Nevertheless, the rare prosecution of a Mint Master for violating these regulations illustrates how loosely they were enforced. In 1416, Antonio da Riva, who had recently been acquitted of embezzling from the gold mint, was charged with having purchased 45 kilograms of gold and some florins and having mixed these with scraps from minting to produce ducats that he put in his own purse.70 The Avogadori di Comun charged not only that he had violated his capitulary by participating as a private individual in the bullion market and stealing gold scraps from the mint, but also that the ducats he so produced had fallen short of that perfection that they should have had to the detriment of the honor of the Venetian state. The Senate had no trouble passing the indictment by a margin of 100 aye, 7 nay, and 15 abstentions, but the sentencing was a more complicated matter. The Avogadori were joined by doge Tommaso Mocenigo in seeking a jail sentence of six months, a fine of 100 lire di moneta, and perpetual deprivation of mint-related offices and for five years of all other state offices. Three other less stringent combinations of punishments were proposed by other officials; the one that carried on the second ballot was the mildest, demanding only two months in jail, the 100-lira fine, and deprivation only of mintrelated offices. In the case of the silver mint, there were even more extensive systems in place to support the identification and prosecution of a Mint Master who produced coins below the required standard. Beginning in the middle of the thirteenth century, Venetian coins of fine silver (though not those of a low alloy or of gold) bore an indication of the identity of the master under whose jurisdiction they had been minted, in the fourteenth century in the form of the initial of the master’s first name and in the fifteenth of both of his names. However, there is not a single case in the records of medieval Venice of a Mint Master being prosecuted on the basis of an assay of coins bearing his mark. One of the few cases of the prosecution of a master for substandard silver is that recorded for 1416 against Fantino Morosini and Daniele da Canal, mentioned at the beginning of this chapter.71 The Avogadori di Comun charged them with systematically alloying silver below the mandated standards and stamping ingots and coins of inferior fineness and weight. As in the case of de Riva the same year, the more rigorous penalties sought by the prosecutors and the doge were rejected by the Senate in favor of a decision that the inferior silver be refined again at the expenses of its

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owners and that Morosini and da Canal be banned from mint-related offices and be fined 100 lire di moneta each. While thefts by noble Mint Masters were usually effected by means of false accounting of the profits due the state, other employees simply took finished or unfinished coins out of the mint. There was, however, no specific legislation covering such outright theft. Three strikers at the silver mint were prosecuted by the Avogadori di Comun in 1352 for crimes of this nature. One called Bartolomeo was charged with taking 66 ducats worth of silver blanks, confessed under questioning, and was sentenced by the Forty to repay the stolen silver and either pay a penalty equal to that amount or stay in prison for one year; his release from prison one year later is noted in the record of his prosecution.72 In this 1352 prosecution, one of the defendants was charged with having ‘‘put his hand’’ into the blanks he was given for striking. It is perhaps not surprising, then, that the 1359 act prescribing punishments for officials who put their hands in the goods of the state was also applied to common employees of the mint who stole its products. One such case was Giacomello, an engraver and striker, who was accused in 1379 of taking torneselli worth under three ducats from the mint.73 The legislation of 1359 was specifically invoked in his prosecution, and within three days he repaid the value of the stolen coins with a penalty one-third that sum. In addition, he was exiled for five years from the city of Venice. The general moderation shown by the Venetian councils to dishonest Mint Masters can be seen to have been extended to non-noble mint employees as well, especially after the 1359 legislation gave specific and relatively mild penalties to those who put their hands into the state assets. In general, the cases arising within the mint were treated mainly as problems of accounting and dealt with summarily and leniently. The Myth of the Mint The mild treatment for criminal actions within the mint can be contrasted with the stringent punishments meted out to the general public, even to nobles, for such crimes against the currency as counterfeiting, clipping, and culling. The key distinction in influencing the severity of prosecution and punishment in monetary matters in medieval Venice seems to have been between those inside and outside of the mint establishment, rather than between natives and foreigners or nobles and non-nobles. The main goal of such prosecution can be seen to have been less to preserve the intrinsic con-

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tent of Venice’s coins or the profits accruing to its mint than to produce a visible and rigorous response to public acts against the coinage and the state that it represented. The rigorous prosecution of counterfeiters, clippers, and cullers and the relatively mild treatment of mint officials and employees whose crimes, to modern eyes at least, offered an equal or greater threat to Venice’s coinage can be seen as a particular application of the myth of Venice—the image that the state itself functioned perfectly and that all threats were external.74 The public prosecution and prominent corporal punishment inflicted on counterfeiters reinforced the state’s victorious battle against those who detracted from its coinage, while internal threats were dealt with administratively, grudgingly, and for the most part in closed councils.

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PA R T I V

Law Beyond the Law

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Chapter 13

Licit and Illicit in the Rhetoric of the Investiture Conflict Alex Novikoff

Two historical episodes of enduring significance loom large in the last quarter of the eleventh century: the investiture controversy between the German emperor Henry IV and Pope Gregory VII and the launching of the first crusade by Pope Urban II. Following Carl Erdmann’s pioneering study on the origins of the idea of crusade, historians have long noted the connection between the rise of a Christian notion of holy war during the pontificate of Gregory VII and the advent of the crusades.1 The subject of medieval law and the illicit offers an opportunity to briefly consider a parallel theme also emanating from the investiture controversy and also possessing relevance to the papal justification of violence: the rhetoric of legal and illegal conduct in the polemical literature produced by the investiture conflict. Although it was in the twelfth century that canon law underwent its most significant transformation, canonists of the late eleventh century such as Anselm of Lucca and Cardinal Deusdedit provide important examples of the role canon law played in the papal reform movement. But attention need not be confined to the explicitly legal literature of the period in order to appreciate the growing appeal to Christian law. The polemical treatises generated by the pro-imperial and pro-papal factions provide another vantage point for examining the legal arguments for and against the behavior of the eleventh-century temporal and ecclesiastical leaders and offer a prelude to some of the issues that would arise with the advent of the crusading movement. The conflict between empire and papacy that erupted in the mid-1070s was generations in the making. German emperors since the tenth century had made a practice of appointing (or investing) local bishops who would then take an oath of loyalty to the king, a practice specifically forbidden by church law but one that reflected the realities of power politics in the centu-

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ries following the collapse of the Carolingian Empire. Although the collision course had long been set, and several church councils had been held during the eleventh century to resolve the issue of lay investiture and simony, it took the famous personalities of Emperor Henry IV (r. 1056–1106) and Pope Gregory VII (r. 1073–85) for the conflict to reach its peak.2 The sequence of events that constitutes the central episode of the investiture conflict is well known.3 In 1056 Emperor Henry III died, leaving his infant son the inheritor of the imperial crown. That same year Henry’s friend and ally Pope Leo IX also died, leaving his program of reform in the hands of his legates and successors, popes Nicholas II, Alexander II, and Gregory VII. From the beginning of his pontificate, Gregory devoted his energy to continuing, and intensifying, the campaign for moral reform that had been implemented by his predecessors. In his enigmatic memorandum Dictatus papae (1075), inserted in the original register of the papal chancery, Gregory gave a first indication of his challenge to sacred kingship, stating that it was licit for a pope to depose an emperor.4 He forbade the clergy to accept investiture into office from a layman and put forward a theological argument that the clergy, headed by the pope, were superior to kings and other lay powers, whose role was to carry out the clergy’s directions. Henry IV’s active resistance to the pope’s initiatives led Gregory to excommunicate Henry and depose him from his office as king (1076), declaring the nobles free from their feudal obligations toward Henry. With a Saxon rebellion on his hands, Henry, in desperation, went to Italy and appeared before the castle of Canossa in northern Tuscany, where Gregory was a guest of Countess Matilda of Tuscany (January 1077). Henry’s famous episode of allegedly performing penance by standing barefoot in the snow for three days earned him reconciliation with the church, but only temporarily.5 No sooner had he returned to Germany and extinguished the rebellion than he turned against the pope once more. A second excommunication of Henry IV in 1080—in complete contrast to that of 1076— prompted the majority of the German and Italian bishops to side with the king. Upon Henry’s invasion of Italy, Gregory had no choice but to flee Rome for the south under protection of his Norman vassal Robert Guiscard, himself a former three-time excommunicate of the pope. In Salerno Gregory died an exile. The conflict between the partisans of Henry and the partisans of Gregory raged on until the Concordat of Worms in 1122, where a compromise brokered between Pope Calixtus II and Henry V staunched the political hemorrhaging but by no means solved the problem between regnum and sacerdotium.6

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One of the most remarkable features of the controversy between Gregory VII and Henry IV was the polemical literature generated by both sides of the conflict.7 Panegyric treatises exalting the deeds of kings or extolling the virtues of ecclesiastical leaders were, of course, nothing new, but the volume of partisan literature produced by advocates of the imperial and ecclesiastical causes does indeed mark a turning point in church-state relations and in European intellectual history more generally. Or, as Karl Leyser so forcefully remarked, ‘‘the habits of political thought and ideological conflict were born in Western Europe during the second half of the eleventh century.’’8 An early historian of the investiture controversy counted over one hundred polemical treatises produced in the period between 1050 and 1111, most of them originating in Italian and German lands.9 There are more still from the middle of the twelfth century. The authors involved in this ideological conflict include many of the most important figures in eleventh-century ecclesiastical affairs. Among the defenders of the imperial side were Benzo of Alba, an Italian bishop in the service of Henry IV, and Petrus Crassus, possibly a practicing jurist from Ravenna, each of whom wrote long tracts praising the emperor’s deeds and defending his legitimacy. Crassus was unusual among pro-Henrician polemicists in that he was a layman and his defense of the king was supported with quotations from Roman law as well as canon law.10 Wido of Ferrara wrote a work emphasizing Gregory’s bellicosity and accusing him of being a schismatic, while Wibert of Ravenna, Henry’s choice for antipope, composed a work defending his own claim to the throne on the basis that Gregory had forfeited the papacy through murder, sacrilege, and perjury.11 The Lotharingian monk Sigebert of Gembloux, one of the most prolific authors of his generation, also proved a harsh critic of Gregory’s policies of reform, condemning what he perceived to be the pope’s unnecessary bellicosity toward the clergy. ‘‘Who does not grieve,’’ Sigebert lamented in his treatise c. 1075 defending clerical marriage, ‘‘at so great an upheaval in the Church? Which Christian does not, if he has any compassion, feel full of sorrow on seeing Christianity trampled underfoot? . . . and all this backed by authority, by those who are called the leaders of the Church.’’12 Sigebert and his contemporaries were well aware that they were living during a period of unprecedented conflict between imperium and ecclesia, between regnum and sacerdotium. Of the Henrician polemicists native to Germanic lands, Wenrich of Trier and Wido of Osnabru¨ck were two of the most widely read. Henry’s own fiery correspondence with Gregory has been described as the earliest known propaganda literature in Germany.13

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The pro-papal authors of the conflict included Bishop Bonizo of Sutri, Paul of Bernried, who wrote a biography of Pope Gregory VII in 1128, the political theorist Manegold of Lautenbach (who challenged the idea that kings were divinely ordained rulers), and the canonists Bernold of Constance and Anselm II of Lucca (a nephew of Pope Alexander II). Peter Damian was an early advocate of reform whose treatises were directly cited by later polemicists.14 These are only some of the characters in a wide-ranging dramatis personae who contributed to the massive literary output of a fifty-year dispute that, in Brian Tierney’s words, precipitated the crisis and eventual separation of church and state.15 The controversy between Pope Gregory VII and Emperor Henry IV came to include much more than the original issues of lay investiture, simony, and clerical celibacy. The program for theological reform that was Gregory’s primary ambition extended far beyond the sacramental disputes and encompassed such issues as the justification and condemnation of rebellion. Questions concerning the nature of power and holiness and the proper relationship between the two were likewise at the forefront of thought and debate.16 Finally, canon law and reform legislation were closely related expressions of the current political climate that could, and often did, serve the papal agenda as a form of propaganda, as has been shown in the case of Bishop Anselm of Lucca.17 Indeed, the appeal and use of laws deemed applicable to all is a major theme of the polemicists of both sides, even if the invocation of obedience to the law (or the criminal disregard of it) can take many forms. As a number of these polemical texts reveal, the rhetoric of licit and illicit conduct can serve as a valuable weapon in a polemicist’s arsenal and greatly color his discussion of the legitimate use of violence. Notwithstanding his defensive posture, Gregory VII may be said to have provoked the rhetorical battle over legal and illegal conduct, as many of his letters evoke the papal defense of law and order, oftentimes in disparate contexts. In a letter of 1073 to the barons of France who were thinking of campaigning in Spain against the Muslims, Gregory makes the unprecedented claim that the kingdom of Spain belongs to the personal right (proprii iuris) of St. Peter and that, in the absence of any legal grant (legitima concessione) stating otherwise, the Apostolic See has lawful ownership over the lands through an unbroken law of righteousness.18 With an expanded sense of what is rightfully his, Gregory also bemoans the lack of law and order of others, although there is a noticeable lack of precision in Gregory’s use and definition of law. ‘‘Everywhere I look,’’ Gregory writes to Abbot

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Hugh of Cluny in January 1075, ‘‘I scarcely find bishops who are lawful in respect of their succession and life.’’19 Gregory demonstrates an altogether original understanding of law and the Christian community when he reports that the Romans, Lombards, and Normans ‘‘amongst whom I live’’ are ‘‘somewhat worse than Jews and pagans.’’ For Gregory, schismatics, those who do not follow the leadership of the church, are the most onerous and the most condemnable. Throughout his pontificate, Gregory’s rhetoric of law aligns itself to the themes of obedience and disobedience, terms that, as Werner Goez has pointed out, are by far the most frequently encountered twin concepts in Gregory’s letters.20 Gregory’s wrath at the unlawfulness and disobedience in the German territories is evident in a letter to dukes Rudolf of Swabia and Berthold of Carinthia, also written in 1075, in which Gregory calls on the German dukes to spread the message of reform ‘‘in the king’s court’’ and in other places, by force if necessary—for it is much better to rebuild the righteousness of God with new councils than to witness the perishing of souls with laws that are neglected.21 Finally, in letters to the Christian faithful in France, Germany, and elsewhere, Gregory repeatedly condemns what he regards as the criminal neglect of both divine and human law.22 Whereas Jews, Saracens, and pagans at least obey their own laws, Gregory writes in exile in 1084, we Christians appear like ‘‘outlaws and simpletons.’’ Few, but blessed, are those ‘‘who stand up and face the wicked even unto death for love of the Christian law.’’23 Curtailing the practices of simony, clerical marriage, lay investiture, and indeed all those who resist him is couched in terms of both the rule of law and the force that is required to end it.24 A similar assessment may be made of his pontificate as a whole, for whereas Gregory’s predecessors had spoken primarily of defensive situations involving fellow Christians in which Christian soldiers were defending persons and property against hostile incursions by non-Christians, Gregory carried the notion of justification by war into situations where active expansion of the Christian world and aggressive activities on behalf of papal interests were at issue.25 Canon law, it would seem, meant papal law. It was a stipulation of Gregory’s Dictatus papae, after all, that stated ‘‘that [the pope] alone has the right to make new laws according to the needs of the times,’’ a radical departure from early medieval tradition, but one that was repeated by Bernold of Constance in the 1070s and Bonizo of Sutri in the 1080s.26 Gregory’s challenge to this tradition, together with the scholarly justification of this challenge presented by the Gregorian canonists and polemicists, marks the moment at which ‘‘law shifted from the divine sphere into that

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of human control.’’27 This major development in the legal history of the medieval West prepared the way for the classical period of canon law that was to follow in the twelfth century.28 Not all members of the church approved of Gregory’s challenge to the use of law or his justification for the use of violence. It was Gregory’s controversial methods in spreading the message of reform that led Sigebert of Gembloux, who was not a member of Henry’s entourage, to say of Gregory that he had brought down the ‘‘swords of laymen on the necks of the clergy’’ and had girded ‘‘the sword of war against the emperor.’’29 Members of Henry’s faction were all the more inclined to counter Gregory’s measures, often reversing the accusations of illicit conduct. Such is the case, for example, with Benzo of Alba, whose lengthy polemic Ad Heinricum succeeds in both glorifying Henry IV, with recourse to history, and denigrating the election of Gregory VII, with recourse to universal law. In Book VII of his polemic (written in 1084) Benzo describes the elections of popes John XVI (997–98) and Gregory VII as breaking ‘‘the inviolable laws of the sacred order’’ and contrasts their illicit elections with the very licit reigns of emperors Otto III and Henry IV, under whom the popes were respectively elected. Otto and Henry, bound by their Salian lineage, are ‘‘one in the sacred fellowship of the law’’ (unum in lege eiusdem commercii).30 With Gregory in exile and Henry’s forces in Rome, Benzo appeals to Henry and his sacred duty to restore the law and order that has been lost: ‘‘It belongs to your imperial power to improve the Roman republic with laws, adorn it with morals and control this holy apostolic church with your defending arm, so that it suffers no harm.’’31 The crime that made Gregory VII the principal target of Benzo’s polemic was his denial of the king’s supreme authority over the church and the emperor’s supremacy over the papacy. To be sure, this is a theme common to many of the pro-imperial polemics and it well illustrates the sort of counter-argument that polemicists of the pro-papal entourage felt needed a rebuttal. Perhaps the best example of a Gregorian writer who took up the challenge of proving the pope’s legality against the claims of writers like Benzo of Alba was Bishop Bonizo of Sutri (c. 1045–c. 1094), whose writings place him at the nexus of the political developments of the 1080s and 1090s.32 Bonizo’s prolific output include a treatise on marriage, a treatise on sacraments, a theological work entitled Paradisus, a sermon on penitence, a letter about a fugitive monk, a sententia on lay investiture, a canonical collection entitled Liber de vita christiana, which includes an important section on the duties of a knight, and a history of the church entitled Liber ad ami-

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cum, written at the request of an anonymous friend.33 Liber ad amicum was part of the flurry of polemical activity in 1085–86 that centered on the character and actions of the recently deceased pope.34 It is no mere chronology of the church’s history, but rather a carefully constructed narrative that appropriates the past for a very specific purpose. That purpose is made evident in the introductory questions that the Liber purports to answer: ‘‘Why in this time of calamity does mother Church lie groaning on the earth; why does she cry out to God, her prayers unheard, and why is she oppressed and not set free?’’35 The desperation of this opening question, a rephrasing of the question asked by Bonizo’s unnamed friend, echoes the sentiment of persecution shared by many of Gregory’s defenders and hints at the desperate measures needed to remedy the situation. Bonizo couples the afflictions of the church with a second, more provocative question: ‘‘whether it was and is lawful [si licuit vel licit] for a Christian to engage in an armed struggle for the sake of the faith?’’ The presence of St. Augustine, the auctoritas par excellence on matters of war, can clearly be felt, and the implied parallel between Augustine’s response to the destruction of Rome and Bonizo’s response to the invasion of Rome may well be deliberate. In aligning the despondency of the church to a discussion of the legality of an armed conflict, Bonizo is effectively mounting an argument for a holy war. As Carl Erdmann long ago observed, this is of no minor relevance to the arguments surrounding the launching of the First Crusade a mere ten years later.36 Moreover, this second question about the legality of an armed conflict clearly occupies a greater place in Bonizo’s thought than the ancillary question regarding the oppression of the church. The overriding theme for the remainder of the treatise is precisely this question about the legal boundaries for declaring a religious war, its historical antecedents, present justification, and future ramifications. An examination of Bonizo’s use of law as a polemical tool in his history will allow us to better situate the rhetoric of licit and illicit in the context of the investiture conflict. Bonizo’s treatise reveals itself to be a meticulous and relatively detailed history of the church (though not free of factual errors). Beginning with biblical history, Bonizo proceeds from ancient to contemporary times citing the successive achievements of the church and its constituency, often quoting at length the decrees of the various ecumenical councils. As concerned as Bonizo clearly is with praising Gregory’s character and upholding the issues that the pope wished to promote, lay investiture and the eradication of simony chief among them, Bonizo also goes to great lengths to show that

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the role of law and justice has historically ruled supreme; those who remain lawful are rewarded for their good actions, while those who do not admit the importance of obedience to church (and divine) law suffer, have suffered, and invariably will continue to suffer. Thus Noah, Bonizo explains in Book I, after suffering so much ‘‘at the hands of those who had dishonored themselves by unlawful marriage, escaped with his household when the world perished under the avenging flood.’’37 Noah was ultimately victorious over those who had disregarded the laws of conjugal bondage; his story and other exempla from scriptural and patristic sources document the victories of the righteous. Bonizo is a valuable source for eleventh-century political and ecclesiastical history, as his many examples and citations from ancient and recent sources demonstrate. He is knowledgeable about eastern Christian history (the schism of 1054, we must remember, was still recent and not yet seen as permanent), and he draws on the history and tradition of the eastern empire to reinforce his picture of the lawful Roman church. Bonizo credits Constantine with bringing ‘‘the law into harmony with the teaching of the Gospel,’’ so that all bishops should have the Roman pontiff as their head.38 Constantine’s fateful decision to build a new Christian capital on the ancient site of Byzantium and to call the council of Nicaea (325), earned him Bonizo’s praise as ‘‘the greatest propagator of the name of Christ.’’39 And yet the stability of the Roman church was by no means assured. Constantine the Great had a son named Constantius, Bonizo continues, who ‘‘devastated’’ the church on account of his ‘‘zeal for the Arian heresy.’’ Some bishops were sent into exile, while others were put to the sword. The worst was averted, however, when the emperor’s son sent a prefect to expel the bishop of Constantinople, but the Catholic people, armed with zeal for the divine law (divine legis zelo armatus) fought for the truth so vigorously that they burned the prefect’s house and household to the ground.40 Here Bonizo provides the first historical example of the twin themes of armed resistance and the Catholic devotion to upholding the law—the law of Christ and the law of the church—announced in the opening questions of the treatise. They will recur throughout the work and constitute an important centerpiece in Bonizo’s rendition of the critical events leading up to and including the conflict between Pope Gregory VII and his imperial adversary Henry IV. Bonizo proceeds chronologically from Byzantine history to Frankish history, all the while emphasizing the laws that bind the Christian community. Regarding the Carolingian rulers, Bonizo cites, not coincidentally, the

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ratification of a law (c. 824) pertaining to the free and unhindered election of the Roman pontiffs. Violators of the law, so says the ordinance, are to be exiled. Bonizo also provides a paraphrase from Benedictus Levita’s ninthcentury capitulary concerning the circumstances under which a lawsuit should be referred to bishops. According to the law, all cases involving either military or civil law in which sentence is pronounced by bishops are to be confirmed as lawful in perpetuity. ‘‘These are the laws worthy of Christian emperors, who governed their kingdom not, as is the custom of the Greek emperors, by the agency of subtle eunuchs but through the prudence of the priesthood.’’41 Bonizo leaves his reader to deduce that so long as these laws are respected and upheld, peace and harmony in the world will prevail. The transition from mild panegyric to harsh polemic occurs in Books V and VI of the treatise when Bonizo arrives at the Salian dynasty and begins to describe church-empire relations during the eleventh century. Criticisms are leveled at the churchmen involved in the blatant abuses of power, and he condemns the immoral behavior of Pope Benedict IX (1032–46) and the simony of his rival Gregory VI (1045–46), a priest ‘‘led astray by unlawful ambitions and the disbursing of huge sums of money.’’ The events that took place at the synod of Sutri in 1046, just outside Rome, were even more displeasing to Bonizo’s sense of justice. Emperor Henry III had met in council with local bishops and the German bishops whom he had brought with him. After deposing the three men who each claimed to be pope (Benedict, Silvester, and Gregory) Henry then took the initiative to crown himself, appropriating the power to appoint a new pope. Where was the prudence of so many bishops, Bonizo laments, and ‘‘where was the knowledge of so many men skilled in the law [ubi tot iuris peritorum scientia], that they should believe that what was not permitted to lords [non licuit dominis] should be permitted to servants?’’42 Ambition, simony, and illicit actions on the part of the emperor and his entourage all account for the events leading up to and including the Synod of Sutri, the diocese where Bonizo would later serve as bishop. Ironically, it is precisely through Henry’s illicit maneuvers that the papacy would be placed into the hands of the reformers: two years later, in 1048, Henry appointed Bruno of Toul, who reigned as Leo IX (1048–56). Bonizo reserves some of his most interesting legal comments for two women: Empress Agnes, the wife of Henry III and mother of Henry IV, and Countess Matilda of Canossa. In 1056 Henry III died, leaving his six-yearold son in possession of the realm. Because he was still a minor and unable to rule, his mother Agnes served as regent. Bonizo denounces her reign and

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her legitimacy, for ‘‘with feminine temerity she did much that was against the law.’’43 Agnes’s reign would perhaps not have been altogether controversial from Bonizo’s standpoint were it not for her fateful decision to commit the affairs of the Italian kingdom to Wibert of Parma, the archbishop of Ravenna (1072–1100). In due course Wibert would be Henry IV’s candidate as antipope (1084–1100); followers loyal to Henry and Wibert were called the Wibertines, the very object of Bonizo’s polemical history, as he later makes clear. In his later Liber de vita christiana Bonizo seems to confirm his prejudice toward women in power, writing that ‘‘it is ordained in the Roman laws concerning women that they are neither to wield authority nor to exercise secular government.’’44 Bonizo’s judgment of women, though well in line with other authors of his time, makes an important exception for Matilda of Tuscany, the only other woman to merit a place in Bonizo’s history. Matilda not only hosted Gregory when he received and pardoned Henry in 1077, she also hosted the circle of Gregorian reformers, including Bonizo, during the period of Henry’s ‘‘persecution’’ between 1080 and 1085.45 Not surprisingly, then, Bonizo is far more charitable to Matilda. She is praised for her virtue and especially for her valiant resistance against Henry when the king was fomenting his second rebellion. Her role in Bonizo’s Liber is especially deserving of attention. Bonizo concludes his history asking ‘‘the most glorious knights of God’’ to fight for the truth and to struggle for righteousness (the theme and wording taken straight from Gregory’s own writings). Significantly, Bonizo places Matilda at the center of this call to arms: ‘‘Let them endeavor to equal in goodness the most excellent Countess Matilda, the daughter of St. Peter, who with a virile mind [virili animo], neglecting all worldly considerations, is prepared to die rather than to break the law of God and to oppose the heresy that now rages in the Church in every way, as far as her strength permits.’’46 Her resistance to Henry is further compared to the biblical story of Jael, the Hebrew heroine who kills Sisera to deliver Israel from the troops of King Jabin (Judges 4:9). The contrast between Empress Agnes and Countess Matilda thus could not be greater or more deliberate. Agnes governs with feminine temerity, her rule illicit; Matilda governs with a virile mind, her actions selfless, prophetic, and lawful. Bonizo goes to great lengths in his Liber ad amicum to emphasize the illicit conduct of those who stand in the way of papal sovereignty. The Norman leader Robert Guiscard conveniently serves this function in the narrative as well. In 1080, having quelled the Saxon rebellion in Germany (with

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irritatingly no support from the pope), Henry IV invaded Italy and forced the pope to take refuge in Castel Sant’Angelo. There Gregory VII remained until Robert was able to place his campaigns against the Byzantines temporarily on hold and return to Italy to escort Gregory to safety in southern Italy. Bonizo writes that Hugh of Silva Candida, the former champion of papal reform turned imperial supporter, approached the Norman duke and promised him the imperial crown if he would turn against the pope. Robert’s alleged response does the papacy’s bidding: ‘‘you cannot persuade me to take arms against the Roman pontiff. For it is unlawful to believe that it is possible, in response to your or anyone else’s hostility, to depose a pope who has been enthroned by the election of the clergy and the approval of the people.’’47 Since there is no confirmation from any other source that Robert made such a statement, or that Hugh and Robert ever met under such circumstances, the reported encounter must be ascribed to Bonizo’s political agenda.48 It is interesting to note that in his Liber de vita christiana Bonizo states that he has composed a separate polemical work against Hugh, a work that has not survived. ‘‘Whoever wishes to know about the victory of Pope Urban [II] and his deeds should read the book that I wrote against the schismatic Hugh; there he will find what he wants fully and clearly explained.’’49 It is difficult to say which victory Bonizo had in mind (possibly Urban’s return to Rome in 1089, since he did not live to hear of the First Crusade), but clearly he saw redemption in Urban’s election. Naturally, Bonizo is as concerned with proving the legality of Pope Gregory VII as he is with demonstrating the illegality of those who oppose him. Here his style may owe something to his encounters with other lawyers or with Gregory’s own determination to prove the legality of his election. Bonizo lays out the various arguments in defense of Gregory much like a lawyer might defend his client, citing and refuting in succession the various accusations that have been made against Gregory. ‘‘For there are those who say that he was not lawfully pope. . . . There are others who say that the venerable Gregory was lawfully pope, but that he spoke a sentence of condemnation against himself. . . . There are again certain men who say that the venerable Gregory was truly Roman pontiff, but that he excommunicated the king unjustly.’’50 Bonizo’s refutation of the first accusation is particularly legalistic, as he summons none other than Wibert of Ravenna (antipope Clement III) to serve as a ‘‘witness.’’ Bonizo accepts, for argument’s sake, the Henrician position that according to an earlier decree of Pope Nicholas II (1059), no one is to be regarded as pope unless he has been elected with the consent of the king. Accordingly, Alexander II could not

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be considered pope since he was enthroned without the king’s consent. But, Bonizo asks, how does this affect the validity of Wibert, who was consecrated bishop by Alexander? The logic is clear. If Wibert is Henry’s valid choice to be pope, then Wibert’s consecration must be licit. If Wibert’s consecration is lawful, then so must be that of his elector, Alexander, and, by implication, those of Alexander’s successors. A sound logical argument on the mutually agreed basis of Wibert’s status is Bonizo’s answer to the indictment. Similar argumentation is provided for the other accusations. Thus Bonizo skillfully transitions from the earlier dichotomy between the legality of Gregory’s actions (good) and the illicit actions of the imperialists (bad) to a more technical demonstration justifying the pope’s initiatives before once again returning to the essential premise of the work. Bonizo’s tendentious history culminates with an answer to the question posed at the beginning: whether it is lawful for a Christian to fight with weapons for the truth. If it was ever lawful for a Christian to make war for any cause, Bonizo asserts, ‘‘it is lawful to make war by every means on the Wibertines’’ (licet contra Guibertistas omnibus modis bellare).51 The early history of the church, the history of the Franks, and the wisdom of Saints Augustine and Jerome demonstrate the necessity and validity of waging war on heretics and schismatics. Or, as Bonizo so forcefully puts it, ‘‘if it was lawful to fight for an earthly king, will it not be lawful to fight for the King of Heaven? If it was lawful to fight for the state, will it not be lawful to fight for righteousness? If it was lawful to fight against barbarians, will it not be lawful to fight against heretics?’’52 As before, it is the legality of the fight that Bonizo stresses, persisting in the theme that the actions of the imperialists are illicit, while those of the papalists are licit. In other words, it is not only that warfare and the use of violence is historically and theologically justified, it is also fully in accord with a proper understanding of the law. Notwithstanding his impressive polemical skills, Bonizo of Sutri has remained relatively sidelined in recent discussions about law and the ecclesiastical arguments for warfare. When Bonizo has been invoked in the context of the late eleventh century it has tended to be on account of his canonical work, the Liber de vita christiana, and the important section of the work that deals with the duties of knighthood.53 To be sure, the formalization of a knightly caste in the generation prior to the Council of Clermont was directly relevant to Pope Urban II’s call for the liberation of Jerusalem, and a resulting growth in knightly piety, as Marcus Bull has shown, was crucial to the popular appeal of the crusade in the late 1090s.54 Yet the significance of Bonizo’s Liber ad amicum and its message of a legal

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battle fought against the illicit actions of the imperialist/schismatic partisans of Henry IV should not be underestimated in its relation to events extending beyond the Gregorian controversy with the emperor. A reformer and ardent defender of papal sovereignty, Bonizo did not stand in isolation but responded to the spirit of the times. Bonizo was perhaps not a first-rate historian or first-rate canonist, but he was a first-rate polemicist with a clear understanding that law, like history, was an instrument of propaganda that could be fashioned for political purposes. In the years following Gregory’s death, perhaps as tempers subsided somewhat, some supporters of reform offered more mitigated appraisals of papal policies. Yet the issues of obedience to the law and the justification of violence that permeated the thought of Gregory VII and papal polemicists such as Bonizo remained an important issue for ecclesiastical writers. The influential bishop and canonist Ivo of Chartres (fl. 1090–1115) offers an intriguing postscript to the more ardent polemicists of Gregory’s reign. Ivo was a dedicated follower of the reform efforts, but at the same time did not hesitate to criticize what he saw as the excesses of the papal party. In a letter of 1097 to Pope Urban II’s legate Hugh of Lyons concerning a directive not to consecrate the bishop of Sens, Ivo acknowledged the papal right to make investiture a criminal act, but expressed skepticism that this was in fact the most urgent issue of the times: ‘‘For truly, since it is the prohibition of rulers that in fact makes these acts illicit [illicita], so too the remission of them by rulers according to their own judgment is licit [licita]. We see no one, or almost no one, condemned of this sort of transgression, but [we do see] many disquieted, many churches despoiled, many scandals arisen, and division between the priestly and royal powers, and without concord between these, human affairs can be neither safe nor secure.’’55 Ivo makes sure to note the primacy of the pope as the decider of law, a claim he has inherited from the writers of Gregory’s entourage, but he takes the discussion in a rather different direction by questioning whether the obedience required of faithful followers of the church will not result in more, rather than less, disorder and violence. ‘‘For it may be easy for you to fight by threatening from afar, but it is even easier for us present to kill a dangerous adversary with the sword.’’ Ivo requests of the legate that Rome ‘‘more sparingly bind us with the chain of apostolic obedience, lest by placing insupportable burdens on our shoulders you make any lapse of obedience either an impossibility or a necessity of ruling.’’56 Ivo insists that he wishes to observe the interdicts and mandates promulgated by the pope for the defense of the faith, by force if necessary (consider that the armies of

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crusaders have just set off for the Holy Land), but he worries that such a resolute compliance with the those mandates will result in greater violence and less security.57 Although not a polemicist like Bonizo, the issues of legal conduct, obedience, and violence clearly pose a challenge to Ivo who, as bishop of Chartres, must navigate cautiously between his ecclesiastical duties and local pressures. Even though it would be well into the twelfth century before canon law was clearly distinguished from moral theology, the discussions of acting in accordance with law clearly guided the argumentation of the Gregorian reformers and anticipated the period when canon law would become a distinct instrumentality in the life of the Western church.58 It is no exaggeration to conclude that the issue of licit and illicit became a central theme in the rhetoric of ecclesiastical authors during the last quarter of the eleventh century, where it would remain for a long time to come.

Chapter 14

Satisfying the Laws: The Legenda of Maria of Venice Susan Mosher Stuard

The Dominican Tommaso di Antonio da Siena (Thomas Caffarini) arrived in Venice after pilgrimage to the Holy Land in 1394 and began his assigned task of composing a rule for Dominican penitents (his Tractatus, then folded into the bull Sedis apostolicae by Innocent VII on 26 June 1405).1 Thomas also translated and glossed exempla featuring celebrated Italian saints: Catherine of Siena (1347–80), Giovanna of Orvieto (1264–1304), and Margherita of Citta` di Castello (1287–1320). He added one original work to this corpus, the legenda of his friend Maria of Venice.2 This work, crucial to his project, featured a life lived with respect for legalities: statute law of Venice, the diritto comune (common law tradition that had grown up out of canon law in Italian towns), various consilia, the learned opinion of theologians, canon law itself, papal directives, Dominican directives, and the case law of pertinent courts. Apropos to his audience of wealthy, law-abiding families, Thomas sought a young woman from just that sort of background who also exemplified virtue, and piety, perhaps excessively so.3 Maria’s young husband did not meet this standard, and therein hangs the plot. With this story to tell, and despite good intentions, Thomas Caffarini stumbled, ironically, on church law, where he was proficient. He needed a miracle of sorts to redeem his legenda for the Penitent Rule. Situated squarely on the contested ground of marriage law, Caffarini’s legenda of Maria sought to satisfy legal niceties. Civic law and church law alike hedged ‘‘Roman’’ dowry, the chief marital assign awarded at Venice, with restrictions. ‘‘Roman’’ dowry, a bride’s father’s contribution to the marriage, harked back to postclassical Theodosian law.4 This gift was the bride’s by law, but controlled by her husband, who must make money from it but never squander capital, a tall order in a commercial economy for even

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a well-intentioned spouse (Maria’s was not).5 Diritto comune policed dowry awards, while local sumptuary law governed wedding gifts and registered dowries. The church viewed dowry and other wedding gifts, along with consent, as grounds for valid marriage, and stated so plainly; a husband or his kin were required to provide the bride victus et vestitus (a living) by both laws. Once this condition was met, the husband’s authority was nearly absolute, even over a wife’s desire to enter holy orders, according to Thomas of Chobham’s Summa confessorum.6 Saints by their calling flee the commonplace, yet Maria’s life celebrates her harmony with, rather than her separation from, her law-abiding urban milieu. Maria began life as the unexceptional offspring of a prosperous Venetian family, and her legal difficulties hold some answers. Although exempla literature has benefited from the application of literary criticism, few efforts have been made to contextualize saints’ lives in regard to laws and economic conditions. This study attempts to do that. Referred to today as tertiaries, the devout souls Caffarini sought in Venice remained in the world, that is, they were not enclosed. Each should lead an exemplary life although none presumed to achieve the heroic sanctity of the mystic Catherine of Siena, the premier saint of the day. Unlike Catherine, a devout young Venetian woman like Maria, wealthy if not patrician, exemplified ideals congruent with the devotio moderna, which spread rapidly in the prosperous Low Countries.7 The Modern Devotion lay movement stood against corruption in the church and worldliness, encouraging its largely well-to-do female followers to witness for the ascetic life. In this same spirit, the idiom of dress and possessions came to express Maria’s exceptional spirituality in the brief five years of life left to her. Maria was no sooner married than she experienced an immediate conversion to penitent; she was subsequently deserted by her husband, Giannino della Piazza. Thomas Caffarini is vague about this sequence of events, perhaps intentionally, since he constantly applauds Maria’s virgin-like traits yet it is apparent that her marriage was consummated, however reluctantly on Maria’s part. Somehow in those early days Maria managed to visit her natal home near the Dominican Church of Santi Giovanni e Paolo and experienced an intense conversion; she did return to her husband’s home, having little other choice, but was soon deserted when Giannino fled.8 Maria then embarked on a saintly and chaste life in her parents’ home until her death from plague five years later, despite the fact that her dowry, her last legal claim on her parents, had been transferred to her husband. As a young matron in an untenable situation, Maria’s renunciation of her

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worldly goods, her second and final return to her natal home, and her fervent desire for the vestments of a Dominican penitent provided her an alternative to living out her life under her father-in-law’s roof, disgraced by desertion but lacking a legal resolution while her father-in-law supplied her the stipulated legal means of living (victus et vestitus).9 Nicolo` Sturion, Maria’s father, a prosperous spice merchant and member of the capable class referred to as cittidini originari, appears to have given Maria’s husband, Giannino della Piazza, a generous dowry. The amount was not specified in Maria’s legenda, but the range of 500 ducats to 1000 ducats is not out of the question for a father whose wealth in the 1379 Estimo was given at 16,000 lire from ‘‘commerce great and small.’’10 This assessment placed Nicolo` in the fourth highest tier of wealth in Venice, along with 19 other non-noble citizens, while six were worth even more. Only 91 patricians could claim as great or greater wealth than Nicolo` Sturion. To put it another way, Maria was raised in one of the 120 richest households in Venice, the wealthiest city in Europe by many estimates. According to the sumptuary law of 1360, dowries had to be registered with the Avvocatori di Commune for review at Venice, but there were no upper limits set on them.11 Sumptuary law made no distinction in its regulation of noble and non-noble wedding gifts, thereby acknowledging that non-noble dowries could be as high as noble ones. In this age of the closing of the Great Council that distinguished patrician from commoner, poor noble families providing much smaller dowries continued to live in the city cheek by jowl with prosperous non-nobles active in long distance trade and finance. Reinhold Mueller’s exhaustive analysis of money and banking in Venice cites instances of wealthy non-noble citizens amassing fortunes on a par with those of noblemen.12 The cittidini originari family of Sturion, active in the spice trade, with an earlier marriage alliance with the prominent Servidie of Verona in the person of Maria’s mother Iacoma, and with a fine wedding provision laid out for Maria, qualify for this status.13 The della Piazza are more difficult to place, largely because the name della Piazza (on the plaza) that Thomas used as surname for the family is toponymic rather than a lineage onomastic as one might expect in fourteenth-century Venice. It is difficult to understand why Thomas resorted to this ploy; it has certainly made research into the family difficult for Fernanda Sorelli, who has labored so successfully in the archives, exploring the prestiti (forced loans) and other relevant sources concerning these two families.14 Thomas may have wished to avoid specifically naming, therefore slandering, a wealthy family: his narrative of desertion and a pos-

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sible squandered dowry was the stuff of which scandal was made in Venice. Thomas stated unequivocally that Maria’s family-in-law had a reputation for great wealth (riputado huomo di grande ricchec¸¸ca).15 Despite a dearth of corroborating evidence, there remains little choice but to take Thomas at his word. The Sturion might have erred in choosing a son-in-law of bad character, but they would have been unlikely to lavish their wealth on an impoverished one. Maria moved in wealthy circles, with close companions from the noble Soranzo, Mocenigo, and Morosini clans; Thomas was quick to note that she consorted with noble daughters from families of prominence and wealth. Distinctions based on political enfranchisement did not necessarily carry over into social life in the fourteenth century, so a generous marriage portion and other manifestations of affluence could secure Maria a prestigious circle of friends. The pious young women drawn to Santi Giovanni e Paolo near the Rialto, who formed an orbit around Maria’s light of sanctity, came from the best families in town. Placing the non-noble Maria within such a circle of prominent young women reveals Thomas’s intentions as well or better than his narrative of Maria’s failed marriage. As wealthy citizens rather than patricians, the Sturion inhabited a broader stratum of society than the closed noble class yet they possessed wealth on a comparable scale. Unlike the nobility, they wed exogamously, and, along with created citizens (de intus and de extra), cittidini originari were expected to make marriage alliances with wealthy and successful families from outside. All Venice benefited when these alliances enhanced Venetian prosperity through valuable connections. Maria’s maternal uncle was a wealthy moneychanger from Verona.16 An accessible role model for wealthy and noble Venetians, Maria served equally well as a model for wealthy non-noble families within and outside Venice. Thomas enumerated the surnames of Maria’s entire circle and evidently expected those names to resonate among his readers. His choice of Maria seems apt, since a patrician saint might be regarded as unapproachable for those whose status was largely determined by wealth rather than birth; a non-noble saint was more accessible. In Maria, Thomas chose a role model who could appeal to young women from a broad spectrum of wealthy households. Maria’s dowry, or sums freed by the infusion of dowry into the wealthy della Piazza household, allowed the disaffected Giannino—termed lascivo by Caffarini—to purchase expensive war horses (cavalli) and fighting equipage.17 This is what it would take to ascend to the position of ‘‘knight’’—a euphemism of sorts for adventurer—and set off for the war

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front in the conflict between Francesco Gonzaga, ruler of Mantua, and Giangaleazzo Visconti, duke of Milan. Likely his desertion and purchases, along with Maria’s disaffection from Giannino, fed gossip. If so, Thomas took full advantage of the notoriety, obliterating an indignity for Maria and the Sturion family with his moral message about Maria’s sanctity while consciously demonstrating Dominican support for young women caught in a legal quagmire like Maria’s. This is the first series of events in Maria’s legenda that give pause. The thrill-seeking Giannino did not pursue the more obvious choice of becoming a knight for hire in Venice; instead, his purchases made him a free agent in foreign wars. To succeed, such aspiring ‘‘knights’’ had to secure horses of the finest quality and purchase the new plate armor that warfare demanded, along with the myriad accessories of sallet, gauntlets, bacinet, bucklers, jointures, and so on, and a set of expensive weaponry.18 Venice, like Milan and Florence, manufactured armor, so a supply lay at hand, and Giannino was probably knowledgeable about his purchases. He never returned, at least in the short span of years covered by Maria’s legenda. He most likely spent hundreds of ducats to equip himself; in short, he could have spent a sum equal to the dowry of his failed marriage. Spending dowry in this fashion was illegal, unless Giannino could repay the sum while Maria still lived. The misuse of dowry by young husbands was a chronic problem in fourteenth-century Italy and a frequent source of lawsuits. In his narrative Thomas associates Giannino going off to war with Maria’s failed marriage, yet circumspectly makes no direct accusations about Giannino’s wanton spending. Giannino’s fate is not known, but he still lived in 1399 when Maria faced death by plague; he did not return to Venice, according to the legenda. The Sturion family never protested Giannino’s extravagance, nor does Thomas inform readers that the family sued for desertion or dowry restitution. If Maria had refused to cohabit with her husband (another matter Thomas skims over), such a suit lost legal grounds. There is an entire subplot here that Thomas refuses to discuss. Nicolo` and Iacoma Sturion exemplify saintly forbearance in their response to their daughter’s failed marriage, but neither was this the story Thomas chose to narrate. Still, lost dowry and desertion were fraught for any Venetian family of standing. While Giannino’s father expressed an intention to house Maria under his roof, there were no sound grounds for suing for desertion. This was the marital impasse in which Maria found herself. With the aid of her mother she returned to her natal home, taking a room on the topmost floor that she immediately turned into a chapel for private devotions. This did

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not resolve the impasse, but it made her life more bearable. The Sturion were compassionate toward their daughter Maria, even when it cost them money. Maria did bring her corredi, or trousseau, home with her, a matter of interest to Thomas Caffarini.19 There is some valuable information from the sumptuary law of 1360 and studies of cost of living to estimate its worth. No more than four celebratory dresses were allotted to a bride, augmented by other finery: 40 lire di grossi could be spent on dresses, and a further 30 on accessories or jewels; at 10 ducats to a lira di grossi, this was a considerable sum. A bride’s belt could cost 10 ducats.20 Maria possessed multiple dresses of the celebratory sort, according to an incident related by Thomas in proof of her sanctity. Leaving her mother and everyone else in the household, she went upstairs to the upper portion of their residence where her room was—in effect, a little chapel. . . . Entering it, she took all her clothes and, with marvelous fervor of spirit, set about removing and cutting off all their vain and superfluous worldly ornaments. She had spent a good deal of time at this when her mother, wondering why she was taking so much longer than usual before joining the rest of the household, finally went up to look for her and, entering her room, found her and saw what she was doing so energetically. The mother was more than a little—in fact, quite a bit—upset by this, so that bursting with indignation she began to scold her and say, ‘‘Young lady, what do you think you’re doing? If you’re not interested in these things, why don’t you think about those around you, especially your sisters, who don’t share your attitude? Couldn’t these clothes be of some use to them?’’ This was quite true, since they had not only her two sisters, but also a goddaughter in the household, all of whom were looking to get married.21

Wanton destruction of wealth that might provide younger siblings’ bridal gifts was a warranted source of distress, although here, as elsewhere, Maria’s mother was soon all forgiveness. Since Maria’s two younger sisters died of plague, the problem of amassing their corredi disappeared; the fate of the resident goddaughter is unknown (Maria’s younger brother predeceased her as well). As Stanley Chojnacki has pointed out in his study of the wills of the Morosini family, Venetian women tended to apportion out finery among a broad network of kin. The cost was significant, making such generosity more than mere tokens of affection.22 Donald Queller, in his study of the cost of living in the late years of the fourteenth century, stated that nonnoble and noble grants of victus et vestitus (specified by the procurators of Venice), augmented by a 16 percent housing allowance, amounted to about

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35 ducats a year. Out of this grant a widow could afford a servant at 3 1/2 to 5 ducats a year if that servant lived in. To his surprise Queller found that wealthy non-nobles, as well as nobles, purchased celebratory or wedding dresses for their dependents at about 40 ducats apiece.23 This provides a startling picture of the high cost of the celebratory clothes that Maria enthusiastically ripped apart and goes a long way toward explaining the mother’s distress at Maria’s ‘‘marvelous fervor of spirit.’’ Maria, an eldest daughter, had lost a dowry, and now her corredi was torn to shreds. Elaborate ribbons of silver and gold thread, jeweled trims, furs, and trains gave these dresses their distinction, and it was precisely here that Maria expressed her fervor to rid herself of temptation. Confronted by her mother’s evident distress, Maria answered: Oh, sweet good mother, for God’s sake don’t get upset over this. I’m acting right now on this good impulse, both so that I might grow in it from good to better and so that I might cut off and remove from myself any occasion for future temptation that might befall me, of ever tricking myself out in these trappings.24

Thomas tells us that her mother took these sentiments to be a sign of Maria’s singular holiness. Subsequently Thomas Caffarini suggested to Maria that she divest herself of all her wealth, which she obediently did, thus throwing herself on her family for full support the rest of her brief life. Parental forbearance extended to household tasks, from which Maria was excused. Thomas wrote: Her mother, speaking with me at times, told me that she considered it much better for the household that her daughter dedicate herself to prayer, to which she was evidently so drawn, than occupy herself with the physical tasks of the household. She further added that since she saw [Maria] so steadfastly inclined and drawn to prayer and to celestial and divine things, it must necessarily make her slow, remiss, and tardy about material and human things.25

Maria did seek to express her religious enthusiasm by caring for the sick. In this decade of the return of the Black Death, her spiritual advisor would hear none of it. As Daniel Bornstein noted in introducing Maria’s legenda, it became a sign of Maria’s holiness that ‘‘she didn’t actually [perform charitable acts] because her confessor—Thomas—advised against it out of concern for her health and safety, so that not doing these pious works became evidence of her great virtue of obedience.’’26 This left Maria few outlets for actively pursuing the penitent life. She could visit the churches where

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Thomas preached and listen attentively to his sermons, she could turn over all her possessions to her family (although most had now been lost in the debacle of her marriage and the destruction of her corredi), and she could walk modestly on the streets of Venice. Dress played a determining role here. Outside the family, only those in the Dominican order, in particular Thomas, were privileged to see Maria’s beautiful and radiant face, since she habitually went covered in public: Her face humbly lowered toward the ground. She did this in such a manner that from the very beginning of her conversion, before she wore the green mantle or received the habit of Saint Dominic—this is, while she still wore a little hood and cloak as is the custom of Venetian girls and young brides, although even then she wore everything with the greatest modesty and without slashes and other vanities.27

Maria always managed to be a model of holy decorum. The hooded cloak of a wealthy young Venetian woman remained in her wardrobe, though without the slashes that could reveal underlayers of fine fabric. Yet Maria preferred to assume the more concealing plain green mantle that older married women generally wore. This desire is presented as foreshadowing her final assumption of the habit of a penitent, which Maria desired above all else. A sequence of increasing sanctity expressed through dress suited for public wear demonstrated the consequence of external signs of sanctity, even to the exclusion of acts of charity. But obedience to Thomas as her confessor was not Maria’s only expression of devotion over her brief span of years. On her own initiative she discovered the neighborhood of San Luca where many painters had their shops, and there she found a painted panel of the blessed Catherine of Siena (la decta beata Katerina).28 Learning that the panel was intended for her confessor Thomas, Maria nevertheless began to plead with the artist ‘‘so sweetly that in the end she obtained it from him.’’ She then donned a white tunic just like the one Catherine wore in the painting. That was not all: Maria convinced the artist to paint her image into another painting, wearing that white tunic, and appearing among saints of the Dominican order. For the pose she held her heart in her hand and offered it to the Lord Jesus.29 Thomas does not inform the reader if he ever received his commissioned panel painting of St. Catherine or if Maria kept it. The incident suggests that on occasion Maria had a mind of her own and knew how to spend money to obtain her ends.30 She also knew how to feature her striking good looks. This incident is out of keeping with the general tenor of Thomas’s

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narrative, which stresses passivity and obedience, and complicates the picture of Maria. It is evident that when left to her own initiative Maria used dress to further her own ends. People in the streets noted and remarked on dress and fashion in fourteenth century Venice because presentation had become a matter of considerable importance. The clothes of the wealthy could be eyecatching in their lavishness, color, or extremes of slashing, length, and trim, but the other side of the coin was that humble and concealing dress was rendered conspicuous by its exceptional simplicity. Through assimilating the teachings of John Chrysostom, the early church preached that the truly devout ‘‘should be discernible by everything, by his gait, by his look, by his garb, by his voice.’’31 In the late fourteenth century, humble garb stood out in a crowd more prominently than in earlier times, when the public had dressed only a bit more elaborately than the devout. In Maria’s day, people walked the streets hoping to see and be seen and began to believe that they were as they appeared. They displayed themselves so brazenly that laws were enacted to curtail excess or le pompe. Thus, for Maria to be seen, clothes—and the mode of wearing them—could serve as her major outlet for expressing zeal. In her obedience to Thomas, dress was almost all that was allowed to her, aside, that is, from listening keenly to Thomas’s very long sermons. With heavy veiling Maria could keep ‘‘her mind entirely composed and tranquil, free from all distractions’’ while walking the streets or entering church, Thomas noted.32 Thomas recognized in her concealing public dress sufficient manifestations of sanctity, but this did not satisfy Maria. She adopted a hair shirt under her fine clothes and began fasting. She took to using whips to punish her body, and petitioned the Dominican sisters for assistance in this project. Thomas disapproved, although he acknowledged it as further evidence of her sanctity. He exclaimed over Maria’s intact beauty and rosy complexion despite the punishment of her flesh. Maria’s initiatives that did earn praise from Thomas concern her rapt attention to his sermons, remaining on her knees for hours on end and turning her attentive face toward him as he spoke in church. Maria, for whom Thomas does not even attempt to disguise his fondness, became Thomas’s mirror, as well as his obedient disciple. This young woman, who needed little more than her expressive face to convey her messages, encouraged this in him. The reader learns that, when Dominicans preached, her glance did not linger, ‘‘except perhaps on me.’’ Thomas realized ‘‘she was

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watching me with a look full of admiration and reverence.’’33 This could not help but affect him deeply: When I became aware of her devout regard for me, I sometimes felt so touched to the heart that my eyes shed real tears, as I reflected and pondered within myself with great amazement how God looked upon me through her with such devout affection and loved and cherished me with such sincere and perfect charity.

Maria said the office of the Virgin both at church and at home every day, using her small breviary. Along the path of her spiritual journey she was awarded a great breviary by Thomas purchased in her name in the city of Siena so that she might learn all the offices de Signore e degli altri santi (of the Lord and all the saints) according to the usage of the Dominicans. Such a breviary containing the entire Divine Office cost dearly, but, as Thomas knew, Maria could afford it, coming as she did from the home of parents ‘‘who led a particularly delightful life and by whom she was especially loved and coddled.’’34 Even if this was not one of the finest illuminated breviaries, it was a large text containing the psalms and antiphons as well as lists of venerated saints, and as such a costly item.35 Thomas often exclaimed over Maria’s lovely complexion, noting that despite fasting she appeared cheerful and rosy, ‘‘festareccia e rubicuna.’’36 The phrase is repeated so often it serves as a leitmotif in the legenda. Maria never ate meat while healthy, but when ill she would do so at Thomas’s command. A fine appearance continued to express Maria’s exalted spiritual attainments, and her physical beauty dominates as a theme throughout, even to her death by plague and to the condition of her body after burial. The confessional afforded Thomas intimate, and prolonged, contact with Maria. The nature of her confession provided a useful lesson for the Penitent Rule that Thomas wished to establish, since it featured cogitation, locution, operation, and omission, all parsed out at length in Thomas’s lengthy description. After each rule was explained and illustrated, Thomas gave added attention to the problem of negligent or halfhearted confession, of which Maria was never guilty. Maria’s sins were small and venial according to Thomas, and she was as pure as if she were a four- or five-year-old girl in matters of sensual concupiscence.37 Sermons and confession established an intimate bond between Thomas and Maria, but an even greater opportunity for intimacy occurred when Thomas took on Maria’s education. Noting that when he first met her she knew ‘‘how to read somewhat,’’ Thomas explained how he gave her some instruction, and ‘‘in a short time she learned how to write so well that

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later, with my permission, she wrote to certain Sisters of Penance of Saint Dominic in Pisa.’’38 From only rudimentary skills, Maria had become fully literate and an accomplished correspondent under Thomas’s tutelage. Thus it follows from spending time instructing Maria and acting as her confessor that Thomas learned a great deal about her private life that was hidden from the rest of the world. Thomas informed his readers that Maria suffered from three physical infirmities. Her physician considered the first to be self-inflicted, that is, she developed swollen knees from being constantly on them. The third and well-documented affliction, the plague, took Maria’s life in 1399. Thomas presents the second affliction as very real, but he refuses to name it. It appears to have been a secret shared by Maria with Thomas when they were closeted together: This woman incurred another defect of bodily infirmity. She kept it hidden, enjoying it secretly for Christ, but I noticed a few outward signs of it and commanded her under obedience to tell me the truth. She was thus compelled to reveal it to me, which she did with remarkable happiness and joy, and I judged within myself that the Lord would soon call her to him.39

This is the second mention of the hidden defect—possibly a shameful one since Thomas will not name it—that was unknown to the world but revealed to Thomas. It evidently created a special bond between confessor and penitent. Neither her family nor her circle of devout young women, nor, for that matter, the Sisters of Corpus Domini, knew as much about her private afflictions as Thomas. The public Maria expressed holiness in obedience to Thomas by her display of devotion, interpreted by her garb and modest mien. Thomas also knew the private Maria and cherished possessing that knowledge; evidently he found it impossible to resist mention of this familiarity he alone possessed. With one glaring exception, Maria’s life was ideal for the promotion of the Tractatus that Thomas composed after her death, which in turn shaped the formal Dominican Penitent Rule issued by Pope Innocent VII in his bull Sedis apostolicae. The Sturion were law-abiding citizens of Venice, and Maria’s life conformed to the demands of canon and Dominican law in most respects. But within the Dominican Penitent Rule Chapter I stated unequivocally that married women might join this brotherhood only if they had a public instrument that proved their husband’s permission and consent.40 A deserted wife, Maria never received written consent to become a vestita, that is, to don the black and white habit of the order, but with Thomas’s permission she was allowed to do so. As a result she, Thomas,

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and the Sturion family feared Giannino’s return to Venice; fortunately, they enjoyed the great good fortune of never facing that dreaded event. Maria died wearing her habit, and Giannino never registered a formal complaint. Thomas excused his egregious departure from Dominican rules, canon law, and practice in the confessional on the grounds of Maria’s fervor. Yet, having been assigned the task of promoting a penitent order in Venice, it was unlikely that Thomas was unfamiliar with church teaching on spousal permission. Canon law on the husband’s authority over a wife’s vows in all regards—food, dress, alms, or sexual abstinence—was well established. It had worked its way into pastoral manuals, and Dominicans were acutely aware of canon laws pertinent to their Regulae. Thomas of Chobham’s Summa confessorum stated: Likewise it should to be noted that a woman is in the power of her husband and cannot make any vow of abstinence, nor can the priest impose some special fast on her for penance, because the husband can alter the vow if his wife vowed some fast, or if the priest imposed a fast on her beyond the common fasts of the year, because the wife is bound to keep her body in such a state proper and acceptable for rendering the carnal debt to her husband.41

Thomas would have had Maria and Giannino continue their marriage in ‘‘true matrimonial or widowly chasteness’’42 if that possibility presented itself, but it would have required Giannino’s return and cooperation. Neither was forthcoming, yet Thomas took the bold step of permitting Maria to don the Dominican habit she desired. He provided arguments to justify this act, but it remains a sticking point of a very serious nature. Since his purposes in the legenda were didactic, the incident detracts from the rectitude of his behavior as confessor and Maria’s as penitent; alternatively one can speculate that Thomas wanted the reader to suspect that Giannino’s continued absence after Maria donned her habit had a miraculous quality. The issue was of importance because Thomas’s targeted audience for his writing were the inhabitants of Venice and other prosperous towns on the Italian peninsula. Apparently a consequential segment of society now indulged their daughters because they could afford to do so. Since Thomas performed successfully as a trusted authority in Maria’s life, in a way he substituted for the deserting Giannino—albeit in a spiritual and chaste spousal role. Thomas spoke of granting the Dominican habit as an indulgence for Maria’s extraordinary religious enthusiasm, of which he was intimately aware. Generous but anxious parents with daughters who were unmarriageable for one reason or another, or whose marriages had failed, or who were young widows, might be comforted to learn that their daugh-

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ters were in line to receive the guidance of an attentive and compassionate confessor like Thomas. Parents had been warned by their own Venetian Fra Paolino in The Governance of the Family (1314) that ‘‘Sometimes the man follows too much the will of the woman in buying her ornaments, and this gives rise to much evil, excessive expenditure, and the woman is more than ever filled with pride, and for vainglory desires still more to go out and show herself.’’43 Daughters who were even a little willful or vain were believed to need mature and masterful guidance. Francesco da Barberino (1264–1348) questioned: ‘‘From where will . . . family have the solid hand, succor, and counsel they received from you, sweet lord?’’44 This plaint was placed in the mouth of a grieving widow, one who acknowledged she required authority over her. Thomas offered a solution for daughters of good family when marriage did not answer. A penitent community providing a solicitous confessor was an attractive solution when a family faced this dilemma.45 When daughters were provided only rudimentary literacy (if that), housekeeping, and needle skills to equip them for the future, few alternatives presented themselves. Maria’s rosy complexion and easy blushes aside, her legenda was only a small part of the materials amassed to further Thomas’s project for a viable penitent movement within the Dominican order at Venice.46 While he knew Maria intimately, he was perfectly transparent in admitting his attraction to her even at the cost of some tedious repetition in the legenda. An intimate bond between confessor and saint neither surprised nor shocked in fourteenth-century Italy. A confessor role in the construction of female sanctity was widely acknowledged, based, as it was, on the submission of the penitent to her confessor in an established hagiographic tradition. The Dominican order had chosen Thomas to play the confessor’s role to young women, and there is no intimation that he was chastised in any way for his behavior or suspected of base motives in forging close bonds with the attractive Maria Sturion. Even so, Maria’s story was a departure. Thomas was a quick study and had assimilated Venetian mores and manners in record time. He grasped the importance of slanting Maria’s legenda toward a wealthy stratum of society through his contacts with daughters of ‘‘good’’ families and the hospitality of the Sturion household. Without a doubt the other lives he translated into the vernacular deviated less from the general run of inherited saints’ lives, but they would hardly induce wealthy parents to dedicate their daughters as vestitae. Dominican penitents were not to be ancilla dei,

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handmaiden, literally slave, of the Lord (Luke 1:38).47 They would not serve the poor and children like Frances of Rome.48 With the Maria legenda Thomas aimed at an audience of cosmopolitan urban families who required a fresh approach: respect for laws, assurances about their daughters’ safety, and a less rigorous regimen. In the Rule Thomas promulgated for Venice, vestitae were to see to each other’s welfare in sickness or times of trouble, otherwise they were exempt from nursing or caring for those in need.49 If Maria’s story is taken as prescriptive, penitents from wealthy backgrounds might play an altogether new role in witnessing for their faith, one reliant on their penitential garb and respectability. As the Rule noted, vestitae wore unadorned garments that hung to the ground; that is, they wore robes without trains.50 Complaints on trains were voiced from the very floor of the Senate in that day and age, with limits set on them in law.51 In a world turned to fashion and display, conspicuous simplicity taught lessons. Role models who demonstrated attentiveness in church, lowered their eyes, veiled their faces in public, and displayed obedience to their confessors could be efficacious in promoting Christian piety. This was so important to Thomas that despite scrupulosity about the law, he gambled that his message would move his audience sufficiently to excuse his one glaring violation of canon law. In presenting the Sturion family, Thomas taught lessons in forbearance to parents of daughters who professed a calling to the penitent life. Although sometimes perplexed by her behavior, Maria’s mother remained attuned to her daughter’s desires and smoothed the way for her until she no longer judged her daughter by society’s norms. Maria’s father bore loss of wealth in a disastrous marriage and accepted Thomas as spiritual guide for his only surviving offspring; both parents listened to Thomas and encouraged his role as confessor to their daughter.52 What the Sturion family did not face bears mention. At least fourteen cases of contested marriages—abuse, separation, squandered dowry— required intervention by civil authorities in fourteenth-century Venice.53 Maria’s marriage avoided that fate with its taint of scandal and gossip; Maria did not endure an expensive trial in church courts either. Thomas’s legenda obscured any stigma attached to failed marriage for Maria, a fortunate, if not entirely happy ending for his narrative. In other words Thomas demonstrated a more self-conscious control over the messages he wished to convey in Maria’s legenda than a cursory reading suggests. This headstrong, devout, and radiant young woman Maria, of whom he wrote passionately, was the material of which a Dominican exemplar might be made.

Chapter 15

Canon Law and Chaucer on Licit and Illicit Magic Henry Ansgar Kelly

Natural magic was considered a legitimate science in the Middle Ages, one that had as its object the hidden properties and powers of the cosmos. It was sanctioned by the Gospel itself, which told of Magi who sought out the infant Jesus through their reading of the heavens, and who were venerated as the Three Kings of Cologne. Magic, of course, was often put to bad purposes and its practitioners denounced as malefactors, malefici, and their deeds as maleficia. But fault was found even with some magic practices intended as beneficia (benefits). Canon law provided little guidance on the subject of good and not-good magic. True, Gratian’s unofficial collection of competing canons, the Decretum, had a whole ‘‘case’’ on the subject, namely, Cause 26, centering around a priest convicted as a sorcerer, sortilegus (the word means, literally, ‘‘sort-reader’’ or fortuneteller, but it was inclusive of other kinds of prohibited magic). The three dozen excerpts gathered here range from discussions by St. Augustine to conciliar pronouncements, including the celebrated chapter Episcopi (on the delusions of women flying to the Sabbath).1 But the modern relevance of these canons was unclear, since there was no Ordinary Gloss to this part of Gratian. Finally, John of God, who taught at Bologna from 1229 until 1255,2 made an attempt to supply a commentary, begun and completed in 1243.3 His commentary in turn was supplemented by the Rosary of ‘‘the Archdeacon,’’ that is, Guy of Baisio, Archdeacon of Bologna, compiled around 1300.4 In this chapter I concentrate on the subject of medicinal magic, which is addressed by several of Gratian’s canons. The focal point of the inquiry will be the prohibition of John Peckham, archbishop of Canterbury, against sorceries and superstitions, and the commentary on this prohibition by William Lyndwood in his Provinciale (composed in the 1420s).5 I also draw

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upon literary evidence, particularly the works of Chaucer, and also examples from medical recipe books. Our goal will be to see some of the ways in which magic was thought to work, on both learned and popular levels, and to discover lines that were drawn between licit and illicit practices.

Lyndwood and the Canonists I should note at the beginning that Lyndwood shows no sign of any independent knowledge on the subject of charms and magic; he simply refers to Gratian’s canons and to the Archdeacon’s commentary and to other authorities. Archbishop Peckham’s strictures, on which Lyndwood is commenting, come in his constitution Ignorantia sacerdotum, issued in 1281, at the point where he says that under the First Commandment ‘‘are implicitly prohibited all sorceries and all charms [incantationes], along with superstitions of characters and other suchlike figments.’’6 Lyndwood defines ‘‘all sorceries’’ as ‘‘divinations and malefices.’’7 He illustrates charms (incantations) by simply quoting from the canon Non liceat Christianis in Gratian, forbidding observances called for in collections of medicinal herbs, unless it is simply a matter of saying the Creed or the Lord’s Prayer.8 Gratian identifies Non liceat as coming from the ‘‘Council of Pope Martin,’’ but it is really from the Capitula of Martin of Braga in the sixth century, a collection of canons of Eastern, African, and Spanish synods.9 The canon forbids Christians to perform ‘‘observations’’ or ‘‘incantations prescribed in collections of medicinal herbs, except only with the Creed or the Lord’s Prayer.’’10 Lyndwood adds that ‘‘enchanters’’ (incantatores) is the word for people who ‘‘exercise art with words,’’ as one reads in the canon Igitur,11 where St. Augustine quotes Varro as saying that there are two kinds of divination, art and madness; enchanters are those who practice their art with words. Lyndwood also refers here to the Archdeacon’s commentary, which says, among other things, that the term medicinales in Non liceat indicates that there is power (virtus) in herbs, just as there is in words (directing us to the canon Nec mirum) and in stones (as is indicated in the canon Demonium, which also deals with herbs).12 There is nothing in Nec mirum that meets the eye concerning the power of words, but we will see below why it is referred to. The canon Demonium itself reads: ‘‘It is lawful for one who endures a demon to have stones and herbs, without incantations’’—that is, as long as

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incantations are not used. The canon originated in the Penitential of Theodore of Tarsus, archbishop of Canterbury in the seventh century, and it was repeated in Burchard of Worms’s Decreta, being credited to St. Jerome, and in Ivo of Chartres’s Decretum. The latter summed it up thus: ‘‘A demoniac is allowed to carry stones or herbs without an incantation.’’13 But Gratian, taking over the attribution to Jerome, summarizes it in such a way that it applies to everyone, not just demoniacs: ‘‘Without incantations it is permitted to have herbs or stones.’’14 When he comes to comment on Demonium, the Archdeacon says that this canon shows that precious stones have powers; as for herbs, he adds, enough has been proved.15 He deals with incantations just before this, commenting on the canon Ammoneant, a passage attributed to Augustine, which says that priests are to warn the faithful that magical arts and incantations have no power to remedy infirmities.16 The Archdeacon first refers to Justinian’s Digest, for Ulpian’s rejection of healings by incantations and imprecations (which he identifies with exorcisms). Then he remarks that Ammoneant only rejects magic arts and incantations, ‘‘for it is otherwise with other words, for there is power in words, herbs, and stones, according to John of God, as I have said above on Non liceat.’’17 In fact, the Archdeacon said no such thing about Non liceat, as we have seen, so he has simply made us go around in a circle on the question of finding an authority who says that there is power in words; and we have not been given a definition of incantation to distinguish it from allowable words. But the claim that he has quoted John of God shows us the way out of the circle. Here is what John of God says on Ammoneant: But it is otherwise with other words, because there is power in words and in herbs and stones. You have this about herbs above, in the same Cause, question 5, Non liceat, and in Ovid, Metamorphoses 14.22, ‘‘Use the tested powers of the efficacious herb’’; concerning words, you have it in the same Cause, question 5, Nec mirum; concerning stones you have it below, in the last chapter [viz., Demonium].18

Nec mirum, to which John of God refers concerning the power of words, is a very long canon attributed to St. Augustine’s City of God, but it is really from the De magorum praestigiis of Hrabanus Maurus (d. 856).19 John says that the first part of the canon deals with various kinds of superstitions of the Gentiles and their etymologies. The second part states that God permits such things so that the good may be tried and the wicked all the more confounded; ‘‘and it says further that words in these instances

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have efficacy, so that when the words are uttered, images appear, through divine providence.’’20 He is talking specifically about section 9 of the canon, which deals with the magicians of the Pharaoh confronting Moses, who turned their staffs into serpents (dragons). Hrabanus explains: ‘‘The magicians were not the creators of the dragons, nor were the evil angels by whose ministers they produced those results. For there are contained in corporeal things through all of the elements certain hidden seminal reasons, by which, once given a temporal and causal opportunity, they burst forth into appearances suitable to their means and ends.’’21 Hrabanus goes on in the canon to say that good angels facilitate the workings of such causes, but John of God ignores this idea and focuses instead on the power of verbal formularies to activate latent forces planted by God in nature. He says: ‘‘Note that words have power, such that when words are said certain images appear from the power of the words. And it is queried whether doing this is a sin; and some say no while others hold the contrary. Solution: If one does it with a bad intention, out of revenge, or lust, or greed, or a desire for praise, it is a mortal sin. But if one should do it solely to experience the power of the words, it would not be mortal, because all knowledge is from God, as seen above in this question, in the canon Non liceat.’’22 So, summing up: Lyndwood commends the opinion of the Archdeacon, who agrees with John of God that words, like stones and herbs, have power in medicinal or protective contexts. This should have been enough to encourage any ‘‘medicine man,’’ and to be taken as a license to use or experiment with recommended verbal formulas, along with recommended curative herbs and stones and gestures, in the hopes that they would work. Perhaps we should not find it surprising that the authorities were laconic on just how medicinal words worked, since they were no more forthcoming about how medicinal herbs and stones worked. Lyndwood continues: a superstition is anything that involves worshiping a creature as if it were God, or invoking demons, or practicing magical arts, or, more generally, putting hope in something other than God.23 Characters are figures or letters, he says. ‘‘Some people,’’ he continues, drawing on the Archdeacon, ‘‘wear certain divine words around their neck or elsewhere, but they should take care that such writing is not for the purpose of invoking demons, and that it contains nothing false, because otherwise one could not expect it to be effective on God’s part, because God is not a witness to falsity. Care must also be taken lest the sacred words be mixed with

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vanities, that is, signs or inscribed characters, except for the Sign of the Cross.’’24 As for figments, Lyndwood continues, they are any kind of imaginary creature, such as a cow with a human head. Figments can also designate inscriptions or poems of invented Hebrew names of angels. The persons who use them put their hope in the method of writing them, and they also have confidence in ‘‘ligatures’’ and other vanities, as for example, the shape of a reliquary, whether it is rectangular or triangular, which has nothing to do with reverencing God (he is citing the Archdeacon’s commentary once again).25 Lyndwood adds that the same applies to carrying a writing with unusual words on it, like ‘‘ineffable names of God,’’ with the claim that it will protect one from danger or bring some good result.26 Here we finally have an example, perhaps, of certain words that have power, but, since they are names of God, it may have been thought that it was a way of invoking God’s help—that is, a prayer. The Archdeacon, following John of God, was clearly thinking about words with power apart from prayers.

Chaucer’s Testimony Now, then, with Archbishop Peckham’s regularly repeated prohibitions (and Lyndwood’s explanations of them) in mind, let us try to get an idea of how they were observed or violated by considering attitudes observable in the world of literature—especially, as promised, in Chaucer’s works. We want not only to see what was thought to be licit and illicit, but also to get some insights into how people in the Middle Ages thought that charms and magic worked, and how these ideas corresponded with the canonistic explanations we have been considering. Was there a ‘‘metaphysical’’ explanation at the back of their minds, like John of God’s resort to Augustinian seminal reasons? Or did they think of ‘‘rays’’ or ‘‘waves’’ of force? Chaucer knew about sound waves and light rays, but how did he think that stones, for instance, exercised their properties? Perhaps, like the canonists, in the same way as herbs used for cures, by innate qualities? Does he share any idea that certain words or strings of words had power in themselves? Some of the supposed workings presumably came under the topic of ‘‘natural magic,’’ a special interest at the pre-Christian University of Orleans, according to the Franklin’s Tale—exemplified only by astrological considerations (the 28 mansions of the Moon).27 Or did some people sometimes think that invisible spirits of some sort, demonic or elvish, were operating ‘‘behind the

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scenes’’? Remember Hrabanus Maurus and the evil angels of the Egyptian magicians. The demonstrations of the clerk-magician at Orleans seem to be in the same category as the apparitions created by subtle ‘‘tregetors’’ and their sciences, described by Aurelius’s brother (FrankT 5.1139–51), which would seem to be a mere matter of stage-craft and prestidigitation. The Franklin calls the illusions of old-time natural magic ‘‘superstitious cursedness’’ (v. 1272), which the church has somehow dismantled or neutralized. But the magician in his tale appears to rely mainly on cosmic ‘‘timing,’’ through astronomical calculations. No gods or spirits are at work, unlike in the Knight’s Tale, when Saturn has Pluto send a Fury to spook Arcite’s horse (KtT 1.2684–85). In the case of the brass airplane sent as a gift to Cambyuskan in the Squire’s Tale, its manufacturer may have employed spirits to make it, for, in addition to checking out the constellations, he ‘‘knew ful many a seel and many a bond’’ (SqT 5.131), which is taken to mean that he compelled the help of spirits in its construction, like Prospero’s manipulation of Ariel and Calaban in The Tempest. But once the ‘‘horsely’’ (v. 194) aircraft was finished, it worked mechanically, like a clock, by turning a pin (v. 127). We are not told about the manufacture or the nuts and bolts of the other gifts: the glass mirror has the power of showing the future and another person’s present and future evil dispositions, as well as his accomplices; the ring has the power of interpreting bird-talk and teaching herbal medicine; and the sword can cut through anything and can cause wounds that can never be healed except by applying the flat of the same sword. But, as with the flying brass horse, if spirits had a ‘‘hand’’ in making them, they were no longer needed for their operation. They were now ‘‘dis-spirited.’’ We are told explicitly that the Tartars cannot move the horse from its place because they do not know the necessary technique: ‘‘they kan nat the craft’’ (v. 185). But it may well be that in these other objects (the mirror, ring, and sword) and in many other such cases, no explanations were assumed. For instance, the girdle that Gawain accepts in Sir Gawain and the Green Knight seems to be simply very well made, according to Lady Bertilak: it has ‘‘costes’’ (that is, properties) knit into it, perhaps much like modern Kevlar body-armor, which will prevent him from being ‘‘to-hewen,’’ chopped up.28 Gawain takes her explanation ‘‘on faith,’’ and so do all of the poem’s modern readers. But she may not be telling the truth, for the girdle does not prevent Gawain from being nicked, and Bertilak never intends to do any more hewing of Gawain’s body, once he delivers this small wound. A great deal of nonsense has been written about these episodes; critics blame Ga-

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wain for putting faith in the girdle instead of in the Virgin Mary, as if faith in Mary or God were a substitute for being well armed. But I suspect that behind these modern judgments lurks the idea that all use of magic was considered sinful in the Middle Ages. This was definitely not the case, for, as we have seen, canonists like Lyndwood held that there was a legitimate place for properly conceived and conducted magic. So, then, it may be that some objects were simply accepted as having extraordinary powers, with no supernatural or even scientific explanations attached to them, as with our modern superstitions. We have no explanations for our fear of misfortune from venturing out on Friday the 13th, or from walking under a ladder. We are told nowadays that certain things or actions bring ‘‘bad luck’’ or ‘‘good luck,’’ but there is no theory or curiosity at all about any mechanisms involved. Our superstitions can, however, be compared with the ancient observation of omens, some of which are ridiculed by St. Augustine in his Christian Doctrine; for instance, it is a bad omen if someone sneezes while you are putting on your shoes, and to counteract it you go back to bed.29 Just so, nowadays, if a black cat crosses our path, we go a different way; to continue on and cross the place where the cat has crossed will bring bad luck. But in the Roman superstition the omen has announced that bad luck is coming. Another example that Augustine gives is the belief that having your clothing eaten by mice is a bad omen.30 The passage in which these observations occur was duly excerpted by the medieval jurists; it appears as the canon Illud in Gratian’s Cause 26.31 Chaucer’s Parson refers to similar superstitions: ‘‘What seye we of hem that bileeven on divinailes, as by flight or by noise of briddes, or of beestes, or by sort, by nigromancie, by dremes, by chirkinge of doores or crakkinge of houses, by gnawinge of rattes, and swiche manere wrecchednesse?’’ (Parson’s Tale 10.605). Let us put aside tales that involve demons, gods, and elvish fairies as possible explanations for ‘‘wonderful’’ cures, and try to see how ordinary mortals are supposed to effect them. We can think of the claim that May makes at the end of the Merchant’s Tale, that she was following a recipe that someone taught her for healing bad eyes: namely, struggling with a man in a tree. There seems to be no suggestion here that the malady to be cured, specifically, January’s blindness, has been caused by any magical or supernatural means. The cure is simply accepted by January as a form of alternative medicine, like acupressure. An ecclesiastical judge like Lyndwood might not think much of its workability or health benefits, but there

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seems to be no reason why he would condemn it as sinful or superstitious, unless it could be seen as residually pagan.

Magical Medical Technology People of Chaucer’s day inherited recipes and charms that must originally have had a pagan metaphysic behind them; that is, they must to some extent have been based on the workings of the gods and spirits of local lore and religion. By Chaucer’s time and place, fourteenth-century England, there had long been an unfocused attempt to do away with all native spirits and to replace them with the very spare pneumatology of official Christianity, which consisted only of (1) God; (2) the angels (unfallen and fallen); and (3) the souls of the dead. But whatever their stage of instruction, the new Christians and their descendants would have been reluctant to give up charms based on the old beliefs, especially if they were confident that they worked. But they made attempts to Christianize them to some extent, as is evident from some of the surviving corpora of such charms. The basic principles must have been to expunge whatever could be seen as an appeal to a false god, and to add appeals to God and the saints. But it may have seemed optional to leave in unusual words that had claim to some intrinsic power, by experience or tradition, whether or not they were rationalized as by John of God. For examples, let us look at the three receptaria, or collections of medical recipes (that is, prescriptions), recently published by Tony Hunt and Michael Benskin.32 They contain for the most part straightforward medicinal formulas, but some recipes are designated as charms (charme in French, carmen in Latin), consisting usually of a prayer. Sometimes there is a reference to a biblical event, for instance, Jesus being pierced on the cross.33 Or there is a spurious anecdote, like that of Jesus curing Peter of toothache. In this case, as elsewhere, the ailment is addressed directly (as is true when water or oil or salt is exorcized): ‘‘Unde adjuro te, emigranea gutta, per Patrem et Filium et Spiritum Sanctum, per celum et per terram, et per novem ordines angelorum [etc.] . . . ut non possis nocere amplius huic famulo Dei,’’ etc. (‘‘Therefore, I adjure thee, hemicranial gout, by the Father, Son, and Holy Ghost, by heaven and earth, by the nine Orders of Angels . . . that thou be able no longer to injure this servant of God,’’ etc.).34 Sometimes, however, mysterious formulas are used. For stopping bloodflow, write Beronix in the patient’s blood on his forehead or Bironixa

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if the patient is a woman.35 One of the recipes, for dropsy, includes a formula very close to Abracadabra, but punctuated by signings of the cross: ‘‘Ⳮ Abra Ⳮ Abraca Ⳮ Abracula Ⳮ.’’36 It is hard to know how such formulas would be assessed by the authorities. For instance, if the practitioner were summoned to court, if not by William Lyndwood as Official of Canterbury (judge at the Court of Arches), then by the sort of archdeacon described in the Friar’s Tale, would the recipes be considered an acceptable form of Christianization, or be censured as ‘‘witchcraft’’? It would, of course, be up to the individual judge, but if the judge followed the Archdeacon’s Rosary, he could easily have given such recipes a pass. We should note, by the way, that the Friar sandwiches witchcraft between fornication and pimping: the archdeacon ‘‘boldely dide execucioun / In punisshinge of fornicacioun, / Of wicchecraft, and eek of bawderie’’ (FriT 3.1303–5). This is a reflection of the fact that the offense of illicit magic was not considered to be very serious in the England of Chaucer’s day. The same thing can be concluded for Europe in general from the way in which practitioners of maleficia are treated, even when evil spirits are involved, in the Lives of the Saints, especially as exemplified in the best-selling Legenda Aurea of Jacobus de Voragine.37 We can note too that the Parson’s Tale puts deeds of witchcraft or illicit magic not under the First Commandment but the Second: ‘‘Thow shalt nat take the name of thy Lord God in vein or in idel’’ (ParsT 10.588). They are incorporated awkwardly under the sin of Wrath. He condemns adjurations uttered by ‘‘false enchauntours or nigromanciens’’ over basins of water, a bright sword, a circle, a fire, or a shoulderbone of a sheep. In so doing, he says, they act cursedly against Christ and all the faith of Holy Church (10.603–4). The prohibited use of water or a shiny blade here referred to corresponds to modern crystal-ball gazing, and it was employed especially to detect thieves.38

A Test Case: John the Carpenter With these criteria or considerations in view, let us look at the protective measures John the Carpenter takes with Handy Nicholas in the Miller’s Tale. Which of them would pass the muster of Archbishop and Archdeacon? John has just praised ignorant people whose knowledge is limited to their ‘‘Belief,’’ that is, the Creed. But he soon shows that he knows more than this:

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This carpenter wende he were in despeir, And hente him by the sholdres mightily, And shook him harde, and cride spitously, ‘‘What, Nicholay, what, how, what, looke adoun! Awak, and thenk on Christes passioun! I crouche [cross] thee from elves and fro wightes.’’ Therwith the night-spel seide he anon-rightes On foure halves of the hous aboute, And on the thresshfold of the dore withoute: ‘‘Jhesu Crist and Seinte Benedight, Blesse this hous from every wikked wight. For nightes verie, the white Paternoster. Where wentestow, Seinte Petres Soster?’’ (Miller’s Tale 1.3474–86)

Now, then, let us suppose that word of John’s activities came to the attention of the Archdeacon of Oxford and that he was put down in his book, ‘‘ere the Bisshop [of Lincoln] caughte h[i]m with his hook’’ (FriT 1317). Using the usual stripped-down inquisitorial procedure for such criminal matters,39 he would have accused the Carpenter of superstitious practices, and let us assume that John made a full confession, as follows. Article 1. After John diagnosed Nicholas as having fallen into despair and presumably in danger of dying, he attempted to shake him out of his coma, telling him to remember the Passion of Christ (which of course won forgiveness and redemption for all sinners, so that no one need despair). He then made the Sign of the Cross over him (an approved apotropaic ritual, in effect a prayer), with the specific purpose of protecting him from ‘‘elves and wights.’’ Judgment. There is nothing culpable here. Commentary. ‘‘Wights,’’ as Skeat points out, meant ‘‘creatures.’’ Skeat takes the word to mean ‘‘living creatures,’’ presumably malevolent human beings and also, possibly, harmful animals, insects, and so on. But the term also included spiritual beings and, in fact, every ‘‘animate’’ thing except God Himself. It is true, however, that in the supernatural sphere it seems to have been limited to evil spirits.40) There was no formal doctrine prohibiting belief in elves; there was no theology of elves and fairies. As I have noted, Christian intellectuals either denied the existence of such entities or construed them as evil spirits, that is, fallen angels, that is, demons, devils, like the evil angels that Hrabanus Maurus speaks of. The Wife of Bath satirically imagines the newfangled orders of friars as driving out the fairies by the very method used by John the Carpenter, by ‘‘blessing,’’ that is, making the Sign of the Cross: ‘‘Blessinge

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halles, chambres, kichenes, boures, / Citees, burghes, castels, hie toures, / Thropes, bernes, shipnes [stables], daieries’’ (WBT 3.869–71). She identifies fairies with elves: ‘‘This maketh that ther ben no faieries, / For ther as wont to walken was an elf, / Ther walketh now the limitour himself’’ (3.872–74). She also identifies them with incubi: ‘‘In every bussh or under every tree, / Ther is noon oother incubus but he’’ (3.879–80). The nunnery-educated Mrs. Simpkin in the Reeve’s Tale identifies incubi in turn with demons, just as friars would. When she thinks that she is being attacked by one, she prays: ‘‘Help! Hooly Crois of Bromeholm! / In manus tuas! Lord, to thee I calle!’’ (RvT 1.4286–87). She then turns to her husband (she thinks, whereas her husband is actually the one who has just fallen on her), and says: Awak, Simond! The feend is on me falle! Myn herte is broken! Help, I nam but deed! Ther lieth oon upon my wombe and on min heed! (1.4288–90)

Instead of making the Sign of the Cross, she appeals to the piece of the True Cross in the shrine in the town of Bromholm, which is in the Reeve’s home county of Norfolk. This relic would undoubtedly have been kept in a reliquary in the shape of a cross, which would account for her calling out to the ‘‘Cross’’ of Bromholm. She also repeats the prayer of Jesus on the cross, committing Himself into the hands of His Father. Article 2. John’s next action was to recite a house-blessing in the form of a night-spell, five times, toward each of the four quarters of the whole house, and once at the threshold of Nicholas’s room. Judgment. There is nothing superstitious about blessing a house, and nothing wrong with saying a spell. Commentary. To find fault with spells would be to deny the ‘‘gospel’’— that is, ‘‘good-spell’’ (translating eu-angelion, ‘‘good message’’). Chaucer himself, in telling his own Tale of Thopas, says, ‘‘Herkneth to my spelle’’ (Tho 7.893). We have to examine the content of each spell to see whether it is an acceptable Christian formula or whether it has some taint of superstition about it. The same is true of charms. One formula in the Rawlinson receptarium is called a ‘‘good charm,’’ charme bone, for staunching the flow of blood, and indeed it is a good charm, since it uses the Trinitarian formula of the Sign of the Cross and invokes the wounded Jesus on the Cross.41 Another charm (carmen) for wounds from the earlier Corpus receptarium is also orthodox: ‘‘I order thee, wound, by the power of the

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breasts of the Blessed Virgin Mary,’’ etc., ‘‘that thou neither cause pain nor putrefy,’’ etc.42 What of the ‘‘most approved charm’’ (carmen probatissimum) for dropsy? it reads: ‘‘Ⳮ Dealbagut Ⳮ Deblutym Ⳮ Item, caro caduca, reputa.’’43 There is nothing obviously pagan or demonic about this. Article 3. Content of the night-spell. Judgment. There is nothing obviously wrong with most of this formula. Praying to Jesus and St. Benedict to bless, that is, purify and preserve, the house from every wicked creature, including a ‘‘very,’’ is acceptable. Benedict has been altered to ‘‘Benedight’’ to rhyme with ‘‘wight,’’ which the saint would probably not take offense at. A rhyme constraint is also obviously involved in the appeal to St. Peter’s Sister, which seems odd but harmless. The use of a ‘‘white Paternoster’’ against a night-very, however, may be questionable. Commentary. ‘‘Verie,’’ which most Chaucerians construe as ‘‘an evil spirit’’ or a collective noun for ‘‘evil spirits,’’ may be a hapax legomenon, or it may be a form of ‘‘wari’’ (criminal, felon).44 The important Cambridge Dd manuscript interprets the phrase as ‘‘night-mare,’’ that is, ‘‘an evil female spirit that oppresses men in their sleep or afflicts horses at night.’’45 In demonic terms, the nightmare is the succubus, the woman-shaped version of the incubus. The demon in the Friar’s Tale explains methods by which fiends can take on various bodies or shapes. But whatever the phrase means, it is not good; therefore, there could hardly be a legitimate objection to praying against whatever it represents. Finally, the white Paternoster. Is there something here offensive to Christianity? Robert Grosseteste, a predecessor of John’s current bishop (he served as bishop of Lincoln from 1235 to 1253), would undoubtedly have said yes, because in a treatise similar to Archbishop Peckham’s constitution of a generation later,46 he gives examples of sins against the First Commandment, including this (I translate): Also against this commandment are the rituals of old women who petition for health from these inferior creatures, for instance, herbs, through incantations, which the French call ‘‘charms,’’ praying, ‘‘Green Pater Noster, Peter’s dear Sister.’’ In so saying, they suppose a body of the Lord, which is somehow colored. They also suppose it to be masculine, when they say, ‘‘Pater,’’ and feminine, when they say ‘‘Sister.’’ And thus it is clear that they wickedly blaspheme the name of God.

Our Archdeacon of Oxford would surely note, however, that Grosseteste was accusing the women not of superstition but of blasphemy, and only by misconstruing the formula. The women he cites were not talking

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about God the Father, but rather were coupling a green Paternoster with St. Peter’s Sister, just as John the Carpenter combined a white Paternoster with Peter’s Sister. The saint in question would no doubt have been recognized (as Skeat notes) as Peter’s daughter, St. Petronilla. As it stands, of course, the line is not a prayer, but a rebuke to Peter’s sister for abandoning them in their hour of need. Chaucer obviously wants the Carpenter to look foolish, but not necessarily to be seen as falling under the strictures of the First Commandment, for paying divine respects to creatures. It is certainly not as nonsensical as many other examples of charms preserved from the Middle Ages. As for the colors of the Paternosters, the explanation may lie in the beads on which the prayers were recited. When only Paternosters were said on a set of beads, the whole set, consisting often of 150 beads (the number of the Psalms), was sometimes called ‘‘a Paternoster.’’ Similarly, if only Aves were said, the ‘‘pair of beads’’ was called ‘‘an Ave.’’ And, of course, a single bead in each set could also be called ‘‘a Paternoster’’ or ‘‘an Ave.’’ Calling individual beads Paternosters and Aves was even more likely and necessary when both Aves and Paternosters were said on the same set of beads, as we find happening in the Low Countries just after Chaucer’s time, at the beginning of the fifteenth century: a Paternoster was said after every ten Aves (unlike the modern rosary, where the Pater precedes the ten Aves).47 This Low Country system is also the arrangement in Hoccleve’s poetic version of the origin of ‘‘Our Lady’s Psalter,’’ though Hoccleve does not mention the use of beads.48 But an inventory of 1381 lists not only ‘‘Paternoster beads’’ but also ‘‘Ave beads’’; some sets of both kinds contain larger beads, called ‘‘gauds’’ or ‘‘gaudees,’’ used either as simple markers or to signal another prayer. Sometimes the larger beads in Aves were called Paternosters.49 The pair of beads of small coral carried by the Prioress around her arm is ‘‘gauded al with grene’’ (GP 185–89), and the ‘‘pair of Paternosters’’ of coral mentioned in a document of 1409–12 has five gauds of green.50 These gauds, therefore, may be green Paternosters. The idea of saying a Paternoster on a white bead, then, is a possible explanation and exculpation for John the Carpenter, perhaps a late rationalization, if his formula was handed down from a time before Paternosters were said on colored beads. Still, his judge may determine that John was thinking of his bead as having a ‘‘lucky color,’’ just as, in the example cited above by Lyndwood, ‘‘lucky shapes’’ were sought in reliquaries. If so, however, his offense would be only slightly off-color, a mere ‘‘vanity’’ or peccadillo, that is, a venial sin. And venial sins, as we are taught by Lyndwood

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and others, can be deleted in a number of ways, including the devout recitation of a simple (uncolored) Paternoster.51 We recall that John of God declared that using words to activate hidden seeds of nature would be a mortal sin if done for an unworthy reason, but not mortal if done simply to exercise the power of the words. We can assume that he is referring to experimentation, to see if a given formula actually works. John of God’s phrasing leaves open the possibility that conducting such experiments would be ‘‘not mortal’’ but venial sins, but it can hardly be his meaning that he would take it as sinful in any way. He does not bring up, in this context, the question of positive motives for using the power of words, such as healing the sick or averting danger, but he does so later when commenting on the canon Ammoneant when speaking of the innate powers of words, herbs, and stones, distinguishing them from enchantments and magical practices that have no healing effect. It is possible, then, that John’s judge would recognize the purity of intention in his ministrations and give his methods the full benefit of the doubt, and perhaps even admit the possibility that his white Paternoster was made of a precious stone, like mother-of-pearl, with natural apotropaic virtues.

Chapter 16

Law, Magic, and Science: Constructing a Border Between Licit and Illicit Knowledge in the Writings of Nicole Oresme Joel Kaye

As Edward Peters makes clear in the introduction to this volume, the growth of law in medieval society, and the definitions of licit and illicit that followed from it, influenced developments in widely disparate areas of medieval life and culture: from governmental, church, and academic structures, to social, familial, and gender relations, to forms of belief, behavior, and thought.1 I hope to illustrate law’s great reach by examining a case of its extension into the rarefied realm of scholastic natural philosophy. One can argue that on the most general level there are deep connections between the recognition of law as a governing force in society and the evolution of a sense of a lawful and knowable Nature—the precondition of scientific thought. Here I would like to go beyond general considerations to investigate how the construction of a particular boundary between licit and illicit in the realm of law and political thought influenced the construction of a particular definitional boundary between licit knowledge (science) and illicit knowledge (magic) in the writings of the fourteenth-century theologian and natural philosopher Nicole Oresme. The condemnation of magic in Latin Christian culture has deep religious and philosophical roots. Writers joining this tradition in the medieval period could draw on condemnations from the Old and the New Testaments, pagan philosophical authorities, and condemnatory treatises by the church fathers, most notably St. Augustine.2 The intellectual project unifying this tradition was to define the realm of false magic, to condemn it, and to separate it both from true religion and from true philosophy or science—the proper realms of human investigation and knowledge. One might think that given this long textual tradition, medieval writ-

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ers (and modern historians) would have a wealth of workable definitions with which to draw clear distinctions between the illicit practice of magic and the legitimate practice of philosophy and religion. But a workable boundary proved devilishly difficult to construct. The borders between magic and licit knowledge shifted continually from culture to culture and author to author. Most telling of all, even within the writings of a single author, definitional boundaries proclaimed with fervor and certainty are either hopelessly unworkable or, more slippery still, are seemingly transgressed as soon as they are established. It is not that boundaries were not continually proposed, only that they dissolve upon close inspection. Suppose we take a definition of magic found in texts from the fourth century through the Middle Ages: that magic is any practice that calls on and seeks to compel and manipulate occult powers or demonic spirits (or fallen angels, in Augustine’s terms) to act in a particular manner for particular practical effects (including the production of illusory effects).3 Fine; this would correctly identify magic with practical activity and the concern for practical power rather than with pure knowledge, and it would encompass the primary objects of magical incantation: love, sexual and personal success (or failure), health, the illness of an enemy, and illusion for the purpose of personal gain.4 But condemning the magician for calling on demons only implies the firm belief in both demons and the power of the magician to call upon them.5 How can one hope to delimit the sphere of magic and separate it from proper knowledge, when one believes in it and believes (and fears) that it works; when one inhabits a world alive with inner natures and occult spirits that can be called upon and commanded? Rather than getting easier as the centuries progressed, the project to separate the spheres of magic and science became more difficult still in the thirteenth and fourteenth centuries. The momentous translation program from Arabic to Latin of the twelfth and thirteenth centuries that brought Aristotle to the center of medieval learning produced as a sidebar a literature of learned magic far more sophisticated and imbued with far more intellectual authority than manuscripts previously in circulation.6 Many treatises on magic gained additional authority by being falsely attributed to ancient philosophers and mathematicians and by circulating under their names.7 Not surprisingly, some of the greatest natural philosophers and mathematicians of the thirteenth and fourteenth centuries—Albertus Magnus, Roger Bacon, Peter of Abano, to name a few—found it impossible to know which knowledge might be useful and which could never be, which

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effects and powers (from herbs, stones, words, numbers, celestial rays, images, incantations, amulets, talismans, dreams, auguries, mechanical marvels, etc.8) could be classified as ‘‘natural’’ and thereby legitimized and brought into the realm of proper science, and which could not escape the realm of the dangerous and the demonic. But the profound difficulties in drawing the line in no way diminished the attempts by thinkers to do so. Rather, the temptation to naturalize certain areas of magic and bring previously shunned knowledge into the realm of philosophical discourse compelled those who did so to justify themselves and their reasoning, and this justification almost always involved a strong denunciation of all magic and astrological determinism that fell on the other side of their personal divide.9 The case of Roger Bacon is particularly instructive. His belief in the imminent coming of Antichrist and in the need for the faithful to find means to defend themselves against the wars and depredations to come fortified his interest in using science to secure practical effects and real power over nature. This in turn encouraged his identification of true knowledge with experimental knowledge and deepened his critique of the purely theoretical and disinterested philosophy of the schools. In the thirteenth century, these positions, which in retrospect appear to be generally in line with modern scientific attitudes, brought him into close proximity with a magic defined precisely in terms of its experiential basis and its desire for power and practical effects.10 Building on his project to align science with the production of practical effects, Bacon approached the formulation of a precocious definitional boundary: science (and that which can and should be naturalized as science) is, in essence, the knowledge of that which works; magic is the false knowledge of that which is mendacious, mere trickery, or illusion. The problem here lay not so much in the definitional boundary he approached (which is, after all, again close to the modern) as in both his periodic transgression of it (he asserted at times that magicians can actually produce effects by employing demons and evil spirits11), and in his diminished capacity to identify clearly that which was real and effective in an age alive with occult forces and the belief in their miraculous powers. He was, for example, convinced that certain verbal incantations found in magical books (as well as amulets, diagrams, and characters) actually worked to produce the marvelous effects claimed for them, if and when they were used at the proper times, under the proper astrological circumstances, and in concert with ‘‘the force of the stars.’’ For this reason, he argued that the knowledge of these incantations and astrological times belonged in the realm of philos-

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ophy rather than magic.12 But at the same time, he recognized that ‘‘the theologians of our time, and Gratian, and many more holy men have reproved these useful and magnificent sciences . . . not noting the difference between magic and the truth of philosophy.’’13 Precisely so. In the century after Bacon wrote this, the fear of magic (and very likely the practice of magic) continued to grow to the point where charges of sorcery (and sentences of death) were directed at elements of the population formerly immune to them: the powerful religious order of the Templars, the king’s own relatives and leading advisors at the court of France, and, for the first time, university magistri.14 At some point around the middle of the fourteenth century a great thinker, Nicole Oresme (c. 1320–82), much concerned to strengthen and expand the realm of natural philosophy at the expense of magic and other false modes of knowledge, suggested a new definitional boundary. The remarkable thing about Oresme’s suggestion is that it not only appears workable and defensible in the context of the fourteenth century, but remains workable, defensible, and alive in defining the realm of science to this day. And law lies at its root. Oresme was a man of many accomplishments: teaching master in theology at the University of Paris, an active churchman who ended his life as a bishop, the author of numerous commentaries on the works of Aristotle, a brilliant mathematician and geometer, the composer of a pathbreaking treatise on money and minting, and a man intimately involved in the affairs of his day. While a master at the University of Paris in the 1350s, Oresme became closely connected to the dauphin and later (1364) French king Charles V, serving him continually as a trusted advisor until Charles’s death in 1380, two years before Oresme’s own. In this role, Oresme spent a good deal of his later life at the French court, even while serving as canon, then dean of Rouen Cathedral, and finally as bishop of Lisieux in Normandy.15 As a member of the French court in the fourteenth century and a trusted counselor to the king, Oresme would have been all too familiar with the claims of magicians, diviners of every stripe, and astrologers, all of whom vied for the ear of King Charles. Despite Oresme’s warnings, Charles (‘‘Le sage’’) took an active intellectual interest in the technical aspects of these forms of knowledge, particularly in the area of judicial astrology.16 Oresme became well known in his and later centuries as an enemy of astrology and author of treatises dedicated to the unmasking of its fraudulent claims to knowledge and certainty.17 In a number of works dedicated entirely to this purpose, he attacked the mathematical and philosophical basis of astrology with vehemence and unprecedented technical acuity.18

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His critique of astrology was linked to a larger critique of magic, superstition, and claims for the miraculous—what Jeannine Quillet has called his ‘‘enterprise de de´mytholigisation de la nature’’—and commitment to the process of its ‘‘de´senchantement.’’19 His intellectual program was to expand the sphere of the natural and the licit in the realm of knowledge at the expense of magic, superstition, and false belief. He wrote two works of particular interest related to these subjects: a series of quodlibetal questions, which Bert Hansen has edited under the title De causis mirabilium, and a brilliant, wide-ranging treatise, the De configurationibus qualitatum et motuum, edited and translated by Marshall Clagett.20 Difficulties in dating make it hard to know with certainty which was written first, but I will begin with a brief description of the De causis.21 Oresme announces his program in the opening lines of the prologue: I propose here . . . to show the causes of some effects which seem to be marvels and to show that these effects occur naturally, as do the others at which we commonly do not marvel. There is no reason to take recourse to the heavens, the last refuge of the weak, or demons, or to our glorious God as if He would produce these effects directly.22

Although it was unusual to dedicate an entire set of questions to the program of expanding the natural at the expense of the magical and the miraculous, Oresme was not alone in holding to it. His search for natural causes, his rationalism, his tempered skepticism, were shared by many in the university. Within the discipline of natural philosophy, there was a general acceptance of Aristotle’s position that true philosophy shunned the marvelous and the particular in its search for the universal and the general, and that proper study should be focused entirely on those aspects in nature that occur with regularity or for the most part (ut in pluribus).23 Superstitious belief in magic, marvels, and monstrous occurrences, Oresme demonstrates again and again, is most often fostered by simple misperception.24 The method followed throughout the De causis is to begin with an analysis of a form of perception—visual, aural, tactile—and then to show the many opportunities for error and superstition that arise given the multiplicity of causes and the complex rules governing perception. His wonderfully common-sense general principle, which he applied to phenomena as different as missing a target, sexual dysfunction, and the production of monsters, was ‘‘We must marvel more when nature proceeds and acts in so orderly a course than if it sometimes is altered or deviates

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from the usual. . . . For you can hit the mark in only one way but miss in many ways.’’25 But I have so far highlighted only the most ‘‘modern’’ attitudes of Oresme and have neglected the surprising credulity that often lay just beneath his critique of credulity.26 This tension is best seen in his De configurationibus qualitatum et motuum (Clagett translation: On the Geometry of Qualities and Motions), a work that is recognized today as a landmark in the history of science and mathematics. We can see from the title that Oresme is again seeking to find, or to impose, order and regularity on the phenomenal world, this time a mathematical and geometrical order. In one section of this work, Oresme attacks magic, saying, ‘‘I wish to lay bare the falsity of this malign art, so that no person of sound mind will be affected by such arts in the future.’’27 But for all the rigor and recognition of order that the study of Aristotle imparted to him, he was still living at least partly in a magical world—a world of numinous essences, where every single substance was thought to possess inherent qualities capable of generating active powers. And these worked like djins to dissolve the borders he sought to erect between the licit and the illicit in the realm of knowledge. In order to claim this inner occult world for philosophy, he sought to resituate the basis of qualitative action from the magical to the mathematical. He did this by imposing geometrical form on those hidden interior qualities whose existence and activity he accepted. He wrote: ‘‘natural bodies, when mutually compared according to their geometrical configurations, have mutually different operations and are differently affected’’(my emphasis).28 Following from this premise, he can say that the cause of the natural friendship between humans and dogs is ‘‘the fitting accord between the [geometrical] configurations of the natural qualities of these species.’’ In similar fashion he explains numerous natural actions and reactions, including the attraction of the magnet for metal, the curing power of medicines and plant compresses, the power of mandrake root to aid in sexual function and conception, and even the power of certain words in incantations, when ‘‘by virtue of their structure and figuration’’ it happens that ‘‘the shape of the difformity of the motion accompanying this sound is effective.’’29 Here, once again, we have a hybrid between science and magic, a liquefied border to our eyes, if not to Oresme’s.30 The definitional crossovers within this literature of boundary formation are dizzying, even with a thinker as hard-headed as Oresme, and even as the intent and commitment to limit and condemn the sphere of the magical is clear. Having said this, I believe there is one aspect of this great philosopher’s program to separate

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magic from true philosophy that is unique for its time in that it appears to me to resist dissolution. That is his consistent equation: false magic equals the personal, the private, and the secret; true science equals the common (in the sense of plurality and group sharing), the public, and the open.31 At one point in the De configurationibus, Oresme attacks the claims made in ‘‘certain new books of the notorious art’’ by saying that there are individuals who have attempted with all their power (tota virtute sua) to make a demon or some such thing appear, who have, he writes, carefully performed everything these books say to do, and yet they have been completely unsuccessful. He takes this as clear proof that the claims are fraudulent. His conclusion: ‘‘If these things took place by virtue of conjuration . . . then one person ought to be able to operate by virtue of conjuration just as well as another, if neither omitted anything’’32 (my emphasis). Here we see Oresme deriving the crucial scientific requirement of the replicability of effects from his emphasis on ‘‘the common.’’ If a technique is valid—naturalistically and scientifically valid—anyone should be able to use it to achieve the same results. And if the effects of a technique are scientifically valid, then they must be commonly apparent to the common senses. He writes: ‘‘For if a demon or spirit appears externally in a form naturally visible, it would be seen by anyone present at that place [a quoqunque ibidem presente]’’33 (my emphasis). Indeed, Oresme’s association of the common with truth is so strong that he is forced to admit that if someone could cause demons to appear before a large number of people of differing temperaments and of sound minds, who had no cause to be terrified or abnormally excited, then he would be forced to recognize this as a true marvel and not a mere illusion.34 Common observation alone is proof against falsity; and conversely, common observation guarantees the truth of even the most unlikely effects. Oresme goes yet farther, identifying the private/personal as the ground of magic and the common/public as the ground of proper science. He observes that magicians, whether male or female, are often instructed to practice abstinence from food and other natural needs and to withdraw from society as a preparation for their visions. When they do this, he notes, the magician is ‘‘drawn away from common thoughts’’ (communibus cogitationibus abstrahitur). And, Oresme believes, it is this drawing away from the common and the public—on many levels: intellectual, social, psychological—that disposes the mind to ‘‘easy credulity’’ and opens the door to magic and false illusion.35 A modern audience might judge Oresme’s position here as common

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sense and hardly as a great moment in the history of scientific thought. But this judgment is possible only if one is unaware of the pervasive cultural association of the personal and the secret with knowledge and power in medieval times and into the modern period.36 Although we now identify science as a common and open enterprise, there was so much weight against this idea, from so many directions, that it did not find its central place in the ideology of science until the writings of Francis Bacon and the work of the Royal Society in the seventeenth century. And even then there remained a strongly held belief, in both educated and uneducated circles, that making knowledge open and common actually diluted its power and destroyed its efficacy.37 From the twelfth through the eighteenth centuries, both writers on magic and those who thought they were contributing to natural philosophy while writing in the tradition of the Libri secretorum routinely disguised their meaning in code words comprehensible only to the few and warned against their works falling into the wrong hands, that is, the hands of the undiscerning and undeserving public.38 Within these works, the success of the operations described and the power of the truth conveyed were said to depend directly on the private (often ascetic) preparation of the operator, his particular psychological state, and the personal qualities of his soul.39 The association of the personal with power and efficacy was not limited to practitioners of secret crafts: it pervaded Latin Christian culture. Think only of the constant theme in the romances: the magic boat that gives passage only to the innocent, magic castles visible only to the brave, the magic sword that only the true ruler can use, and on and on.40 In these cases and within this culture, the personalization of effects was never thought to refute the existence of power—if anything it was held as a proof of it. The strength of the association of personality and ascetic regimen with particular effects is shown by the fact that even Oresme, who questions it in the general case, assents to it obliquely at certain points.41 But even recognizing his occasional lapses, it is clear that we have with Oresme a conscious and well-developed definitional boundary that identifies fraudulent and illicit knowledge with the personal, the private, and the secret and recognizes the common and the open as the mark of true and licit knowledge. The boundary he proposed is as valid today as it was in the fourteenth century. It is possible to explain a good deal of the rationale for this boundary simply with reference to the traditions of Aristotelianism and high scholasticism. Aristotle held that no special gift of gnosis is required for scientific knowledge; rather, the knowledge of natural causes is within the grasp of

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ordinary human reason aided by logic, the universal instrument.42 Within the scholastic tradition of logical disputation, every proposition was exposed to the scrutiny of fellow masters, and every conclusion was open to being tested by the common instrument of logic. Moreover, as already noted, Aristotle had insisted that proper philosophy, whether moral or natural, should be directed toward common and regular phenomena rather than toward the unique and the particular. Oresme repeats this particular rule over and over again in the De causis mirabilium as he attempts to draw the boundaries of true science.43 For these reasons and more, it would be a mistake to underestimate the impact of Aristotle’s writings and the scholastic tradition on Oresme’s position. But what makes Oresme’s position unique was not the simple opposition of the general to the particular case or the simple identification of the private and the secret with magic and the illicit. The history of these general insights can be traced back at least to Plato and forward into his own time. It was the breadth and consistency of Oresme’s program to identify and separate licit from illicit that made it unique: the bringing together of diverse registers—philosophical, practical, social, and psychological— toward the same end, all unified by a seemingly serene confidence in the value of the common and the public.44 The scholastic philosophical tradition can speak to only a portion of this construction. At a number of points in the De configurationibus where Oresme is seeking to distinguish true science from false magic, he is concerned not with testing intellectual propositions through the tool of logic but with testing physical operations and effects through common observations. This was most definitely not the world of scholastic disputation. And while knowledge was ‘‘common’’ in scholastic discourse, the population within which the common applied was extremely limited: male, literate in Latin, university trained, highly schooled in logic. It was only members of a limited brotherhood who were thought capable of making judgments on logical truth and falsity. But Oresme, when he speaks of separating illusion from truth in the examples given above, is careful not to limit his audience in the same fashion. He has a much more general audience than university scholars in mind, and more general, too, than the audience at the royal court. He does not even ask that its members be literate. He asks only that the audience be large enough to contain men of ‘‘diverse complexion or temperament’’ (una magna multitudine hominum diversarum complexionum), and that these men be of sound and calm mind. His audience looks very much like what we might call a ‘‘general public’’ (or a jury of inquest, perhaps) and

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very little like the traditional audience of scholastic disputation. If it is hard to imagine the scholastic tradition of natural philosophy serving as his model for boundary making here, where, then, might the model have come from? I suggest we look in the direction of two spheres tied closely to law— political thought and economics—and ultimately to the law itself. I will consider each of them briefly. The ideal of the common good (bonum commune) attained enormous strength in the politics and political thought of the fourteenth century.45 It was an ideal to which virtually every contemporary writer on politics acceded, Oresme most enthusiastically included.46 With its philosophical roots deep in the texts of ancient Greek and Roman authors, particularly Aristotle’s Ethics and Politics, its practical roots lay in the growth of innumerable self-governing bodies and institutions across Europe, from the great independent urban communes to guilds and corporations of all stripes, including, of course, the self-governing university, which Oresme served for many years.47 At the core of this set of beliefs lay the valorization of the common good, the bonum commune or bonum publicum, over the private good, the bonum privatum, and, similarly, the validation of judgments made either by the community or in the interests of the community, over judgments directed toward the interests of powerful private individuals or groups. Oresme was one of the great champions of the bonum commune in the fourteenth century. In his French translation and commentary to Aristotle’s Politics, he managed to accentuate and go beyond even Aristotle’s strongly held position validating the common interest above the personal in the life of the civitas.48 Indeed, he credits his very project of translating Aristotle into the vernacular—unique in its time—directly to an overriding concern with the common good.49 Oresme integrated the ideal of the common good with his support of his king and of monarchy itself by insisting that proper kingship was a form of public office, not private office, and that the king properly functioned as a ‘‘person publique’’ in the service of his community.50 ‘‘Anyone,’’ he wrote, ‘‘who governs for his own benefit and against the common good [quiconques gouverne a son propre profit contre le bien commun], whether alone or in a group, can be called a tyrant.’’51 And he repeats this and kindred sentiments over and over again in the course of his commentary. Here, in the realm of political thought, just as in the realm of natural philosophy, the line Oresme draws between licit and illicit is the line between public and private. Oresme’s validation of the common good and common judgment

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found direct expression in his economic writings, particularly in his pathbreaking treatise on money and minting, the De moneta.52 In a chapter entitled ‘‘Who Owns the Money?’’ (Cuius sit ipsa moneta) Oresme instructed the prince that money was an instrument invented by the community itself to facilitate the exchange of natural wealth, and it was therefore the community’s common property. The central point of this hortatory treatise was that monetary policy was properly ordered pro utilitate communi.53 The community and the community alone should determine the value of the coinage. In this treatise written and directed to his king, Oresme insisted that any monetary decision made on the basis of the king’s private needs alone was ipso facto illegitimate. Oresme did not invent the link between economic thought and the privileging of common valuation. It is enshrined in Roman law, and long before Oresme, it was the object of intense commentary within medieval discussions of economic value and the just price. The identification of just price with market or ‘‘common’’ price is conveyed in two nearly identical texts from the Digest that state: ‘‘The prices of things are not calculated from the personal view of value or utility, but from the common view’’ [pretia rerum non ex affectu nec utilitate singulorum, sed communiter funguntur].54 From the twelfth century onward, medieval Roman and canon lawyers (and theologians) regularly cited and built upon this opinion. They came to recognize that a common market price was the most dependable guide to the determination of economic value, and by the thirteenth century this recognition had given rise to the often repeated legal tag, ‘‘A thing is worth what it can be sold for commonly’’ [Res tantum valet quantum vendi potest communiter], adding the qualifier communiter to the original Roman law tag. Why did the legists add communiter? Because they had come to recognize that the range of common estimation in the marketplace (aestimatio communis in foro) was the best guide to the limits of the licit in pricing. It is in this central principle of medieval economic thought, worked out countless times each day in the marketplaces of Oresme’s France, that we again find the parallel to his rejection of the private and the personal in favor of the common. At the root of all social ideals in this period, whether the just price or the common good, stood the ideal of law and legal justice. As Oresme wrote in his commentary to the Ethics: ‘‘All the virtues together are contained within legal justice’’ (En justice legal est contenue toute vertu ensemble).55 At the same time, it is not easy to determine whether the ideal of law or the social

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ideal of the common good took precedence in his thinking because they were so intertwined: the common good required the existence of law, and law existed essentially to serve the common good (les lays doivent estre pour tel bien commun), and any law that did not serve the community was, ipso facto, not a true law.56 He was far from original in his thinking in this area. A century before Oresme wrote his commentary on the Politics, Thomas Aquinas enunciated a strikingly similar set of opinions. In his questions on law in the Summa Theologiae, written c. 1270, Thomas wrote (to take but one of many examples), ‘‘Consequently, since the law is chiefly ordained to the common good, any other precept in regard to some individual work must needs be devoid of the nature of a law, save in so far as it regards the common good.’’57 Like Oresme, and in accordance with an ancient tradition within the law itself, Thomas was equally insistent on linking law to the requirement for open knowledge and public dissemination, stating emphatically that a secret law was no law at all and that public proclamation was necessary for a law to obtain its force.58 If by the mid-thirteenth century it had become normal for philosophers and theologians to identify law with the common good, the lawyers themselves were cautious on this question—forced to be so because of the enormous powers granted to the person of the emperor in Roman law. It is true that the important legal and legislative principle, also found in Roman law, ‘‘What touches all must be approved by all,’’ invoked continually from the twelfth century on, placed the ideal of common judgment and common assent at the center of legal and institutional development.59 But only in the fourteenth and early fifteenth century with the writings of the great legal commentators Bartolus, Baldus (near contemporaries of Oresme), and, most definitively, Panormitanus did the common good come to be accepted as the ultimate arbiter in law, the single norm by which the personal power of the prince could be circumscribed.60 Oresme had no such hesitations: in the realm of law the common trumped the private at every turn. Indeed, he used the well-established identification of law with the common good to construct, as was his habit, a definitional boundary between the licit and the illicit. Here is the lapidary definition he chose for the term ‘‘illegal’’ in the extensive glossary that he appended (for the benefit of his non-university reading public) to his commentary on the Politics: ‘‘That is illegal which disregards the laws established for the common good and which does not hold to their conventions.’’61 In the eyes of thinkers in the scholastic tradition, whether from the point of view of legist, philosopher, or theologian, law was the training in-

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strument par excellence, imposing rule and measure on the recalcitrant for the good of the community.62 But one of the great unintended consequences of the growth of law in the medieval period is that it trained the minds of those who used it and thought about it as much or more than the behavior of those it punished. As law continued to expand in scope and power, it taught an entire intellectual culture steeped in religious and transcendent ideals to see the benefits of thinking in terms of degrees rather than absolutes, of ranges and latitudes rather than individual points, of aggregates and averages rather than the singular, of probabilities rather than certainties, and of the attainable imperfect rather than perfections.63 It taught how to measure, order, regularize, and categorize the all-too-present disorders and irregularities of life. It taught that problems were to be solved and questions were to be answered by recourse to open disputation guided by tests and conventions commonly known and agreed upon. And in its many forms, Roman, canon, and customary, and on many registers, law privileged the value of group or common judgment, often recognizing it explicitly as a corrective to the private and the personal. These intellectual lessons and mental habits associated with law, when brought into the sphere of scholastic natural philosophy, helped to transform the study of nature, and, as it turned out, proved to be instrumental in preparing the way for modern science.64

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Abbreviations

AHR Cod.

Cod. Theod. Dig.

EME Glanvill

Gratian Inst His Res JMH Magician MGH MS PL P&M

ST X

American Historical Review. Codex Iustinianus, in Corpus Iuris Civilis, ed. Paul Krueger, Theodor Mommsen, Rudolf Schoell, and Wilhelm Kroll 3 vols. (Berlin, 1872–95, rpt. 1963–65), vol. 2. Codex Theodosianus, ed. Paul Krueger and Theodor Mommsen, 3 vols. (Berlin, 1905; rpt. 1990). Digestum, in Corpus Iuris Civilis ed. Paul Krueger, Theodor Mommsen, Rudolf Schoell and Wilhelm Kroll 3 vols. (Berlin, 1872–95, rpt. 1963–65), vol. 1. Early Medieval Europe. The treatise on the laws and customs of the realm of England commonly called Glanvill, ed. G. D. G. Hall (London, 1965; rpt. with same pagination, Oxford, 1993). Decretum Gratiani, in Corpus iuris canonici, ed. Emil Friedberg, 2 vols. (Leipzig, 1879–81, rpt. Graz, 1959), vol. 1. Bulletin of the Institute of Historical Research. Journal of Medieval History. Edward Peters, The Magician, the Witch, and the Law (Philadelphia, 1978). Monumenta Germaniae Historica. Mediaeval Studies. Patrologia Cursus Completus, Series Latina, ed. J. P. Migne, 221 vols. (Paris, 1841–64). Frederick Pollock and Frederic William Maitland, A History of English Law Before the Time of Edward I , 2 vols., 2nd ed. (Cambridge, 1898). Thomas Aquinas, Summa Theologiae, parts I–III (Milano, 1992). Liber extra (Decretales Gregorii IX), in Emil Friedberg, Corpus iuris canonici, 2 vols. (Leipzig, 1879–81; rpt. Graz, 1959), vol. 2.

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Notes

Introduction. The Reordering of Law and the Illicit in Eleventh- and TwelfthCentury Europe An earlier version of this chapter was presented to the National Endowment for the Humanities Summer Seminar at Darwin College, Cambridge, directed by Richard Newhauser in July 2006. I am grateful to the members of the seminar and to Richard Newhauser for their invitation, lively interest, and comments. This overview is dedicated to the editors and contributors of this volume. 1. For the later tenth century there is a vivid contrast between perceived order and disorder of this kind in Heinrich Fichtenau, Living in the Tenth Century: Mentalities and Social Orders, trans. Patrick J. Geary (Chicago, 1991), 3–77, 381–434. 2. I can take little notice here of the ‘‘transformation-mutation’’ debate that deals, still contentiously, with the political, social, and economic change in the period, or of the argument that the late eleventh-century papacy alone was the major agent of change. For references, see below, nn. 5, 13. 3. Glanvill, 2–3. On the nature of prologues to legal treatises in the period, Robert Somerville and Bruce C. Brasington, Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–1245 (New Haven, Conn., 1998). On twelfthcentury ideas about custom and law, Andre´ Gouron, ‘‘Coutume contre loi chez les premiers glossateurs,’’ in Renaissance du pouvoir le´gislatif et gene`se de l’e´tat, ed. Andre´ Gouron and Albert Rigaudie`re (Montpellier, 1988), 117–30, and Kenneth Pennington, ‘‘Law, Legislative Authority and Theories of Government, 1150–1300,’’ chap. 15.1 of The Cambridge History of Medieval Political Thought c. 350–c. 1450, ed. J. H. Burns (Cambridge, 1988), 424–53. 4. On Glanvill generally, T. F. T. Plucknett, Early English Legal Literature (Cambridge, 1958), 30–41; R. C. Van Caenegem, The Birth of the English Common Law (Cambridge, 1973), 1–4, and Michael T. Clanchy, From Memory to Written Record, England 1066–1307, 2nd ed. (Oxford, 1993), 231–39. 5. On the model, Edward Peters, ‘‘Moore’s Eleventh and Twelfth Centuries: Travels in the Agro-Literate Polity,’’ in Heresy and the Persecuting Society in the Middle Ages: Essays on the Work of R. I. Moore, ed. Michael Frassetto (Leiden, 2006), 11–29. And for an elegant and lucid account, R. I. Moore, The First European Revolution c. 970–1215 (Oxford, 2000). 6. E.g., the Leges Edwardi Confessoris: Bruce R. O’Brien, God’s Peace and King’s Peace: The Laws of Edward the Confessor (Philadelphia, 1999), 30–36. Further on king and magnates, Timothy Reuter, ‘‘Assembly Politics in Western Europe from

242

Notes to Pages 3–6

the Eighth Century to the Twelfth,’’ in The Medieval World, ed. Peter Linehan and Janet L. Nelson (London, 2001), 432–50, and Janet L. Nelson, ‘‘Peers in the Early Middle Ages,’’ in Law, Laity and Solidarities: Essays in Honour of Susan Reynolds, ed. Pauline Stafford, Janet L. Nelson, and Jane Martindale (Manchester, 2001), 27–46. 7. The classic works are those of Clanchy, From Memory to Written Record, and Brian Stock, The Implications of Literacy: Written Language and Models of Interpretation in the Eleventh and Twelfth Centuries (Princeton, N.J., 1983). 8. Peter Landau, ‘‘The Development of Law,’’ in The New Cambridge Medieval History, vol. 4, c. 1024–c. 1198, Part I, ed. David Luscombe and Jonathan RileySmith (Cambridge, 2004), 113 –47, at 113. A new approach connecting the earlier and later periods and focusing on the growth of informal expertise before the emergence of learned professional law and lawyers can be seen in the essay by Susan Reynolds, ‘‘The Emergence of Professional Law in the Long Twelfth Century,’’ and the comments on it by Piotr Go´recki, Charles M. Radding, and Paul Brand in ‘‘Forum: The Emergence of Professional Law,’’ Law and History Review 21 (2003): 347–91, and in Susan Reynolds, ‘‘Medieval Law,’’ in Linehan and Nelson, The Medieval World, 485–502. 9. On earlier attempts, see Plucknett, Early English Legal Literature, 24–30. An important supplement in the case of England is O’Brien, God’s Peace and King’s Peace, esp. 8–20, and, for Glanvill, 114–18. See also Jonathan Bush, ed., English Legal Treatises, 1000–1800: Explorations and Reassessments (London, forthcoming), cited by O’Brien, 254–55, n. 57. 10. Janet L. Nelson, ‘‘Literacy in Carolingian Government,’’ in The Uses of Literacy in Early Medieval Europe, ed. Rosamond McKitterick (Cambridge, 1990), 258– 96, and other essays in the same volume, as well as the earlier work of Rosamond McKitterick, The Carolingians and the Written Word (Cambridge, 1989), 23–75. 11. See the discussion of Lombard law and the Libri Feudorum in Susan Reynolds, Fiefs and Vassals (Oxford, 1994), 182–240. 12. Detlev Jasper and Horst Fuhrmann, Papal Letters in the Early Middle Ages (Washington, D.C., 2001), 135–95. 13. Clanchy, From Memory to Written Record. There is a vivid summary description in Wendy Davies, ‘‘Local Participation and Legal Ritual in Early Medieval Law Courts,’’ in The Moral World of the Law, ed. Peter Coss (Cambridge, 2000), 48–61. The entire volume is useful for our purposes, especially Chris Wickham, ‘‘Conclusion,’’ 240–49. See also M. T. Clanchy, ‘‘Medieval Mentalities and Primitive Legal Practice,’’ in Stafford et al., Law, Laity and Solidarities, 83–94, as well as other studies in the same volume. 14. There is an abundant literature, perhaps best begun with Patrick J. Geary, ‘‘Living with Conflicts in Stateless France: A Typology of Conflict Management Mechanisms, 1050–1200,’’ rpt. in Geary, Living with the Dead in the Middle Ages (Ithaca, N.Y., 1994), 125–60. The most important analysis is found in the essays of Stephen D. White, collected in his Feuding and Peace-Making in Eleventh-Century France (Aldershot, 2005), especially the long review essays 8 and 9. For the continuity of many of these forms beyond the legal revolution, Paul Hyams, Rancor and Reconciliation in Medieval England (Ithaca, N.Y., 2003), esp. 3–70. 15. I have described these excepted crimes and cited most of the scholarly lit-

Notes to Pages 6–8

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erature on the growth of criminal law from the fourth century through the later Middle Ages in ‘‘Crimen exceptum: The History of an Idea,’’ in Proceedings of the Tenth International Congress of Medieval Canon Law, Syracuse, New York, 13–18 August 1996, ed. Kenneth Pennington, Stanley Chodorow, and Keith H. Kendall (Vatican City, 2001), 137–94. On clerical celibacy, see the excellent collection of papers edited by Michael Frassetto, Medieval Purity and Piety: Essays on Clerical Celibacy and Religious Reform (New York, 1998). On reputation, Thelma Fenster and Daniel Lord Smail, eds., Fama: The Politics of Talk and Reputation in Medieval Europe (Ithaca, N.Y., 2003). 16. On the beginnings of the attempt to find a principle-driven, systematic canon law in the early eleventh century, see Greta Austin, ‘‘Jurisprudence in the Service of Pastoral Care: The Decretum of Burchard of Worms,’’ Speculum 79 (2004): 929–59. On canon law’s complex relation to the eleventh-century papacy, Uta-Renate Blumenthal, ‘‘The Papacy and Canon Law in the Eleventh-Century Reform,’’ Catholic Historical Review 84 (1998): 201–18. On the later development of the formal study of learned Roman law, Anders Winroth, The Making of Gratian’s Decretum (Cambridge, 2000), esp. 146–74, and Paul Hyams, ‘‘Due Process Versus the Maintenance of Order in European Law: The Contribution of the Ius Commune,’’ in Coss, The Moral World of the Law, 62–90. The best introduction to canon law is James A. Brundage, Medieval Canon Law (London, 1995), along with the brilliant interpretive book by Richard Helmholz, The Spirit of Classical Canon Law (Athens, Ga., 1996). 17. There is a catalog in Cyrille Vogel, ‘‘Les sanctions inflige´es aux laics et aux clercs par les conciles gallo-romaines et merovingiens,’’ Revue de droit canonique 2 (1952): 171–94, 311–28. 18. Patrick J. Geary, ‘‘Humiliation of Saints,’’ and ‘‘Coercion of Saints in Medieval Religious Practice,’’ both in Geary, Living with the Dead, 95–115, 116–24; Lester K. Little, Benedictine Maledictions: Liturgical Cursing in Romanesque France (Ithaca, N.Y., 1993). 19. Susan Reynolds, ‘‘Social Mentalities and the Case of Medieval Scepticism,’’ Transactions of the Royal Historical Society 6th ser. 1 (1991): 21–41. 20. And hence through canon law influenced areas of non-Roman law: R. H. Helmholz, Canon Law and the Law of England (London, 1987). 21. An early stage of the process is discussed in Kathleen G. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca (Oxford, 1998). 22. The best treatment is Manlio Bellomo, The Common Legal Past of Europe, 1000–1800, trans. Lydia G. Cochrane (Washington, D.C., 1995). 23. Thomas Head and Richard Landes, eds., The Peace of God: Social Violence and Religious Response in France Around the Year 1000 (Ithaca, N.Y., 1992), and the review by Janet L. Nelson in Speculum 69 (1994): 163–69. 24. Four broad studies offer complementary views of the entire process and range of reform thought: Colin Morris, The Papal Monarchy: The Western Church from 1050 to 1250 (Oxford, 1989); Gerd Tellenbach, The Church in Western Europe from the Tenth to the Early Twelfth Century (Cambridge, 1993); Giles Constable, The Reformation of the Twelfth Century (Cambridge, 1996); and most recently Kathleen

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Notes to Pages 9–17

G. Cushing, Reform and the Papacy in the Eleventh Century: Spirituality and Social Change (Manchester, 2005). 25. R. W. Southern, Western Society and the Church in the Middle Ages (Harmondsworth, 1970), 16. 26. Discussed extensively by Luigi Prosdocimi in ‘‘Chierici e laici nella societa` occidentale del secolo XII: A proposito di Decr. Grat. C. 12 q. 1. c. 7 Duo sunt genera Christianorum,’’ in Proceedings of the Second International Congress of Medieval Canon Law, Boston, 1963 (Vatican City, 1965), 105–22; idem, ‘‘Lo stato di vita laicale nel diritto canonico dei secoli XI e XII,’’ in I laici nella ‘‘societas christiana’’ dei secoli XI e XII, Miscellanea del Centro di Studi Medievali 5 (Milan, 1968), 56–82. 27. Johannes Laudage, Priesterbild und Reformpapsttum im 11. Jahrhundert (Cologne, 1984); M.-D. Chenu, ‘‘Monks, Canons, and Laymen in Search of the Apostolic Life,’’ in Chenu, Nature, Man, and Society in the Twelfth Century, ed. and trans. Jerome Taylor and Lester K. Little (Chicago, 1968), 202–38. 28. Dyan Elliott, ‘‘Dressing and Undressing the Clergy: Rites of Ordination and Degradation,’’ in Medieval Fabrications: Dress, Textiles, Clothwork, and Other Cultural Imaginings, ed. E. Jane Burns (New York, 2004), 55–69, 219–22. 29. Amy Remensnyder, ‘‘Pollution, Purity, and Peace: An Aspect of Social Reform between the Late Tenth Century and 1076,’’ in Head and Landes, The Peace of God, 180–307; Cushing, Reform and the Papacy, 111–38, with further literature cited. 30. Gerd Tellenbach, Church, State and Christian Society at the Time of the Investiture Contest, trans. R. F. Bennett (Oxford, 1940), 131; R. I. Moore, ‘‘Heresy as Disease,’’ in, The Concept of Heresy in the Middle Ages (11th–13th C.), ed. W. Lourdaux and D. Verhelst (Leuven, 1983), 1–11. 31. Peter Godman, The Silent Masters: Latin Literature and Its Censors in the High Middle Ages (Princeton, N.J., 2000). 32. John Gillingham, ‘‘From Civilitas to Civility: Codes of Manners in Medieval and Early Modern England,’’ Transactions of the Royal Historical Society 6th ser. 12 (2002): 267–89. 33. R. I. Moore, The Formation of a Persecuting Society: Power and Deviance in Western Europe, 950–1250 (Oxford, 1987), See also Frassetto, Heresy and the Persecuting Society, the most recent reassessment of Moore’s thesis, and Moore, The First European Revolution, a considered revision, as well as Moore, ‘‘Afterthoughts on The Origins of European Dissent,’’ in Heresy and the Persecuting Society, 291–326. 34. John Bossy, Christianity in the West 1400–1700 (Oxford, 1985), 57–75. 35. Helmholz, The Spirit of Classical Canon Law, 339–93.

Chapter 1. A Fresh Look at Medieval Sanctuary 1. These remarks draw especially on Pierre Timbal (Duclaux de Martin), Le Droit d’asile (Paris, 1939), 8–117, 197–225. See also Norman Trenholme, ‘‘The Right of Sanctuary in England: A Study in Institutional History,’’ University of Missouri Studies 1, 5 (1903): 2–20; R. F. Hunnisett, The Medieval Coroner (Cambridge, 1961), 37–54; Leopold Bolesta-Koziebrodski, Le Droit d’asile (Leiden, 1962), 47; John Bel-

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lamy, Crime and Public Order in England in the Later Middle Ages (London, 1973), 106–11; Gervase Rosser, ‘‘Sanctuary and Social Negotiation,’’ in The Cloister and the World: Essays in Medieval History in Honour of Barbara Harvey, ed. John Blair and Brian Golding (Oxford, 1996), 61–62; and Richard Helmholz, The Ius commune in England: Four Studies (Oxford, 2001), 16–81. 2. See Timbal, Droit d’asile, 64–66, 185–256. Unless otherwise indicated and to reduce the number and length of notes, the information I provide on this subject comes from these pages. On the now prevalent notion of a (Catholic) European ius commune based in canonistic longings but with extensive and significant practical resonances, see Manlio Bellomo, The Common Legal Past of Europe, 1000–1800, trans. Lydia Cochrane (Washington, D.C., 1995), and, more polemically, Kenneth Pennington, ‘‘Learned Law, Droit savant, gelehrtes Recht: The Tyranny of a Concept,’’ Syracuse Journal of International Law and Commerce 20 (1994): 205–15. 3. Helmholz, Ius commune, 22, 67–68. 4. See Andre´ Re´ville, ‘‘ ‘Abjuratio regni’: Histoire d’une institution anglaise,’’ Revue historique 50 (1892): 31–33; J. Charles Cox, The Sanctuaries and Sanctuary Seekers of Mediaeval England (London, 1911), 17, 21–22, 53–182, 195–226; Trenholme, ‘‘Right of Sanctuary,’’ 25–31, 47–60; Isobel Thornley, ‘‘Sanctuary in Medieval London,’’ Journal of the British Archaeological Association n.s. 38 (1933): 299–315; Marjorie J. Honeybourne, ‘‘The Sanctuary Boundaries and Environs of Westminster Abbey and the College of Saint-Martin-le-Grand,’’ Journal of the British Archaeological Association n.s. 38 (1933): 316–33. 5. England had approximately 9,000 parish churches and in excess of 1,300 other churches and chapels in hospitals and the like: Rosser, ‘‘Sanctuary and Social Negotiation,’’ 65; Carole Rawcliffe, ‘‘Passports to Paradise: How English Medieval Hospitals and Almshouses Kept Their Archives,’’ Archives (London) 27 (2002): 2–22. Northern France had approximately 18,000 parish churches and plausibly a number of other churches in roughly similar proportion to that in England; cf. William Jordan, ‘‘Honouring Saint Louis in a Small Town,’’ JMH 30 (2004): 271–72. 6. Jill Webster, El Menorets: The Franciscans in the Realms of Aragon from St. Francis to the Black Death, Studies and Texts 114 (Toronto, 1993), 187 n. 35. Castile’s Siete partidas affirms aspects of the law of sanctuary, but, of course, it was not a code of law; see Helmholz, Ius commune, 19 n. 12. 7. Augustine Thompson, Cities of God: The Religion of the Italian Communes, 1125–1325 (University Park, Pa., 2005); the unhelpful reference directs the reader to page 39. 8. See Guy Geltner, ‘‘Medieval Prisons: Marginality at the City Center, 1250– 1400,’’ Ph.D. dissertation, Princeton University, 2006, 81, 122–26. 9. Geltner, ‘‘Medieval Prisons,’’ 69–75; Helmholz, Ius commune, 32–33. 10. Kenneth Pennington, ‘‘The Birth of the Ius commune: King Roger II’s Legislation,’’ Rivista internazionale di diritto comune 16 (2005), forthcoming. 11. Mu¨ller expressed this view in a detailed personal communication of 24 February 2006. See also Wolfgang Mu¨ller, Die Abtreibung: Anfa¨nge der Kriminalisierung, 1140–1650, Forschungen zur kirchlichen Rechtsgeschichte und zum Kirchenrecht 24 (Cologne, 2000). 12. Helmholz, Ius commune, 28–29.

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Notes to Pages 21–23

13. Innocent III had not wanted to extend the privilege of sanctuary to public thieves and nocturnal miscreants: Helmholz, Ius commune, 34, 39, 58. On treason, see below. 14. Besides the work of Timbal, see Re´ville, ‘‘Abjuratio regni,‘‘ 20; Cox, Sanctuaries, 230; Trenholme, ‘‘Right of Sanctuary,’’ 42–43; Thornley, ‘‘Sanctuary,’’ 295; Helmholz, Ius commune, 34, 51–56. 15. Helmholz, Ius commune, 33. 16. Helmholz, Ius commune, 60–61; Cox, Sanctuaries, 19–21. 17. Re´ville, ‘‘Abjuratio,’’ 20–22; Cox, Sanctuaries, 301; Trenholme, ‘‘Right of Sanctuary,’’ 43. 18. Along with Timbal’s work, see Cox, Sanctuaries, 4, and Helmholz, Ius commune, 38, 48–49. 19. Pennington, ‘‘Birth of the Ius commune’’; Helmholz, Ius commune, 33. 20. Timbal, Droit d’asile, 234–35. 21. For the gender breakdown with respect to sanctuary seekers, see Cox, Sanctuaries, 275–76, 281–83, 287, 302; Trenholme, ‘‘Right of Sanctuary,’’ 42–43, 69; Thornley, ‘‘Sanctuary,’’ 295; Re´ville, ‘‘Abjuratio,’’ 25. For the gender breakdown for criminal process and conviction in England and on the Continent, see Barbara Hanawalt, Crime and Conflict in English Communities, 1300–1348 (Cambridge, Mass., 1979), 115–17; William Jordan, Louis IX and the Challenge of the Crusade: A Study in Rulership (Princeton, N.J., 1979), 236; Trevor Dean, Crime in Medieval Europe, 1200– 1650 (Harlow, 2001), 77; Geltner, ‘‘Medieval Prisons,’’ 102. 22. Re´ville, ‘‘Abjuratio,’’ 19; Trenholme, ‘‘Right of Sanctuary,’’ 42. 23. In the earliest phase of the regular use of the criminal trial jury (the first few years beginning in 1219), exile followed acquittal, but this ceased in the mid1220s. Cf. Roger Groot, ‘‘The Early-Thirteenth-Century Criminal Jury,’’ in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. Thomas Green and J. S. Cockburn (Princeton, N.J., 1988), 35; Thomas Green, ‘‘A Retrospective on the Criminal Trial Jury, 1200–1800) in the same volume, 362; Henry Summerson, ‘‘Attitudes to Capital Punishment in England, 1200–1350,’’ ThirteenthCentury England 8 (2001): 123–33. 24. In addition to remarks scattered in Timbal (note 1), see Trenholme, ‘‘Right of Sanctuary,’’ 33. 25. Hunnisett, Medieval Coroner, 39. 26. Westminster Abbey Charters, 1066–c. 1214, ed. Emma Mason (London, 1988), 135 no. 272 (dated 1138–54). 27. Westminster Abbey Charters, 195–96 no. 349. See also Bellamy, Crime and Public Order, 107. That the Westminster oaths specifically were in continuous use there is suggested by an inframarginal notation indicating that they were reenrolled in a subsequent register in the late fourteenth century. The reenrollment can be found in London, Westminster Abbey Muniments (WAM), Book 1 (Liber Niger), fol. cxxxix verso. 28. Re´ville, ‘‘Abjuratio,’’ 28. 29. To the observations of Timbal, add Hunnisett, Medieval Coroner, 39–40; Trenholme, ‘‘Right of Sanctuary,’’ 33; Thornley, ‘‘Sanctuary,’’ 295–96. 30. Besides Timbal, refer to Cox, Sanctuaries, 256.

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31. Cf. Helmholz, Ius commune, 18–19; Trenholme, ‘‘Right of Sanctuary,’’ 34–35; Re´ville, ‘‘Abjuratio,’’ 16; Hunnisett, Medieval Coroner, 37–38. Two imperial cities, Augsburg and Strasbourg, permitted only three days. 32. Helmholz, Ius commune, 31–32. 33. Branding with the fleur-de-lys was fairly common in criminal procedure in France; see the examples in Robert Fawtier, ‘‘Un compte de menues de´penses de l’Hoˆtel du roi Philippe VI le Valois pour le premier semestre de l’anne´e 1337,’’ in Autour de la France cape´tienne: Personnages et institutions, ed. Jeanne Stone (London, 1987), xvi, 24, 26 nos. 174, 194. 34. Timbal, Droit d’asile, 237, 256. 35. Re´ville, ‘‘Abjuratio,’’ 3–9; see also Bellamy, Crime and Public Order, 111–14; Hunnisett, Medieval Coroner, 44–50. 36. Hunnisett, Medieval Coroner, 41–42, cf. 51–54. 37. Trenholme, ‘‘Right of Sanctuary,’’ 33–36; Thornley, ‘‘Sanctuary,’’ 295. 38. Trenholme, ‘‘Right of Sanctuary,’’ 35 n. 11; Hunnisett, Medieval Coroner, 48. 39. See Hunnisett, Medieval Coroner, 52–53. 40. Re´ville, ‘‘Abjuratio,’’ 18; Cox, Sanctuaries, 262; Trenholme, ‘‘Right of Sanctuary,’’ 43. 41. Re´ville, ‘‘Abjuratio,’’ 19. 42. For the information in this paragraph, unless otherwise indicated, see Re´ville, ‘‘Abjuratio,’’ 16–17, 21. 43. Hunnisett, Medieval Coroner, 46–47. 44. Trenholme, ‘‘Right of Sanctuary,’’ 37. 45. Hunnisett, Medieval Coroner, 46. 46. Trenholme, ‘‘Right of Sanctuary,’’ 42. 47. Cox, Sanctuaries, 250; Trenholme, ‘‘Right of Sanctuary,’’ 74; Helmholz, Ius commune, 19, 65. 48. Hunnisett, Medieval Coroner, 44; Helmholz, Ius commune, 61. 49. Re´ville, ‘‘Abjuratio,’’ 15–16; Trenholme, ‘‘Right of Sanctuary,’’ 38–39. 50. P&M, 2: 651–52. 51. Cox, Sanctuaries, 25–26; Trenholme, ‘‘Right of Sanctuary,’’ 41–42. 52. Cox, Sanctuaries, 26, 28–29. 53. The remarks in this paragraph have been synthesized from Re´ville, ‘‘Abjuratio,’’ 17–18, 26; Cox, Sanctuaries, 32, 262, 275, 277; Trenholme, ‘‘Right of Sanctuary,’’ 41, 44, 69. 54. Paul Brand, ‘‘Chief Justice and Felon: The Career of Thomas Weyland,’’ in Brand, The Making of the Common Law (London, 1992), 113. 55. Bellamy, Crime and Public Order, 112. 56. Alan Cooper, ‘‘The Rise and Fall of the Anglo-Saxon Law of the Highway,’’ Haskins Society Journal 12 (2002): 39, 69. 57. This opinion is implied also in Bellamy, Crime and Public Order, 112. 58. Hunnisett, Medieval Coroner, 47–49. 59. Ralph Pugh, ‘‘Early Registers of English Outlaws,’’ American Journal of Legal History 27 (1983): 319–29. 60. Trenholme, ‘‘Right of Sanctuary,’’ 69.

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Notes to Pages 26–30

61. Hunnisett, Medieval Coroner, 51. 62. Trenholme, ‘‘Right of Sanctuary,’’ 25, 38, 41; Re´ville, ‘‘Abjuratio,’’ 18, 21–22; Cox, Sanctuaries, 33. 63. Theoretically, after a sufficient interval, failure to persuade a ship to board them gave them the right to enter sanctuary again at the port, but the absence of all evidence that this ever occurred (Hunnisett, Medieval Coroner, 49), though an argument from silence, suggests the regularity of traffic and the dependability of certain ship captains. 64. For the various estimates, see Cox, Sanctuaries, 33; Trenholme, ‘‘Right of Sanctuary,’’ 25; Hunnisett, Medieval Coroner, 38 (extrapolated from his figure for Sussex, which he regarded as typical). 65. Michel Nortier and John Baldwin, ‘‘Contributions a` l’e´tude des finances de Philippe Auguste,’’ Bibliothe`que de l’Ecole des chartes 138 (1980): 14. 66. Mason, Westminster Abbey and Its People, 111–12. 67. WAM, nos. 9602, 9603, 9595–97, 9599, 9600, 63713. 68. Timbal, Droit d’asile, 245–47; Cox, Sanctuaries, 35–44, 51–52, 229–31; Trenholme, ‘‘Right of Sanctuary,’’ 74, 77–82; Thornley, ‘‘Sanctuary,’’ 297–98. 69. Timbal, Droit d’asile, 195–96, 207, 247; Cox, Sanctuaries, 247. 70. Actes du Parlement de Paris, 2 vols., ed. Edgar Boutaric (Paris, 1863–67), 2: 26 no. 3245. A famous case in England in 1378, that of Robert Hawley, similar in that Parliament reaffirmed sanctuary after a nasty violation, is summarized in Original Papal Documents in the Lambeth Palace Library: A Catalogue, Inst His Res 34 no. 93 (London, 1967). 71. Re´ville, ‘‘Abjuratio,’’ 29–31. 72. Cox, Sanctuaries, 230, 232–33, 237–39. 73. Esther Cohen, ‘‘Le Vagabondage a` Paris au XIVe sie`cle: Analyse conceptuelle,’’ Le Moyen Age (1982): 293–313. 74. C. A. F. Meekings and David Crook, eds., The 1235 Surrey Eyre, 2 vols. Surrey Record Society Publications 32 (Guildford, 1979–83), 2: 434 no. 567. 75. On the law of treason, see J. G. Bellamy, The Law of Treason in England in the Later Middle Ages (Cambridge, 1970); S. H. Cuttler, The Law of Treason and Treason Trials in Later Medieval France (Cambridge, 1981). For some of the causes ce´le`bres, see Cox, Sanctuaries, 45, 319; Thornley, ‘‘Sanctuary,’’ 306–7; Isobel Thornley, ‘‘The Destruction of Sanctuary,’’ in Tudor Studies Presented by the Board of Studies in History in the University of London to Albert Frederick Pollard, ed. R. W. Seton-Watson (London, 1924),182–207; Trenholme, ‘‘Right of Sanctuary,’’ 44–45; E. W. Ives, ‘‘Crime, Sanctuary, and Royal Authority Under Henry VIII: The Exemplary Sufferings of the Savage Family,’’ in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. Morris Arnold et al. (Chapel Hill, N.C., 1981), 296–320; Cuttler, Law of Treason, 142–237. 76. Helmholz, Ius commune, 22. 77. Trenholme, ‘‘Right of Sanctuary,’’ 1–2, 94–98; Timbal, Droit d’asile, 261– 452; Re´ville, ‘‘Abjuratio,’’ 34–41. 78. Timbal, Droit d’asile, 255. 79. Rosser, ‘‘Sanctuary,’’ 74. 80. Rosser, ‘‘Sanctuary,’’ 65, 74; cf. Cox, Sanctuaries, 265. I think the analogy

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to ordeal is a strong one, although the consensus theory associated with Peter Brown and Paul Hyams has its critics; see Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford, 1986), 34–42. 81. Krista Kesselring, ‘‘Abjuration and Its Demise: The Changing Face of Royal Justice in the Tudor Period,’’ Canadian Journal of History 34 (1999): 345–58. 82. The expectation that felons would get off in ordeals is constant and complicates historians’ understanding of their persistence; the best treatment is Bartlett’s Trial by Fire. 83. Douglas Haye et al., eds., Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York, 1975). 84. Bellamy, Crime and Public Order, 109. 85. For a typical example, see Ignatius Bau, This Ground Is Holy: Church Sanctuary and Central American Refugees (Mahwah, N.J., 1985).

Chapter 2. Heresy as Politics and the Politics of Heresy, 1022–1180 1. Peters, Magician, 49. 2. Heinrich Fichtenau, Heretics and Scholars in the High Middle Ages (University Park, Pa.. 1998). 3. Peters, Magician, 38–39. 4. Compare the story of a young woman burned at Cologne in 1163, R. I. Moore, The Birth of Popular Heresy (London, 1975), 88–89, but the courage of heretics at the stake became something of a topos at this time. 5. Below, n. 38. 6. R. H. Bautier, ‘‘L’he´re´sie d’Orle´ans et le mouvement intellectuel au de´but du XIe. sie`cle,’’ Actes du 95e. Congre`s national des socie´te´s savantes (Reims, 1970), Section philologique et historique (Paris, 1975), 63–88; see also Georges Duby, The Knight, the Lady and the Priest: The Making of Modern Marriage in Medieval France, trans. Barbara Bray (London, 1984), 75–84. 7. Gesta Synodi Aurelianensis, Bouquet, Receuil des historiens de Gaule et de la France, 10: 536–39, trans. Moore, Popular Heresy, 10–15. 8. R. H. Bautier and Gillette Labory, eds., Andre´ de Fleury, Vie de Gauzlin, abbe´ de Fleury (Paris, 1969), 96–103, 180–83. 9. He was the brother of Duke Richard I’s wife Gunnor, but in spite of his rank not obviously a powerful political figure; see Eleanor Searle, Predatory Kinship and Norman Power, 840–1066 (Berkeley, Calif., 1988), 100–101, 103, 115–16. 10. John France, Nithard Bulst, and Paul Reynolds, Rodulfus Glaber Opera (Oxford, 1989), 138. 11. Among many discussions, see further R. I. Moore, The Origins of European Dissent (London, 1977), 24–30; Brian Stock, The Implications of Literacy (Princeton, N.J., 1983), 106–20; Thomas Head, Hagiography and the Cult of Saints: The Diocese of Orle´ans, 800–1200 (Cambridge, 1990), 266–69. 12. Gesta Synodi Aurelianensis, 536–39, trans. Moore, Popular Heresy, 10–15. 13. Peter Brown, ‘‘Sorcery, Demons and the Rise of Christianity: From Late

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Antiquity into the Middle Ages,’’ in Brown, Religion and Society in the Age of St. Augustine (London: 1972), 119–46; Peters, Magician, 16–18. 14. Robert Chazan, Medieval Jewry in Northern France (Baltimore, 1973), 12. 15. Richard Landes, Relics, Apocalyps,e and the Deceits of History: Ademar of Chabannes, 989–1034 (Cambridge Mass., 1995), 178–93. 16. Moore, Popular Heresy, 21; Fichtenau, Heretics and Scholars, 27–28. 17. Margaret Gibson, Lanfranc of Bec (Oxford, 1978), 64–65; Charles M. Radding and Francis Newton, Theology, Rhetoric and Politics in the Eucharistic Controversy, 1078–9: Alberic of Monte Cassino Against Berengar of Tours (New York, 2003), though focused on the later part of Berengar’s career, which does not concern us here, provide a helpful recent account. 18. Durand, Liber de corpore et sanguine Christi, Migne, PL 149, 1373–1424, at 1421–22. 19. Historia calamitatum, trans. Betty Radice, The Letters of Abelard and Heloise, 2nd ed., revised by M. T. Clanchy (London, 2003), 3–4. 20. R. H. Bautier, ‘‘Paris au temps d’Abe´lard,’’ in Abe´lard en son temps, ed. Jean Jolivet (Paris, 1981), 21–77, at 53–75. 21. Bautier, ‘‘Paris,’’ 74–77, surmises that Heloise was related on her father’s side to the Montmorency family, who were connected to the Garlandes, and on her mother’s to that of the vidames of Chartres. 22. Almost suggested by Constant Mews, The Lost Letters of Heloise and Abelard (New York, 1999), 62: ‘‘Stephen has strong connections in Orle´ans. . . . He is well placed to introduce the cultural traditions of Orle´ans and the Loire valley into Paris.’’ 23. Letters of Abelard and Heloise, 251 n. 17; M. T. Clanchy, Abelard: A Medieval Life (Oxford, 1997), 73–74 24. Ibid., 292–95. 25. John of Salisbury, Historia Pontificalis, ed. and trans. Marjorie Chibnall (Edinburgh, 1956), 15–25, at 21; cf. R. W. Southern, Scholastic Humanism and the Unification of Europe, vol. 1, Foundations (Oxford, 1995), 190–91, 225. 26. Historia Pontificalis, 23. 27. Otto of Freising, Gesta Frederici Imperatoris I, lviii, ed. Georg Waitz, MGH, Scriptores rerum Germanicarum in usum scholarum (Hannover and Leipzig, 1912), 82; for John of Salisbury, at 25, diversarum provinciarum archiepiscopis et episcopis. 28. Historia Pontificalis, 23. At 25 John describes these events as taking place non in concilio, sed postea in palatio Tau—in the T–shaped hall of the archbishop’s palace. When Eugenius had spoken to the laity he turned back (conversus) to Gilbert to ask about his commentary on Boethius, de trinitate. Following Miller’s analysis of the liturgical basis of the design of bishops’ halls, we may conclude that the clerks discussed their business in the upper part of the T, corresponding to the transept, while the laity watched from the lower part, corresponding to the nave: Maureen C. Miller, The Bishop’s Palace: Architecture and Authority in Medieval Italy (Ithaca, N.Y., 2000), 173–81. 29. Cf. Constant Mews, ‘‘The Council of Sens (1141): Abelard, Bernard, and the Fear of Social Upheaval,’’ Speculum 77 (2002): 342–82.

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30. Timothy Reuter, ‘‘Assembly Politics in Western Europe from the Eighth Century to the Twelfth,’’ in The Medieval World, ed. Peter Linehan and Janet L. Nelson (London, 2001), 432–50, at 438–39. 31. Wim Verbaal, ‘‘Sens: une victoire d’e´crivain: Les deux visages du proce`s d’Abe´lard,’’ in Pierre Abe´lard: Colloque international de Nantes, ed. Jean Jolivet and Henri Habria (Rennes, 2003), 77–89. I am grateful to David Luscombe for a copy of this paper. 32. Historia calamitatum, 20. 33. Letters of Abelard and Heloise, 290. 34. Reuter, ‘‘Assembly Politics.’’ 35. Christian Lauranson-Rosaz, ‘‘Peace from the Mountains: The Auvergnat Origins of the Peace of God,’’ in The Peace of God: Social Violence and Religious Response Around the Year 1000, ed. Thomas Head and Richard Landes (Ithaca, N.Y., 1992). 36. Guibert de Nogent, Autobiographie iii.17, ed. E. R. Labande (Paris, 1981), 428–35. 37. R. I. Moore, ‘‘Popular Violence and Popular Heresy in Western Europe, c. 1000–1179,’’ in Persecution and Toleration: Papers Read at the Twenty-Second Summer Meeting and the Twenty-Third Winter Meeting of the Ecclesiastical History Society, ed. W. J. Sheils, Studies in Church History 21 (Oxford, 1984), 43–50. 38. Sigebert of Gembloux says only that Eon ‘‘blasphemously discussed and argued about holy books,’’ administered sacraments, and ordained bishops and archbishops among his followers; the much later account of William of Newburgh is another example of the rhetorical elaboration described by Peters in Magician: Moore, Popular Heresy, 62–66. 39. Moore, Popular Heresy; R. I. Moore, ‘‘Afterthoughts on The Origins of European Dissent,’’ in Heresy and Persecution in the Middle Age: Essays on the Work of R. I. Moore, ed. Michael Frassetto (Leiden, 2006), 291–326. 40. Ademar, in Moore, Popular Heresy, 10. 41. Ibid., 24. 42. E.g., respectively, Pierre Bonnassie and Richard Landes, ‘‘Une nouvelle he´re´sie est ne´e dans le monde,’’ in Les socie´te´s me´ridionales autour de l’an mil, ed. M. Zimmermann (Paris, 1992), 435–59; R. I. Moore, The First European Revolution, c. 970–1215 (Oxford, 2001), 7–11, 101–11; and, if I understand him correctly, Dominique Barthe´lemy, L’an mil et la paix de Dieu: La France chre´tienne et fe´odale 980–1060 (Paris, 1999) 43. See Claire Taylor’s thorough and acute discussion in her Heresy in Medieval France: Dualism in Aquitaine and the Agenais, 1000–1249 (Woodbridge, 2005), 55–138. 44. Glaber Opera, 138; Acta synodi Atrebatensis, trans. Moore, Popular Heresy, 16. 45. Guy Lobrichon, ‘‘Arras, 1025, ou le vrai proce`s d’une fausse accusation,’’ in Inventer l’he´re´sie? Discours pole´miques et pouvoirs avant l’inquisition, ed. Monique Zerner (Nice, 1998), 67–85; Lobrichon, ‘‘The Chiaroscuro of Heresy: Early Eleventh–Century Aquitaine as seen from Auxerre’’ in Head and Landes, Peace of God, 80–103.

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46. R. I. Moore, ‘‘The War Against Heresy in Medieval Europe,’’ University of Pennsylvania Henry Charles Lea Memorial Lecture, April 2003, to appear in somewhat revised form in Inst His Res. 47. Dominique Iogna–Prat, Order and Exclusion: Cluny and Christendom Face Heresy, Judaism, and Islam (1000–1150) (Ithaca, N.Y., 1998). 48. Mansi, Concilia xxi, col. 1177.

Chapter 3. Legal Ethics: A Medieval Ghost Story 1. For the requirement of an admissions oath, see Paul Vinogradoff, Roman Law in Medieval Europe (London, 1909; rpt. Cambridge, 1968), 13. For Vinogradoff’s career, see Peter Stein’s entry for Vacarius in the Oxford Dictionary of National Biography, http://www.oxforddnb.com. 2. E.g., Rosamund McKitterick, The Carolingians and the Written Word (Cambridge, 1989), 46–57; McKitterick, ‘‘Some Carolingian Law-Books and Their Function,’’ in Authority and Power: Studies on Medieval Law and Government Presented to Walter Ullmann on His Seventieth Birthday, ed. Brian Tierney and Peter Linehan (Cambridge, 1980), 13–27; Ian Wood, ‘‘The Code in Merovingian Gaul,’’ in The Theodosian Code, ed. Jill Harries and Ian Wood (Ithaca, N.Y., 1993), 161–77; Wood, ‘‘Administration, Law and Culture in Merovingian Gaul,’’ in The Uses of Literacy in Early Medieval Europe, ed. Rosamund McKitterick (Cambridge, 1990; rpt. 1992), 63–81; Jean Gaudemet, Le Bre´viaire d’Alaric et les Epitome, Ius Romanum Medii Ævi (hereafter IRMÆ), Part 1, sec. 2b (Milan, 1965); Gaudemet, ‘‘Survivances romaines dans le droit de la monarchie franque du Ve au Xe sie`cle,’’ Tijdschrift voor Rechtsgeschiedenis 23 (1955): 149–206, both reprinted in his La formation du droit canonique me´die´val (London, 1980), nos. I, II. 3. Vinogradoff, Roman Law, 11; Alan Watson, The Spirit of Roman Law (Athens, Ga., 1995), 205–7; Watson, The Evolution of Law (Baltimore, 1985), 66–67, 93. 4. John A. Crook, Legal Advocacy in the Roman World (London, 1995), 41–45. The extensive literature on the sociology of the professions focuses on current situations and seldom takes much account, if any, of professions prior to the industrial revolution. A notable exception is Michael Burrage, ‘‘The Professions in Sociology and History,’’ in Professions in Theory and History: Rethinking the Study of Professions, ed. Michael Burrage and Rolf Torstendahl (London, 1990), 1–28. 5. The classical period was generally deemed to have run from the reign of Augustus to that of Diocletian: Fritz Schulz, History of Roman Legal Science (Oxford, 1946), 99–101. The evidence for systematic training comes principally from the Enchiridion of Pomponius preserved in Dig. 1.2.2.47–48, 50–53. What we know about Pomponius’s work comes mainly from student notes of lectures delivered before 131 c.e.: Dieter No¨rr, ‘‘Pomponius oder ‘Zum Geschichtsversta¨ndnis der ro¨mischen Juristen,’ ’’ in Aufstieg und Niedergang der ro¨mischen Welt: Geschichte und Kultur Roms im Spiegel der neueren Forschung, ed. Hildegard Temporini and Wolfgang Haase, Part 2, Prinzipat, 45 vols. (Berlin, 1972–), 22 vols. to date), 15: 397–64. I have in addition consulted the translation of the Digest, ed. Alan Watson, 4 vols.

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(Philadelphia, 1985). I cite the Glossa ordinaria of Accursius from the 5-volume edition (Lyon, 1584). For Roman and canon law citation, system see James A. Brundage, Medieval Canon Law (London, 1995), 190–205. 6. Cod. Theod. 14.9.3 ⳱ Cod. 11.19.1; Dig. 27.1.6.12, 50.13.1.5. I have in addition consulted the Theodosian Code and Novels, trans. Clyde Pharr (Princeton, N.J., 1952; rpr. Union, N.J, 2001); see also Edoardo Volterra, ‘‘Western Postclassical Schools,’’ Cambridge Law Journal 10 (1949): 196–207. Organized law schools did continue to function in the Eastern Empire at Constantinople and Beirut, and perhaps at the ‘‘Museum’’ in Smyrna as well; Cod. Theod. 6.21.1 ⳱ Cod. 12.15.1; Crook, Legal Advocacy, 194; Schulz, History of Roman Legal Science, 264 n. 1, 268–69, 272–75. 7. Pierre Riche´, Enseignement du droit en Gaule du VIe au XIe sie`cle, IRMÆ, pt. 1, sec. 5 (Milan, 1965); Pietro Vaccari, Diritto longobardo e letteratura longobardistica intorno al diritto italiano, IRMÆ, vol. 1, pt. 4b, sec. 33 (Milan, 1966), 4–7; Her¨ ber die Entstehung der Digesetenvulgata: Erga¨nzungen zu mann Kantorowicz, U Mommsen (Weimar, 1910), 70–75, 93–110; Lucas F. Bruyning, ‘‘Lawcourt Proceedings in the Lombard Kingdom Before and After the Frankish Conquest,’’ JMH 11 (1985): 193–214, at 194. See also Jacques Fontaine, ‘‘Education and Learning,’’ in The New Cambridge Medieval History, 7 vols. in 8 (Cambridge, 1995–2005), 1: 735–59. 8. Frederick William Maitland,‘‘English Law and the Renaissance,’’ in Select Essays in Anglo-American History, 3 vols. (Boston, 1906–9), 1: 168–207, at 198. 9. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass., 1983), 85–198, 520–38 and passim, argues what might be called the maximalist view. But see, e.g., Rudolf Schieffer, ‘‘’The Papal Revolution in Law?’ ’’ Ru¨ckfragen an Harold J. Berman,’’ Bulletin of Medieval Canon Law (hereafter BMCL) 22 (1998): 19–30. 10. Martin Brett, ‘‘Canon Law and Litigation: The Century Before Gratian,’’ in Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen, ed. M. J. Franklin and Christopher Harper-Bill (Woodbridge, 1995), 21–40; Johannes Fried, ‘‘Die ro¨mische Kurie und die Anfa¨nge der Prozeßliteratur,’’ Zeitschrift der Savigny-Stiftung fu¨r Rechtsgeschichte, Kanonistische Abteilung (hereafter ZRG, KA) 59 (1973): 151–74, at 173–74. 11. Friedrich Carl von Savigny, Geschichte des ro¨mischen Rechts im Mittelalter, 7 vols. (Heidelberg, 1834–52; rpt. Aalen, 1986), remains useful despite its age. On research since Savigny’s time, see especially Stephan Kuttner, ‘‘The Revival of Jurisprudence’’ and Knut Wolfgang No¨rr, ‘‘Institutional Foundations of the New Jurisprudence,’’ in Renaissance and Renewal in the Twelfth Century, ed. Robert L. Benson and Giles Constable (Cambridge, Mass., 1982), 299–323, 324–38; Helmut Coing, ed., Handbuch der Quellen und Literatur der neueren europa¨ischen Privatrechtsgeschichte, vol. 1, Mittelalter (1100–1500) (Munich, 1973); Hermann Lange, Ro¨misches Recht im Mittelalter, vol. 1, Die Glossatoren (Munich, 1997); Peter Stein, Roman Law in European History (Cambridge, 1999). J. A. Clarence Smith, Medieval Law Teachers and Writers, Civilian and Canonist (Ottawa, 1975), is also useful. 12. Brundage, Medieval Canon Law, 44–49; Anders Winroth, The Making of Gratian’s Decretum, Cambridge Studies in Medieval Life and Thought 4th ser. 49 (Cambridge, 2000). 13. Johannes Fried, Die Entstehung des Juristenstandes im 12. Jahrhundert: Zur

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sozialen Stellung und politischen Bedeutung gelehrter Juristen in Bologna und Modena, Forschungen zur neueren Privatrechtsgeschichte 21 (Cologne, 1974), but see. Norbert Horn, ‘‘Bologneser Doctores und Iudices im 12. Jahrhundert und die Rezeption der studierten Berufsjuristen,’’ Zeitschrift fu¨r historische Forschung 3 (1976): 221–32; Andre´ Gouron, ‘‘Medieval Courts and Towns: Examples from Southern France,’’ Fundamina 1 (1992): 30–46, rpt. in Juristes et droits savants: Bologne et la France me´die´vale (Aldershot, 2000), no. 14; Rudolf Weigand, ‘‘Fru¨he Kanonisten und ihre Karriere in der Kirche,’’ ZRG, KA 76 (1990), 135–55, rpt. in his Glossatoren des Dekrets Gratians (Goldbach, 1997), 403*–23*. 14. Gouron, ‘‘Le role de l’avocat selon la doctrine romaniste du douzie`me sie`cle,’’ in L’assistance dans la re´solution des conflits, pt. 4, Recueils de la Socie´te´ Jean Bodin 65 (Brussels: 1998), 7–19, at 15; Dig. 1.1.1.1, 50.13.1.5; Cod. 2.7.20. 15. ‘‘Dat Galienus opes et sanctio Justiniana / Ex aliis paleas, ex istis collige grana.’’ Stephan Kuttner, ‘‘Dat Galiens opes et sanctio Justiniana,’’ in Linguistic and Literary Studies in Honor of Helmut A. Hatzfeld, ed. A. S. Crisafulli (Washington, D.C., 1964), 237–46. at 243; rpt. with additional notes and comments in Kuttner, History of Ideas and Doctrines of Canon Law in the Middle Ages, 2nd ed. (Aldershot, 1992), no. 10. The translation is by Beryl Smalley, The Becket Conflict and the Schools: A Study of Intellectuals in Politics (Oxford, 1973), 19. 16. For advancing clients’ interests, Second Council of Lyon (1274) c. 19, in Decrees of the Ecumenical Councils, ed. Giuseppe Alberigo et al., trans. Norman Tanner et al., 2 vols. (Washington, D.C., 1990), 1: 324. For secrecy, Dig. 48.19.38.8; William Durand, Speculum iudiciale 1.4 De aduocato §3.10 (Basel, 1574; rpt. Aalen, 1975), 1: 266. Cf. American Bar Association, Model Rules of Professional Conduct (2004), Rule 1.6, in Susan R. Martyn, Lawrence J. Fox, and W. Bradley Wendel, The Law Governing Lawyers (New York, 2005), 21. For faithfulness to a client’s interests, Cod. 2.8(9).2; Dig. 4.3.7.9, 47.15.1; Durand, Speculum 1.4 De aduocato §3.11 (1:266). For fees charged, Dig. 50.13.1.10. These criteria remain the basic guidelines to this day; e.g., American Bar Association, Model Rules of Professional Conduct (2004), Rule 1.5, in Martyn, Fox, and Wendel, The Law Governing Lawyers, 19; International Bar Association, International Code of Ethics, in the Law Society Guide to the Professional Conduct of Solicitors, 7th ed. (London, 1996), 161. 17. James A. Brundage, ‘‘The Lawyer as His Client’s Judge: The Medieval Advocate’s Duty to the Court,’’ in Cristianita` ed Europa: Miscellanea di studi in onore di Luigi Prosdocimi, ed. Cesare Alzati, 2 vols. in 3 (Rome, 1994–2000), 1: 591–607 and the sources cited therein. 18. For the requirement of an admissions oath, see Cod. 3.1.14.4, 2.58(59).2. Roman law gave every judge the right to grant or deny the privilege of audience in his court and to maintain a record of those to whom he had granted this right: Dig. 3.1.9; Cod. Theod. 2.10.2; Cod. 2.7.11 1–3, 2.7.29; Max Kaser, Das ro¨mische Zivilprozessrecht, 2nd ed. rev. Karl Hackl (Munich, 1996), 564. The practice of maintaining a record of those admitted was apparently no longer in use by the latter part of the twelfth century, but had been reinstated by around 1215; Tancred, Ordo iudiciarius 1.5.2, in Pillius, Tancredus, Gratia libri de iudiciorum ordine, ed. Friedrich Christian Bergmann (Go¨ttingen: 1842; rpt. Aalen, 1965), 112; Gouron, ‘‘Le roˆle de l’avocat,’’ 14. 19. Cod. 2.58(59).2 pr.; James A. Brundage, ‘‘The Calumny Oath and Ethical

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Ideals of Canonical Advocates,’’ in Proceedings of the Ninth International Congress of Medieval Canon Law, ed. Peter Landau and Joerg Mueller, Monumenta iuris canonici, Subsidia 10 (Vatican City, 1997), 793–805; rpt. in The Profession and Practice of Medieval Canon Law (Aldershot, 2004), no. 4; Richard H. Helmholz, ‘‘The litis contestatio: Its Survival in the Medieval ius commune and Beyond,’’ in Lex et Romanitas: Essays for Alan Watson, ed. Michael Hoeflich (Berkeley, Calif., 2000), 73–89. 20. Cod. 3.1.14.4. Use of the calumny oath was, however, much older than this; Gaius, writing in the latter half of the second century, for example, described it in his Institutes 4.171, 174–78, ed. E. Seckel and B. Kuebler, trans. W. M. Gordon and O. F. Robinson (Ithaca, N.Y., 1988), 522–26. 21. Julius von Ficker, Forschungen zur Reichs- und Rechtsgeschichte Italiens, 4 vols. (Innsbruck, 1868–1874; rpt.. Aalen, 1961), 1: 58, 4:64, 67–68, 74–75; Arthur Engelmann et al., A History of Continental Civil Procedure, trans. Robert Wyness Millar, Continental Legal History Series 7 (Boston, 1927; rpt.. Buffalo, N.Y., 1999), 429, 434, 436. Vaccari comments on the reappearance of the calumny oath in his Diritto longobardo e letteratura longobardistica intorno al diritto italiano; Romualdo Trifone, Diritto romano comune e diritto particolari nell’Italia meridionale, IRMÆ, vol. 5, sec. 2.d (Milan, 1962). 22. Pisa made a deliberate decision to Romanize its municipal law beginning in 1159. Consequently it was one of the earliest Italian cities to demand that persons who argued cases in its courts swear the calumny oath; Chris Wickham, Legge, pratiche e conflitti: Tribunali e risoluzione delle dispute nella Toscana del XII secolo (Rome, 2000), 196–226; Claudia Storti Storchi, Intorno ai costituti pisani della legge e dell’uso (secolo XII) (Naples, 1998), prints the text of the Pisan calumny oath at 134, n. 492. 23. Thus Policraticus sive de nugis curialium et vestigiis philosophorum 5.13, ed. C. C. J. Webb, 2 vols. (Oxford: 1909), 1: 340, as well as in his letter no. 77, in The Letters of John of Salisbury, ed. and trans. W. J. Millor, H. E. Butler, and C. N. L. Brooke, 2 vols. (Edinburgh, 1955; Oxford, 1969), 1: 122. Although John of Salisbury would surely not have described himself as a lawyer, his letters clearly show that he spent a substantial part of his working life advising Archbishops Theobald and Thomas Becket as well as others on legal matters, chiefly in connection with appellate litigation: C. N. L. Brooke, ‘‘John of Salisbury and His World,’’ in The World of John of Salisbury, ed. Michael Wilks (Oxford, 1994), 1–20, at 7–8. 24. Council of Chaˆteau-Gontier c. 35 in Conciles de la Province de Tours (XIIIe–XVe sie`cles), ed. Joseph Avril (Paris, 1987), 154–55; also in Giovanni Domenico Mansi, Sacrorum conciliorum nova et amplisssima collectio, rev. ed., 53 vols. in 60 (Paris, 1901–27; hereafter Mansi), 23: 240–41; Provincial Council of Rouen c. 48, in Mansi, 23: 218–19 and in Edmond Marte`ne and Ursmer Durand, Thesaurus novus anecdotorum, 5 vols. (Paris, 1717; rpt.. Farnborough, 1968–69), 4: 181–81. 25. Cod. 2.6.5, 2.6.6 3. For the judge’s right to ban or fine advocates, Die Konstitutionen Friedrichs II. fu¨r das Ko¨nigreich Sizilien 1.83–84, ed. Wolfgang Stu¨rner, MGH, Constitutiones et acta publica imperatorum et regum, vol. 2, Supplement (Hannover, 1996), 257–59. 26. Legatine Council of London (1237) c. 29 in Councils and Synods with Other Documents Relating to the English Church, pt. 2, A.D. 1205–1313, ed. F. M. Powicke

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and C. R. Cheney, 2 vols. (Oxford, 1964; hereafter Councils and Synods), 1: 258–59. This was followed by Statutes of Salisbury II (1238⬃1244) c. 58, Council of Worcester III (1240) c. 75, Statutes of Durham II (1241⬃1248) c. 50.vi, Statutes of Chichester I (1245⬃1252) c. 66, Statutes of York I (1241⬃1255) c. 66, Statutes of Salisbury IV (1257⬃1268) c. 47, in Councils and Synods 1: 386, 314–15, 435, 465, 493, 567. A later legate, Cardinal Ottobono repeated the demand at a Legatine Council in 1268, c. 26; Councils and Synods 2: 773. On Cardinal Otto and his legatine mission, see Dorothy M. Williamson (later Owen), ‘‘Some Aspects of the Legation of Cardinal Otto in England, 1237–41,’’ English Historical Review 64 (1949): 145–73. 27. Synodal statutes of Guiard de Laon, bishop of Cambrai (1248–48), c. 187 in Les statuts synodaux de l’ancienne province de Reims, ed. Joseph Avril, Statuts synodaux franc¸ais 4 (Paris, 1995), 63; Council of Langeais (1255), c. 15, in Conciles de la province de Tours, ed. Avril, 222; Antonio Planas Rossello´, ‘‘Los abogados de Mallorca en el sistema jurı´dico de la recepcio´n del derecho comu´n,’’ in L’assistance dans la re´solution des conflits, pt. 4, 115–43, at 133. 28. 2 Lyon (1274) c. 19, in Decrees of the Ecumenical Councils, ed. Giuseppe Alberigo, trans. and ed. Norman P. Tanner, 2 vols. (London; Washington, D.C., 1990), 1: 324–25. 29. Azo, Summa super Codicem, Instituta, Extraordinaria to Inst., proem (Pavia, 1506; repr. Turin, 1966), 346; Cod. 2.7.14. 30. Cod. 3.1.13.9. The appropriate procedure for a client who wished to sue was an actio in factum similar to that brought against a judge who handed down a decision not warranted by the law: Dig. 50.13.6; Durand, Speculum 1.4 De aduocato §9.19 (1: 282). 31. Dig. 4.4.18.1. Justinian’s Digest devotes a whole title (Dig. 3.2) to the consequences of infamia; see especially Dig. 3.2.4.4. Medieval canon law incorporated much of this doctrine, e.g. in Gratian’s Decretum C. 3 q. 7 c. 1 and c. 2 §2; C. 6 q. 1 c. 17–19; X 1.11.17; 2.18.1; 5.1.21, etc. See further Peter Landau, Die Entstehung des kanonischen Infamiebegriffs von Gratian bis zur Glossa Ordinaria, Forschungen zur kirchlichen Rechtsgeschichte und zum Kirchenrecht, vol. 5 (Cologne, 1966); Francesco Migliorino, Fama e infamia: Problemi della societa` medievale nel pensiro giuridico nei secoli XII e XIII (Catania, 1985); Thelma Fenster and Daniel Lord Smail, eds., Fama: The Politics of Talk and Reputation in Medieval Europe (Ithaca, N.Y., 2003); as well as Edward M. Peters, ‘‘Wounded Names: The Medieval Doctrine of Infamy,’’ in Law in Mediaeval Life and Thought, ed. Edward B. King and Susan J. Ridyard (Sewanee, Tenn., 1990), 43–89. 32. Accursius, Glos. ord. to Cod. 2.7.1 v. commisi; Peters, ‘‘Wounded Names,’’ 84. 33. Accursius, Casus to Cod. 7.49.1 v. constitit and Glos. ord. v. amittat. 34. Dig. 3.2.4.4, 47.15.1, 47.15.3.2, 47.15.5, 48.16.1.6; Cod. 2.7.1. Gratian and later canonists adopted this usage: C. 2 q. 3 d.p.c. 8 §6. See also James A. Brundage, ‘‘The Ambidextrous Advocate: A Study in the History of Legal Ethics,’’ in‘‘Ins Wasser geworfen und Ozeane durchquert’’: Festschrift fu¨r Knut Wolfgang No¨rr, ed. Mario Ascheri et al. (Cologne: 2003), 39–56. 35. Jonathan Rose, ‘‘The Ambidextrous Lawyer: Conflict of Interest and the

Notes to Pages 53–55

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Medieval Legal Profession,’’ University of Chicago Law School Roundtable 7 (2000): 137–203; Dig. 4.8.31, 48.10.1 pr.-2, 6. 36. X 1.37.3, together with the Glossa ordinaria of Bernard of Parma ad v. contra ecclesiam. References to the Glossa ordinaria on these texts are to the edition in 4 vols. (Venice: 1605). 37. Cod. 2.8(9).1 and Accursius, Glossa ordinaria to idem v. praestare; Ge´rard Fransen, ‘‘Les ‘questiones’ des canonistes (III),’’ Traditio 19 (1963): 516–31, at 527, no. 53. 38. C. 3 q. 7 c. 2 §15. Cf. Cod. 2.8(9)2. See also Johannes Teutonicus, Glos. ord. to C. 3 q. 7 c. 2 §15 v. causam; Summa ‘‘Elegantius in iure diuino’’ seu Coloniensis 6.67, ed. Ge´rard Fransen and Stephan Kuttner, Monumenta iuris canonici, Corpus glossatorum, vol. 1 in 4 parts (Vatican City: 1969–90), 2: 133; and Accursius, Glos. ord. to Cod. 2.8(9).1 v. praestare. 39. Hostiensis, Summa aurea lib. 1, tit. De postulando §8 (Lyon, 1537; rpt. Aalen, 1962), fol. 62vb. 40. Gloss to D. 96 c. 11 v. potestatem in Cambridge, Gonville and Caius College, MS 282/676, fol. 57vb: ‘‘Si ergo clericus in duobus episcopatibus redditum habeat, pro quo et contra quem stabitur? Respondeo, faciat secundum id 14. q. 5 Denique [C. 14 q. 5 c. 10] uel secundum alios pro reo stare debet. Male quilibet facit qui hoc modo duobus se obligauit‘‘; Bernard of Parma, Glos. ord. to X 1.37.3 v. contra ecclesiam. 41. According to Bernard of Montemirato (also known as Abbas antiquus), Lectura to X 1.37.3 v. clericus (Strasbourg, 1511), fol. 70rb. Durand, Speculum 1.4 De aduocato §1.21 (1: 262). Innocent IV, Apparatus to X 1.37.3 v. praesumit (Frankfurt a/ M, 1570; rpt. Frankfurt a/M, 1968), fol. 165rb; likewise Baldus Additio to William Durand, Speculum iudiciale 1.4 De advocato (1: 282). Hostiensis, Summa aurea, lib. 1 tit. De postulando §8 (fol. 62vb); Durand, Speculum 1.4 De aduocato §1.18 (1: 262); Guido de Baysio, Rosarium decretorum to D. 96 c. 11 (Venice: 1481), fol. 113ra–b. Durand, quote from Speculum 1.4 De aduocato §1.21 (1: 262). 42. Hostiensis, Summa aurea 1, tit. De postulando §8, fols. 62vb–63ra; Durand, Speculum 1.4 De aduocato §1.18 (1: 262); Guido de Baysio, Rosarium to D. 96 c. 11, fol. 113ra–b. 43. Durand, Speculum 1.4 De aduocato §3.12–13 (1: 266); Johannes Andreae, Additio to Durand, Speculum 1.4 De aduocato §3.1 v. priusquam (1: 266). 44. Pierre de Belleperche, Auree ac singularissime et quas nulla vidit etas Repetitiones XLVIII in Justinianum Codicem commentarium to Cod. 3.7.1 (Paris, 1515), fol. 14r–v. 45. E.g., Robert of Flamborough, Liber poenitentialis §207, ed. J. J. Francis Firth (Toronto: 1971), 184–85; William Doune, Memoriale presbiterorum, in Michael Haren, ‘‘Interrogatories for Officials, Lawyers and Secular Estates of the Memoriale presbiterorum: Edition and Translation,’’ in Handling Sin: Confession in the Middle Ages, ed. Peter Biller and A. J. Minnis (York, 1998), 123–63. 46. Jacques de Vitry, The Exempla or Illustrative Stories from the Sermones Vulgares, ed. Thomas Frederick Crane (London, 1980), 14, 15, 20, 148, 155–56; and Die Exempla aus den Sermones feriales et communes, ed. Joseph Greven, nos. 9, 83

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Notes to Pages 55–58

(Heidelberg, 1914), 12, 50; Caesarius of Heisterbach, Dialogus miraculorum 11.46, ed. Joseph Strange, 2 vols. (Cologne, 1851; rpt. Ridgewood, N.J., 1966), 2: 304. 47. Durand, Speculum 1.4 De aduocato §3.11 (1:266). He did, however, note an exception, ‘‘nisi in casu scilicet fauore pupillorum. Nam si aduocatus Titii contra Maeuium, Maeuio mortuo detur tutor filiis eius in eadem causa, poterit pupillus assistere contra Titium, ut iii. q. viii. c. Infames § Tria, uer. Si contra patrem [recte: C. 3 q. 7 c. 2 §16; cf. Dig. 3.1.10]; ff. de postul. l. final. [Dig. 3.1.11].’’ 48. E.g., James A. Brundage, ‘‘The Bar of the Ely Consistory Court in the Fourteenth Century: Advocates, Proctors, and Others,’’ Journal of Ecclesiastical History 43 (1992): 541–60; Brian L. Woodcock, Medieval Ecclesiastical Courts in the Diocese of Canterbury (London, 1952), 40–41; The Register of Walter de Stapeldon, Bishop of Exeter (A.D. 1307–1326), ed. F. C. Hingeston-Randolph (London and Exeter, 1892), 116–17; Colin Morris, ‘‘A Consistory Court in the Middle Ages,’’ Journal of Ecclesiastical History 14 (1963): 150–59, at 156–57; David Dasef, ‘‘The Lawyers of the York Curia, 1400–1435’’ (B. Phil. thesis, University of York, 1976), 3. 49. Susan P. Shapiro, Tangled Loyalties: Conflict of Interest in Legal Practice (Ann Arbor, Mich., 2002) provides numerous examples. 50. See, e.g., American Law Institute, Law Governing Lawyers, Restatement of the Law Third, 2 vols. (St. Paul, Minn., 2000); or The Code of Conduct of the Bar of England and Wales (London, 1997), which also includes in Annexe L the Code of Conduct for Lawyers in the European Community.

Chapter 4. The Ties That Bind: Legal Status and Imperial Power 1. For a forceful statement of the importance of law and legality in overseas expansion; see Christopher L. Tomlins, ‘‘Introduction: The Many Legalities of Colonization: A Manifesto of Destiny for Early American Legal History,’’ in The Many Legalities of Early America, ed. Christopher L. Tomlins and Bruce H. Mann (Chapel Hill, N.C., 2001), 1–20. 2. The term ‘‘empire’’ is used quite broadly here. It includes not only the Roman and British empires but, as John Marshall pointed out, the American Empire. On the term empire generally, see James Muldoon, Empire and Order: The Concept of Empire, 800–1800 (New York, 1999), 1–20; David Armitage, The Ideological Origins of the British Empire (New York, 2000); Armitage Theories of Empire, 1450–1800 (Aldershot, 1998); see also Albert J. Beveridge, The Life of John Marshall, 4 vols. (Boston, 1916–19), 3: 590. 3. For the range of definitions of the term empire, see Muldoon, Empire and Order, 15–17. 4. The debate about the representation of American colonists in Parliament was one example of the issue of the status of the colonists. If they were true Englishmen, why were they not directly represented in Parliament? See John Phillip Reid, The Concept of Representation in the Age of the American Revolution (Chicago, 1989), esp. 128–33. 5. For a discussion of the Irish situation from the perspective of a modern

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international lawyer, see Anthony Carty, Was Ireland Conquered? International Law and the Irish Question (London, 1996). 6. Giraldus Cambrensis, Expugnatio Hibernica: The Conquest of Ireland, ed. and trans. A. B. Scott and F. X. Martin (Dublin, 1978), 53. Some authors prefer the term Cambro-Norman, because the adventurers came from the Norman families that had moved to the frontier with Wales, Cambria; see, for example, Katherine Simms, ‘‘The Norman Invasion and the Gaelic Recovery,’’ in The Oxford History of Ireland, ed. R. F. Foster (Oxford: 1989, 1992), 44–87, at 46. 7. The details of the arrangement between Dermot and Henry II are not clear. The most recent work on the relationship argues that Dermot became ‘‘Henry’s vassal.’’ See Sea´n Duffy, Ireland in the Middle Ages (New York, 1997), 60. 8. Simms, ‘‘The Norman Invasion and the Gaelic Recovery,’’ 47; Giraldus Cambrensis, Expugnatio, 55. 9. The use of the term ‘‘feudal’’ has been a matter of great debate among medievalists ever since Elizabeth A. R. Brown’s ‘‘The Tyranny of a Construct: Feudalism and Historians of Medieval Europe,’’ AHR 79 (1974): 1063–88; see also Susan Reynolds, Fiefs and Vassals (Oxford, 1994), 1–16. ´ Corra´in, Ireland Before the 10. On Irish succession practice, see Donncha O Normans, Gill History of Ireland 2 (Dublin, 1972), 37–42. 11. Gerald of Wales, Expugnatio, 67. 12. ‘‘The kind of authority he tried to establish for himself and his successor as duke of Normandy, count of Anjou, and duke of Aquitaine (and which he defended against the king of France) he sought to deny to men of equivalent rank in England.’’ W. L. Warren, Henry II (Berkeley, Calif., 1973), 627. For John’s problems as a vassal of the king of France, see Ralph V. Turner, King John (London, 1994), 59–86. 13. On Canterbury and the Irish church, see J. A. Watt, The Church and the Two Nations in Medieval Ireland (Cambridge, 1970), 6–10. On the relation of the papacy to William of Normandy, see David C. Douglas, William the Conqueror: The Norman Impact upon England (Berkeley, Calif., 1964), 317–45. Cary Nederman suggests that in fact it may have been the archbishop of Canterbury who requested Laudabiliter from the pope in order ‘‘to encourage Henry to pursue an agenda that most of all favored the rights of the archbishop.’’ Cary Nederman, John of Salisbury (Tempe, Ariz., 2005), 19. 14. John of Salisbury, Historia Pontificalis, ed. and trans. Marjorie Chibnal (Oxford, 1986), 70–72. 15. On the literature concerning Laudabiliter, see Watt, The Church and the Two Nations, 36–40. 16. The bull Laudabiliter, in Irish Historical Documents 1172–1922, ed. Edmund Curtis and R. B. McDowell (London, 1943; rpt. New York, 1968) (hereafter IHD) 17–18, at 17. 17. Michael Dolley, Anglo-Norman Ireland, c. 1100–1318, Gill History of Ireland 3 (Dublin, 1972), 65; Simms, ‘‘The Norman Invasion and the Gaelic Recovery,’’ 48. 18. On the issue of whether the term empire can be employed for the Angevin possessions see John le Patoural, ‘‘The Plantagenet Dominions,’’ in le Patoural, Feu-

260

Notes to Pages 61–64

dal Empires: Norman and Plantagenet (London, 1984), 8: 289–308; see also Turner, King John, 60–64. 19. ‘‘Constitutions of the Synod of Cashel,’’ IHD, 18–19. 20. ‘‘Three Letters of Pope Alexander III,’’ IHD, 19–22. 21. Duffy, Ireland in the Middle Ages, 91–95. 22. ‘‘The Treaty of Windsor, 1175,’’ IHD, 23. ‘‘High king’’ exaggerates the role and status of O’Connor; on Irish kingship, see Duffy, Ireland in the Middle Ages, 16–17, 31–37. 23. Laudabiliter, IHD, 20; ‘‘Proposed Extension of English Law to the Native Irish,’’ IHD, 31–32. 24. Sir John Davies (c. 1570–1626), attorney general for Ireland, proposed that English property law be imposed on the Irish in place of the Breton law practice of placing control of all land in the hands of the tribal chiefs. In this way, both the economic and the political power of the chiefs would be destroyed and the tribesmen turned into peasant farmers. See James Muldoon, Identity on the Medieval Irish Frontier: Degenerate Englishmen, Wild Irishmen, Middle Nations (Gainesville Fl., 2003), 90–91. 25. See, above all, ‘‘the Statutes of Kilkenny (1366)’’ IHD, 52–59; Muldoon, Identity, 41–42, 85–87. 26. ‘‘Remonstrance of the Irish Princes to Pope John XXII (1317),’’ IHD, 38– 46, at 42. 27. On the FitzGeralds, see Margaret MacCurtain, Tudor and Stuart Ireland, Gill History of Ireland 7 (Dublin, 1972), 6–21. 28. ‘‘An Act that the King and His Successors be Kings of Ireland,’’ IHD, 77–78. 29. David Quinn, The Elizabethans and the Irish (Ithaca, N.Y., 1966), 106–22; Nicholas Canny, Kingdom and Colony: Ireland in the Atlantic World (Baltimore, 1988), 1560–1800. 30. There is an extensive literature on the American interest in Ireland and, after the American Revolution, Irish interest in the American Revolution, see M. R. O’Connell, Irish Politics and Social Conflict in the Age of the American Revolution (Philadelphia, 1965); D. N. Doyle, Ireland, Irishmen and Revolutionary America, 1760–1820 (Dublin, 1981). 31. Herbert L. Osgood, The American Colonies in the Seventeenth Century, 3 vols. (New York, 1904; rpt. Gloucester, Mass., 1957), 3–4. 32. ‘‘The king . . . may issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without licence.’’ William Blackstone, Commentaries on the Laws of England, 4 vols. (London, 1765–69; rpt. Chicago, 1979), 1: 133. 33. ‘‘The Charter of Massachusetts Bay—1629,’’ in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, ed. Francis Newton Thorpe, 7 vols. (Washington, D.C.: 1909), 3: 1846–60, at 1846, 1850. The reference to other Christian princes is found in Alexander VI’s Inter caetera (1493): see Inter Caetera in European Treaties Bearing on the History of the United States and Its Dependencies to 1648, ed. Frances Gardiner Davenport (Washington, D.C., 1917; rpt. Gloucester, Mass., 1967), 56–63, at 62.

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34. Chester E. Eisinger, ‘‘The Puritans’ Justification for Taking the Land,’’ Essex Institute Historical Collections 84 (1948): 131–43, at 135; Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640 (New York, 1995), 16–40; J. H. Elliott, Empires of the Atlantic World: Britain and Spain in America, 1492–1830 (New Haven, Conn., 2006), 30–31. 35. Elliott, Empires, 65–66; one English supporter of the colonization of Massachusetts pointed out that the destruction of the indigenous population as a result of disease immediately before the establishment of the colony was part of God’s plan to prepare the land for English settlement. It also meant that there was no existing population to Christianize and civilize: see the Patent of the Council for New England in Select Charters and Other Documents Illustrative of American History, 1606–1775, ed. William MacDonald (New York, 1899), 23–33, at 25. 36. Thorpe, Federal and State Constitutions, 3: 1851. 37. Ibid., 3: 1857. For the long history of the development of the papal theory of universal jurisdiction, see Luis Weckmann, Las Bulas alejandrias de 1493 y la Teorı´a polı´tica del papado medieval (Mexico City, 1949); James Muldoon, Popes, Lawyers, and Infidels: The Church and the Non-Christian World, 1250–1550 (Philadelphia, 1979). 38. Much of the material concerning the development of English imperial governance in medieval Ireland that the American revolutionaries employed had appeared almost a century earlier in polemics about the status of the colonists in Ireland; see William Molyneaux, The Case of Ireland Stated (Dublin, 1898; rpt. 1977). 39. Poynings Law ‘‘reduced the role of the Irish parliament to one of servility.’’ MacCurtain, Tudor and Stuart Ireland, 7. 40. According to one author, the Navigation Acts were ‘‘an integrating force tending to bind the Empire together.’’ Oliver M. Dickerson, The Navigation Acts and the American Revolution (Philadelphia, 1951), 3. 41. James Otis, ‘‘The Rights of the British Colonies Asserted and Proved,’’ Pamphlets of the American Revolution, 1750–1776, 4 vols., ed. Bernard Bailyn (Cambridge, Mass.: 1965), 1: 419–70, at 466. 42. James Muldoon, ‘‘Discovery, Grant, Charter, Conquest, or Purchase: John Adams on the Legal Basis for English Possession of North America,’’ in Tomlins and Mann, Legalities of Early America, 25–46, at 31. 43. The issue of the nature of citizenship has arisen ‘‘in the context of the globalization of the economy, politics, and society,’’ according to Ralph W. Mathisen. See his ‘‘Peregrini, Barbari, and Cives Romani: Concepts of Citizenship and the Legal Identity of Barbarians in the Later Roman Empire,’’ AHR 111 (2006): 1011–40, at 1011.

Chapter 5. Licit and Illicit in the Yarnall Collection at the University of Pennsylvania: Pages from the Decretals of Pope Gregory IX 1. Two works of recent vintage provide details about these developments, with further bibliography in each: Robert Somerville and Bruce C. Brasington, Prefaces to

262

Notes to Pages 71–74

Canon Law Books in Latin Christianity: Selected Translations, 500–1245 (New Haven, Conn., 1998), and James A. Brundage, Medieval Canon Law (London, 1995). For the compilations of Innocent and Honorius—known technically as Compilatio tertia and Compilatio quinta—see specifically Somerville and Brasington, 213 ff., and Brundage, 53 ff., 194 ff. The former also contains translations of the two papal bulls, 233–35. For the quotation here, see Somerville and Brasington, 1, and in general the discussion throughout chap. 1. The author is grateful to Dr. Michael T. Ryan, former director of the Annenberg Rare Book and Manuscript Library at the University of Pennsylvania, and to his staff, for hospitality and assistance in the preparation of this study. 2. Somerville and Brasington, Prefaces, 8–9. 3. Ibid., 214, especially n. 4, for this comment by Stephen of Tournai. 4. Ibid, 224–25, 234–35. 5. Ibid., 224–25, citing Leonard E. Boyle, O.P., ‘‘The Compilatio Quinta and the Registers of Honorius III,’’ Bulletin of Medieval Canon Law 8 (1978): 9–19 (rpt. in Boyle, Pastoral Care, Clerical Education and Canon Law, Variorum Reprints CS135 [London, 1981]). 6. Ibid., 225, and notes, for details of this story. 7. Ibid., 225 ff. (translation 235–36); Brundage, Canon Law, 54 ff., 196 ff. The Decretals are known as the Liber extra, short for Liber extravagantium decretalium, that is, ‘‘decretals wandering around outside,’’ of Gratian’s Decretum. 8. Somerville and Brasington, Prefaces, 236. For the Decretals, see Martin Bertram, ‘‘Die Dekretalen Gregors IX: Kompilation oder Kodifikation?,’’ in Magister Raimundus: Atti del Convegno per il IV Centenario della canonizzazione di San Raimundo de Penyafort (1601–2001), ed. Carlo Longo O.P., Dissertationes historicae 27 (Rome, 2002), 61–86; and Thomas Wetzstein, ‘‘Resecatis superfluis? Raymund von Pen˜afort und der Liber Extra,’’ Zeitschrift der Savigny-Stiftung fu¨r Rechtsgeschichte, Kan. Abt. 92 (2006): 355 ff. (not seen). 9. It is a great pleasure to dedicate this investigation to an old and dear friend who for a short time was my colleague at the University of Pennsylvania. 10. See Joyce L. White, ‘‘Biographical and Historical Background of the Yarnall Library of Theology,’’ Library Chronicle (University of Pennsylvania) 43 (1979): 134–58. 11. Ibid., 136ff., at 141. 12. Ibid., 146, 152. 13. Ibid., 152–55. 14. Ibid., 154. 15. I am grateful to Prof. Siegfried Wenzel for calling this material to my attention in the Winter of 1976. 16. Lexikon fu¨r Theologie und Kirche (1998), 7: 858–59. 17. Gesamtkatalog der Wiegendrucke 4284; Hain-Copinger 3172. See Edward A. Gosselin, ‘‘A Listing of the Printed Editions of Nicholaus de Lyra,’’ Traditio 26 (1970): 407 (no. 14). The class mark of these tomes in the Annenberg Rare Book and Manuscript Library is Yarnall B15.1 L995. The author is very grateful to Lynne Farrington, curator of Printed Books in the Annenberg Rare Book and Manuscript

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Library at Penn, for verifying the bibliographical particulars of the Yarnall printing of Nicholas of Lyra. 18. The Decretals of Gregory IX [Liber extra] are normally cited with an ‘‘X.’’ followed by book, title, and canon number, e.g., X 2.24.25–26, designates book 2, title 24—‘‘On Oaths’’—cc. 25–26—see n. 7 above. Questions about addressees etc. of the specific decretals indicated cannot be taken up here, but the identity of the popes who promulgated the texts will be noted. 19. Friedberg did not know the source; see Hartmut Hoffmann and Rudolf Pokorny, Das Dekret des Bischofs Burchard von Worms, MGH, Hilsmittel 12 (Munich, 1991), 267. 20. Hoffmann and Pokorny, Das Dekret, 269–70. 21. Aemilius Friedberg, Quinque compilationes antiquae, Leipzig: Ex officina Bernhardi Tauchnitz, 1882, 61 (cf. Friedberg ed., X 5.18.4). 22. Adolf Berger, Encyclopedic Dictionary of Roman Law, Transactions of the American Philosophical Society n.s. 43 pt. 2 (Philadelphia, 1953), 645. 23. Ibid., 646–47. 24. The author is grateful to Dr. Consuelo Dutschke, curator of medieval manuscripts at Columbia University, for her opinion about these fragments. The pieces of the Decretals found in the front of tome 3 and in the front and back of tome 5 probably were done by one scribe, and those in tome 4, front and back, by another. The hands of the glosses remain to be analyzed. 25. Brundage, Medieval Canon Law, 57, 210. Not enough of the gloss to the fragment of the Justinianic Codex found on the back of tome 3 has been read to determine whether or not it is the standard gloss put together in the early thirteenth century by Accursius (cf. ibid., 66). 26. It might be possible to unearth information about Segatt Books and John M. Stark in Hull, although by the time of completing this chapter nothing had been found about either. 27. It has been very difficult to find information about Hastings, who must have been a prominent figure in his day. For William Miller (1782–1849), see the Encyclopedic Dictionary of Religion (1978), vols. F–H. 2371–72. For Hastings see the five lines in Oscar Fay Adams, Dictionary of American Authors (Boston, 1904), 175. The author is grateful to Seth Kasten of the Burke Library of Union Theological Seminary for his help in attempting to track down information about Hastings. 28. White, ‘‘Yarnall Library,’’ 152. No trace of the set is found in Jos. Cullem Ayer, Yarnall Library of Theology of St. Clement’s Church, Philadelphia, 1933. Perhaps more information could be gained from records at St. Clement’s or from the St. Clement’s Quarterly (see ibid., 152 ff.) No survey has been done to ascertain how many copies of this set are found in North America, but in New York City there is at least one complete copy, at the St. Mark’s Library of General Theological Seminary; and the Burke Library of Union Theological Seminary has vol. 1. The author is grateful to Andrew G. Kadel, director of St. Mark’s Library, and to Seth Kasten of Burke Library for this information. 29. See Bertram, ‘‘Die Dekretalen,’’ 73–74. Several medieval manuscripts of the collection can be found in the U.S. A systematic search could reveal others; the author is grateful to Dr. Thomas Izbicki, Johns Hopkins University, and Prof. Ken-

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neth Pennington, Catholic University, for indicating the following: Baltimore, Walters Art Gallery, MSS W.156, W.159; Berkeley, University of California Law School, Robbins Collection, MSS 5, 6, 100, 105; San Marino, California, Henry E. Huntington Library, HM MS 19999; Syracuse, New York, Syracuse University, MS 1; Washington, D.C., Library of Congress, Med.-Ren. MSS 99, 100. In addition, Anders Winroth has kindly pointed out that Marston MS 194 in the Beinecke Library at Yale is a fourteenth-century copy of the Decretals from the Low Countries. 30. Friedberg, Decretalium collectiones, xl. 31. Bertram, ‘‘Dekretalen,’’ 80. Friedberg’s text of the Decretals, in Decretalium collectiones, reproduces the official, post-Tridentine ‘‘Editio Romana’’ published in 1582 (see ibid., cols. xlii ff.; for discussion of the Roman Edition see Augustine Thompson, O.P., James Gordley, and Katherine Christensen, Gratian: The Treatise on Laws with the Ordinary Gloss, Studies in Medieval and Early Modern Canon Law 2 (Washington, D.C., 1993), xviii–xx. Friedberg’s presentation is complicated, although in a useful way, by his attempt to restore the parts of decretals that were cut out by Raymond of Pen˜afort (the texts in italics in his printing). In the notes, Friedberg provided some information about manuscripts. 32. Friedberg, Quinque compilationes, 148. Innocent’s decretal is calendared in Augustin Potthast, Regesta pontificum Romanorum (Berlin, 1874), no. 4312; and the text is available in Innocent’s Register, as printed in Migne, PL 261.469. For Comp. IV see Kenneth Pennington, ‘‘The Making of a Decretal Collection: The Genesis of Compilatio tertia,’’ in Proceedings of the Fifth International Congress of Medieval Canon Law, ed. Stephan Kuttner and Kenneth Pennington, Monumenta iuris canonici Subsidia 6 (Vatican City, 1980), 72–79, rpt. in Pennington, Popes, Canonists, and Texts, 1150–1550, Variorum Collected Studies Series CS412 (Aldershot, 1993). 33. Wolfgang P. Mu¨ller, Die Abtreibung, Forschungen zur kirchlichen Rechtsgeschichte und zum Kirchenrecht 24 (Cologne, 2000), 42. 34. The text as found in Innocent’s Register is printed in Migne (see n. 32). Muller, Die Abtreibung, gives a German translation of X 5.12.20. 35. Friedberg, col. 802. 36. The words in italics in Friedberg’s edition, where an attempt was made to reconstruct full texts of decretals as they were promulgated by the papal chancery, were missing in the Decretals, and thus are not included here. 37. Friedberg provides the following information at the end of this excerpt: ‘‘Issued at the Lateran, October 4, in the 14th year of our pontificate, 1211’’ (Dat. Lat. IV. Non Oct. Pont. nostr. Ao XIV. 1211). 38. For Raymond of Pen˜afort’s editional work on the Decretals, see above, n. 8.

Chapter 6. Judicial Violence and Torture in the Carolingian Empire 1. Franc¸ois Louis Ganshof, ‘‘Charlemagne and the Administration of Justice,’’ in Ganshof, Frankish Institutions Under Charlemagne, trans. Bryce Lyon and Mary Lyon (New York, 1968), 71–97.

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2. On Carolingian justice, see Wendy Davies and Paul Fouracre, The Settlement of Disputes in Early Medieval Europe (Cambridge, 1986); the essays in Warren Brown and Piotr Gorecki, eds., Conflict in Medieval Europe (Aldershot, 2003); and La giustizia nell’alto medioevo 1 (sec V–VIII), Settimane di studio 42 (Spoleto, 1995); 2 (secoli IX–XI), Settimane di studio 43 (Spoleto, 1997). 3. See the important Conclusion in Davies and Fouracre, Settlement of Disputes, esp. 214–28. 4. See in particular Guy Halsall, ed., Violence and Society in the Early Medieval West (Woodbridge, 1998); Franc¸ois Bougard, ed., La Vengeance, 600–1200 (Rome, 2006); and the essays by Stephen D. White, Feuding and Peace-Making in EleventhCentury France (Aldershot, 2005). 5. Barbara Rosenwein, ‘‘Writing Without Fear About Early Medieval Emotions,’’ EME 10 (2001): 229–34. 6. Edward Peters, Torture (Philadelphia, 1973, rpt. 1996). 7. Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford, 1986), esp. 139–46. 8. Lex Salica 68 §§2, 3. Karl August Eckhart, ed., MGH Leges nationum Germanicarum 4:2 (Hannover, 1969), 108. The Lex Baiwarioum 9: 20 also assumes that slaves are tortured in interrogations: MGH Leges nationum Germanicarum 5:2, Lex Baiwariorum (Hannover, 1926), 382–83. 9. Capitulare Haristallense, 779, MGH Capit. I: 46–51; Capitulare de Latronibus, 180–81. 10. MGH Capit. I: 20, c. 23, p. 51. 11. On Roman criminal procedure and punishment, see the still essential Theodor Mommsen, Ro¨misches Strafrecht (Leipzig, 1899), esp. 405–18 on torture and 981–85 on corporal punishment; O. F. Robinson, The Criminal Law of Ancient Rome (London, 1995); Jens-Uwe Krause, Gefa¨ngnisse im Ro¨mischen Reich (Stuttgart, 1996); and especially K. M. Coleman, ‘‘Fatal Charades: Roman Executions Staged as Mythological Enactments,’’ Journal of Roman Studies 80 (1990): 44–73, which discusses much more than simply the executions announced in the title. For late antiquity, see also Michael Kulikowski, ‘‘Fronto, the Bishops, and the Crowd: Episcopal Justice and Communal Violence in Fifth-Century Tarraconensis,’’ EME 11 (2002): 295–320. 12. Floyd Seyward Lear, ‘‘The Public Law of the Visigothic Code,’’ Speculum 26 (1951): 1–23. 13. Paul Fouracre, ‘‘Carolingian Justice: The Rhetoric of Improvement and Contexts of Abuse,’’ La giustizia nell’alto medioevo 1: 771–803. 14. Capitulare Haristallense, 779, MGH Capit. I: 46–51; Capitulare de Latronibus, 180–81. 15. Fouracre, ‘‘Carolingian Justice,’’ 797. 16. Ernst Du¨mmler, ed., MGH Poetae Latini aevi Carolini 2 (Berlin, 1884), 120–24, at 122, ll. 65–68. On the Carmen, see Warren Brown, Unjust Seizure: Conflict, Interest, and Authority in an Early Medieval Society (Ithaca, N.Y., 2001), 1–5, 206–8. 17. Versus Theodulfi episcopi contra iudices, ed. Ernst Du¨mmler, MGH Poetae Latini aevi Carolini 1 (Berlin, 1881), 493–517. The poem was translated by Nilolai A. Alexandrenko in his dissertation, ‘‘The Poetry of Theodulf of Orleans: A Transla-

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tion and Critical Study’’ (Ph.D. dissertation, Tulane University, 1970), 157–202. I have used Alexandrenko’s translation whenever possible. 18. Du¨mmler, MGH Poetae Latini aevi Carolini 1: 517–20; trans. Alexandrenko, 203–7. 19. See Gerlinde Bretzigheimer, ‘‘Der Herkules-Mythos als Gefa¨ßdekor: Eine ’descriptio’ des Theodulf von Orle´ans,’’ Mittellateinisches Jahrbuch: Internationale Zeitschrift fu¨r Media¨vistik / International Journal of Medieval Studies / Revue internationale des ´etudes me´die´vales / Rivista internazionale di studi medievali 39, 2 (2004): 183–205; Lawrence Nees, A Tainted Mantle: Hercules and the Classical Tradition at the Carolingian Court (Philadelphia, 1991); Nees, ‘‘Theodulf’s Mythical Silver Hercules Vase, Poetica Vanitas, and the Augustinian Critique of the Roman Heritage,’’ Dumbarton Oaks Papers 41 (1987): 443–51. 20. Gabriel Monod provides a summary of the judicial aspects of the poem in ‘‘Les moeurs judiciaries au VIIIe sie`cle d’apre`s la Paraenesis ad judices de The´odulf,’’ Revue historique 35 (1887): 1–20. 21. MGH Poetae Latini aevi Carolini 1: ll. 847–50, 515. 22. Ibid., 517, 518. 23. Ibid. 24. Ibid, 519. 25. The classic study is Karl Bosl, ‘‘Potens et pauper: Begriffsgeschichtliche Studien zur gesellschaftlichen Differenzierung im fru¨hen Mittelalter und zum ‘Pauperismus’ des Hochmittelalters,’’ in Bosl, Fru¨hformen der Gesellschaft im mittelalterlichen Europa; ausgewa¨hlte Beitra¨ge zu einer Strukturanalyse der mittelalterlichen Welt (Munich, 1964), 106–34. 26. MGH Poetae Latini aevi Carolini 1: ll. 915–16, p. 516. 27. Ibid. 28. Ibid. 29. Janet L. Nelson, ‘‘Dispute Settlement in Carolingian West Francia,’’ in Davies and Fouracre, Settlement of Disputes, 52. 30. Ibid., 52, n. 27. 31. MGH Formulae, esp. formulae 1, 2, 3, 4, 5, 6, pp. 211–14. 32. Nelson, ‘‘Dispute Settlement,’’ 51–52. 33. MGH Formulae, Formulae Imperiales, 5, p. 291. ‘‘Preceptum de his, quibus proprium aut libertas iniuste et per potentes ablata est;’’ and 9, p. 293, ‘‘Preceptum super his, qui iniuste et contra legem ad servicium inclinati et fisco regio addicti et postea liberati donati sunt.’’ 34. MGH Formulae, 291. 35. Carlo Cipolla, ed., Monumenta Novaliciensia vetustiora, 2 vols. (Rome, 1898), 1: 91. 36. Andre´ Salmon, ed., Livre des serfs de Marmoutier (Tours, 1864), no. XI, 12–13; no. CI, 94–95. 37. Ibid., no. CVI, 100. 38. Ibid., no. CXXVII, 117. 39. Ibid., Appendix, no. VI, 125.

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Chapter 7. The Ambiguity of Treason in Anglo-Norman-French Law, c. 1150–c. 1250 1. P&M, 2: 503 and n. 4, 504–8; Glanvill, I.2 (3), XIV.1 (171–73), XIV.7 (177); Bracton On the Laws and Customs of England, trans. and rev. Samuel E. Thorne, 4 vols. (Cambridge, Mass., 1968), 2: 334–37. 2. It ‘‘ought to be judged Treason which extends to our lord the king, and his royal majesty,’’ the statute declared, ‘‘when a man attempts or plots the death of our lord the king, or of our lady his queen or of their eldest son and heir; or if a man violates the king’s wife or the king’s eldest unmarried daughter, or the wife of the king’s eldest son and heir; or if a man levies war against our lord the king in his realm, or adheres to the king’s enemies, giving to them aid and comfort in his realm or elsewhere.‘‘ 25 Edw. III. Stat. 5, c. 2, Statutes of the Realm: Printed by Command of his Majesty King George the Third, vol. 1 (1810; rpt. London, 1963), 319–20, as trans. in A. R. Myers, English Historical Documents, 1327–1485 (London, 1969), 403. 3. Ibid., 2: 500. 4. Ibid., 2: 505. 5. J. E. A. Jolliffe, The Constitutional History of Medieval England from the English Settlement to 1485, 4th ed. (London, 1961), 155; H. G. Richardson and G. O. Sayles, The Governance of Medieval England from the Conquest to Magna Carta (Edinburgh, 1963), 148, 149; J. G. Bellamy, The Law of Treason in England During the Later Middle Ages (Cambridge, 1970), 23; John Gillingham, ‘‘1066 and the Introduction of Chivalry into England,’’ in Law and Government in Medieval England and Normandy: Essays in Honour of Sir James Holt, ed. George Garnett and John Hudson (Cambridge, 1994), 31–56, at 32, 44; Matthew Strickland, War and Chivalry: The Conduct and Perception of War in England and Normandy, 1066–1217 (Cambridge, 1996), 230–57. 6. P&M, 2: 505. 7. Martin Aurell, L’empire des Plantageneˆt (Paris, 2003), 186, 196; Robert Bartlett, England Under the Norman and Angevin Kings, 1075–1225 (Oxford, 2000), 60–61; Natalie Fryde, Why Magna Carta? Angevin England Revisited, Neue Aspekte der europa¨ischen Mittelalterforschung 1 (Mu¨nster, 2001), chaps. 5–8; Clare Valente, The Theory and Practice of Revolt in Medieval England (Aldershot, 2003), 33 and n. 107. 8. English Lawsuits from William I to Richard I, ed. R. C. Van Caenegem, Selden Society 106 (London, 1990), no. 7 (Waltheof) (16–22), vol. 107 (London, 1991), no. 407 (Henry of Essex) (384–87); History of William Marshall, ed. A. J. Holden, trans. S. Gregory, 2 vols., Anglo-Norman Text Society Occasional Publication Series 5 (London, 2004), 2: ll. 12859–13278, 14179–564. 9. Edward Peters, The Shadow King: Rex Inutilis in Medieval Law and Literature, 751–1327 (New Haven, Conn., 1970), 24, 104–15, 170–209; Stephen D. White, ‘‘The Problem of Treason: The Trial of Daire le Roux in Le roman de The`bes,’’ in Law, Laity and Solidarities in Medieval Europe, ed. Pauline Stafford, Janet L. Nelson, and Jane Martindale (Manchester, 2001), 95–115. Anticipating objections to the use

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of literary texts as historical evidence, Marc Bloch wrote: ‘‘ ‘Litte´rature,’ s’e´crieront peut-eˆtre les historiens qui n’ont d’oreilles que pour la se`che voix des chartes: Qu’a` cela ne tienne!’’ Bloch, La socie´te´ fe´odale (Paris, 1994), 326. 10. See, e.g., Marianne Ailes, ‘‘Traitors and Rebels: The Geste de Maience,’’ in Reading Around the Epic: A Festschrift in Honour of Professor Wolfgang Van Emden, ed. Marianne Ailes, Philip E. Bennett, and Karen Pratt (London, 1998), 41–68; Wolfgang G. Van Emden, ‘‘Kingship in the Old French Epic of Revolt,’’ in Kings and Kingship in Medieval Europe, ed. Ann. J. Duggan, King’s College Medieval Studies 10 (London, 1993), 305–50; and many articles in Fe´lonie, trahison, reniements au moyen aˆge: Actes du troisie`me colloque international de Montpellier Universite´ Paul Vale´ry (24–26 novembre 1994), Les cahiers du C.R.I.S.M.A. (Centre de Recherche Interdisciplinaire sur la Socie´te´ et l’Imaginaire au Moyen Aˆge) (Montpellier, 1997). 11. On ‘‘the fundamental unity of medieval literature in French,’’ see Keith Busby, ‘‘ ‘Neither Flesh nor Fish, nor Good Red Herring’: The Case of Anglo-Norman Literature,’’ in Studies in Honor of Hans-Erich Keller: Medieval French and Occitan Literature and Romance Linguistics, ed. Rupert T. Pickens (Kalamazoo, Mich., 1993), 401. On the interconnectedness of French and English law after 1066, see Paul Hyams, ‘‘The Common Law and the French Connection,’’ Anglo-Norman Studies 4 (1981): 77–92. 12. On trials in medieval French literature and citations to earlier literature, see Stephen D. White, ‘‘Imaginary Justice: The End of the Ordeal and the Survival of the Duel,’’ Medieval Perspectives 13 (1998): 32–55; White, ‘‘The Problem of Treason.’’ 13. On judicial procedure in literary treason trials, see Wolfgang Van Emden, ‘‘Trial by Ordeal and Combat: The Deliquescence of a Motif,’’ in Essays for Peter Mayer, ed. Christopher Thacker (Reading, 1980), 173–93; Paul R. Hyams, ‘‘Henry II and Ganelon,’’ Syracuse Scholar 4 (1983): 22–35. 14. Gaydon, ed. M. F. Guessard (rpt. Nendeln, Liechtenstein, 1966), ll. 589– 1782; Aye d’Avignon, ed. S. J. Borg (Geneva, 1967), laisses 7–23; Garin le Loherain, ed. J. E. Vallerie (Ann Arbor, Mich., 1947), ll. 6213–6542. 15. On treason in medieval French lawbooks as well as literary texts, see F. R. P. Akehurst, ‘‘Murder by Stealth: Traı¨son in Old French Literature,’’ in Pickens, Studies in Honor of Hans-Erich Keller, 459–73. 16. Britton, ed. Francis Morgan Nichols, 2 vols. (Oxford, 1865), electronic ed. by Siaˆn Pilborough, Russell Kneath, and Michael Beddow (Anglo-Norman On-Line Hub, 2002–3), http://www.anglo-norman.net/texts/britton-contents.html, vol. 1, chap. 9 (40); Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. A. Salmon, 3 vols. (Paris, 1970), chap. 30, no. 826 (1: 430); The Coutumes de Beauvaisis of Philippe de Beaumanoir, trans. F. R. P. Akehurst, Middle Ages Series (Philadelphia, 1992), chap. 30, no. 826 (303); The Mirror of Justices, ed. William Joseph Whitaker, Selden Society 7 for 1893 (London, 1895), c. 7 (p. 21); Leges Henrici Primi, ed. and trans. L. J. Downer, 55, 3 (172/173), LHP 43, 8 (152–53). 17. Huon de Bordeaux: chanson de geste du xiiie sie`cles, ed. and trans. William W. Kibler and Franc¸ois Suard (Paris, 2003), ll. 1420, 1453–57, 1649, 1671–76; Chre´tien de Troyes, Le chevalier au lion, ed. and trans. David F. Hult (Paris, 1994), ll. 3674–75; Thomas de Kent, Le roman d’Alexandre ou le roman de toute chevalerie, trans. Cath-

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erine Gaulier-Bougassas and Laurence Harf-Lancner, ed. Brian Foster and Ian Short (Paris, 2003), ll. 3141–3296; Lancelot du Lac, trans. Franc¸ois Mose`s (Paris, 1991), chap. 7 (100–113); Raoul de Cambrai: chanson de geste du xiie sie`cle, trans. William Kibler from edition of Sarah Kay (Paris, 1996), ll. 2984–85, 3822–25; Le roman de The`bes, ed. and trans. Francine Mora-Lebrun (Paris, 1995). 18. See, e.g., Peter Haidu, The Subject of Violence: The Song of Roland and the Birth of the State (Bloomington, Ind., 1993). 19. Alexandre, ll. 3141–65. 20. Ibid., ll. 3166–89. 21. For the trial, see Alexandre, ll. 3220–96. 22. The`bes, ll. 8261–9392. 23. Ibid., ll. 9109–26. 24. Ibid., ll. 9135–10374. On the debate, see White, ‘‘Problem of Treason.’’ 25. La chanson de Roland, ed. and trans. Ian Short (Paris, 1990), ll. 3734–3990 (Ganelon’s trial). On dating the text to the mid-twelfth century, see, e.g., HansErich Keller, ‘‘The Song of Roland and Its Audience,’’ Olifant 6 (1979): 259–74. 26. Roland, ll. 3751–56. 27. Ibid., ll. 596–641, 739–73, 841–2396. 28. Ibid., ll. 168–341. 29. Ibid., ll. 3757–78. 30. Ibid., ll. 3798–3806. 31. Ibid., ll. 3814–44.

Chapter 8. Illicit Religion: The Case of Friar Matthew Grabow, O.P. 1. On the Modern-Day Devout, see my forthcoming The Modern-Day Devout in Late Medieval Society (Philadelphia, 2008); on their communal households, my ‘‘Managing the Common Life: The Brothers at Deventer and the Codex of the Household (The Hague, MS KB 70 H 75),’’ in Schriftlichkeit und Lebenspraxis im Mittelalter, ed. Hagen Keller, Christel Meier, and Thomas Scharff (Munich, 1999), 111–69. 2. Antonino of Florence, Summa moralis III.16.1 (Verona, 1740; rpt. 1959), III 843. 3. Hostiensis, Summa aurea (Venice, 1570), 193. Kaspar Elm understands this text to provide authorization (an ‘‘Institut’’ in his German) for ‘‘semi-religious’’ lifestyles: ‘‘Die Bru¨derschaft vom gemeinsamen Leben: Eine geistliche Lebensform zwischen Kloster und Welt, Mittelalter und Neuzeit,’’ Ons Geestelijk Erf 59 (1985): 470–96; and ‘‘Vita regularis sine regula: Bedeutung, Rechtsstellung und Selbstversta¨ndnis des mittelalterlichen und fru¨hneuzeitlichen Semireligiosentums,’’ in Ha¨resie und vorzeitige Reformation im Spa¨tmittelalter, ed. Frantisek Sˇmahel (Munich, 1998), 239– 73. I have queried this in ‘‘Friar Johannes Nyder on Laypeople Living as Religious in the World,’’ in Vita Religiosa im Mittelalter: Festschrift fu¨r Kaspar Elm zum 70. Geburtstag, ed. Franz J. Felten and Nikolas Jaspert (Berlin, 1999), 583–615. 4. Frank-Michael Reichstein, Das Beginenwesen in Deutschland: Studien und

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Katalog (Berlin, 2001), 40–52; Walter Simons, Cities of Ladies: Beguine Communities in the Medieval Low Countries, 1200–1565 (Philadelphia, 2001), 253–313. 5. The basic story was set out a generation ago by Alexander Patschovsky, ‘‘Strassburger Beginenverfolgungen im 14. Jahrhundert,’’ Deutsches Archiv 30 (1974): 56–198; Robert Lerner, The Heresy of the Free Spirit in the Later Middle Ages (Princeton, N.J., 1972); and Richard Kieckhefer, Repression of Heresy in Medieval Germany (Philadelphia: 1979). I have reviewed it, with differing accents, in my Modern-Day Devout, chap. 1. 6. See Elizabeth Makowski, ‘‘A Pernicious Sort of Woman’’: Quasi-Religious Women and Canon Lawyers in the Later Middle Ages (Washington, D.C., 2005); and the review by Robert Lerner, AHR 111 (2006): 348. 7. On the battle in Basel, see Alexander Patschovsky, ‘‘Beginen, Begarden und Terziaren im 14. und 15. Jahrhundert: Das Beispiel des Basler Beginenstreits (1400/ 04–1411),’’ in Festschrift fu¨r Eduard Hlawitschka zum 65. Geburtstag, ed. Karl Rudolf Schnith and Roland Pauler, Mu¨nchener Historische Studien, Abteilung Mittelalterliche Geschichte 5 (Kallmu¨nz, 1993), 403–18; and Sabine von Heusinger, Johannes Mulberg OP (d. 1414): Ein Leben im Spannungsfeld von Domini kanerobservanz und Beginenstreit (Berlin, 2000), 39–89. Jean-Claude Schmitt, Mort d’une he´re´sie: L’E´glise et les clercs face aux be´guines et aux be´ghards du Rhin supe´rieur du XIVe au XVe sie`cles (Paris, 1978), highlighted the social resentments. 8. I treat this in my ‘‘Devout Communities and Inquisitorial Orders: The Legal Defense of the New Devout,’’ in Kirchenreform von unten: Gerhard Zerbolt von Zutphen und die Bru¨der vom gemeinsamen Leben, ed. Nikolaus Staubach (Frankfurt, 2003), 44–101, and in revised form in Modern-Day Devout, chap. 3. 9. For the Dominican house in Groningen, see Folkert Jan Bakker, Bedelorden en begijnen in de stad Groningen tot 1594 (Assen, 1988), 48–73 and passim. There are no surviving in-house documents pertaining to Grabow. 10. There is no definitive study. The basic works remain Hermann Keussen, ‘‘Der Dominikaner Mattha¨us Grabow und die Bru¨der vom gemeinsamen Leben,’’ Mitteilungen aus dem Stadtarchiv von Ko¨ln 13 (1887): 29–47 (for texts); Stephen Wachter, ‘‘Mattha¨us Grabow, ein Gegner der Bru¨der vom gemeinsamen Leben,’’ in Festschrift zum 50-ja¨hrigen Bestandsjubila¨um des Missionshauses St. Gabriel WienMo¨dling (Vienna-Mo¨dling, 1939), 289–376 (for a detailed reading); Nikolaus Staubach, ‘‘Zwischen Kloster und Welt? Die Stellung der Bru¨der vom gemeinsamen Leben in der spa¨tmittelalterlichen Gesellschaft, mit einem Anhang: Neue Quellen zum Grabow-Konflikt,’’ in Kirchenreform von unten, 397–426. 11. Both complexes disappeared after the Reformation, but for an image of them see Bakker, Bedelorden, 54, 56, 58–59 (Jacobijnenklooster), and 137 (Olde Convent). 12. Hildo van Engen, De Derde orde van Sint-Franciscus in het middeleeuwse bisdom Utrecht: Een bijdrage tot de institutionele geschiedenis van de Moderne Devotie (Hilversum, 2006) passim, and 74–76 for this house. 13. The relevant document is in Oorkondenboek Groningen II, 313–14 (no. 1098), with corrections by H. van Engen, Derde orde, 75 n. 60. 14. This from a document later addressed by Grabow to Pope Martin V: Keussen, ‘‘Grabow,’’ 34.

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15. Ibid., 46. 16. Daniel Hobbins, ‘‘The Schoolman as Public Intellectual: Jean Gerson and the Late Medieval Tract,’’ AHR 108 (2003): 1308–35. 17. Keussen, ‘‘Grabow,’’ 40. 18. Ibid., 40. 19. The most accessible text of these twenty-four sentences is that of Paul Fre´de´ricq, Corpus documentorum inquisitionis haereticae pravitatis Neerlandicae, 5 vols. (Ghent-Den Haag, 1896), 2: 219–20. 20. Keussen, ‘‘Grabow,’’ 38. 21. This apologetic brief, admittedly reaching us only by way of the legal procedure and in the copying of the Devout, can be found in Keussen, ‘‘Grabow, 37–41. 22. Ibid., 37. 23. On this, see H. van Engen, Derde Orde, 220–21. 24. Thomas, Summa Theologiae, II, II, 186. The language here, which Thomas borrowed in part from Gregory the Great, is important, and was widely echoed: ‘‘Religio autem . . . est quedam uirtus per quam aliquis ad Dei seruicium et cultum aliquid exhibet. Et ideo antonomastice religiosi dicuntur illi qui se totaliter mancipant diuino seruicio quasi holocaustum Deo offerentes . . . Et secundum hoc religio perfectionis statum nominat.’’ 25. See H. van Engen, Derde Orde, 113–30, for these privileges and their interpretation. 26. Keussen, ‘‘Grabow,’’ 34. 27. Johan Busch, De viris illustribus 58, ed. Karl Grube, Des Augustinerpropstes Iohannes Busch Chronicon Windeshemense und Liber de reformatione monasteriorum (Halle, 1886; rpt 1968), 172. 28. Jacobus Traiecti alias de Voecht, Narratio de inchoatione domus clericorum in Zwollis, ed. Michael Schoengen (Amsterdam, 1908), 105–6. 29. Busch, De viris illustribus 58, ed. Grube, 173. 30. Keussen, ‘‘Grabow,’’ 34–35. 31. See Staubach, ‘‘Zwischen Kloster und Welt?’’ 411–15 for an edition of this sollicitatio based on two manuscripts; a copy known earlier without attribution to Grabow was edited by Heinrich Finke, Acta concilii Constanciensis 4 (Mu¨nster 1928), 676–80. 32. Staubach, ‘‘Zwischen Kloster und Welt?’’ 416–20, at 417. 33. On Galecop and his role, see H. van Engen, ‘‘A Learned Acquaintance: Jan van Galecop (c. 1375–1428) and the Modern Devotion,’’ in Education and Learning in the Netherlands, 1400–1600: Essays in Honour of Hilde de Ridder-Symoens, ed. Koen Goudriaan, Jaap van Moolenbroek, and Ad Tervoort (Leiden, 2004), 13–32. 34. Staubach, ‘‘Zwischen Kloster und Welt?’’ 423–26, first edited by Wachter, ‘‘Grabow,‘‘ 365–68. 35. Ibid., 431–33. 36. Keussen, ‘‘Grabow,’’ 35–36. 37. Busch, De viris illustribus 58, ed. Grube, 173–74. 38. Keussen, Grabow,’’ 41. 39. Ibid., 37.

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40. Ibid., 37–41. 41. G. D. Mansi, Sacrorum conciliorum nova et amplissima collectio (1735; rpt. Graz, 1960), 28: 391. 42. Ibid., 390. 43. John Van Engen, ‘‘Privileging the Devout: A Text from the Brothers at Deventer,’’ in Roma, magistra mundi, Itineraria culturae medievalis: Me´langes offerts au Pe`re L.E. Boyle a` l’occasion de son 75e anniversaire, ed. Jacqueline Hamesse (Louvain-la-Neuve, 1998), 960. 44. Mansi, Consilia, 28: 391. 45. Ibid., 391–94. 46. I set this out in Modern Day Converts, chap. 7. 47. Keussen, ‘‘Grabow,’’ 45. 48. Ibid., 41–42. 49. Ibid., 44. 50. See Keussen, ‘‘Grabow,’’ 33–47 ⳱ Cologne, Stadtarchiv, Urkunden no. 9277. An additional version, made by the same notary, edited by Wachter, ‘‘Grabow,’’ 371–76. 51. Busch, De viris illustribus 58, ed. Grube, 174. 52. Satisfactio nostra, which I am editing from Emmerich, Stadtsarchiv, MS 13. 53. See J. Van Engen, ‘‘Friar Johannes Nyder,’’ 583–615. On Nyder see also Michael Bailey, Battling Demons: Witchcraft, Heresy, and Reform in the Late Middle Ages (University Park, Pa., 2003). 54. Nyder’s prologue, ‘‘Quamuis extra religiosorum et approbatorum ordinum monasteria sint seculares deuote persone saluabiles in diuersis statibus, quia tamen plures talium deo in uera paupertate seruare uolencium uexantur, potissime propter mundo contemptibilem paupertatem uoluntariam, idcirco quorundum religiosorum tradiciones erroneas [⳱ Mulberg, Grabow] qui, cum in amore paupertatis esse deberent ex uoto sue professionis primi, ne notetur eorum transgressio sunt paupertatis uere persecutores precipui, et non minus contra suos complices de clero alios qui, nedum ea que sunt necessiter docere deberent plebeos uerum eciam consilia ewangelica suadere tenentur et seruare quedam pre ceteris. Idcirco ad tuendam paupertatis uoluntarie primam huius uite beatitudinem de eam tractabo in sequentibus. . . . Nolo tamen, quantum mea interest, inutilibus ualidis mendicantibus patrocinari per sequencia.’’ I have used the manuscript of Nyder’s work kept in the convent at Cologne, now Cologne, Historisches Stadtarchiv W 342, fol. 122v. 55. ‘‘Est adhuc notabilis difficultas utrum licitum sit manenti in seculo tenere tria ista uel eciam uouere, uidelicet paupertatem uoluntariam castitatem et obedienciam. Quidam religiosus tempore concilii constanciensis asseruit uel tenuit quod non liceret. Cuius libellus habuit 24 proposiciones que omnes et singule suspecte ad minus erant, et multe earum erronee uel scandalose, quedamque heretice, ymmo quedam blaspheme iudicate sunt fore, et libellus ipse condempnandus. Et ad hoc fuerunt de diuersis uniuersitatibus et eciam de uariis religionibus approbatis mendicancium et non mendicancium doctores maiores quos pro tunc in theologia orbis habuit, ad minus 13. Quorum scripta uidi et sequentibus inserui sub compendio. . . . Concedendum igitur est quod licitum est manenti in seculo unum de predictis tribus aut duo uel omnia tria tenere et uouere.’’ Ibid., fol 149v. 56. This is what I analyzed in ‘‘Friar Johannes Nyder.‘‘

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Chapter 9. Marriage, Concubinage, and the Law I thank the College of Liberal Arts, University of Minnesota, for making possible research assistance for this essay, and Ph.D. candidate Michael Sizer for providing that assistance. The Rare Book departments at the Library of Congress, Firestone Library (Princeton University), Hesburgh Library (University of Notre Dame), and Union Theological Seminary allowed access to early printed editions of consilia collections. Versions of this chapter were presented at the Berkshire Conference on the History of Women, Claremont, California, June 2005, and at the American Society for Legal History conference, Baltimore, November 2006; I thank in particular Charles Donahue, Thomas McGinn, and Konstantinos Kapparis for their comments. I also thank Ed Peters for his support and encouragement in the area of legal history, as on so many other subjects over the years. He was the best senior colleague a new assistant professor could have wished for. 1. A good treatment is Thomas A. J. McGinn, ‘‘Concubinage and the Lex Julia on Adultery,’’ Transactions of the American Philological Society 121 (1991): 335–75. 2. Dig. 50.16.144, 1: 915. 3. Dig. 25.7.3.1, 1: 369. 4. Dig. 48.5.35 pr. 1: 850. 5. Dig. 25.7.4 (Paulus), 1: 369; 39.5.31pr. (Papinianus). I am translating maritalis affectio here as ‘‘marital intent,’’ because that seems to me better to convey what is involved than the English word ‘‘affection.’’ It has nothing to do with how fond the husband is of her, but rather that he regards her and behaves toward her as a man should his wife. 6. According to Ulpian, Dig. 48.5.14, 1: 846–47, the man whose concubine she is cannot accuse her with the right of a husband, but can do so as a third party. See discussion in James Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago, 1987), 40–44; Susan Treggiari, Roman Marriage: Iusti coniuges from the Time of Cicero to the Time of Ulpian (Oxford, 1991), 51–52. 7. Dig. 25.7.1 (Ulpian); 25.7.3 (Marcianus), 1: 369. 8. Beryl Rawson, ‘‘Roman Concubinage and Other de facto Marriages,’’ Transactions of the American Philological Association 104 (1974): 279–305, argues that the evidence for cases where two free people who could have married instead entered into concubinage is very scanty. 9. Sara Elise Phang, The Marriage of Roman Soldiers (13B.C.–A.D. 235): Law and Family in the Imperial Army, Columbia Studies in the Classical Tradition 24 (Leiden, 2001), esp. 198–202. 10. See Ruth Mazo Karras, ‘‘The History of Marriage and the Myth of Friedelehe,’’ EME 14 (2006): 119–51. 11. Suzanne Fonay Wemple, Women in Frankish Society: Marriage and the Cloister, 500 to 900 (Philadelphia, 1981), 39. 12. Concilium Moguntium 12, ed. Alfred Boretius and Victor Krause, Capitularia Regum Francorum, vol. 2, MGH Leges (Hannover, 1890), 2: 189. 13. Paul Mikat, Dotiere Ehe, rechte Ehe: Zur Entwicklung des Eheschliessungsrechte in fra¨nkische Zeit (Opladen, 1978), 46; Annales Bertiniani, s.a. 869, ed. Georg Waitz, MGH in Usum Scholarum Separatim Editi (Hannover, 1883), 107; s.a. 870, p. 108.

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14. Hincmar of Reims, De Divortio Lotharii Regis et Theutbergae reginae, ed. Letha Bo¨hringer, MGH, Concilia, 4 suppl. 1 (Hannover, 1992), 104. On this case, see Stuart Airlie, ‘‘Private Bodies and the Body Politic in the Divorce Case of Lothar II,’’ Past and Present 161 (November 1998): 3–38. 15. Jacques de Vitry, The Exempla or Illustrative Stories from the Sermones Vulgares of Jacques de Vitry, 242, ed. Thomas F. Crane (London, 1890), 101. 16. Jean Froissart, Chroniques, Livre III (du Voyage in Be´arn a` la campagne de Gascogne) et Livre IV (anne´es 1389–1400), 4: 50, ed. Peter Ainsworth and Alberto Varvaro (Paris, 2004), 547–48; Louis Doue¨t-D’Arcq, Choix de pie`ces ine´dites relatives au re`gne de Charles VI (Paris, 1863–64), 2: 25–27. 17. E.g., Paris, Bibliothe`que Nationale, Z/1o/18, fol. 124r (Criminal Register of the Archdeacon of Paris, 1485). 18. Charles Ducange, ed., Glossarium mediae et infimae Latinitatis (rpt. Graz: 1954), s.v. focaria; Ruth Mazo Karras, ‘‘The Latin Vocabulary of Illicit Sex in English Ecclesiastical Court Records,’’ Journal of Medieval Latin 2 (1992): 1–17. 19. Gratian D.34 d.p.c. 3, 1: 126. 20. James A. Brundage, ‘‘Concubinage and Marriage in Medieval Canon Law,’’ JMH 1 (1975): 6. 21. Au1ur Magnu´sdo´ttir, Frillor och Fruar: Politik och Samlevnad pa˚ Island 1120–1400 (Go¨teborg, 2000), discusses concubinage and alliance formation in Iceland. 22. See James A. Brundage, ‘‘Domestic Violence in Classical Canon Law,’’ in Violence in Medieval Society, ed. Richard W. Kaeuper (Woodbridge, 2000), 183–95; Richard Helmholz, Marriage Litigation in Medieval England (Cambridge, 1975), 100–107, on the dissolution of marriage; for a large number of separation cases, see Registre des causes civiles de l’officialite´ ´episcopale de Paris, ed. Joseph Petit (Paris, 1919), passim. 23. See, for example, Monique Vleeschouwers-Van Melkebeek, ‘‘Mandatory Celibacy and Priestly Ministry in the Diocese of Tournai at the End of the Middle Ages,’’ in Peasants & Townsmen in Medieval Europe, ed. Jean-Marie Duvosquel and Erik Thoen (Ghent, 1995), 681–92; E. J. G. Lips, ‘‘De Brabantse geestelijkheid en de andere sekse,’’ Tijdschrift voor Geschiedenis 10, 2 (1989): 1–29; Ruth Mazo Karras, Common Women: Prostitution and Sexuality in Medieval England (New York, 1996), 30, 46, 78. 24. Ludwig Schmugge, Kinder, Kirche, Karrieren: Pa¨pstliche Dispense von der unehelichen Geburt im Spa¨tmittelalter (Zurich, 1995): 3071 petitioners had siblings, and 73% of these were sons of priests. (This is just the tip of the iceberg; these are cases in which more than one child in the family wished to become a cleric, but there must have been many others in which only one or no child did.) See also Bernhard Schimmelpfennig, ‘‘Ex fornicatine nati: Studies on the Position of Priests’ Sons from the Twelfth to the Fourteenth Century,’’ Studies in Medieval and Renaissance History n.s. 2 (1979): 1–50. 25. See Dyan Elliott, Fallen Bodies: Pollution, Sexuality, and Demonology in the Middle Ages (Philadelphia, 1999), 81–107, for some of the implications of the existence of these women. 26. Emlyn Eisenach, Husbands, Wives, and Concubines: Marriage, Family, and

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Social Order in Sixteenth-Century Verona (Kirksville, Mo., 2004), 162, for a later period. 27. Il libro segreto di Gregorio Dati, ed. Carlo Gargiolli (Bologna, 1869), 32. 28. Carol Lansing suggests that in Bologna these unions usually involved women without dowries, with whom men did not want to commit to a property arrangement and alliance: ‘‘Concubines, Lovers, Prostitutes: Infamy and Female Identity in Medieval Bologna,’’ in Beyond Florence; The Contours of Medieval and Early Modern Italy, ed. Paula Findlen, Michelle M. Fontaine, and Duane J. Osheim (Stanford, Calif., 2003), 91–96. For an example where the partners were of comparable social standing, see Guido Ruggiero, The Boundaries of Eros: Sex Crime and Sexuality in Renaissance Venice (Oxford, 1985), 153. 29. David Nicholas, Domestic Life of a Medieval City: Women, Children, and the Family in Fourteenth-Century Ghent (Lincoln, Neb., 1985), 169. 30. Ingrid Baumga¨rtner, ‘‘Consilia—Quellen zur Familie in krise und Kontinuita¨t,’’ in Die Familie als sozialer und historischer Verband: Unterschungen zum Spa¨tmittelaltum und zur fru¨hen Neuzeit, ed. Pieter-Johannes Schuler (Sigmaringen, 1987), 43–66, at 45. 31. On the relation of ius proprium and ius commune, see Manlio Bellomo, The Common Legal Past of Europe, trans. Lydia G. Cochrane (Washington, D.C., 1995), 78–111, 149–202. 32. Consilia domini Guidonis Pape 115 (Lyon, 1519), 90r. 33. The definitive canon law treatment is X.4.17, 2: 709–17. See also Hostiensis (Henry of Segusio), Summa Aurea (Venice, 1574, rpt. Toronio, 1963), cols. 1379–84; Thomas Kuehn, Illegitimacy in Renaissance Florence (Ann Arbor, Mich., 2002), 44. 34. Baldus de Ubaldis, Baldi Vbaldi pervsini ivris consvlti omnium concessu doctissimi pariter & acutissimi consiliorvm, sive responsorvm 267 (Venice, 1575), 1: 79v. 35. See, e.g., Franciscus Curtius, Consiliorum sive responsorum d. Franchischini Curtii Iunioris . . . liber tertius 328 (Venice, 1574), 283r–284v; Philippus Decius, Consiliorum sive responsorum . . . tomus primus 132 (Venice, 1575), 142v–143. 36. See Steven Epstein, Speaking of Slavery: Color, Ethnicity, and Human Bondage in Italy (Ithaca, N.Y., 2001), on the prevalence of slavery in Italy. Professor Epstein has kindly confirmed to me that that is the likely meaning of the term in an Italian context at this period. Pers. comm., 18 March 2005. 37. G. Letonnellier, ‘‘Gui Pape,’’ in Dictionnaire de droit canonique, ed. R. Naz (Paris, 1953), 5: 1009–11. 38. Kuehn, Illegitimacy, 41. 39. Sally McKee, ‘‘Inherited Status and Slavery in Late Medieval Italy and Venetian Crete,’’ Past and Present 182 (2004): 31–53. Luis de la Puente (Ludovicus de Ponte), writing in the first half of the fifteenth century, reviewed the opinions on both sides of the question and concluded that the children of a slave could indeed be legitimated: Consilia D. Ludovici de Ponte Romani 194 (Frankfurt, 1577), 97v–98r. 40. Consilia domini Angeli de Vbaldis pervsini 30 (Lyon, 1551), fol. 15r. See Kuehn, Illegitimacy, 92. 41. Bartolus de Sassoferrato, Consilia quaestiones et tracatus D. Bartoli (Lyon, 1552), 41r, trans. in Kuehn, Illegitimacy, 254.

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42. Curtius, 136, fol. 65v. 43. Consilia domini Francisci de Aretio 48 (Lyon, 1536), fols. 39r–39v; cf. Consilia Angeli de Vbaldis, 30, fol. 15r. 44. Benedictus de Benedictis, Consiliorum sive mavis responsorvm domini Benedicti Caprae pervsini ac Lvdovici Bolognini bononiensis iuresconsultorum clarissimorum volumen 127 (Venice, 1576), fol. 162v. 45. E.g., Angelus de Gambilionibus, Consiliorvm cive responsorvm Angeli de Gambilionibus Aretini (Venice, 1576), 74: 1–2, p. 281. 46. Bartolo here follows his teacher Cino of Pistoia (Cynus, 1270?–1336/7): ‘‘the only difference between a wife and a concubine is in dignitas, that is honor.’’ An ‘‘honest’’ woman, more or less what would today be called ‘‘respectable,’’ was to be presumed a wife. Cyni Pistoriensis In Codicem et aliquot titulos primi Pandectorum tomi, id est Disgesti veteris, doctissima commentaria 5:4 (rpt. Turin, 1964), 1: 293. 47. Bartolo de Sassoferrato, Opera (Venice, 1580), 3: 38v. The legitimations to which McKee refers were not by subsequent marriage of the parents, but by other legal action on the part of the father. Jurists generally agreed that natural but not spurious children could be legitimated: e.g., Paulus de Castro, Consilia et Allegationes (Rome, 1473), 2: 219. 48. Bartolo, Opera. See Anna T. Sheedy, Bartolus on Social Conditions in the Fourteenth Century (New York, 1942), 58. Decius, Consilia 133, fol. 143v, follows Bartolus on this issue, ‘‘even though concubinage is completely prohibited to the clergy.’’ 49. See Kuehn, Illegitimacy, 35. 50. Consilia domini Guidonis Pape 115, 90r. 51. Gratian, pars 2 C. 30 q. 1 c. 1, 1: 1095–96. 52. I am grateful to James Brundage for his information on this point. Decius, 132, fols. 142v–143, argued that a priest could not make gifts to his concubine. 53. Consilia Benedicti Caprae Perusini, 2:2, fol. 4r. 54. Baldo de Ubaldis, Consilia Baldi de Ubaldi de Perusio (1575), 248, vol. 1 fols. 71r–71v; 262, 77v; 267: 2, 79v–80r. 55. Decius, Consilia 132, fol. 143r. 56. Paulus de Castro, Consilia Pauli de Castro (Frankfurt, 1582), 19, 3: 14–16. 57. Karras, Common Women, 30.

Chapter 10. Crusaders’ Rights Revisited: The Use and Abuse of Crusader Privileges in Early Thirteenth-Century France 1. Maureen Purcell, Papal Crusading Policy: The Chief Instruments of Papal Crusading Policy and Crusade to the Holy Land, from the Final Loss of Jerusalem to the Fall of Acre, 1244–1291 (Leiden, 1975), 135–81 (hereafter Purcell); James A. Brundage, Canon Law and the Crusader (Madison, Wis., 1969) (hereafter Brundage). When I graduated from a small Protestant high school, my impression of medieval history was confined to a cursory sketch of the ‘‘Feudal Pyramid’’ (complete with a

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pope precariously perched on the peak), characteristic of this darkest of periods between the early church and the dawn of the Reformation. Edward Peters’s ‘‘Europe in a Wilder World, 500–1500’’ (as misprinted in the course catalog) soon changed that. Ed’s mentorship, generosity, and warmth are legendary. Anything of worth in this effort is indebted to the foundations he laid and the interest he kindled, and to him I respectfully and affectionately dedicate this chapter. It was vastly improved by the suggestions of this volume’s editors, whom I would like to thank for their patient labors; all shortcomings remain my own. 2. Christopher J. Tyerman, The Invention of the Crusades (Toronto, 1998), 24, 27–28, 56–59; Tyerman, England and the Crusades, 1095–1588 (Chicago, 1988), 61–64, 97–98, 133–43, 174–75, 187–228; Simon Lloyd, English Society and the Crusade, 1216– 1307 (Oxford, 1988), 163–69, 172–75; David A. Carpenter, The Minority of Henry III (Berkeley, Calif., 1990); Nicholas Vincent, The Letters and Charters of Cardinal Guala Bicchieri, Papal Legate in England, 1216–1218, Canterbury and York Society 83 (Woodbridge, 1996). 3. Jessalynn Bird, ‘‘Heresy, Crusade and Reform in the Circle of Peter the Chanter, c.1187–c.1240’’ (D. Phil. thesis, University of Oxford, 2001); James M. Powell, Anatomy of a Crusade, 1213–1221 (Philadelphia, 1986); John W. Baldwin, The Government of Philip Augustus (Berkeley, Calif., 1986); Baldwin, Masters, Princes, and Merchants: The Social Views of Peter the Chanter and His Circle, 2 vols. (Princeton, N.J., 1970); Jane E. Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254: A Study in Ecclesiastical Jurisdiction and Administration (Oxford, 1971); nn. 1–2 above. 4. Marcel and Christine Dickson, ‘‘Le Cardinal Robert de Courson: Sa vie,’’ Archives d’histoire doctrinale et litte´raire du moyen aˆge 9 (1934): 53–142, esp. 78 (hereafter Dickson). 5. Jessalynn Bird, ‘‘Reform or Crusade? Anti-Usury and Crusade Preaching During the Pontificate of Innocent III,’’ in Pope Innocent III and His World, ed. John C. Moore (Aldershot, 1999), 165–86, at 171; Powell, Anatomy, 29, 38–41; Lloyd, English Society, 22–23, 72–195; Tyerman, England, 53, 61–64, 71, 75–85, 168–77, 187–228; Odo Rigord, Gesta Philippi Augusti, in Oeuvres de Rigord et de Guillaume le Breton, ed. Henri-Franc¸ois Delaborde, 2 vols. (Paris, 1882–85), 1: 1–167, at 84–90. 6. Bird, ‘‘Heresy, Crusade and Reform,’’ 239–45; Bird, ‘‘Reform or Crusade?’’ 166–72, 182; Robert Chazan, Medieval Jewry in Northern France: A Political and Social History (Baltimore, 1973), 69; Brundage, 179–82 (I differ from his interpretation of the 1188 statute); nn. 2, 5 above. 7. Bird, ‘‘Heresy, Crusade, and Reform,’’ 249–50; Jessalynn Bird, ‘‘Paris Masters and the Justification of the Albigensian Crusade,’’ Crusades 6 (2007); Powell, Anatomy, 38–42; Dickson, 75–78, 88, 93, 102–3, 106–8, 130–32; Henri d’Arbois de Jubainville, Histoire des ducs et des comtes de Champagne, 6 vols. (Paris, 1859–66), 4: 104–6 (hereafter Jubainville); Jubainville, Catalogue des actes des comtes de Champagne (Paris, 1863), nos. 591, 768–69, 780 (hereafter Catalogue); n. 5 above. 8. Bird, ‘‘Reform or Crusade?’’ 171; Recueil des historiens des Gaules et de la France 19: 582–83 (hereafter RHGF); PL 216: 967, 217: 239–40; Recueil des actes de Philippe Auguste, roi de France, ed. H.-F. Delaborde et al., 5 vols. (Paris, 1916–79), 3: 505–7, no. 1350 (misdated 1215) (hereafter Actes); Powell, Anatomy, 33–50. For diver-

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gent interpretations of the composition, see Tyerman, Invention, 58; Brundage, 179–82. 9. Bird, ‘‘Heresy, Crusade, and Reform,’’ 12–13; Baldwin, Government, 107, 114–18, 123–25, 227, 440; 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. 10. See nn. 5 and 9 above and n. 11 below; Actes, 3: 504–7, no. 1360; Baldwin, Government, 183–84; Brundage, 15, 183–84, 170–72; Purcell, 138, 167–68; August Potthast, ed., Regesta pontificum Romanorum, A.D. 1198–1304, 2 vols. (Berlin, 1874–75), no. 5163 (hereafter Potthast); Petrus Pressutti, ed., Regesta Honorii papae III, 2 vols. (Rome, 1888–95), nos. 3533, 4331, 4336 (hereafter Pressutti). 11. PL 216: 818–22; Conciliorum Oecumenicorum Decreta, ed. Josepho Alberigo et al., 3rd ed. (Bologna, 1973), 267–71 (hereafter COD); Bird, ‘‘Heresy, Crusade, and Reform,’’ 212, 270–71; Bird, ‘‘Reform or Crusade?’’ 171, 182–84; Dickson, 78. 12. Bird, ‘‘Reform or Crusade?’’ 183–84. For similar later abuses, see Brundage, 189; Purcell, 175–76. 13. Bird, ‘‘Heresy, Crusade and Reform,’’ 213, 217–26, 269–71; Bird, ‘‘Reform or Crusade?’’ 183–84; Pressutti, nos. 14, 207, 529, 1327, 5207–8, 5513, 2978, 2984; and n. 26 below. 14. RHGF 19: 547–48; Pressutti, nos. 281–82; Gervase of Pre´montre´, ep. 4, in Sacrae antiquitatis monumenta, historica, dogmatica, diplomatica, ed. Charles Louis Hugo, 2 vols. (E´tival, 1725–31), 1: 8 (hereafter Hugo); Dickson, 68–70, 78; Bird, ‘‘Heresy, Crusade, and Reform,’’ 13; Powell, Anatomy, 60, 128, 221; Sayers, Papal Judges Delegate, 125–62, 243–76. 15. John W. Baldwin, Aristocratic Life in Medieval France: The Romances of Jean Renart and Gerbert de Montreuil, 1190–1230 (Baltimore, 2000), 61 and 300 n. 106; Dickson, 92–93, 100–101, 105–8; Claire Taylor, ‘‘Pope Innocent III, John of England and the Albigensian Crusade (1209–1216),’’ in Moore, Pope Innocent III and His World, 205–28; Powell, Anatomy, esp. 33–50; Thomas Rymer, Foedera, conventiones, literæ . . . , 10 vols., 3rd ed. (Farnborough, 1967), I.i.124. 16. Bird, ‘‘Heresy, Crusade, and Reform,’’ 271–74; Bird, ‘‘Paris Masters’’; William Chester Jordan, The French Monarchy and the Jews: From Philip Augustus to the Last Capetians (Philadelphia, 1989), 38–44; Chazan, Medieval Jewry, 69, 74–75, 78–80, 84–86, 89, 91–92, 95–96; Constance B. Bouchard, Spirituality and Administration: The Role of the Bishop in Twelfth-Century Auxerre (Cambridge, Mass., 1979), esp. 130–32; RHGF 18: 263; PL 216: 1291–93. 17. Dickson, 76, 108; Baldwin, Aristocratic Life, 60–61; Bouchard, Spirituality, 114, 138–39; Bird, ‘‘Heresy, Crusade and Reform,’’ 12; PL 215: 679, 873; n. 16 above. 18. Robert had reformed Ve´zelay in 1207. See PL 216: 943–44, 946–48; Pressutti, nos. 562, 2110; Dickson, 74–76, 93; Raymonde Foreville, Le Pape Innocent III et la France (Stuttgart, 1992), 53–58, 60–62, 311–12; Hugh of Poitiers, The Ve´zelay Chronicle and Other Documents from MS. Auxerre 227, ed. J. Scott and John O. Ward (Binghampton, N.Y., 1992), 1, 3–12, 23–26, 52, 66–68, 72, 75–77, 84–85, 89, 96, 108– 14, 116–29, 158–315, 364–65, 372–74; R. B. C. Huygens, ed., Monumenta Vizeliacensia: Textes relatifs a l’histoire de l’abbaye de Ve´zelay, Corpus Christianorum Continuatio

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Medievalis 42 (Turnhout, 1976), 128–29, 135, 166–75, 182–83, 185–86, 223–24, 227–31, 239, 400, 402, 419–24, 534–38, 542 ff, 603–7. 19. Jessalynn Bird, ‘‘The Victorines, Peter the Chanter’s Circle, and the Crusade: Two Unpublished Crusading Appeals in Paris, Bibliothe`que Nationale, Ms. Latin 14470,’’ Medieval Sermon Studies 48 (2004): 5–28, at 13–14; Hermann Hoogeweg, Die Schriften des Ko¨lner Domscholasters, spa¨teren Bischofs von Paderborn unde Kardinalbischofs von S. Sabina Oliverus (Tu¨bingen, 1894), eps. 1–2, pp. 285–88. 20. N. 18 above; Elizabeth Siberry, ‘‘The Crusading Counts of Nevers,’’ Nottingham Medieval Studies 34 (1990): 64–70; Constance B. Bouchard, Sword, Miter, and Cloister (Ithaca, N.Y., 1987), 345–51. 21. Bird, ‘‘Heresy, Crusade, and Reform,’’ 61–62; PL 216: 984–92; RHGF 19: 735; Jubainville, 4: 24, 71, 108. 22. Karl Rodenberg, ed., Epistolae saeculi XIII e regestis pontificum Romanorum, 3 vols. (Berlin, 1883–87), 1: 163, no. 234; Brundage, 145, 157; Purcell, 161. 23. See nn. 2, 12–13, 15 above; Gervase of Pre´montre´, ep. 2, ed. Hugo, 1: 5; Baldwin, Government, 332–34, 337–38; F. M. Powicke, Stephen Langton (London, 1965), 135–38; RHGF 19: 608, 622, 629, 634; Pressutti, nos. 211, 1377, 1397, 1407, 1416, 1891–92, 3328. 24. Pressutti, nos. 1498–99, 1873; RHGF 19: 661, 677. 25. Bird, ‘‘Reform or Crusade?’’ 173, 182–83; James Donovan, Pelagius and the Fifth Crusade (Philadelphia, 1950), 44–45; Pressutti, nos. 1498–99, 1543, 1558, 1581; RHGF 17: 108, 19: 661, 663; nn. 8–11 above. 26. Dickson, 108, 112; Bouchard, Administration, 130; Catalogue, no. 882; RHGF 18: 736, 19: 711; Pressutti, nos. 1257, 2738–39. Compare Lloyd, English Society, 159–62, 172–75; Brundage, 174; n. 2 above. 27. Pressutti, nos. 859, 2553; RHGF 19: 638, 704, 713; Siberry, ‘‘Crusading Counts,’’ 67–69; Powell, Anatomy, 115, 117–18, 144, 229. 28. Pressutti, no. 5005; RHGF 19: 754; Siberry, ‘‘Crusading Counts,’’ 67–69. 29. RHGF 19: 712; n. 8 above. 30. Bird, ‘‘Heresy, Crusade, and Reform,’’ 14–16, 154, 204, 271–74; Bird, ‘‘Victorines,’’ 7, 10, 13; Jordan, French Monarchy, 38–39, 41, 44; Chazan, Medieval Jewry, 75, 78–80, 84–85, 91–92, 95–96; Jubainville, 4: 86; RHGF 18: 763; PL 215: 501–3, 216: 694–95; n. 7 above. 31. Pressutti, no. 2120; RHGF 19: 688. 32. PL 216: 729–30. For similar cases, see Pressutti, nos. 2892, 3824, 5959; Vatican, Archivio segreto, Registrum vaticanum, lib. 12, ep. 197, fol. 97v; Brundage, 182–83; Tyerman, England, 135, 217–22. 33. Bird, ‘‘Heresy, Crusade, and Reform,’’ 9–14; RHGF 18: 715; Dickson, 76 and passim; Pressutti, nos. 543, 2254, 2260, 2280, 2317, 2768, 3168, 3184, 3250, 4097, 5192; Catalogue, no. 1057. 34. Actes, 3: 171, 444–45, 453–58, 463–64, nos. 1088, 1306, 1313–14, 1321; PL 216: 975–96; Brundage, 190; Jubainville, 4: 23–71, 85–86, 101–4, 107–10, 121–27. 35. Jubainville, 4: 110–13, 117–18; Auguste Teulet et al., eds., Layettes du Tre´sor des Chartes: Inventaire et documents publie´s par la direction des archives, 5 vols. (Paris, 1863–1909), no. 1474, p. 526 (hereafter Layettes); Brundage, 15, 189; PL 216: 977; nn. 8, 25 above, 41, 44 below.

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36. Pressutti, no. 1327; Reg. vat. lib. 9, ep. 1111, fol. 257r–v. 37. Brundage, 12–14, 142, 160–69, 190–93; Purcell, 164–65, 169; n. 2 above. 38. Jubainville, 4: 113, n. a; Catalogue, nos. 825, 831, 833, 922, 963, 1029; Dickson, 94; RHGF 19: 582–83; PL 216: 967. 39. Pressutti, no. 296. 40. Baldwin, Masters, Princes and Merchants, 1: 7–8, 21, 332–37; Dickson, 78, 95, 114; Jubainville, 4: 67, 71, 113–21, 124, 141–42; Catalogue, nos. 824, 826–27, 832–33, 839–40, 907–8, 922, 928bis, 928ter, 938–41, 976–94; PL 214: 610–15, 216: 940–42, 971–82. 41. Jubainville, 4: 128–41; Catalogue, nos. 963, 976–94, 1022, 1295; Layettes, no. 1474, pp. 526–27; Baldwin, Government, 41. 42. Dickson, 115, nn. 3–4; Jubainville, 4: 141–47; Catalogue, no. 928ter; Pressutti, nos. 5374, 5387, 5539–40, 5686–88; Layettes, no. 1276, pp. 458–60; PL 216: 978–79; n. 43 below. 43. N. 7 above; Pressutti, no. 386; RHGF 19: 633; PL 216: 982–84; Jubainville, 4: 134, 148–52; Layettes, nos. 1275–78, pp. 456–60. 44. Jubainville, 4: 115–16, 152–66, 178–83; Catalogue, no. 1177; Layettes, no. 1474, pp. 527–28; RHGF 19: 689; COD, 252–53. 45. Jubainville, 4: 183–87; Sayers, Papal Judges Delegate, 239–75; COD, 255–57; Layettes, nos. 1275–76, 1474, 1476–79, 1483–86, pp. 457, 459, 527, 529–34; PL 216: 986–87. 46. Jubainville, 4: 167–70. 47. N. 23 above; Brundage, 155; Purcell, 170–71; Powell, Anatomy, 41, 234; Jubainville, 4: 176–77; Layettes, nos. 1275–76, pp. 456–60; Reg. vat. lib. 10, eps. 6, 382, fols. 4v, 80v–81r.

Chapter 11. Learned Opinion and Royal Justice: The Role of Paris Masters of Theology During the Reign of Philip the Fair 1. Chartularium Universitatis Parisiensis (hereafter CUP), ed. H. Denifle and E´. Chaˆtelain, vol. 1 (Paris, 1889), doc. 1, 59–61. 2. For a recent assessment of university support by Philip II and Louis IX, see Manuel Alejandro Rodriguez de la Pen˜a, ‘‘Rex scholaribus impendebant: The King’s Image as Patron of Learning in Thirteenth Century French and Spanish Chronicles: A Comparative Approach,’’ Medieval History Journal 5 (2002): 21–36. For events during the regency of Blanche of Castile, see Spencer E. Young, ‘‘Consilio hominum nostrorum: A Comparative Study of Royal Responses to Crisis at the University of Paris, 1200–1231,’’ History of Universities 22, 1 (2007). 3. CUP 1, doc. 20, 78–80. 4. CUP 1, doc. 79, 136–39. 5. Masters of theology, without apparent episcopal involvement, also policed the orthodoxy of teaching in their faculty as well as in the faculty of arts: see William J. Courtenay, ‘‘Inquiry and Inquisition: Academic Freedom in Medieval Universities,’’ Church History 58 (1989): 168–82; J. M. M. H. Thijssen, Censure and

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Heresy at the University of Paris, 1200–1400 (Philadelphia, 1998). Although several masters of theology were involved in the process against Amaury de Be`ne and his disciples,‘‘ there is no evidence that masters of theology as a consultative or judicial body took part in the proceedings in 1206 or 1210; see Thijssen, ‘‘Master Amalric and the Amalricians: Inquisitorial Procedure and the Suppression of Heresy at the University of Paris,’’ Speculum 71 (1996): 43–65. Masters of theology as a group did participate in the condemnation of the Talmud at Paris in 1240 or 1241, but they along with others were responding to a request of pope Gregory IX, who in turn was acting on a denunciation from a converted Jew at Paris; see CUP 1, doc. 133, 175–76; doc. 173, 202–5; A. Tulier, ‘‘La condamnation du Talmud par les maıˆtres universitaires Parisiens, ses causes et ses conse´quences politiques et ide´ologiques,’’ in Le bruˆlement du Talmud a` Paris, 1242–1244, ed. Gilbert Dahan (Paris, 1999), 59–78. 6. On the development of self-awareness of the University and the special status of the faculty of theology, see Jacques Le Goff, ‘‘Quelle consciences l’universite´ me´die´vale a-t-elle d’elle-meˆme?’’ in Beitra¨ge zum Berufsbewusstsein des mittelalterlichen Menschen, ed. Paul Wilpert, Miscellanea Mediaevalia 3 (Berlin, 1964), 15–29. 7. Heinrich Finke, Aus den Tagen Bonifaz VIII: Funde und Forschungen (Mu¨nster, 1902), vi–vii; English translation from R. W. Southern, ‘‘The Changing Role of Universities in Medieval Europe,’’ Inst His Res 60 (1987): 136, with some revisions based on the Latin text in Finke. 8. These events as well as the Templar affair have also been addressed by Sophie Menache, ‘‘La naissance d’une nouvelle source d’autorite´: l’Universite´ de Paris,’’ Revue historique 268 (1982): 305–27, but not with the same detail or conclusions. See also Ian P. Wei, ‘‘The Masters of Theology at the University of Paris in the Late Thirteenth and Early Fourteenth Centuries: An Authority Beyond the Schools,’’ Bulletin of the John Rylands Library 75 (1993): 37–63; Jacques Verger, ‘‘Les universite´s franc¸aises et le pouvoir politique, du Moyen Age a` la Re´volution,’’ in I poteri politici e il mondo universitario (XIII–XX secolo), ed. Andrea Romano and Jacques Verger (Soveria Mannelli, 1994), 17–33; Jacques Verger, ‘‘Une autorite´ universelle? l’Universite´ de Paris et les princes europe´ens au Moyen Age,’’ in Reich, Regionen und Europa in Mittelalter und Neuzeit: Festschrift fu¨r Peter Moraw, ed. Paul-Joachim Heinig et al., Historische Forschungen 67 (Berlin, 2000), 515–26; Karl Ubl, ‘‘Die Disziplinierung der Gelehrten. Philipp IV. von Frenkreich und die Universta¨t Paris,’’ in Politische Wissenschaft und o¨ffentliches Recht in den juristischen Fakulta¨ten Europas (13.–18. Jahrhundert), ed. Jacques Krynen and Michael Stolleis, Studien zur europa¨ischen Rechtsgeschichte, forthcoming. 9. Documents from the process survive in Paris, Arch. Nat., J. 491–93, some of which were edited by Pierre Dupuy, Histoire du diffe´rend d’entre le pape Boniface VIII et Philippes le bel (Paris, 1655; rpt.. Tucson, Ariz., 1963), 448–577; and in Archivio Segreto Vaticano, Instr. misc., C, fasc. 47, and Bibl. Barb. XXXIII, 75, ed. C. A. C. Ho¨fler, ‘‘Ru¨ckblick auf Papst Bonifacius VIII. und die Literatur seiner Geschichte: Nebst einer wichtigen urkundlichen Beilage aus dem vatikanischen Archiv in Rom,’’ Abhandlungen der hist: Klasse der ko¨nigliche bayerische Akademie der Wissenschaften III, 3 (1843), 3–84 (edition 45–84), portions of which were quoted or summarized by Henry Denifle, ‘‘Die Denkschriften der Colonna gegen Bonifaz VIII.

282

Notes to Pages 152–153

und der Cardina¨le gegen die Colonna,’’ Archiv fu¨r Lituratur- und Kirchengeschichte des Mittelalters 5 (1889): 493–529, at 497–500, and in CUP 2, doc. 604, 77. The texts have been reedited in Boniface VIII en proce`s: articles d’accusation et de´positions des te´moins (1303–1311), ed. Jean Coste (Rome, 1995). The purported action of the masters was referred to by Finke, Aus den Tagen, 73, n. 2, as a determination of the University of Paris. 10. Coste, Boniface VIII, 804: ‘‘diversos magistros et doctores theologie hoc determinantes.’’ 11. Ibid., 845: ‘‘Item credit per hoc quia [doctores] de hoc disputaverant et eorum determinationem ad dictum dominum regem dicebantur contra ipsum Bonifatium quoad illegitimum ingressum ad papatum pervenisse.’’ The bishop of Bayeux was Guillaume Bonet, a graduate and former master at the University of Angers, member of the Paris Parlement in 1295, founder of the Colle`ge de Bayeux at Paris in 1309, and plenipotentiary of the king in 1310; see Jean-Michel Matz and Franc¸ois Comte, Fasti Ecclesiae Gallicanae, vol. 7, Dioce`se d’Angers (Turnhout, 2003), 238. 12. Coste, Boniface VIII, 804: ‘‘Bonifacius diversos magistros et doctores theologie hoc determinantes capi fecit et mori in carcere . . . , sicut fratrem Geurtium, de ordine minorum, fratrem Petrum de Adria de ordine predicatorum, et quendam alium magistrum de theologia de ordine Cisterciensium, quem in carcere mori fecit.’’ Denifle thought that the Franciscan and Dominican might have been bachelors of theology, for which there is also no evidence, but in that role they could never have been part of a determination of masters. 13. The letters were edited by Denifle, ‘‘Die Denkschriften der Colonna,’’ 509–24. 14. Ibid., 519. 15. Finke, Aus den Tagen, 1: 65–76; on Olivi’s position, see Livarius Oliger, ‘‘Petri Iohannis Olivi de renuntiatione papae Coelestini V quaestio et epistola,’’ Archivum Franciscanum Historicum 11 (1918): 309–73; David Burr, The Persecution of Peter Olivi, Transactions of the American Philosophical Society n.s. 6 pt. 5 (Philadelphia, 1976), 69–70; Marco Bartoli, ‘‘Olivi et le pouvoir du pape,’’ in Pierre de Jean Olivi: (1248–1298): Pense´e scholastique, dissidence spirituelle et socie´te´, ed. Alain Boureau and Sylvain Piron (Paris, 1999), 173–99, at 189–90. 16. Specifically, Godfrey of Fontaines, Quodlibet XII, q. 4: Utrum, posito quod non esset aliquod ius positivum sive statutum quo praelati prohibentur renuntiare statui et dignitati, ipsi possent libere renuntiare, in Les Quodlibets onze et douze, ed. Jean Hoffmans, Philosophes Belges: Textes et Etudes 5, 1–2 (Louvain, 1932), 96–100; Peter of Auvergne, Quodlibet I, q. 15: Utrum Summus Pontifex possit cedere vel renuntiare officio suo in aliquo casu, unedited; for the list of mss see Pale´mon Glorieux, La litte´rature quodlibe´tique (Kain, 1925), 1: 257. 17. CUP 2: 77. 18. For a summary of Olivi’s argumentation, see Finke, Aus den Tagen, 66–67. On the Franciscans at Lunghezza, see Denifle, ‘‘Die Denkschriften,’’ 502, and Brian Tierney, The Crisis of Church and State, 1050–1300 (Englewood Cliffs, N.J., 1964), 174. 19. Finke, Aus den Tagen, 69–74.

Notes to Pages 153–156

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20. Godfrey of Fontaines, Quodlibets onze et douze, 97–99: ‘‘Quamvis ergo summus pontifex non habeat superiorem proprie loquendo, nihilominus cedere potest. . . . ita etiam exposita cessionis causa in cardinalium praesentia. . . , sufficere potest eorum assensus absque alicuius alterius superioris auctoritate.’’ 21. Ibid., 99: ‘‘Haec videtur esse intentio Hugotionis in Summa sua . . . ubi dicit quod Papa renuntiare potest coram cardinalibus, vel coram concilio generali; et quod papa pro libito suae voluntatis cedere non possit nisi ex causis legitimis eo quod est obligatus universali Ecclesiae.’’ 22. For the development of the campaign of 1303 against Boniface VIII, see William J. Courtenay, ‘‘Between Pope and King: The Parisian Letters of Adhesion of 1303,‘‘ Speculum 71 (1996): 577–605. 23. The structure and language of the document parallel those of many others prepared by the royal chancery in 1303 and differ markedly from documents issued by the university. It is interesting to note that the document was preserved in the royal archives, not in those of the rector, nations, or faculties of the university. 24. On the process against the Templars, see Heinrich Finke, Papsttum und Untergang des Templerordens, 2 vols. (Mu¨nster, 1907); Malcolm Barber, The Trial of the Templars (Cambridge, 1978); Johannes Fried, ‘‘Wille, Freiwilligkeit, und Gesta¨ndnis um 1300: Zur Beurteilung des letzten Templergroßmeisters Jacques de Molay,’’ Historisches Jahrbuch 105 (1985): 388–425; Anke Kru¨ger, ‘‘Schuld oder Pra¨judizierung? Die Protokolle des Templerprozesses im Textvergleich,’’ Historisches Jahrbuch 117 (1997): 340–77; Barbara Frale, L’ultima battaglia dei Templari (Rome, 2001); Frale, Il Papato e il processo ai Templari (Rome, 2003). 25. Jean de Saint-Victor, Excerpta e Memoriali Historiarum, Recueil des Historiens des Gaules et de la France, vol. 21 (Paris, 1855), 649–50; Guillaume de Nangis, Chronique latine de Guillaume de Nangis, de 1113 a` 1300 avec les continuations de cette chronique de 1300 a` 1368, ed. Hercule Ge´rard (Paris, 1843), 1: 361. 26. Finke, Papsttum, II, 309: ‘‘pluribus aliis religiosis et secularibus magistris, bachalariis et scolaribus studii Parisiensis testibus ad hoc vocatis specialiter et rogatis.’’ 27. Present from the cathedral chapter, in order of listing, were Gerardus de Collauduno, archdeacon of Josayo, Simon de Guibervilla, chancellor, Petrus de Marigniaco, succentor, Radulphus de Haricuria, penitentiarius, and Hugh de Besanc¸on, canon and regent master in canon law. The Dominicans were represented by Guillelmus de Sancto Evurtio, prior of St. Jacques, Romeus de Brugaria and Herveus Natalis [Ne´delec], the latter two also doctors of theology, and Reginaldus de Albigniaco [Renaud d’Aubigny, formerly prior of St. Jacques], all of whom had supported Philip against Boniface VIII in 1303. The Franciscans were represented by Petrus, guardian of the Cordelier convent, and Alexander of Alessandria, their regent master in theology. Also in attendance were Gerard of Bologna, the prior general of the Carmelites, Henry of Friemar, the regent master of the Augustinian Hermits, Gerard of St. Victor, also regent master in theology, and Laurence de Droco, the regent master at Vallis Scolarium. 28. Of the four, Alanus de Lambalia, from Lamballe in the diocese of StBrieuc, was ‘‘Philippi regis Francorum clericus’’ and is mentioned in several documents in the company of Enguerrand de Marigny, Guillaume de Nogaret, and Guil-

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Notes to Pages 156–161

laume de Plaisians: see Regestum Clementis Papae V, 8 vols. (Rome, 1885–87), vol. 5, docs. 7504, 7505; Archives Nationales, Registres du Tre´sor des Chartes, vol. 1, Re`gne de Philippe le Bel (Paris, 1958), docs. 992, 1218–19. Reginaldus de Foresta [Renaud de la Foreˆt] was described as a royal clerk (clericus regis) when he was listed at the second assembly at the Temple (Finke, Papsttum, 2: 309–13), and as a canon of Laon when listed among those attending the first meeting (307–9); he was nominated to a prebend at Laon by the king in 1306 (He´le`ne Millet, Les chanoines du chapitre cathe´dral de Laon, 1272–1412, Collection de l’E´cole franc¸aise de Rome 56 [Rome: 1982], 163, 514). Petrus de Pruneto, a royal clerk from the diocese of Bourges, was a notary to the king by 1299 and collector of annates for the king in the province of Bourges from 1304 to 1309 (Les Journaux du Tre´sor de Philippe IV le Bel, ed. Jules Marie Eduard Viard (Paris: 1940), doc. 295, col. 52n; Registres du Tre´sor des Chartes, 1, docs. 116–21, 752, 904, 914, 1297, 1358). He was rewarded with a canonical prebend at Bourges, and continued to serve royal interests into the reign of Philip VI (Regestum Clementis V, vol. 6, doc. 7907; Lettres communes de Jean XXII, ed. Guillaume Mollat, 16 vols. (Rome, 1904–47), docs. 52, 58070, 59561. The Reginaldus de Albigniaco [Renaud d’Aubigny] mentioned here was probably not the Dominican who helped launch the campaign against Boniface VIII in the gardens of the Louvre in 1303 and who was the first to sign the Dominican list in support of the royal initiative, but rather the Renaud d’Aubigny who was a royal notary and scribe serving Philip as early as 1298 (Journaux du Tre´sor de Philippe IV, doc. 139, cols. 27–28; Registres du Tre´sor des Chartes, 1, doc. 3, 675, 676, 678, 1264, 1298, 1553, 1606, 1546). 29. It is possible that those named as procurators of the four nations were inaccurately recorded. There is no problem with Jacobus de Bethunia, named as procurator of the Picard nation, nor with Adam de Villanis, named as procurator of the French nation. Reginaldus de Bisuncio, however, is named as procurator of the Norman nation, although Besanc¸on [Bisuntio] geographically falls within the French nation; he did, however, hold the parish church of Vaudeloges in the diocese of Se´es in lower Normandy by 1316 (Lettres communes de Jean XXII, doc. 1486). Johannes de Noeriis, listed as procurator of the English nation, was actually a royal clerk from the region of France north of Paris (Lettres communes de Jean XXII, doc. 45683). Either the notary was not fully informed or it was important to record all four procurators as being present, whether they were or not. 30. Finke, Papsttum, 2: 311: ‘‘presencium et ad requisicionem inquisitoris predicti.’’ The report on the meeting the previous day (309) had used the standard diplomatic phrase ‘‘testibus ad hoc vocatis specialiter et rogatis.’’ 31. Ibid., 312. 32. The copies of the list of questions are in Paris, Arch. Nat. J. 413, doc. 31, copies A & B; edited in Heinrich Finke, Papsttum und Untergang des Templerordens (Mu¨nster, 1907), 2: 107–10. The text of the theologians’ response is in Paris, Arch. Nat. J 413, n. 1, edited in CUP 2, doc. 664, 125–28. 33. He is also known as Alexander de Marcia, since Sant’Elpidio lies within the March of Ancona. 34. The seals on the document (Paris, Arch. Nat., J. 41.1) are attached to strips that are part of the parchment sheet itself. The names of the masters are not in the text of the document but only on the strips, written in the hand of one scribe, and

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considerably faded through their having been soaked at some time before the late nineteenth century, perhaps in an attempt to remove the seals intact. The authenticity of the name is attested by the seal. 35. The first strip on the lower left, that of Alexander of Alessandria, was cut from the document and is now pinned to the text. There is sufficient space on the lower left edge for one additional strip with seal, before that of frater Alexander, to have belonged to the original document, but there is no way of establishing that possibility. 36. Jean de Pouilly, Quodlibet II, q. 19 (Paris, Bibl. Nat. lat. 15372, fols. 67vb– 69ra; as q. 13 in Bibl. Nat. lat. 14565, fols. 124rb–125vb): ‘‘Utrum expediat simpliciter quod secreta cuiuslibet religionis revelentur pape.’’ 37. Bibl. Nat. lat. 15372, fol. 68va; Bibl. Nat. lat. 14565, fol. 125rb: ‘‘Et ideo concludo quod expedit tamquam simpliciter bonum quod papa sciat regulas singularium religionum et modum profitendi statuta et precepta, sive sint generalia sive provincialia, prout aliqui sic distingunt sua capitula, modos vivendi et necessita acquirendi et etiam actus si posset singularum personarum.‘‘ 38. Ibid., ‘‘Sed sicut mala et iniqua extirpanda, loquendo nedum de hiis que tangunt personas singulares sed etiam communitatem, que papa cum omni diligentia deberet inquirere et corrigere, sicut rex diligenter inquisivit facta istorum pessimorum, apostatarum et sodomitarum inquisitione et reduxit ad lucem.’’ In the margin of Bibl. Nat. lat. 15372, fol. 68va: ‘‘Templariorum.’’ 39. Bibl. Nat. lat. 15372, fol. 68vb; Bibl. Nat. lat. 14565, fol. 125va: ‘‘Et ideo si talia debeant sciri, debet de ipsis diligenter et frequenter inquirere, quidem quia occulta sunt frequenter, vero quia pluries etiam in anno possunt talia statuere et ordinare. Hec autem non potest bene papa facere propter religionum multitudinem ad quarum loca oportet accedere si debeat bene inquiri de statutis secretis aut actibus, quia vita unius pape non sufficeret dato quod nihil aliud faceret. Tamen etiam quia papa circa negotia generalia totius ecclesie est occupatus, et ideo non potest vacare circa talia.’’ 40. Ibid., ‘‘Cum igitur expediat quod talia sciantur ab aliis, ab eis qui talia constituunt et in ea consentiunt, sicut sunt illi de illa professione, quia si sint irrationabilia aut erronea vel aliis preiudicialia, dummodo credant improprium commodum vel honorem, nunquam talia revocabunt nec bene possunt a papa sciri, ut dictum est, nec post papam sunt alii ad quos ita pertineat talia scire et ea corrigere, sicut sunt episcopi.’’

Chapter 12. Coin and Punishment in Medieval Venice 1. Archivio di Stato, Venice (hereafter ASV), Signori di Notte, Processi (henceforth SNP), R. 12, fols. 38–39. For the medieval Venetian mint, see Alan M. Stahl, Zecca: The Mint of Venice in the Middle Ages (Baltimore, 2000). The tornesello, a denomination made for use in Venice’s Aegean colonies and banned from circulation at home, was supposed to comprise 89% copper and 11% silver; see Alan M. Stahl, The Venetian Tornesello: A Medieval Colonial Coinage, American Numis-

286

Notes to Pages 164–167

matic Society Numismatic Notes and Monographs 163 (New York, 1985). Archival research for this study was made possible by a series of grants from the Gladys K. Delmas Foundation. N.B.: the folio numbers for all citations from the Misti of the Senate are derived from the microfilms in the Henry Charles Lea Library of the University of Pennsylvania, originally filmed in the 1950s for Kenneth Setton, and reflect the foliation of these registers at that time. I am grateful to my mentor Edward Peters for continued access to these microfilms, as well as for the many other ways in which he has supported my scholarship and career. 2. ASV, Avogaria di Comun (hereafter AC), Raspe, R. 3646/6, fasc. 2, fols. 103v–104; ASV, Senato, Misti (heareafter SM), R. 51, fols. 116v–117. 3. For Venetian coins and accounting systems, see Frederic C. Lane and Reinhold C. Mueller, Money and Banking in Medieval and Renaissance Venice, vol. 1, Coins and Moneys of Account (Baltimore, 1985), esp. 602, for the ducat in lire di moneta. 4. Guido Ruggiero, Violence in Early Renaissance Venice (New Brunswick, N.J., 1980), 65–75. 5. Even the Venetian credit market was dependent on the availability of trustworthy coin within Europe as well as in the Levant: Reinhold C. Mueller, The Venetian Money Market: Manks, Panics, and the Public Debt, 1200–1500, Money and Banking in Medieval and Renaissance Venice 2 (Baltimore, 1997), 303–17. 6. Stahl, Tornesello, 68–70. 7. Stahl, Zecca, 235–38. See also Reinhold C. Mueller, ‘‘Il circolante manipolato: L’impatto di imitazione, contraffazione e tosatura di monete a Venezia nel tardo medioevo,’’ in Italia, 1350–1450: Tra crisi, transformazione, sviluppo (Pistoia, 1991), 217–32. 8. See ibid., 75–77, for an example of such a case. 9. For Venetian criminal law in general, see Guido Ruggiero, ‘‘Politica e giustizia,’’ in Storia di Venezia, vol. 3, La Formazione dello stato patrizio, ed. Girolamo Arnaldi et al. (Rome, 1997), 409–74. 10. ‘‘Promissione del doge Andrea Dandolo,’’ in Andrea Dandolo, Chronica per extensum descripta, ed. E. Pastorello, Rerum Italicarum Sciptores 12, pt. 1, 2nd ed. (Bologna, 1938–42), lxxxix, col. 37. 11. Gisella Graziato, ed., Le promissioni del doge di Venezia dalle origini alla fine del duecento (Venice, 1986), 15 (Giacomo Tiepolo, 1229), 31 (Marino Morosini, 1249), 49 (Ranieri Zeno, 1252), 70 (Lorenzo Tiepolo, 1268). 12. Graziato, Le promissioni, 91: ‘‘quod quicumque inventus fuerit falsare monetam nostrum in Veneciis debeat comburi et si Venetus falsaverit in aliam partem ipsam monetam et postea repertus fuerit et captus, debeat comburi.’’ The provision for the punishment of Venetians counterfeiting abroad was eliminated from the promise made by Giovanni Dandolo in 1280 (115), but reinstated in that of Pietro Gradenigo in 1289 (143). 13. ASV, Signori di Notte al Criminale (henceforth SNC), R. 16, fols. 9v. 13 (two cases), 14v. 14. ASV, Maggior Consiglio (hereafter MC), Liber Presbiter, fol. 123. The case for the primacy of the Giudici di Proprio was set forth in the mid-thirteenth century by the ducal chancellor Giacomo Bertaldo in his ‘‘Splendor Venetorum consuetudi-

Notes to Pages 167–172

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num civitatis,’’ ed. F. Schupfer, in Bibliotheca Iuridica Medii Aevi, ed. A. Gaudentius (Bologna, 1892–1913), 3: 97–153. 15. F. Nani-Mocenigo, ed., Capitolare dei Signori di Notte (Venice, 1877), 170, col. 220. 16. Stahl, Zecca, 105–10. 17. Ibid., 23–24. 18. ASV, SNC, R. 16, fols. 62, 68v. In a similar case, two men were convicted of making within Venice false coins with an image of a tower, which probably refers to deniers tournois of Frankish Greece; they both lost their right hands and were banished: ASV, SNC, R. 16, fol. 69v. 19. Nani-Mocenigo, Capitolare, 180, col. 233. 20. ASV, SNC, R. 16, fol. 34. 21. ASV, AC, Raspe, R. 3641/1, fol. 1v. 22. Ibid., fol. 13v. 23. Ibid., fols. 31v–32v. 24. Guid’Antonio Zanetti, Nuova raccolta delle monete e zecche d’Italia (Bologna, 1775–89), 5: 194–95. 25. ASV, AC, Raspe, R. 3642/2, fasc. 3, fol. 92. The prosecution of the nobleman Nicolo` Mocenigo was delayed because on the first round of balloting the Senate rejected the indictment offered by the Avogadori di Comun, only to accept it the following day by a small margin. 26. Ibid., R. 3641/1, fol. 66. 27. Ibid., Raspe, R. 3643/3, fasc. 1, fol. 67v. 28. Ibid., fol. 79. 29. ASV, SNC, R. 16, fol. 68. 30. Roberto Cessi, ed., Problemi monetari veneziani (fino a tutto il sec. XIV) (Padua, 1937), 71–73, no. 79. 31. Stahl, Zecca, 141–45. 32. Ibid., 41–42. 33. ASV, AC., Reg. P, R. 35/17, fols. 2v–3; Nani-Mocenigo, Capitolare, 199–200, col. 262. 34. ASV, AC, Raspe, R. 3641/1, fols. 113r–v. 35. Alan M. Stahl, ‘‘The Venetian Mint in the Age of the Black Death,’’ in Material Culture and Cultural Materialisms in the Middle Ages and the Renaissance, ed. Curtis Perry, Arizona Studies in the Middle Ages and the Renaissance 5 (Turnhout, 2001), 41–57. 36. ASV, Provveditori in Zecca, R. 6 bis, fols. 31v–32v. 37. Ibid., fols. 33–34v. 38. ASV, AC, Raspe, R. 3643/3, fasc. 1, fols. 14–14v. 39. Ibid., fol. 18v. 40. Ibid., fol. 82v. See Lane and Mueller, Money and Banking, 580, for the commercial rate of 74 soldini to the ducat in this year. 41. Ibid., Raspe, R. 3644.4, fasc. 2, fols. 90v–91. 42. Ibid., 3645/5, fasc. 1, fol. 1. 43. ASV, MC, Liber Leona, fols. 168–68v. 44. Stahl, Zecca, 76–77.

288

Notes to Pages 172–179

45. Ibid., 162–63. 46. ASV, AC, Raspe, R. 3642/2, fasc. 4, fols. 88–88v. 47. Ibid., fols. 88v–89. 48. Ibid., 3643/3, fasc. 2, fol. 40. 49. Stahl, Zecca, 269–73. 50. Ibid., 176–79. 51. ASV, AC, Raspe, R. 3642/2. fasc. 3, fol. 13v. 52. ASV, Senato Misti (hereafter SM), R. 29, fol. 11; the provisions of this act were copied into the capitulary of the Mint Masters for silver: ASV, Provveditori in Zecca, R. 6 bis, fols. 34v–36. See Queller, The Venetian Patriciate, 176, for a discussion of this act. 53. The lira a grossi, about one-and-a-quarter times as much as the lira di moneta in this period, was the basis of the account system used by most Venetian state offices; see Lane and Mueller, Money and Banking, 123–33; Stahl, Zecca, 271. 54. For details on the life and family of Filippo Barbarigo and criteria for distinguishing the Mint Master from at least one contemporary with the same name, see Alan M. Stahl, ‘‘A Prosopography of Venetian Mint Officials,’’ Medieval Prosopography 21 (2000): 54–57. 55. ASV, SM, R. 39, fol. 69; ASV, MC, Liber Leona, fol. 9v. 56. ASV, SM, R. 39, fol. 78v. 57. ASV, AC, Raspe, R. 3644/4, fasc. 1, fols. 80–80v. 58. Ibid., fol. 77. 59. ASV, Council of Forty (hereafter XL), Parti, R. 17, fol. 75. 60. ASV, AC, Raspe, R. 3644/4, fasc. 1, fol. 77. 61. ASV, XL, Parti, R.17, fols. 77–77v. 62. This dispute may relate to a loan the two brothers had taken from their mother’s dowry in 1372: ASV, Cancelleria Inferiore, B. 187 (N. Sajabianca), fasc. 2, fol. 5v. 63. ASV, SM, R. 39, fol. 114v. 64. ASV, AC, Raspe, R. 3644/4, fasc. 1, fol. 79. 65. 8 August: 36 aye, 4 nay, 49 abstentions; 37 aye, 4 nay, 48 abstentions; 17 August: 38 aye, 11 nay, 57 abstentions; 43 aye, 6 nay, 58 abstentions. 66. 21 August: 31 aye, 9 nay, 24 abstentions; a note in the trial record explains that when a vote in the Senate reaches the third day the abstentions are no longer counted. 67. ASV, Notatorio Collegio, R. 2, fol.76v, no. 240. 68. ASV, Grazie, R. 17, fol. 229. 69. Stahl, Zecca, 86–91. 70. ASV, AC, Raspe, R. 3646/6, fasc. 3, fols. 107–107v; ASV, SM, R. 51, fols. 132r–v. 71. ASV, AC, Raspe, R. 3646/6, fasc. 2, f.103v–104; ASV, SM, R., 51, fols. 116v– 117. 72. ASV, AC, Raspe, R. 3642/2, fasc. 3, fol. 70. 73. Ibid., 3644/4, fasc. 1, fol. 12. 74. The literature on the myth is enormous: in addition to Queller, Venetian Patriciate, see most recently Elisabeth Crouzet-Pavan, Venise triomphante: Les hori-

Notes to Pages 179–185

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zons d’un mythe (Paris: 1999), trans. Lydia G. Cochrane, Venice Triumphant: The Horizons of a Myth (Baltimore, 2002).

Chapter 13. Licit and Illicit in the Rhetoric of the Investiture Conflict 1. Carl Erdmann, The Origin of the Idea of Crusade, trans. Marshall Baldwin and Walter Goffart (1935; rpt. Princeton, N.J., 1977). More recently, see the essays in Patrick Murphy, ed., The Holy War (Columbus, Oh., 1976). The collected essays of the following scholars are also indispensable for the topics of crusade, holy war, and the period of the Gregorian reform: James Brundage, The Crusades, Holy War, and Canon Law (Aldershot, 1991); H. E. J. Cowdrey, The Crusades and Latin Monasticism, 11th–12th Centuries (Aldershot, 1999); Robert Somerville, Papacy, Council and Canon Law in the 11th–12th Centuries (Aldershot, 1990). 2. Recent complementary portraits of these two figures are I. S. Robinson, Henry IV of Germany, 1056–1106 (Cambridge, 1999); H. E. J. Cowdrey, Pope Gregory VII, 1073–1085 (Oxford, 1998). 3. An excellent introduction to the events and issues of the investiture controversy is Uta-Renate Blumenthal, The Investiture Controversy: Church and Monarchy from the Ninth to the Twelfth Century (Philadelphia, 1988). See also Colin Morris, The Papal Monarchy: The Western Church from 1050 to 1250 (Oxford, 1989), chaps. 4–7; I. S. Robinson, The Papacy, 1073–1198 (Cambridge, 1990). 4. The twenty-seven theses that make up the Dictatus papae may have formed a table of contents for a planned but not completed canonical collection. For a discussion of the relationship of this work to Gregory’s larger program of moral reform, see Cowdrey, Pope Gregory VII, 502–7. 5. The events of 1076–77, and especially the penitential episode at Canossa, have been much written about regarding their significance for church-state relations. In addition to Cowdrey, Pope Gregory, 158–67, see most recently Stefan Weinfurter, Canossa: Die Entzauberung der Welt (Munich, 2006). 6. Holy Roman Emperor Frederick I Barbarossa (r. 1152–90), for example, was severely at odds with Pope Alexander III, who excommunicated the emperor in 1160. During his reign, Frederick launched no less than six campaigns into Italy in the hopes of subduing Rome. 7. For surveys of this literature, see I. S. Robinson, Authority and Resistance in the Investiture Contest: The Polemical Literature of the Eleventh Century (Manchester: 1978); and K. J. Leyser, ‘‘The Polemicists of the Papal Revolution,’’ in his Medieval Germany and Its Neighbours, 900–1250 (London, 1982), 138–60. 8. Leyser, ‘‘The Polemicists of the Papal Revolution,’’ 138. 9. Carl Mirbt, Die Publizistik im Zeitalter Gregors VII (Leipzig, 1894), 86. Editions of many of these polemics can be found in the three volumes Libelli de litte imperatorum et pontificum in the MGH series (hereafter Libelli). 10. See Robinson, Authority and Resistance, chap. 2. 11. Wibert’s text has not survived, but the essentials of his argument can be reconstructed from the references and direct quotations supplied in the works of Anselm of Lucca and Wido of Ferrara.

290

Notes to Pages 185–188

12. Sigebert of Gembloux, Apologia contra eos qui calumniantur missas coniugatorum, in Libelli, 2: 438. 13. See Carl Erdmann, ‘‘Untersuchungen zu den Briefen Heinrichs IV,’’ Archiv fur Urkundenforschung 16 (1936): 218; Erdmann, ‘‘Die Anfa¨nge der staatlischen Propaganda im Investiturstreit,’’ Historische Zeitschrift 154 (1936): 491–512. 14. Robinson, Authority and Resistance, 10. 15. Brian Tierney, The Crisis of Church and State (Englewood Cliffs, N.J., 1964). 16. Maureen C. Miller, Power and the Holy in the Ages of the Investiture Conflict: A Brief History with Documents (Boston, 2005), 26. 17. Kathleen G. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Works of Anselm of Lucca (Oxford, 1998). 18. Gregory VII, Registrum, MGH Epistolae selectae 2, I.7, 11–12; trans. in H. E. J. Cowdrey, ed., The Register of Gregory VII, 1073–1085: An English Translation (Oxford, 2002), 7–8. 19. Gregory VII, Registrum II.49, 189; Cowdrey, Register of Gregory VII, 139. 20. Werner Goez, ‘‘Zur Erhebung und ersten Absetzung Papst Gregors VII,’’ Ro¨mische Quartalschrift 63 (1968): 142. On the monastic background of Gregory’s idea of obedience, see K. J. Benz, ‘‘Die Regula Benedicti in den Briefen Gregors VII,’’ in Itinera Domini. Gesammelte Aufsa¨tze aus Liturgie und Mo¨nchstum. Emmanuel von Severus OSB zur Vollendung des 70. Lebensjahres am 24. August 1988 dargeboten (Munich, 1988), 263–79. 21. Gregory VII, Registrum II.45, 183–84. 22. Registrum II.5, 130. 23. Epistolae collectae, Bibliotheca rerum Germanicarum, 46, 572–73. 24. On Gregory VII’s place in the mounting rhetoric of ecclesiastical war, see Erdmann, The Origin of the Idea of Crusade, chap. 5. For a more nuanced appraisal of Gregory’s practical engagement in warfare, see Cowdrey, Pope Gregory VII, esp. 650–58. 25. James Brundage, ‘‘Holy War and the Medieval Lawyers,’’ in Murphy, The Holy War, 105. 26. Gregory VII, Registrum II.55, 203. On Bernold’s knowledge of Gregory’s above-cited letter to dukes Rudolf of Swabia and Berthold of Carinthia (n. 21), see I. S. Robinson, ‘‘Zur Arbeitsweise Bernolds von Konstanz und seines Kreises: Untersuchungen zum Schlettsta¨dter Codex 13,’’ Deutsches Archiv fu¨r Erforschung des Mittelalters 34 (1978): 65–82. Curiously, the Dictatus papae itself is almost never mentioned in either the polemical literature of the Gregorian reform or the canonical collections of the late eleventh and twelfth centuries. See Cowdrey, Pope Gregory, 503. 27. Hans Martin Klinkenberg, ‘‘Die Theorie der Vera¨nderbarkeit des Rechts im fru¨hen und hohen Mittelalter,’’ in Lex et Sacramentum im Mittelalter, ed. Paul Wilpert (Berlin, 1969), 167. 28. See especially Richard H. Helmholz, The Spirit of Classical Canon Law (Athens, Ga., 1996). 29. Sigebert of Gembloux, Epistola Leodicensium adversus Paschalem papam, MGH Libelli, 2: 462.

Notes to Pages 188–195

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30. Benzo of Alba, Ad Heinricum IV. imperatorem libri VII. Sieben Bu¨cher an Kaiser Heinrich IV., ed. H. Seyffert, MGH Scriptores rerum germanicarum in usum scholarum separatim editi 65 (Hannover, 1996), 584–86. 31. Ibid., 588. 32. On Bonizo’s significance for the pre-crusade theory of ecclesiastical war, see Erdmann, The Origin of the Idea of Crusade, 247–56. 33. For a complete biography of Bonizo, including the dates of these works and the extant manuscripts, see Walter Berschin, Bonizo von Sutri: Leben und Werk (Berlin, 1972). Contextual analysis of Bonizo’s works is given by Ludovico Gatto, Bonizo de Sutri e il suo Liber ad Amicum: Ricerche sull’eta` gregoriana (Pescara, 1968). 34. Bonizo of Sutri, Liber ad amicum, ed. E. Du¨mmler, Libelli, 1: 568–620. The Liber has recently been given its first full translation in I. S. Robinson, The Papal Reform of the Eleventh Century: Lives of Pope Leo IX and Pope Gregory VII (Manchester, 2004), 158–261. See Robinson’s detailed introductory remarks at 36–63. All translations of the Liber ad amicum are after Robinson. 35. Liber ad amicum, 571; Robinson, 158. 36. Erdmann, The Origin of the Idea of Crusade, 247–56. 37. Liber ad amicum, 572–73; Robinson, 159. 38. Liber ad amicum, 573; Robinson, 163. 39. Ibid. 40. Liber ad amicum, 574, Robinson, 164. 41. Liber ad amicum, 579; Robinson, 173. 42. Liber ad amicum, 586; Robinson, 187. 43. Liber ad amicum, 593; Robinson, 201. 44. Bonizo of Sutri, Liber de vita christiana, ed. E. Perels (Berlin, 1930), VII.29, 249–50. 45. On Matilda’s political role and her relationship to Gregory VII, see Cowdrey, Pope Gregory VII, esp. 296–307. See also I. S. Robinson, ‘‘The Friendship Network of Gregory VII,’’ History 63 (1978): 1–22. 46. Liber ad amicum, 620; Robinson, 261. 47. Liber ad amicum, 604; Robinson, 228. 48. On the implausible character of Bonizo’s report, see Augustin Fliche, La re´forme gre´gorienne Geneva, 1978), 2: 67, n. 2; F. Lerner, Kardinal Hugo Candidus (Munich, 1931), 49–50. 49. Bonizo of Sutri, Liber de vita christiana, IV.45, 133. 50. Liber ad amicum, 615–17; Robinson, 252–56. 51. Liber ad amicum, 618; Robinson, 258. 52. Ibid. The full Latin text reads, ‘‘que si licuit pro terreno rege, non libebit pro celesti? Si licuit pro re publica, non licebit pro iusticia? Si licuit contra barbaros, non licebit contra hereticos?’’ 53. See Hans Eberhard Meyer, The Crusades, trans. John Gillingham (Oxford, 1990), 19. Most recently, Bonizo’s Liber de vita christiana is cited in Christopher Tyerman, God’s War: A New History of the Crusades (Cambridge, Mass., 2006), 47. 54. Marcus Bull, Knightly Piety and Lay Response to the First Crusade (Oxford, 1993).

292

Notes to Pages 195–198

55. Yves de Chartres, Correspondence, ed. Jean Leclerq (Paris, 1949), 1, no. 60, 248–51. English translation in Miller, Power and the Holy, 118. 56. Correspondence, 238–39; Miller, 116. 57. One may note in passing that not unlike Bonizo’s discussion of the legal justification for waging war, Ivo’s very relevant statement connecting the obedience of church law and the possibilities for transgression come not from his canonical collection, for which he is most known, but from a letter addressing current events. 58. See Helmholz, The Spirit of Classical Canon Law; Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley, Calif., 1993). The relation between rhetoric and law in a later context has recently been explored in Victoria Kahn and Lorna Hutson, eds., Rhetoric and Law in Early Modern Europe (New Haven, Conn., 2001).

Chapter 14. Satisfying the Laws: The Legenda of Maria of Venice 1. In Venice the rule encompassed male as well as female penitents, although only women joined. Maiju Lehmijoki-Garner, ed., Dominican Penitent Women (New York, 2005). Lehmijoki-Garner translated ‘‘Munio of Zamore: The Ordinationes,’’ 39–45, as well as ‘‘The Dominican Penitent Rule,’’ 46–56. 2. Fernanda Sorelli, La Santita` Imitabile: ‘‘Leggenda di Maria da Venezia’’ di Tommaso da Siena (Venice, 1984) (hereafter Leggenda). See also her ‘‘Per la storia religiosa di Venezia nella prima meta` del quattrocento: inizi e sviluppi del terz’ordine domenicano,’’ in Viridarium Floridum, Studi di storia veneta offerti dagli allievi a Paolo Sambin, ed. Maria Chiara Billanovich, Giorgio Cracco, and Antonio Rigon (Padua, 1984), 89–114; and her ‘‘Imitable Sanctity: The Legend of Maria of Venice,’’ in Women and Religion in Medieval and Renaissance Italy, ed. Daniel Bornstein and Roberto Rusconi, trans. Margery J. Schneider (Chicago, 1996), 165–81. 3. Daniel Bornstein, trans., ‘‘Thomas of Siena: The Legend of Maria of Venice,’’ in Lehmijoki-Garner, Dominican Penitent Women, 105–76. See Dyan Elliott, Proving Woman: Female Spirituality and Inquisitional Culture in the Later Middle Ages (Princeton, N.J., 2004); Daniel Bornstein, ‘‘Spiritual Kin and Domestic Devotions,’’ in Gender and Society in Renaissance Italy, ed. Judith C. Brown and Robert C. Davis (New York, 1998), 173–92. 4. Manlio Bellomo, La condizione giuridica della donna in Italia: Vicende antiche e moderne (Turin, 1970); Giorgio Zordan, ‘‘I vari aspetti della comunione familiare di beni nella Venezia del secoli XI–XII,’’ Studi veneziani 8 (1966): 127–94. 5. R. Corso, ‘‘Patti d’amore: I doni nuziali,’’ Revue d’ethnographie et de sociologie 2 (1911): 228–54; Enrico Besta, La famiglia nella storia del diritto italiano (Milan, 1962); Diane Owen Hughes, ‘‘From Brideprice to Dowry in Mediterranean Europe,’’ Journal of Family History 8 (1978): 262–96. 6. For the law of 1360 concerning wedding gifts and dowries in effect in Maria’s lifetime, see Samuele Romanin, ed., Storia documentata di Venezia, 3rd ed. (Venice, 1973), 3: 280–83. For the church view of grounds for marriage, see Charles Donahue, ‘‘The Policy of Alexander the Third’s Consent Theory of Marriage,’’ in

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Proceedings of the Eighth International Congress of Medieval Canon Law, 1976, 251–81; John T. Noonan, ‘‘Power to Choose,’’ Viator 4 (1973): 419–34. On victus et vestitus, see Donald Queller, ‘‘A Different Approach to the Pre-Modern Cost of Living: Venice, 1372–1391,’’ Journal of European Economic History 25 (1996): 441–64. On the husband’s absolute authority, see Thomas of Chobham (1165–1230), Summa confessorum, ed. F. Broomfield (Louvain, 1968), Art. 4, q. VIIa, c. 11, 157. 7. Lehmijoki-Garner, Dominican Penitent Women, xiii. See R. R. Post, The Modern Devotion: Confrontation with Reformation and Humanism, Studies in Medieval and Reformation Thought 3 (Leiden, 1968). 8. Translation, chaps. 1–4, 111–19. 9. See Linda Guzzetti, ‘‘Separations and Separated Couples in FourteenthCentury Venice,’’ in Marriage in Italy, 1300–1650, ed. Trevor Dean and K. J. P. Lowe (Cambridge, 1998), 249–76. 10. Gino Luzzatto, Storia economica di Venezia dall’XI al XVI secolo (Venice, 1961), 130: mentre uno solo, Nicolo` Sturion, raggiunge le 16.000 lire e figura fra I maggiori commercianti al minuto. See also Sorelli, La Santita` Imitabile, 105. 11. Romanin, Storia documentata di venezia, 3: 280–83. 12. Reinhold C. Mueller, The Venetian Money Market: Banks, Panics and the Public Debt, 1200–1500, vol. 2 of Money and Banking in Medieval and Renaissance Venice, ed. Frederic C. Lane and Reinhold C. Mueller (Baltimore, 1997). 13. Sorelli, La Santita` Imitabile, 105, n. 134. 14. Ibid., 108. Sorelli found an Endrico della Piazza who sold cheese. He may or may not have been related to Giannino. 15. Leggenda, chap. 2, 157. 16. Sorelli, La Santita` Imitabile, 106. 17. Leggenda, chap, 3, 157. 18. Francis M. Kelly and Randolph Schwabe, A Short History of Costume and Armour, Chiefly in England, 1066–1800 (London, 1931). See also Luciana Frangioni, Chiedere e Ottenere, L’approvvigionamento di prodotti di successo della bottega Datini di avignone nel XIV secolo (Florence, 2002), 99–166. 19. On corredi, see Susan Mosher Stuard, Gilding the Market: Luxury and Fashion in Fourteenth-Century Italy (Philadelphia, 2006), 95–96. Stanley Chojnacki, ‘‘From Trousseau to Groomgift in Late Medieval Venice,’’ in Medieval and Renaissance Venice, ed. Ellen Kittell and Thomas Madden (Urbana, Ill., 1999), 141–65. 20. Margaret Newett, ‘‘Sumptuary Laws of Venice in the Fourteenth and Fifteenth Centuries,’’ in Historical Essays by Members of the Owens College, Manchester, ed. T. F. Tout and James Tait (London, 1902), 245–77. 21. Translation, chap. 4, 118. 22. Stanley Chojnacki, ‘‘Dowries and Kinsmen in Early Renaissance Venice,’’ in Women in Medieval Society, ed. Susan Mosher Stuard (Philadelphia, 1976), 173–98. 23. Queller, ‘‘A Different Approach.‘‘ 24. Translation, chap. 4, 118. 25. Ibid., chap. 8, 128. 26. Daniel Bornstein, ‘‘Introduction’’ to Thomas of Siena, ‘‘The Legend of Maria of Venice,’’ 107.

294

Notes to Pages 204–210

27. Translation, chap. 6, 122–23. 28. Leggenda, chap. 11, 182. 29. Translation, chap. 11, 139. 30. In Florence, Monna Uliva received 14 to 16 florins selling her son’s religious paintings. Gino Corti, ‘‘Sul commercio dei quadri a Firenzo verso la fine del secolo XIV,’’ Commentari 22 (1971): 84–91. The price might be higher for an eminent artist. 31. Peter Brown, ‘‘The Saint as Exemplar in Late Antiquity,’’ Representations 2 (1983): 5. 32. Translation, chap. 6, 123. 33. Ibid., chap. 10, 136. 34. Ibid., chap. 7, 124. 35. Robert G. Calkins, Illuminated Books of the Middle Ages (Ithaca, N.Y., 1983), 226–34; see also Richard A. Goldthwaite, Wealth and the Demand for Art in Italy, 1300–1600 (Baltimore, 1993) 72–95. 36. Leggenda, chap. 5, 163. 37. Translation, chap. 8, 127. 38. Ibid., 128. 39. Ibid., chap. 13, 155. 40. Lehmijoki-Garner, Dominican Penitent Women, 48. 41. Cited in full in Dyan Elliott, ‘‘Dress as Mediator Between Inner and Outer Self,’’ MS 53 (1991): 288. 42. Translation, chap. 9, 130. 43. Fra Paolino Minorita, Trattato de regimine rectoris, Nozze, ed. Cesare Foucard (Venice, 1836), chap. 8, 9. 44. Francesco da Barberino, Reggimento e costumi di donna, ed. Giuseppe E. Sansone (Turin, 1957) pt. 2, 23–36; Liliane Dulac, ‘‘Mystical Inspiration and Political Knowledge: Advice to Widows from Francesco da Barberino and Christine de Pizan,’’ trans. Thelma Fenster, in Upon My Husband’s Death: Widows in the Literature and Histories of Medieval Europe, ed. Louise Mirrer (Ann Arbor, Mich., 1992), 223–58. 45. Entering a convent was another solution for unmarried women. See Guido Ruggiero, The Boundaries of Eros (Oxford, 1985), 70–88. 46. Lehmijoki-Garner, Dominican Penitent Women, 59–86, ‘‘The Legend of Giovanna of Orvieto.’’ 47. Michael Goodich, ‘‘Ancilla Dei: The Servant as Saint in the Late Middle Ages,’’ in Women of the Medieval World: Essays in Honor of John H. Mundy, ed. Julius Kirschner and Suzanne F. Wemple (Oxford: 1985), 119–28. 48. Anna Esposito, ‘‘St. Francesca and the Female Religious Communities of Fifteenth-Century Rome,’’ in Bornstein and Rusconi, Women and Religion in Medieval and Renaissance Italy, 197–218. 49. ‘‘Dominican Penitent Rule,’’ in Lehmijoki-Garner, Dominican Penitent Women, 52–53. ‘‘The prior names two brothers who are responsible for paying a visit to any member of their brotherhood who becomes ill. . . . The sisters do the same with their patients.’’ 50. Ibid., 48.

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51. In 1334, in debate on sumptuary restrictions, Tomaso Soranzo introduced a measure on the floor of the Senate limiting the length of women’s mantles to one brachia. Roberto Cessi and Mario Brunetti, eds., Deliberationes del Consiglio dei Rogati (Senato) series ‘‘mixtorum’’, Libri XV–XVI, 2: 314–16 for 26 May 1334–20 June 1334. 52. Nicolo` Sturion left 300 ducats to the Monastery of Corpus Christi of Venice in his will and testament of 1400. A. S. V., Archivio notarile, Testamenti, b. 1000, n. 429. See Sorelli, La Santita` Imitabile, 233–34; see also Reinhold Mueller, The Venetian Money Market: Banks, Panics and the Public Debt, 1300–1500, 507–8. Sturion rented out a house to Gugliomo Querini (c. 1400–1468) for 50 ducats a year. 53. Gruzetti, ‘‘Separation and Separated Couples in Venice,‘‘ 272–74.

Chapter 15. Canon Law and Chaucer on Licit and Illicit Magic 1. Gratian, cols. 1019–89. Cause 26 contains 7 questions: q. 1 has one chapter (that is, canon); q. 2 has 11 chapters, on the nature of sorcery; qq. 3–4, a double question, has three chapters; q. 5 has 14 chapters, including c. 12, Episcopi (cols. 1030–31); the 14 chapters of q. 6 are not relevant to our subject, nor are the first 12 chapters of q. 7; but cc. 13–17 of q. 7, against observing the Kalends of January, Egyptian Days, and other calendrical superstitions, are relevant, as is q. 7 c. 18, Demonium sustinenti, discussed below. 2. See A. Domingues de Sousa Costa, ‘‘Animadversiones criticae in vitam et opera canonistae Ioannis de Deo,’’ Antonianum 33 (1958): 76–124, at 99–103. 3. Johannes de Deo, Summa super quattuor causis Decretorum, produced in 1243. John’s supplement is preserved in some copies of Huguccio’s Summa; I use that of Vatican MS lat. 2280, fols. 371–88. 4. Archdeacon Guy of Baisio, Rosarium (I use the edition of Strassbourg, ca. 1473, unfoliated). 5. William Lyndwood, Provinciale, seu Constitutiones Angliae (Oxford, 1679, rpt. Farnborough, 1968). 6. Lyndwood, Provinciale, Book 1, title 11, chap. 1, 55: ‘‘implicite prohibentur omnia sortilegia et omnes incantationes cum superstitionibus characterum et hujusmodi figmentorum.’’ 7. Lyndwood’s commentary, 55, note k, referring to Gratian, C. 26 q. 5 c. 7, Sortes: Pope Leo IV writing to the bishops of Britain, ca. a.d. 850 (col. 1029); Gratian’s dictum, His ita, after C. 26 q. 2 c. 1 (col. 1020); and q. 2 c. 2, Non statim (col. 1021), and to the rest of q. 5 (9 canons), esp. c. 6, Illud, which is an excerpt from St. Augustine’s De doctrina Christiana (see below at n. 31), and also to the rest of Cause 26. 8. Lyndwood, note l: ‘‘Utputa, ‘in collectionibus herbarum que medicinales sunt, aliquas observationes attendendo, nisi Symbolum vel Orationem Dominicam’,’’ citing Non liceat (see n. 10 below). 9. See PL 84: 574–86. 10. Gratian, C. 26 q. 5 c. 3, Non liceat Christianis (Friedberg, 1: 1027–28).

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11. Gratian, C. 26 qq. 3–4 c. 1, Igitur (cols. 1024–25). 12. Archdeacon, on C. 26 q. 5 c. 3, Non liceat, v. medicinales. 13. Gratian, C. 26 q. 7 c. 18, Demonium (col. 1045); Theodore of Canterbury, Penitentiale 24.233 (see Capitula collecta ex fragmentis, PL 99: 958); Burchard, Decreta 10.50 (PL 140:851); Ivo, Decretum 11.75 (PL 161: 773). 14. Gratian, C. 26 q. 7 c. 18, heading to Demonium. 15. Archdeacon on C. 26 q. 7 c. 18, Demonium, v. petras: ‘‘Arguitur quod lapides pretiose virtutes habent. De herbis satis probatum est.’’ 16. Gratian, C. 26 q. 7 c. 15, Ammoneant (col. 1045). It comes from the Third Council of Tours (ca. a.d. 813), c. 42; for a text, see PL 97: 892–93. 17. Archdeacon on C. 26 q. 7 c. 15, Ammoneant, v. incantationes: ‘‘De quibus loquitur Lex, ff. De variis et extraordinariis cognitionibus, lege 1 [Preses], in principio [Dig. 50.13.1.3] (La. [that is, attributing this reference to Laurentius Hispanus, ca. 1215]). Et nota quod dicit, ‘magicas artes et incantationes,’ nam secus est de aliis verbis, nam virtus est in verbis, herbis, et lapidibus, secundum Jo. De., ut dixi supra, eadem [causa], quest. v, [cap. 3,] Non lice[a]t.’’ The law cited, Preses (or Praeses in its classical spelling), reads in part: ‘‘Non tamen si incantavit, si imprecatus est, si, ut vulgari verbo impostorum utar, si exorcizavit; non sunt ista medicinae genera’’ (I use the edition of John Fehius of Gansdort, Corpus juris civilis cum glossa ordinaria, 6 vols. [Lyon, 1627, rpt. Osnabru¨ck 1965–66], 3: 1781). That is, ‘‘Not, however, if he says incantations, if he curses, if he exorcizes (to use a popular word of impostors); these are not forms of medicine.’’ 18. John of God, Summa on C. 26 q. 7 c. 15, Ammoneant (fol. 388): ‘‘secus autem in aliis verbis, quia virtus [est] in verbis et in herbis et lapidibus. De herbis habes supra, eadem [causa], quest. v, [cap. 3,] Non liceat, et apud Ovidium [x]iiii: ‘Utere temptatis operose viribus herbe’; de verbis habes supra, eadem, quest. v, Nec mirum [C. 26 q. 5 c. 14]; de lapidibus habes infra, eadem [causa, quest. ultima], cap. ultimo [C. 26 q. 7 c. 18, Demonium].’’ 19. Gratian, C. 26 q. 5 c. 14, Nec mirum (cols. 1032–36); Hrabanus Maurus, De magorum praestigiis, PL 110: 1095–1110, specifically 1097–1101. The first part of the canon, from the introductory section through § 7, is taken verbatim from Isidore, Etymologiae 8.9, De magis, cc. 4, 7–12, 30–35 (PL 82: 311–14). 20. John of God, Summa on C. 26 q. 5 c. 14, Nec mirum (fol. 386): ‘‘Secunda parte ponit quia Dominus hoc permittit, scilicet, ut boni probentur et mali amplius confundantur; et dicit quod verba tunc habent efficaciam, ut cum verba proferuntur, ymaginas apparent ex divina providencia.’’ 21. Gratian, C. 26 q. 5 c. 14, Nec mirum (⳱ Hrabanus), § 9 (col. 1034). 22. John of God, loc. cit.: ‘‘Insunt enim rebus corporeis. Nota quod verba habent virtutem, scilicet ut dictis verbis appareant quedam ymagines ex vi verborum. Et queritur utrum sit peccatum hoc faciens, et dicunt quidam quod non, alii econtra. Solutio: si malo animo faciat, scilicet causa ultionis, vel luxurie, vel cupiditatis, vel laudis, mortale est; si autem faceret [causa] experiendi vires verborum tantum, non esset mortale, quia omnis scientia a Deo (omnis sci’a ado¯), supra, eadem questione, Non Liceat.’’ It may be that the abbreviation that I read as sci’a and expand as scientia should be sa’a and expanded as sapientia. This would be in keeping with

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the cited canon, Non liceat, at the end of which it is said that God gives weavers the sapientia for their skill. 23. Lyndwood, note m, citing the canons Illud (Augustine; see nn. 29–31 below) and Non liceat. 24. Ibid., note n, citing Archdeacon on Non liceat; Archdeacon in turn cites Thomas (Aquinas). 25. Ibid., note o, citing Archdeacon on Non liceat, who cites ‘‘Criso.,’’ probably John Chrysostom. 26. Ibid., citing William of Rennes’s commentary on Raymund of Pennafort’s Summa de casibus and John of Freiburg’s Summa confessorum, and directing us to Henry Bouhic (d. 1350), Distinctiones super quinque libros Decretalium, on book 5, title 21, De sortilegiis, chap. 1 (Friedberg, 2: 822), Distinction 1. Bouhic’s work was printed in Lyon, 1498; there is a copy in the Huntington Library (incun. 4750). 27. All references are to The Riverside Chaucer, ed. Larry D. Benson (Boston, 1987). See Franklin’s Tale, Canterbury Tales, 5.1154–55: ‘‘thise moones mansions . . . / Or oother magik natureel.’’ 28. Sir Gawain and the Green Knight, ed. J. R. R. Tolkien and E. V. Gordon, 2nd ed., ed. Norman Davis (Oxford, 1968), vv. 1849–54. 29. Augustine, De doctrina christiana 2.20.31 (PL 34:50): ‘‘redire ad lectum, si quis dum se calceat sternutaverit.’’ For a translation, see A Select Library of Nicene and Post-Nicene Fathers of the Christian Church, ser. 1, 14 vols. (New York, 1891– 1909, rpt. Grand Rapids, Mich., 1983), vol. 2 (also online); the quoted phrase is rendered: ‘‘to go back to bed if any one should sneeze when you are putting on your slippers.’’ 30. Ibid., cols. 50–51: ‘‘cum vestis a soricibus roditur, plus tremere suspicione futuri mali quam praesens damnum dolere’’ (‘‘when your clothes are eaten by mice, to be more frightened at the prospect of coming misfortune than grieved by your present loss’’). 31. Gratian, Cause 26 q. 2 c. 6, Illud (Friedberg, 1: 1021–22). 32. Three Receptaria from Medieval England: The Language of Medicine in the Fourteenth Century, ed. Tony Hunt with Michael Benskin (Oxford, 2001). R ⳱ Oxford, Bodleian MS Rawlinson C 814 (first half of 14th century); C ⳱ the first of the two compendia in Cambridge, Corpus Christi College MS 388 (c. 1320–30). 33. Ibid., R 74, 17; C 237, 110. 34. Ibid., R 74, 16. 35. Ibid., C 235, 110. 36. Ibid., C 655, 148. 37. I elaborate on this subject in my book, Satan: A Biography (Cambridge, 2006), 257–60. 38. George Lyman Kittredge, Witchcraft in Old and New England (Cambridge, Mass., 1929), chap. 11: ‘‘Mirrors and Thieves,’’ 185–203. 39. See H. A. Kelly, ‘‘English Kings and the Fear of Sorcery,’’ MS 39 (1977) 206–38, rpt. in Inquisitions and Other Trial Procedures in the Medieval West (Aldershot, 2002), chap. 7, 210–12. 40. See the Middle English Dictionary (MED), s.v. ‘‘wight.’’ 41. Hunt, Three Receptaria, R 91, 17.

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42. Ibid., C 589, 140–41. 43. Ibid., C 654, 148. 44. MED s.v. ‘‘veri(e),’’ ‘‘wari.’’ 45. MED s.v. ‘‘night-mare.’’ 46. Robert Grosseteste, Scriptum est de levitis, excerpted by Siegfried Wenzel from Oxford, Bodley MS 36 (first half of the thirteenth century; a similar text, he says, is in MS Digby 191, of a half century later), ‘‘Two Notes on Chaucer and Grosseteste,’’ Notes and Queries 215 (1970): 449–51. 47. Andre´ Duval, ‘‘Rosaire,’’ Dictionnaire de Spiritualite´ (Paris, 1988), 13: 937– 80, col. 946. Duval notes that the term Rosarium is found attached for the first time now to sets of beads, specifically those on which 50 Aves were said. Before this time, Rosarium was applied to books: see the Archdeacon’s Rosarium, cited above, and Arnold of Villanova’s Rosarium, cited by Chaucer, Canon’s Yeoman’s Tale 8.1428–29. 48. Thomas Hoccleve, ‘‘The Story of the Monk Who Clad the Virgin by Singing Ave Maria,’’ Minor Poems, EETS es 61, 73 (rev. 1970), 290–93. 49. Henry Thomas Riley, Memorials of London and London Life in the Thirteenth, Fourteenth, and Fifteenth Centuries (London, 1868), 455. 50. MED s.v. ‘‘gaud,’’ 2. 51. Lyndwood 3.23.8 (237 note a).

Chapter 16. Law, Magic, and Science: Constructing a Border Between Licit and Illicit Knowledge in the Writings of Nicole Oresme 1. It was as Edward Peters’s student in graduate school that I first came to see the profound and widespread effects of law and legal development in the medieval period. For this and for the gift of many other insights that still guide my work, I am deeply grateful to him. 2. Peters, Magician, esp. 1–20; Richard Kieckhefer, Magic in the Middle Ages (Cambridge, 1990), 19–56. Augustine’s most influential statements identifying magic with demonic invocation are found in his De doctrina Christiana, Bk. 2, chs. 19–24; De civitate Dei, 10, 18, 19. Selections from Augustine’s writings on the subject are in Alan Charles Kors and Edward Peters, Witchcraft in Europe, 400–1700: A Documentary History (Philadelphia, 2001). On Gratian’s treatment of magic and its continuation in canon law, see Peters, Magician, 72–78. 3. On the critical distinction between compelling and beseeching supernatural powers, see Peters, Magician, xv; Kieckhefer, Magic, 69–71, 79–80, 166–67; Karen Jolly, ‘‘Medieval Magic: Definitions, Beliefs, Practices,’’ in Jolly et al., Witchcraft and Magic in Europe, vol. 2, The Middle Ages, ed. Bengt Aknarloo and Stuart Clark (Philadelphia, 2002), 8. 4. The essential connection between magic and the production of practical effects is considered over the whole of Lynn Thorndike’s monumental A History of Magic and Experimental Science, 8 vols. (New York, 1923–58, rpt. 1964), with a concise statement, 2: 651–52. See also Bert Hansen, ‘‘The Complementarity of Science and Magic Before the Scientific Revolution,’’ American Scientist 74 (1986): 128–36, esp. 128–32.

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5. For a case that illustrates this paradoxical situation, Kieckhefer, Magic, 85. 6. David Pingree, ‘‘The Diffusion of Arabic Magical Texts in Western Europe,’’ in La diffusione delle scienze Islamiche nel Medio Evo Europeo, ed. Biancamaria Scarcia Amoretti (Rome: 1987), 57–102. 7. Steven J. Williams, The Secret of Secrets: The Scholarly Career of a PseudoAristotelian Text in the Latin Middle Ages (Ann Arbor, Mich., 2003); Charles Burnett, ‘‘Arabic, Greek, and Latin Works on Astrological Magic Attributed to Aristotle,’’ in Pseudo-Aristotle in the Middle Ages, ed. Jill Kraye, W. F. Ryan, and C. B. Schmitt (London, 1987), 84–96. 8. For the common classification of automata and marvelous mechanical effects as forms of magic, see Hansen, ‘‘Complementarity,’’ 128–30; Kieckhefer, Magic, 100–102. 9. Peters, Magician, 66–67. For the instructive case of Peter of Abano, see Graziella Federici Vescovini, ‘‘Peter of Abano and Astrology,’’ in Astrology, Science, and Society: Historical Essays, ed. Patrick Curry (Woodbridge, 1987), 19–39, esp. 20– 23, 27–29. For the case of Michael Scot, see Richard Dales, The Scientific Achievement of the Middle Ages (Philadelphia, 1973), 156. 10. The classic treatment of Bacon’s relationship to magic is Thorndike, History of Magic, 2: 616–79. See also Lynn Thorndike, ‘‘The True Roger Bacon, II’’ AHR 21 (1916): 468–80; Jeremiah Hackett, ‘‘Roger Bacon on Astronomy-Astrology: The Sources of the Scientia Experimentalis,’’ in Roger Bacon and the Sciences: Commemorative Essays, ed. Jeremiah Hackett (Leiden, 1997), 175–98, esp. 179–92; Dales, Scientific Achievement, 161–63. 11. Thorndike, ‘‘True Roger Bacon,’’ 476; History of Magic, vol. 2, 656. 12. Since Bacon believed that efficacy lay primarily in the exploitation of natural forces, Thorndike (History of Magic, 2: 678; ‘‘True Roger Bacon,’’ 478–79) classifies him as an early proponent of ‘‘natural magic’’ (as opposed to demonic magic), a tradition that began in the thirteenth century and continued to gather strength into the seventeenth century. On natural magic, see Peters, Magician, 95–98; Kieckhefer, Magic, 66–70. 13. Bacon, Opus Maius, ed. J. H. Bridges, 3 vols. (Oxford, 1897–1900), 1: 396; trans. Dales, Scientific Achievement, 162–63. 14. Peters, Magician, 123 ff. See also Hilary M. Carey, ‘‘Astrology at the English Court in the Later Middle Ages,’’ in Curry, Astrology, 41–56. The trial and execution in 1327 of the mathematician/astrologer Cecco D’Ascoli for his arguments supporting astrological determinism—the first such of a university master on this charge—is a good indication of the growing reaction and fear in this period. 15. For Oresme’s biography, see A. D. Menut’s introduction to his edition, Maistre Nicole Oresme: Le livre de politiques d’Aristote, Transactions of the American Philosophical Society n.s. 60, pt. 6 (Philadelphia, 1970); De proportionibus proportionum and Ad pauca respicientes, ed. and trans. Edward Grant (Madison, Wis., 1966), 3–10. 16. Jeannine Quillet, Charles V, le roi lettre´: Essai sur la pense´e politique d’un re`gne (Paris, 1984), 96–114; Joan Cadden, ‘‘Charles V, Nicole Oresme, and Christine de Pizan: Unities and Uses of Knowledge in Fourteenth-Century France,’’ in Texts and Contexts in Ancient and Medieval Science, ed. Edith Sylla and Michael McVaugh

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(Leiden, 1997), 208–44. Christine de Pizan’s father, Tommasso, was the chief astrologer at Charles’s court and one of the king’s most trusted and valued counselors. 17. For a sense of the size and authority of the tradition Oresme was attacking, see Richard Lemay, ‘‘The True Place of Astrology in Medieval Science and Philosophy: Towards a Definition,’’ in Curry, Astrology, 57–73. 18. There is a large literature on this. See, for example, Edward Grant, ‘‘Nicole Oresme on Certitude in Science and Pseudo-Science,’’ in Nicolas Oresme: Tradition et innovation chez un intellectuel du XIVe sie`cle, ed. P. Souffrin and A. Ph. Segonds (Paris, 1988), 31–43; Stefano Caroti, ‘‘Nicole Oresme’s Polemic Against Astrology in His Quodlibeta,’’ in Curry, Astrology 75–93. 19. Jeannine Quillet, ‘‘Enchantements et de´senchantements de la Nature selon Nicole Oresme,’’ in Mensch und Natur im Mittelalter, ed. Albert Zimmerman and Andreas Speer (Berlin, 1991), 321–29. 20. Bert Hansen, Nicole Oresme and the Marvels of Nature: A Study of His De causis mirabilium with Critical Edition, Translation, and Commentary (Toronto, 1985); Oresme, Nicole Oresme and the Medieval Geometry of Qualities and Motions, ed. and trans. Marshall Clagett (Madison, Wis., 1968). 21. Reasons have been presented for dating the De causis either to the mid1350s or to 1370 (De causis, 43–48). The De configurationibus was written certainly before 1360 and most probably between 1351 and 1355. 22. De causis, 136–37. Notice from the very beginning Oresme’s linking of astrology, magic, and superstitious credulity. 23. Hansen (De causis, 64–70) illustrates the long history of naturalism and skepticism about marvels in Greek, early Christian, Islamic, and Latin culture before and after Oresme. 24. Grant, ‘‘Nicole Oresme on Certitude,’’ 32. 25. De causis, 224–25. 26. Thorndike, who devotes three chapters of A History of Magic, vol. 3, to a fine summary of Oresme’s criticism of astrology, magic, and claims for the miraculous (History, 3: 398–471) makes this point concerning Oresme’s credulity and the resulting ‘‘half-way’’ nature of his critique (at 438). See also Dana Durand, ‘‘Nicole Oresme and the Mediaeval Origins of Modern Science,’’ Speculum 16 (1941): 167–85, at 172. 27. De configurationibus, II, chap. 26, 338–39. Clagett adds the qualifier ‘‘geometrical.’’ 28. De config., 234–35. 29. For these and other examples, De config., Pt. I, chaps. 25–32, 234–51. For the naturalistic explanation of the efficacy of certain incantations, Pt. II, chap. 33, 366–69. 30. Durand, ‘‘Nicole Oresme and the Mediaeval Origins,’’ 172. 31. For previous studies on the history of this equation in the history of science, see William Eamon, ‘‘From the Secrets of Nature to Public Knowledge: The Origins of the Concept of Openness in Science,’’ Minerva 23 (1985): 321–47; Ernan McMullin, ‘‘Openness and Secrecy in Science: Some Notes on Early History,’’ Science, Technology, and Human Values 10 (1985): 14–23; Pamela Long, ‘‘The Openness of Knowledge: An Ideal and Its Context in 16th-Century Writings on Mining and

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Metallurgy,’’ Technology and Culture 32 (1991): 318–55. Neither these general studies nor the writings on Oresme that I have consulted have noted his important contributions to this equation. 32. De config., 340–41. 33. Ibid., 354–55. 34. Ibid., 372–73. This and other statements (e.g., De causis, 264–65) speak to what Stefano Caroti (‘‘Oresme’s Polemic,’’ 87) calls Oresme’s ‘‘confessed perplexity about the existence of demons.’’ See also Grant, ‘‘Nicole Oresme on Certitude,’’ 32; Thorndike, History of Magic, 3: 438, 466. 35. De config., 352–53. Thorndike, History of Magic, 3: 430. 36. Long, ‘‘Openness,’’ 318–21; Karma Lochrie, Covert Operations: The Medieval Uses of Secrecy (Philadelphia, 1999), 93–98, 131–34; Jolly, ‘‘Medieval Magic,’’ 53– 66. On the strength and persistence of this tradition, see William Eamon, Science and the Secrets of Nature: Books of Secrets in Medieval and Early Modern Culture (Princeton, N.J., 1994), 38–90. 37. On the halting progress of openness as a scientific ideal in the seventeenth century, see Steven Shapin, ‘‘The House of Experiment in Seventeenth-Century England,’’ Isis 79 (1988): 373–404. 38. E.g., Robert Mathiesen, ‘‘A Thirteenth-Century Ritual to Attain the Beatific Vision from the Sworn Book of Honorius of Thebes,’’ in Conjuring Spirits: Texts and Traditions of Medieval Ritual Magic, ed. Claire Fanger (University Park, Pa., 1998), 143–62, esp. 151–56. 39. On the requirements of purity and secrecy, see, for example, Peters, Magician, 110–11; Kieckhefer, Magic, 130–44; Kieckhefer, ‘‘The Holy and the Unholy: Sainthood, Witchcraft, and Magic in Late Medieval Europe,’’ Journal of Medieval and Renaissance Studies 24 (1994): 355–85, at 377–79; and for the private as a sign separating magic from religion, R. Kieckhefer, ‘‘The Specific Rationality of Medieval Magic,’’ AHR 99 (1994): 813–36, at 830. 40. Kieckhefer, Magic, 105–15. 41. Oresme, for example, warns young men to avoid the sight of unchaste women, lest their noble minds be possessed and indelibly polluted, ‘‘and by this rendered unsuitable for religious visions and other studious undertakings.’’ 42. Eamon, Science and the Secrets, 23; McMullin, ‘‘Openness and Secrecy,’’ 14. On connections between Greek law and science in reference to the ideal of openness, see G. E. R. Lloyd, Magic, Reason and Experience: Studies in the Origin and Development of Greek Science (Cambridge, 1979); Lloyd, Demystifying Mentalities (Cambridge, 1990), 60–65. 43. See, for example, De causis, 136–39, 276–79. On this subject, Quillet, ‘‘Enchantements,’’ 322–25; Caroti, ‘‘Oresme’s Polemic,’’ 78–79. Hansen (De causis, 74– 75) notes the history of this rule within scholastic natural philosophy before Oresme. 44. The one notable exception to Oresme’s valorization of the common is his deep suspicion of general rumor or fama. On this, see Thorndike, History of Magic, 3: 454. 45. The literature on the common good is considerable, e.g., Thomas Eschmann, ‘‘A Thomistic Glossary on the Principle of the Pre-eminence of the Common

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Good,’’ MS 5 (1943), 123–65; and more recently for the scholastic precursors to Oresme, M. S. Kempshall, The Common Good in Late Medieval Political Thought (Oxford, 1999). For the connection between the ideal of the common good and the progress of scientific speculation in the thirteenth and fourteenth centuries, see my Economy and Nature in the Fourteenth Century: Money, Market Exchange, and the Emergence of Scientific Thought (Cambridge, 1998), 152–58, 229–31. 46. The richest study of Oresme’s attachment to this ideal is Susan Babbitt, Oresme’s Livre de Politiques and the France of Charles V, Transactions of the American Philosophical Society 75, pt. 1 (1985), esp. 69–97. 47. See Kaye, Economy and Nature, 29–31, 236–44. 48. The judgment is Babbitt’s, Oresme’s Livre de Politiques, 96. Cadden (‘‘Charles V, Nicole Oresme,’’ 223, 30) suggests a broad connection between Oresme’s critique of astrology at the court of Charles V and his championing of the common good. 49. ‘‘Le Roy a voulu, pour le bien commun, faire les translater en franc¸ois, afin que il et ses conseilliers et autres les puissent mieulx entendre.’’ Le livre de Ethiques d’Aristote, ed. A. D. Menut (New York, 1940), Prologue, 99; Babbit, Oresme’s Livre de Politiques, 89. Oresme’s were the very first vernacular translations (with commentaries) of complete works of Aristotle—Ethics, Politics, (Pseudo) Economics, On the Heavens—and as such are among his most noteworthy accomplishments. 50. Politiques, ed. Menut, 78b; Babbit, Oresme’s Livre de Politiques, 84. 51. Politiques, ed. Menut, 112a; Babbitt, Oresme’s Livre de Politiques, 81. 52. The Latin version of this work has been edited and translated by Charles Johnson, The ‘‘De Moneta’’ of Nicholas Oresme and English Mint Documents (London: 1956). For Oresme’s own French translation, Traictie de la premie`re invention des monnoies de Nicole Oresme, ed. Louis Wolowski (Paris, 1864). On the connections between Oresme’s economic thought and political thought around the ideal of the common good, see Denis Menjot, ‘‘La politique mone´taire de Nicolas Oresme,’’ in Souffrin and. Segonds, Nicolas Oresme, 179–93; Cary J. Nederman, ‘‘Community and the Rise of Commercial Society: Political Economy and Political Theory in Nicholas Oresme’s De moneta,’’ History of Political Thought 21 (2000): 1–15; Kaye, Economy and Nature, 155–56. 53. De moneta, chap. 6, 10–11. 54. Dig. 35.2.63; 9.2.33. 55. Ethiques, ed. Menut, 279. See Claire Richter Sherman, ‘‘Some Visual Definitions in the Illustrations of Aristotle’s Nicomachean Ethics and Politics in the French Translations of Nicole Oresme,’’ Art Bulletin 59 (1977): 320–30, at 326. 56. Politiques, ed. Menut, 142a. 57. ST I, II , 90, 2. I have consulted the translation of the Fathers of the English Dominican Province (Westminster, Md.: 1981). See also ST I, II, 90, 4; I, II, 96. 1; II, II, 33, 6; II, II, 58, 1. For the identification of law with the common good in canon law, see Gratian, Decretum, D.4 c.2. 58. ST I, II, 90, 4. For an early statement of this principle in canon law, see the preface to the Pseudo-Isidorian Decretals (c. 850), in Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–1245, ed. and trans. Robert Somerville

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and Bruce Brasington (New Haven, Conn., 1998), 85: ‘‘since although certain things might be true, yet unless they are demonstrated with sure evidence, proven in open investigation, and made public in a judicial proceeding, they ought not to be believed by judges.’’ See also Gratian, Decretum, D.4 dictum post c.3. 59. Cod. 5.59.5.2: ‘‘Quod omnes similiter tangit ab omnibus comprobetur.’’ See also ST I, II, 90, 3. 60. Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley, Calif., 1993), 232–35. Pennington notes (232) that Panormitanus explicitly acknowledges the influence of St. Thomas’s Summa Theologiae on the formulation of his position. See also Joseph Canning, The Political Thought of Baldus de Ubaldus (Cambridge, 1987), esp. 90–100. 61. Politiques, ed. Menut, 372a. Babbitt, Oresme’s Livre de Politiques, 90. 62. For Thomas’s identification of law with training, ST I, II, 95, 1. 63. For the operative distinctions between legal requirements and religious requirements, see Thomas, ST I, II, 96, 2; II, II, 70, 2. For the central role of probability in legal thought, Ilkka Kantola, Probability and Moral Uncertainty in Late Medieval and Early Modern Times (Helsinki, 1994), esp. 35–39. 64. For the importance of degrees, latitudes, aggregates, and probabilities to the protoscientific speculation of the fourteenth century, see Kaye, Economy and Nature, 1 and passim. For their role specifically in Oresme’s thought, Quillet, ‘‘Enchantements,’’ 322–25; Caroti, ‘‘Oresme’s Polemic,’’ 79.

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Contributors

Jessalynn Bird (D. Phil., Oxon.) is an independent scholar. James A. Brundage is Ahmanson-Murphy Distinguished Professor Emeritus of History at the University of Kansas. William Chester Jordan is Dayton-Stockton Professor of History at Princeton University. William J. Courtenay is Hilldale Professor and C. H. Haskins Professor of History at the University of Wisconsin. Patrick Geary is Distinguished Professor of History at the University of California, Los Angeles. Ruth Mazo Karras is Professor of History at the University of Minnesota. Joel Kaye is Associate Professor of History at Barnard College. Henry Ansgar Kelly is Distinguished Professor of English Emeritus at the University of California, Los Angeles. E. Ann Matter is Associate Dean for Arts and Letters in the School of Arts and Sciences and William R. Kenan, Jr., Professor of Religious Studies, University of Pennsylvania. R. I. Moore is Professor Emeritus of Medieval History at the University of Newcastle upon Tyne. James Muldoon is Invited Research Scholar at the John Carter Brown Library and Adjunct Faculty at the Rhode Island School of Design, and Professor Emeritus of History at Rutgers University.

306

Contributors

Alex Novikoff is Visiting Assistant Professor of History at St. Joseph’s University. Edward M. Peters is Henry Charles Lea Professor of History at the University of Pennsylvania. Robert Somerville is Tremaine Professor of Religion and Professor of History at Columbia University. Alan M. Stahl is Curator of Numismatics at Princeton University. Susan Mosher Stuard is Professor Emerita of History at Haverford College. John Van Engen is Andrew V. Tackes Professor of Medieval History at the University of Notre Dame. Stephen D. White is Asa G. Candler Professor of Medieval History at Emory University.

Index

Abelard, Peter, 5, 38–42, 251n.31 abjuration. See exile abortion, 77–78 Accolti, Francesco, 125 Ademar of Chabannes, 36, 44 Ad liberandam, 134–38 Adrian IV, pope, 59 Agnes, empress, 191–92 Alberic of Reims, 143 Albertus Magnus, 226 Albigensian Crusade, 45, 138–40, 146, 151 Alexander II, pope, 184, 186, 193–94 Alexander III, pope, 61, 75, 289n.6 Alexander of Alessandria, 157, 160, 283 n.27, 285n.35 Alexander of Sant’Elpidio, 160–61, 284n.33 Alexias, Saint, 114–15 Alice, widow of Odo of Burgundy, 142 Alice of Cyprus, queen, 140 Amalricians, trial of, 136 Amaury, Arnaud, 146 Amaury de Be`ne, 162, 280–81n.5 American Revolution, 67–68 Ammoneant (canon), 213, 224, 296nn.16–18 Andreae, Johannes, 54, 104 Angelo degli Ubaldi, 124 Angevin Empire, 45, 67, 91 Ango-Saxon law, 6, 89 Angouleˆme (France), 37 Anjou, house of, 37–38, 40, 259n.12 Annales Bertiniani, 119 Anselm of Canterbury, 40, 42 Anselm of Lie`ge, 44 Anselm of Lucca, 183, 186 Anthonius of Acquileia, 112–13 Antonino of Florence, 104 Antonio da Riva, 177 Aquinas, Thomas, 106–07, 112, 297n.24; Summa Theologiae, 107, 236 Aquitaine, duke of, 259n.12

Aragon, 19 Aristotle, 226, 229, 232–33; Ethics, 234–35; Politics, 234, 236; Topics, 75 astrology, 228–29 Augustine, Saint, 189, 211–12, 225; On Christian Doctrine, 217; City of God, 213 Aurell, Martin, 91 Ave beads, 222–23, 298n.47 Avogadori di Comun (state attorneys), 164, 199, 287n.25 Azo (jurist), 51–52 Bacon, Francis, 232 Bacon, Roger, 226–27, 299n.12 Baldus de Ubaldis, 236 baniti (exiles), 23, 28–29 Barbadicus, Angelus, 110 Barbarigo, Filippo, 174–76, 288nn.62, 65, 66 Barbarigo, Maffeo, 175, 288n.62 Barberino, Francesco da, 209 Bartlett, Robert, 80, 88, 91 Bartolomeo (silver striker), 178 Bartolus de Saxoferrato (Bartolo de Sassoferrato), 124–26, 236, 275 n. 41, 276nn. 46, 47 Bautier, R. H., 35, 39 Beatific Vision, 162 Beaumanoir, Philippe de, Coutumes de Beauvaisis, 20, 93 Becket, Thomas, 150 beguines, 104–5 Bellamy, J. G., 90 Benedict IX, pope, 191 Benedictine Rule, 8 Benedictus Levita, 191 Benskin, Michael, 218 Benzo of Alba, 185; Ad Heinricum, 188 Berengar of Tours, 38, 41 Bernard of Clairvaux, 39–40 Bernard of Parma, 53, 76 Bernold of Constance, 186–87, 290n.26

308

Index

Bertaldo, Giacomo, 286–87n.14 Berthold of Carinthia, 187, 290n.26 Beverley (England), 18 biblical justice, 84–85, 190 Black Death, 168, 203 Blanche of Champagne, 136, 142–48 Blois, house of, 35, 37–38 Bologna, 7, 13, 54, 73, 157, 160, 166, 211, 254, 275n.28 Bonet, Guillaume, 152, 282n.11 Boniface VIII, pope: and Celestine V’s resignation, 152–54; Clericis laicos, 153; and Henry of Ghent, 151; and Philip IV, 154–55, 283n.23 Bonizo of Sutri, 186–95; Liber ad amicum, 188–89, 191, 194–95; Liber de vita christiana, 188–89, 193–94; Paradisus, 188–89 Bornstein, Daniel, 203 Bossy, John, 13 Bouvines, battle, 135 Boyle, Leonard, 72 Bracton, Henry de, 20, 89, 93 branding, 23, 28, 247n.33 Brandt, Sebastian, 74 Britton, 93 Brundage, James A., xiv, 120 Bruno of Toul. See Leo IX Bull, Marcus, 194 Burchard of Avesnes, 138 Burchard of Worms, 5, 213 burning at the stake, 34–38, 42–43, 166. See also execution Busch, Johan, 107–8, 110 Byzantium, 190 Caetani, Benedict. See Boniface VIII Caffarini, Thomas (Tommaso di Antonio da Siena), xvii–xviii; exempla, 197; legenda, 197–210; Tractatus, 197, 207 Calixtus II, pope, 184 calumny oath, 50–51, 255nn.20, 22 Canal, Daniele da, 164–66, 177–78 canon law, xii–xviii, 1, 4–5, 7–8, 12, 18, 21, 48, 61, 71–73, 75, 77, 116, 120, 122, 125–26, 134, 148–49, 153, 157–59, 163, 185–-88, 196–97, 208, 210–37, 242nn.16, 20, 253n.5, 256n.31, 264n.31, 275n.33, 283n.27, 298n.2, 302nn.57, 58 Capet, Hugh, 37 capitulare de Latronibus, 81–82

Capra, Benedictus, 125 Caracalla, emperor, 53 Carmen de Timone comite, 82–83 Carolingians, xv, 2, 4, 6, 14, 36, 79–88, 184, 190, 265 Carthusians, 77 Castel Sant’Angelo, 193 Catherine of Siena, 197–98, 204 Cecco d’Ascoli, 299n.14 Celestine V, pope, 152–53 Chanson de Roland, 95, 98–102 Charlemagne, 81–82, 94 Charles I, king of England, 64 Charles V, king of France, 228 Charles the Bald, 119 charms, 221–22 Charter of Massachusetts, 64–67 Chaucer, Geoffrey, xviii, 215–24 Chojnacki, Stanley, 202 Chre´tien de Troyes, Yvain, 94 Cino of Pistoia, 276n. 46 Clagett, Marshall, 229 Clanchy, M. T., 40, 42 Clement III, pope, 75, 193 Clement V, pope, 21–22, 155, 158–59, 161 Clement of Bucy, 42 clergy, definition of, 9 Cluny (France), 8 coinage, 164–79; clipping, 169–71; counterfeiting, 166–69, 286n.12, 287nn.18, 25; crimes against, 167–68, 170–71, 173; crimes within mint, 174–78, culling, 171–73; embezzlement, 173–76; other crimes, 176–78 Cologne, burnings at, 42–43 Comberius, Hugh, 122–29 Comberius, John, 122–29 Commandments, 212, 219, 222 common good, 234–36 common law, xii, 8, 25, 52, 62, 67, 122, 241n.4, 247n.54, 269n.11; diritto comune, 197–98; ius commune, 17, 19, 31, 47, 52, 122 communes, 19, 234 Concordat of Worms (1122), 184 concubinage, 117–29, 273nn.5, 6, 274n.24, 276nn.46, 47 consilium (legal opinion), xvi, 122–23, 125, 197 Constance of Arles, 35 Constantine the Great, 190 Constantius, 190 Constitutions of Cashel, 61

Index Contarini, Giacomo, 166, 286n.12 corporal punishment, xv, 6, 79–84, 86, 170, 179, 263n.11 Corpus Christi monastery, 295n.52 Corpus iuris civilis, xii, 7 corredi (trousseau), 202–3 Council of Basel (1431), 113 Council of Charroux (1028), 44 Council of Chaˆteau-Gontier (1231), 50 Council of Clermont (1095), 194 Council of Constance (1414–18), 105, 108–9, 114 Council of Forty: crimes against coinage, 167–71, 173; crimes against the mint, 175– 76, 178 Council of Mainz (852), 119 Council of Nicaea (325), 190 Council of Reims (1148), 37–38, 40–41, 43, 250n.28 Council of Rouen (1231), 50 Council of Sens (1141), 39–41 Council of Soissons (1121), 41–42 Council of Ten, 168–69 Council of Vienne (1312), 21–22 Courtenay, Peter, 139, 141–42 Crassus, Petrus, 185 Cromwell, Oliver, 63 crusader privileges, 133–48; in Ad liberandam, 136–38; and Erard of Brienne, 142–47; and marriage, 139–40, 145; in Quia maior, 134–36 Crusades. See Innocent III; Jews; individual crusades Cum de quibusdam, 109 Curtius, Franciscus, 124 Daire le Roux, trial, 96–99, 101 Damian, Peter, 186 Dandolo, Andrea, 166 Dante Alighieri, 89 Dati, Gregorio, 121 Davies, John, 260n.24 decretals, 71–73, 264n.31 della Piazza, Gianino, 198–201, 293n.14 De Legibus, 20, 89, 93 Deusdedit, cardinal, 183 Devotio Moderna, 105 See also Modern Day Devout diffidatio (ceremony to break fidelity), 91 Dolley, Michael, 60

309

Dominican Penitent Rule, xvii, 197, 206–7, 210, 292n.1, 294n.49 dos (marriage payment), 119 Dover (England), 25 Duns Scotus, John, 154–55 Durand, William, 53–55 Durand of St. Pourc¸ain, 158 Durand of Troarn, 38 Durham (England), 18 Easter Synod, 38 ecclesiology, transformation of, 8–12 Egyptian magicians, 213–15 Elizabeth I, queen of England, 68 elves and fairies, 220–21 Eon de Stella, 35, 43, 251n.38 Erard of Brienne, xvi, 142–44, 146–47 Erdmann, Carl, 183, 189 Estimo of 1379, 174 Estraordinarii (navigation officials), 175–76 ethics, xiv, 47–56 Eugenius III, pope, 40–41 Everard of Chartres, 35–36, 42 execution, 23, 43, 63, 81, 82, 85, 90, 98–99, 169, 265n.11, 299n.14. See also burning at the stake exile: of Gregory VII, 184, 187–88; as punishment, 18–19, 22–28, 31, 81, 167, 171, 178, 246n.23, 248n.63 Eylard of Schoeneveld, 105–6, 108–9 fashion and dress, 202–5, 210, 295n.51 Ferro, Stefano, 171 feudal law, xii, 90, 134, 136, 138, 142, 146, 259n.9 Fichtenau, Heinrich, 33 Fifth Crusade, 134, 138–39 Finke, Heinrich, 156 First Commandment, 212, 219, 222 First Crusade, 189 FitzGerald family, 63 Fleta, 20. See also Bracton focaria (hearth-mate), 120 Formulae Senonenses recentiores, 86 forum externum (bishop’s court), 13 forum internum (confessional), 13 Fouracre, Paul, 82–83 Fourth Crusade, 139 Fourth Lateran Council (1215), 13, 136–37, 142, 146 Franklin’s Tale (Chaucer), 215

310

Index

Frederick I Barbarossa, Holy Roman Emperor, 289n.6 Frederick II, emperor, 50, 134–35, 140–41, 145–46 Frederick of Utrecht, 105, 108–10 Friedberg, Aemilius, 76, 264n.31; Liber extra, 77–78 Froben, Johannes, 74 Fryde, Natalie, 91 Fulbert of Chartres, 38 Fulk of Neuilly, 139 Galen, 49 Ganelon, trial, 95, 98–102 Ganshof, Franc¸ois Louis, 79 Garlande, Stephen de, 39, 250n.22 Gautier de Gamaches, 160–61 Gauzlin of Bourges, 35 Gerald of Wales, 58–59 Gerard of Bologna, 157, 160 Gerard of Cambrai, 44–45 Gerard of St. Victor, 160 Gerardus de Collauduno, 158, 283n.27 Gerbert of Aurillac, 36 ‘‘Germanic’’ law, 81–82, 86; Lombard law, 242n.11: Visigothic law, 82 Gerson, Jean, 105, 108, 111–12, 116; De perfectione cordis, 113 Gervais of Tilbury, 34 Gervase of Le Mans, 38–39 Gervase of Pre´montre´, 137–38, 140 Giacomello (engraver), 178 gifts, 83, 99, 106, 123, 126, 198–99, 202, 216, 276n.52, 292n.8; inter vivos (legacies), 123, 127 Gilbert de la Porre´e, 40–41, 43 Giles of Rome, 153 Gillingham, John, 90–91 Giovanna of Orvieto, 197 Giovanni de Mercadeli, 170–71 Giudici di Proprio (Judges of Property), 164, 167, 286–87n.14 Glaber, Rodolfus, 36, 45 Glanvill, Ranulf de, 2–4, 7, 89, 93, 241nn.3, 4, 242n.9, 267n.1, 268n.11 Godfrey, duke of Lower Lorraine, 37 Godfrey of Fontaines, 153 Goez, Werner, 187 Gonzaga, Francesco, 200–201 Grabow, Matthew, xv–xvi, 105–16; expositio,

111; Libellus, 106–8, 110–11; sollicitatio, 109–10 Gradenigo, Leonardo, 171 Gradenigo, Pietro, 286n.12 Granius Flaccus, 117 Gratian, 120, 228; Decretum, xviii, 7, 9, 13, 48, 53, 55, 72, 76, 126, 211; Demonium, 212–13; Igitur, 212; Illud, 217; Liber Extra, 7, 13, 262nn.7, 8, 263n.18; Nec mirum, 212; Non liceat Christianis, 212 Gregorian reform, 59–61, 184–88 Gregory VI, pope, 191 Gregory VII, pope, 183–96; Bonizo on, 186–95; Dictatus papae, 184, 187, 289n.4, 290n.26 Gregory IX, pope, 7, 13, 140, 280–81n.5; Decretals, xv, 71–78, 263n.24 Gregory of Tours, 118–19 Groningen, 105–6 Grosseteste, Robert, 222–23 grossi (coins), 166–67, 169, 174, 288n.53 Guarin of Beauvais, 36 Gue´rin of Senlis, 136, 146 Guibert of Nogent, 42 Guillaume de Nogaret, 154 Guillaume de Paris, 155–56 Guillaume de Plaisians, 154 Guillelmus de Sancto Evurtio, 283n.27 Guiscard, Robert, 184, 192 Gundolfo (heretic), 45 Guy of Baisio, xviii; Rosary, 211 Habsburgs, 57 Hanoverians, 67 Hansen, Bert, 229 Hastings, Horace Lorenzo, 76 Hawley, Robert, 248n.70 Helmholz, Richard H., 29 Heloise (abbess), 39, 250n.21 Henry III, emperor, 183–84, 191 Henry IV, emperor, 183–96 Henry V, emperor, 184 Henry II, king of England, 2–3, 135, 150; in Ireland, 58–63, 67–68 Henry III, king of England, 133–34, 140 Henry VIII, king of England, 63 Henry II of Champagne, 140, 143–45 Henry of Essex, 91 Henry of Friemar, 157, 160 Henry of Ghent, 151

Index Henry of Lausanne, 37, 44 heresy, 33–46: Abelard, 39–42; at Angouleˆme, 37; Bernard, 40; Berengar, 38–39; and burning at the stake, 34, 249n.4; at Council of Reims, 40–41; definition, 11; Grabow, 110, 115; at Le Mans, 37; at Orle´ans, 35–38; at Pe´rigord, 45; unlicensed preaching, 44 Herfast, 35–37, 249n.9 Herstal capitulary, 81–82 Herve´ of Nevers, xvi, 137–42, 146–47 Herveus Natalis, 157, 160, 283n.27 Higher Biblical Criticism, 76 Hildebrand, cardinal, 39 Hincmar of Reims, 119 The History of William Marshall, 91–92 Hobbins, Daniel, 106 Hoccleve, Thomas, 223 Holyrood (Scotland), 18 Honorius III, pope, 71–72, 75, 137, 140–42, 145–46 Hostiensis, cardinal, 53, 104 Hrabanus Maurus, 214, 216; De magorum praestigiis, 213 Hugh de Besanc¸on, 158, 283n.27 Hugh of Auxerre, 139 Hugh of Champlitte, 145 Hugh of Cluny, 186–87 Hugh of Langres, 38 Hugh of Lyons, 195 Hugh of Silva Candida, 193 Humbert of Moyenmoutiers, 39 Hunnisett, R. F., 26–27 Hunt, Tony, 218 Huon de Bordeaux, 94 imperial power, 57–68; empires defined, 258n.2; in Ireland, 58–63, 259nn.6, 13, 260n.24; North America, 63–68, 258n.4, 260n.32, 261n.38 Indians, 65–68, 261n.35 infamia (disrepute), 52 Innocent III, pope, 13, 246n.13; Compilatio Tertia, 7; and crusaders, 135–36, 139, 141, 143–46; decretals, 71–72, 75; and University of Paris, 150; Vergentis in senium, 34 Innocent IV, pope, 53 Innocent VII, pope, Sedis apostolicae, 197, 207 Inquisition, 33, 37 investiture conflict, 183–96; Bonizo of Sutri on, 188–95; and Gregorian reform, 184–88

311

Ireland, 58–63, 67–68, 259n.6, 259n.13, 260n.24 Isabella of Jerusalem, 144–45 Ivo of Chartres, 4, 42, 195–96, 213, 292n.57 Jabin, king, 192 Jacobi, Olaf, 110–13 Jacobus de Voragine, Legenda Aurea, 219 Jacques de Molay, 156, 158 Jacques de The´rines, 160–61 Jacques de Vitry, 119, 137, 140–41 Jean de Mont-St-Eloi, 160–61 Jean de Pouilly, 161–62 Jerome, Saint, 9, 213 Jews, 280–81n.5; and crusaders, 135, 139, 142, 144; sanctuary for, 21 Johannes Teutonicus, Compilatio quarta, 77 John XVI, pope, 188 John XXII, pope, 162 John XXIII, pope, 108 John of England, 59, 61–62, 67–68, 91, 133–35, 138–39, 145 John of Fe´camp, 38 John of Galecop, 109–10 John of Ghent, 119, 157, 161 John of God, xviii, 211, 213–15, 218, 224 John of Ripoll, 35 John of Salisbury, 40, 50 Jolliffe, J. E. A., 90 Judas, 89 judicial violence and torture, 79–88; for counterfeiting, 164, 166–67, 170, 287n.18; documentation, 80–81, 86–87; ordeals, 87–88; Theodulf on, 83–86 jurisdiction, xiv, xvii, 5, 7, 8, 13, 17, 19–21, 25, 31, 42–43, 48, 50, 58–61, 64–65, 120, 122, 134–36, 138–39, 142–43, 146, 148, 159, 161, 165, 167, 169–70, 174, 176–77, 261n.37 jury trials, 22, 25, 233, 246n.23 justice, xi, xv, xvii, 1–3, 5, 8, 28, 79, 80–85, 88, 90–91, 98, 142–43, 145, 149–63, 166, 190–91, 235, 265n.2; and poverty, 85–88 Justinian I (emperor), 34, 49, 213; Code, 4, 51, 75, 263n.25; Corpus Iuris Civilis, xii, 7; Digest, 7, 52, 55, 117, 213, 235; Institutes, 3 Kadel, Andrew G., 263n.28 Kasten, Seth, 263n.28 Kesselring, Krista, 31

312

Index

Knights Templar, xvi, 228; and Philip IV, 149, 155–62, 283n.27, 283–84n.28, 284n.29, 284– 85n.34, 285n.35; sanctuary for, 21–22 laity, definition, 9, 12 Landau, Peter, 4–5, 7 Landes, Richard, 37 Lanfranc, archbishop of Canterbury, 60 Lansing, Carol, 275n.28 Lateran Council: (1059), 39; (1215), 13, 136–37, 142, 146 Laudabiliter, 59–62, 65, 259n.13 Laurence of Vallis Scolarium, 157, 160 legal ethics, 47–56; and admissions oaths, 49– 51, 254n.18; and obligations to clients, 51– 56, 256n.30; schools, 47–48 Leges Henrici Primi, 93 Le Mans (France), 37 Leo I, emperor, 51 Leo IX, pope, 184, 191 le`se-majeste´ (treason against the state), 89– 90, 93, 96 Leutard of Champagne, 37 Leutard of Vertus, 44 Levitus, 20, 89, 93. See also Bracton Lex Iulia de adulteriis coercendis, 118 Lex Julia et Papia Poppaea, 118 Leyser, Karl, 185 Liber Augustalis, 50–51 Liber de Servis, 87 Libri secretorum, 232 Lie`ge, burnings at, 42–43 Lisiard of Soissons, 42 litis contestatio (beginning of a lawsuit), 50 Lobrichon, Guy, 45 Loder, Henry, 108 Lord’s Prayer, 212. See also Paternoster Lothar II, 119 Louis the Pious, 86 Louis VI, king of France, 39 Louis VII, king of France, 59 Louis VIII, king of France, 134, 140 Louis IX, king of France, 150 Lucius III, pope, 75 Luis de la Puente, 275n.39 Lyndwood, William, xviii, 212–15, 217, 223–24; Provinciale, 211 MacMurrough, Dermot, 58–59, 259n.7 Maggior Consiglio (Great Council), 167, 169, 171, 174, 176

Magi (Three Kings of Cologne), 211 magic, 211–24; canonists on, 212–15; in Chaucer, 215–24; and medical technology, 218–19; and science, 225–37, 299n.12, 299n.14, 301nn.41, 44 Magna Carta, 67 Maitland, Frederick William, 48, 89–91, 93 Manegold of Lautenbach, 186 Manichees (in Aquitaine), 44 Map, Walter, 35 Marcianus, Aelius, 118 Margaret of Flanders, 138 Margherita of Citta` di Castello, 197 Maria of Venice, xvii–xviii, 197–210 Marmoutier monastery, 87 marriage, 139–40, 145; and concubinage, 117– 29, 273n.5, 275n.28, 276nn.46–47; and Maria of Venice, 197–203, 207–8, 294n.45 Marshall, John, 258n.2 Marshall, William, 91 Martel, Geoffrey, 38 Martin of Braga, Capitula, 212 Martin V, pope, 110 Mason, Emma, 27 Massachusetts Bay Company, 64–67 Mathisen, Ralph W., 261n.43 Matilda of Canossa, 191 Matilda of Tuscany, 184, 192 Mazorana (Giovanni Plaxentio), 164, 166 McKee, Sally, 124 medicinales, 212 meretrix (whore or prostitute), 120 miles (knight or soldier), 127–28 Milo of Saint Florentine, 147–48 Minor Consiglio (Lesser Council), 174 Mint Masters, 173–74, 176–78, 288n.52 The Mirror of Justices, 93 Mocenigo, Nicolo`, 287n.25 Mocenigo, Tommaso, 177 Modern Day Devout, xv–xvi, 105–16 Modern Devotion Lay Movement, 198 Modestinus (Roman jurist), 118 Moore, R. I., xiv, 12–13 Morosini, Fantino, 164–66, 177–78 Mueller, Reinhold, 199 Mulberg, John, 105–7, 113–14 Mu¨ller, Wolfgang, 20, 77 Native Americans. See Indians Navigation Acts, 66, 261n.40

Index Nec mirum (canon), 212–13, 296nn.18–21 Nederman, Cary, 259n.13 Nelson, Janet, 86 Nerra, Fulk, count, 38 Nicholas II, pope, 184, 193–94 Nicholas of Lyra, Postillae, 74, 76 nicolaitism, 11 Normandy, Normans, 21, 23–24, 27, 35–38, 40, 53, 58–63, 89–102, 136, 184, 187, 192–93, 228, 259nn.6, 13, 17, 268n.16, 284n.29; house of, 37–38, 59, 259n.12 Nyder, Johannes, 105, 113–16 O’Conor, Rory, king of Connaught, 61 Odo III, duke of Burgundy, 136–37, 139–40, 142, 146–47 Office of Clipped Grossi, 169, 172 Olde Convent, 105 Oliver of Paderborn, 139 ordeals, 6, 24–25, 27, 30–31, 80, 87 Ordinary Gloss, xviii, 76, 211, 263n.25 ordinatores (crusader lawyers), 137–38, 144 Oresme, Nicole, xviii, 225, 228–37, 300n.26, 301n.41, 301n.44; De causis mirabilium, 229–30, 233, 300n.21; De configurationibus, 229–31, 233, 300n.21; De moneta, 234–35 Orle´ans, burnings at, 35–39 Otis, James, 67 Otto III, emperor, 188 Otto of Brunswick, 135, 145 Our Lady’s Psalter, 223 Oxford, archdeacon of, 220, 222 Panormitanus, 236 Paolino, Fra, The Governance of the Family, 209 papal court, 112 Pape, Gui, xvi, 122–23, 126–29 Parens scientiarum, 150 Paris, bishop of, 150–51 Paternoster, 222–23. See also Lord’s Prayer Paul of Bernried, 186 Paul of St. Pe`re of Chartres, 35–37 Paulus (jurist), 117 payment, 81, 119, 135, 142, 165 Peace of God movement, 21, 44 Peckham, John, xviii, 211, 213–15, 222; Ignorantia sacerdotum, 212; Rosary, 219 Pelagius, cardinal, 140–41 perjury, 55, 89, 97, 100, 173, 185 persecution, 33, 189, 192

313

Peter, bishop of Paris, 136 Peter of Corbeil, 142, 145 Peter, Saint, 115 Peter of Abano, 226 Peter of Benevento, 71–72 Peter of Bruys, 44 Peter of John Olivi, 153 Peter of Paris, 146 Peters, Edward, 35, 46, 92, 225, 276–77n.1, 285–86n.1; The Magician, the Witch, and the Law, 33, 44; Torture, 80 Petronilla, Saint, 223 Petrus Colonna, 152 Petrus de Marigniaco, 283n.27 Phang, Elise, 118 Philip II Augustus, king of France, xvi, 59, 134–39, 141–46, 150 Philip IV, king of France (Philip the Fair), xvi, 22; and Boniface VIII, 151–52, 154–55, 283n.23; and Knights Templar, 149–50, 155–62, 283n.27, 283–84n.28, 284n.29, 284n.34, 284–85n.35 Philip VI, king of France, 162–63 Philip of Namur, 141–42 Philippa of Champagne, 144–45, 147 Piazzetta of San Marco, 168–69 piccoli (coins), 166–67 Pierre d’Ailly, 105, 111, 114, 116 Pierre de Belleperche, 54 Pierre de Saint Omer, 160–61 placita (court records), 80–81, 85–86 Plato, 233 poverty and justice, 85–88 Poynings’ Law, 66 praevaricatio (collusion), 52, 55 precedent, xiv, 56, 122, 133–34, 140, 144, 162– 63, 185–86, 228 prescriptions, 218–19 Properandum, 51 Prose-Lancelot, 94 Pugh, Ralph, 26 Queller, Donald, 202–3 Quia maior, 134–36 Quillet, Jeannine, 229 Radink, Gerard, 105 Radulphus de Haricuria, 283n.27 Radulphus de Hotot, 160–61 Ralph of Coggeshall, 34 Raoul de Cambrai, 94

314

Index

Raymond of Pen˜afort, 13, 73, 76–77 Raymond of Toulouse, 139 religion: and biblical justice, 84–85; and heresy, 11, 34–42; and laypeople, 105–16; transformation of, 8–12, 59–61 Renaud d’Aubigny, 154, 283n.27 Reuter, Timothy, 41–42 Re´ville, Andre´, 23–24, 27 Richard of Clare, 58–60, 63, 67 Richardson, H. G., 90 Richildis, 119 Robert II, king of France, 35–36 Robert of Courson, 134–41, 143–44, 150 Roman d’Alexandre, 95–96 Roman de The`bes, 95–99 Roman law, 82, 86, 235–36; and concubinage, 117–18, 124–25, 127–29; schools, 47–48, 252– 53n.5 Romanus, cardinal, 140 Romeus de Brugaria, 157, 160, 283n.27 rosary, 222–23, 298n.47 Roscelin of Compie`gne, 40–42 Rosenwein, Barbara, 80 Rosser, Gervase, 30 royal justice: and learned opinion, 149–63; and Boniface VIII’s deposition, 154–55, 283n.23; and Celestine V’s resignation, 152–54; and Knights Templar, 155–62; before Philip IV, 149–51, 280–81n.5 Royal Society, 232 Rudolf of Swabia, 187, 290n.26 Sancta Romana, 109 sanctuary, xiii–xiv, 17–32; law of, 20–27, 246n.13; and social reality, 27–32; territory, 17–20, 245n.5; and Westminster Abbey, 22, 27, 246n.27 Sayles, G. O., 90 Schmugge, Ludwig, 121 scholasticism, xviii, 13, 21, 33, 72, 106, 225, 232–34, 236–37, 302nn.43, 45 science, 227–37 scope of the law, 33, 37 Second Commandment, 219 Second Council of Lyon (1274), 51 Sedis apostolicae, 109 Sehok ben Esther, 37 Senate, 164, 172, 174–77, 210, 295n.51 serfs, 11, 21, 87–88 Setton, Kenneth, 285–86n.1

Shakespeare, William, The Tempest, 216 Sicilian oath, 51 Sigebert of Gembloux, 185, 188, 251n.38 Signori di Notte (Night Watch), 164, 167, 169–70 Simms, Katherine, 60 Simon de Guiberville, 161, 283n.27 Simon of Tyre, 138 simony, 11 Sir Gawain and the Green Knight, 216–17 Sisters of Corpus Domini, 207 Sisters of Penance of Saint Dominic, 207 slaves, 123–25, 275n.39 Soranzo, Tomaso, 295n.51 sorcery, 35–37, 96–97, 211, 228 Sorelli, Fernanda, 199, 293n.14 sortilegus (sorcerer), 211 Southern, R. W., 8–9 spells, 221–22 spurii (illegitimate children), 123 Stephen (chaplain to Constance of Arles), 35 Strickland, Matthew, 90–91 Strongbow. See Richard of Clare Stuarts, 63, 67 studium (university), 149 Sturion, Iacoma, 199–203, 207–8 Sturion, Nicolo`, 199–201, 207–8, 295n.52 Suger of St. Denis, 39 sumptuary legislation, xvii, 198–99, 202, 293n.20, 295n.51 superstition, 214–15 Swane, Evert, 111 Swynford, Katherine, 119 Synod of Sutri (1046), 191 Synod of Vercelli (1049), 38 Talmud, 280–81n.5 Tanchelm of Antwerp, 44 Tancred (canonist), 71–72 Tellenbach, Gerd, 10 Templars. See Knights Templar Tenengo, Otto da, 51 terra nullius (land possessed by no one), 65 Teutberga, 119 Theobald, archbishop of Canterbury, 59 Theodore of Tarsus, 213 Theodosian law, 197 Theodulf of Orle´ans, xv; Address to Judges, 83–85; Comparison of Ancient and Modern Laws, 83–86

Index theology, xvi, xvii, 1, 2, 7–8, 12, 13, 55, 73, 74, 110–11, 148–63, 196, 220, 228, 281n.5, 282n.12, 283n.27 Thibaud of Champagne, 139 Thibaud III of Champagne, 142–45 Thibaud IV of Champagne, 143–44, 146, 148 Third Crusade, 135 Thomas de Kent, Le roman d’Alexandre, 94 Thomas of Chobham, Summa confessorum, 198, 208 Thompson, Augustine, 19 Thorndike, Lynn, 299n.12, 300n.26 Three Kings of Cologne. See Magi Tierney, Brian, 186 Tommaso di Antonio da Siena, See Caffarini, Thomas torneselli (coins), 164–65, 178, 285–86n.1 torture and judicial violence, 79–88; for counterfeiting, 164, 166–67, 170, 287n.18; documentation, 80–81, 86–87; and ordeals, 87–88; Theodulf on, 83–86 treason, xv, 28–30, 34, 89–102, 144, 267n.2, 268n.13, 268n.15; in La chanson de Roland, 98–102; Maitland on, 89–90; narrow interpretation, 92–95; and rebellion, 90–91; in Le roman d’Alexandre, 95–96; in Le roman de The`bes, 96–99 True Cross, 221 Tudors, 63, 67 Tyerman, Christopher, 133 Uliva, Monna, 294n.30 Ulpian (Roman jurist), 52, 213 Underground Railroad, 31 University of Orleans, 215 University of Paris, xvi, 228; and Boniface VIII’s deposition, 154–55, 282n.12, 283n.23; and Celestine V’s resignation, 152–54; and Knights Templar, 155–62, 283n.27, 283– 84n.28, 284n.29, 284–85n.34, 284n.35; before Philip IV, 149–51, 280–81n.5 Urban II, pope, 183, 193–95 Valente, Clare, 91 venial sins, 223–24

315

Venice, xvii, 164–70, 197–210, 275n.33: mint, 164, 286n.5; crimes against coinage in circulation, 165–73; crimes within mint, 173–79 Venier, Antonio, 164 Venier, Filippo, 173–74 Verbaal, Wim, 41 vestitae (nuns), 207, 209–10 Ve´zelay monastery, 139–40 victus et vestitus (a living), 198–99, 202 Vincentius Hispanus, 53–54 Vinogradoff, Paul, 47–48 Visconti, Giangaleazzo, 201 Waldrada, 119 Walter of Avesnes, 137–38, 140 War of Chioggia, 174 Watson, Alan, 47 Wazo of Lie`ge, 44 Wealtheof of Essex, 91 Webster, Jill, 19 Wenrich of Trier, 185 wergild, 81, Westminster Abbey, 18, 22, 27, 246n.27 White, Joyce L., 74 whores, 118, 120–21, 129 Wibertines, 192, 194 Wibert of Parma, 192 Wibert of Ravenna, 185, 193 Wido of Ferrara, 185 Wido of Osnabru¨ck, 185 William III, king of England, 63 William Alexandri, 157, 160 William, duke of Normandy, 38, 44 William of Auxerre, 141–42 William of Champeaux, 38 William of Dampierre, 140 William of Lochem, 110 William of Newburgh, 35, 251n.38 William of St-Amour, 151 William, duke of Normandy, 59–60 Windsor, Treaty of, 61 witches, 37, 219 Wyclif, John, 112, 114

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Acknowledgments

The editors thank Alex Novikoff for his help in getting this project off the ground, Jerry Singerman for his encouragement and advice throughout the process, and Jeffrey Hartman for editorial assistance. A large number of scholars who were unable to contribute to the volume nevertheless provided enthusiastic support, among them Bernard Bachrach, Jonathan Boulton, Caroline Walker Bynum, Theodore Evergates, Paul Freedman, Eric Goldberg, Richard Hoffman, Diane Owen Hughes, Alan Kors, Erika Laquer, Jo Ann McNamara, Karl Morrison, Richard Newhauser, Thomas F. X. Noble, James Powell, James Ryan, Michael Ryan, Steven Sargent, Shawkat Toorawa, and Thomas Waldman. We also thank Ed Peters for his friendship, mentorship, intellectual and personal inspiration, and generosity of spirit over the years. His cocontributors unanimously join in dedicating this book to him.